State Consumer Disputes Redressal Commission
P.C.Thankamma vs Perinthalmanna Urban Co-Operative on 23 January, 2014
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/13/317 (Arisen out of Order Dated 05/02/2013 in Case No. 38/2006 of District Malappuram) 1. P.C THANKAMMA & OTHERS W/O KUTTISANKARAN MENON, MUTHALPURAYIDATH KALATHIL HOUSE, PERINTHALMANNA ...........Appellant(s) Versus 1. THE SECRETARY, PERINTHALMANNA URBAN COOPERATIVE BANK LTD AND OTHERS PERINTHALMANNA, MALAPPURAM ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL No.317/2013
JUDGMENT DTD :23.01.2014
( Appeal filed against the order in CC.No.38/06 on the file of CDRF, Malappuram order dated : 05.02.2013)
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.V.V.JOSE : MEMBER
1. P.C.Thankamma,
W/o.Kuttysankaran Menon,
Muthalpurayidath Kalathil house,
Puzhakkattiri Amsom, Desom,
Perinthalmanna Taluk
2. P.C.Muraleedharan
S/o.Kuttysankaran Menon,
Muthalpurayidath Kalathil House, APPELLANTS
Puzhakkattiri Amsom, Desom,
Perinthalmanna Taluk
3. P.C.Girija,
Kuttisankara Menon,
Muthalpurayidath Kalathil House,
Puzhakkattiri Amsom, Desom,
Perinthalmanna Taluk
(By Adv.Thiyyannoor Ramakrishnan &
Associates, Thrissur)
Vs.
1. The Secretary,
Perinthalmanna Urban Co-operative,
Bank Ltd.No.1758, Main Branch, RESPONDENTS
Perinthalmanna,
Malappuram District
2. The Branch Manager,
Perinthalmanna Urban Co-operative
Bank Ltd.No.1758, Main Branch,
Perinthalmanna,
Malappuram District
3.Sri.P.C.Narayandas,
M.C.L.R.A.138,
Musfom Cross Lane, RESPONDENTS
12th Street, Chembukkavu,
Thrissur - 20
4.Dr.P.C.Santha,
D/o.Kuttysankaran Menon,
Muthalpurayidath Kalathil House,
Puzhakkattiri Amsom, Desom,
Perinthalmanna Taluk,
Malappuram District - 670 322
(By Adv.C.Sreedharan Nair, Manjeri
JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER Appellants were the additional complainants in CC.No.38/2006 in the CDRF, Malappuram. K.Kuttisankara Menon was originally the complainant. On his death during the pendency of the complaint additional complainants 2 to 4 (the appellants) and opposite parties 3 & 4 were impleaded. They were the legal heirs of Kuttisankara Menon. The allegations in the complaint were that Kuttisankara Menon was a customer of the first opposite party Urban Co-operative Bank. He had with the bank various term deposits and savings bank accounts. One of the fixed deposits was bearing Account No.005546 (No.19569) dated 22.10.2003 due to mature on 10.10.2004. The said deposit receipt had a maturity value of Rs.3, 10,000/-. The complainant was residing alone and a person by name Sanoj was helping him during a period of two months in his daily affairs. While so on 11.10.2004 Sanoj absconded from duty and nothing was heard of him thereafter. On 03.04.2005 it came to the notice of Kuttisankara Menon that cheque leaf bearing no.0043209 was missing from the cheque book issued by the opposite parties in the account of the complainant bearing no.1352. On inspection of records of deposits it was revealed that deposit receipt bearing No.005546 was also missing. Therefore the complainant made enquiries with the second opposite party. He informed that one Vishnu had encashed the fixed deposit receipt on 11.10.2004 and had withdrawn a sum of Rs.3, 00,000/-. The complainant did not know Vishnu nor had he any connection with Vishnu. Someone had impersonated and forged the signature of the complainant on the fixed deposit receipt and cheque leaf and the opposite parties did not take reasonable care caution and diligence and were not vigilant as expected from a banker while dealing with the funds of their customers. They had fraudulently and dishonestly allowed fabrication of documents by forgery and it has resulted in loss of Rs.3,00,000/- from the deposit of the complainant. The opposite parties are trustees of the customers with regard to the deposits with them. Opposite parties could not give a satisfactory and cogent reply. They failed to pay the complainant the sum of Rs.3, 00,000/- despite demand. Hence the complainant issued notice through his lawyer to them on 01.03.2006. The opposite parties sent reply denying the allegations against them. The complainant honestly believed that without connivance and co-operation of the opposite party's concerned staff with self styled Vishnu, the amount could not have been withdrawn. The action of disbursing Rs.3, 00,000/- on the basis of forged documents and signatures to unauthorized persons by the opposite parties is a unfair trade practice and it also amounts to deficiency in service on their part. Hence the complainant sought payment of Rs. 3, 00,000/- due as per FDR No.005546 with interest and compensation.
2. In their joint version opposite parties 1 & 2 contended that the complainant was not a consumer under the provisions of the Consumer Protection Act. They admitted that Late Kuttisankara Menon was an account holder of t he opposite parties. They also admitted that cheque leaf no.0043209 was issued to him at his request. According to the opposite parties they had not rendered any service to the complainant or received any consideration from him. They further contended that there was no difference in hand writing and signature in the fixed deposit receipt and cheque leaf and there was no negligence in disbursing the amounts. They further contended that the complainant did not inform the bank about the missing of either the fixed deposit receipt or the cheque leaf from the custody of the complainant. There was no chance to miss the cheque leaf or the FD receipt because the complainant sent those receipt and cheque leaf with his own instruction that too on the n ext day after maturity date of the FD receipt. It is the bounden duty of the complainant to keep safely, the FD receipt and cheque leaf and should have immediately informed the bank if they were actually missing. The records revealed that complainant had withdrawn all his deposits strictly in accordance with written and authenticated directions. No amount was disbursed based on forged signatures on stolen FD receipt and cheque leaf. The amount covered by the fixed deposit was credited to the SB account of the complainant on maturity and the same was withdrawn by the complainant through cheque bearing no.K0043209. Subsequently he had withdrawn the balance amount from his account. Even on that occasion the complainant neither challenged nor informed about the withdrawal of Rs.3,00,000/-. After withdrawing the amount the complainant is making false allegations. He had filed complaint before the Deputy Superintendent of Police, Perinthalmanna and Crime No.564/2005 was registered under section 420 IPC against his worker. At that time no allegation was raised against the opposite parties. The complaint is devoid of merit.
3. After additional opposite parties 3 & 4 were impleaded they filed version supporting the allegations in the complaint.
4. Before the District Forum the additional 4th complainant gave oral evidence as PW1. Exts.A1 to A30 were marked on the side of the complainants. Three witnesses were examined on the side of the opposite parties as DWs 1 to 3. Exts. B1 to B8 were marked on their side. The disputed FDR and cheque leaf were sent for expert opinion along with admitted documents. The report of the expert was marked as Ext.X1.As per the impugned order, the District Forum found that deficiency in service on the part of the opposite parties was not established and accordingly dismissed the complaint. The correctness of the order of the District Forum is under challenge.
5. Admittedly deceased Kuttisankara Menon was an account holder of the opposite party bank. He had with the bank several fixed deposits. One of the fixed deposits bearing no.005546 dated 22.10.2003 (Ext.A1) is the cause of complaint. The said deposit was due to mature on 10.10.2004 and had a maturity value of Rs.3,10, 000/-. The complainant has not marked his pass book in evidence but a photocopy of the pass book of SB account no.13552 in the name of Kuttisankara Menon is found among the records forwarded from the District Forum. It is seen from the entries in the pass book that an amount of Rs.3,11, 2156/- was credited in to the account of the complainant on 11.10.2004. That was on the next day after maturity of the FDR. On the same day an amount of Rs.3,00,0000/-, is seen withdrawn by one Vishnu.P.T. This as seen already was using cheque leaf no.00432019 issued to the deceased complainant himself. A balance amount of Rs.32, 837/- was left in the account of the deceased complainant as on 15.10.2004. It is further seen that on 15.10.2004 the deceased complainant had withdrawn Rs.31,000/-.The allegation that fraud was played on the deceased complainant is raised only with regard to the withdrawal of Rs.3,00,000/-. It is quite evident that the amount covered by the fixed deposit receipt in question on maturity was credited to the SB account of the deceased complainant and the major portion of the amount was withdrawn as per Ext.A2 cheque leaf in the name of the complainant on 11.10.2004 itself. In both Exts.A1 and A2 the name Kuttisankara Menon is written. His signature is also seen in both the documents. The allegation as seen already is that Vishnu who allegedly withdrew the amount was not known to the deceased complainant. Someone has impersonated and forged the signature of the complainant in withdrawing the amount. The allegation against opposite parties 1 & 2 is only that no reasonable care caution and diligence expected from a banker were taken by them while disbursing the amount. The complaint is also based on the belief that the staff of the opposite parties had connived and co-operated with the person self styled as Vishnu in disbursing the amount. So it is incumbent on the complainant to establish that there was lack of diligence on the part of opposite parties 1 & 2 and connivance on their part in order to sustain the allegation of deficiency of service. The question is whether complainants have succeeded in doing so.
6. The several circumstances in deciding this question are the following. As indicated earlier even in the complaint the allegations are that one Sanoj was helping the deceased complainant for a brief period and that he absconded from duty thereafter. The missing of cheque leaf and the FD receipt came to the notice of the deceased complainant nearly four months thereafter. There is absolutely no explanation under what circumstance. Exts.A1 and A2 went missing from his custody. But those documents were produced before the bank with the alleged signatures of Kuttisankara Menon, the deceased complainant himself. It is relevant that the FDR was produced for encashment the very next day after maturity. It is true that the amount was seen disbursed to One Vishnu. But that perse is not sufficient to hold that forgery of the signature of the deceased complainant was committed. It is also pertinent to notice that the alleged culprit got the SB account number of the deceased complainant. So apparently some person close to him received the amount .If as a matter of fact FD receipt or cheque leaf goes missing the first reaction of the customer would be to inform the bank about the missing or stealing of the document. This was not the case here. Apparently the deceased complainant withdrew Rs.31,000/- four days later when actually the deposit should have been more by Rs.3,00,000/-. It is difficult to believe that the deceased complainant was not aware of the earlier withdrawal of Rs.3, 00,000/- from his account. It is also pertinent to notice that when the deceased complainant filed criminal complaint based on which Ext.B1 first information report was registered his complaint was only against Sanoj. There was no allegation at all against opposite parties 1 & 2. It is further seen that the police could not identify the culprit and accordingly closed investigation. This is quite possible because someone withdrew the amount with the consent of the deceased complainant.
7. The main circumstance that remains to be considered is Ext.X1 report submitted from the Forencic Science Laboratory, Thiruvananthapuram. The disputed writings and signature marked as Q1 to Q3 ( in Exts.A1 and A2) were compared with the standard signatures marked as S1 to S5 and the conclusion was that the questioned items exhibited significant differences with the standard items in general writing characteristics such as speed, movement and rhythm. The differences in writing characteristics found between the questioned and standard items were significant and beyond the range of natural variation. So the opinion was that the collective occurrence of those differences in the questioned items was only due to the different authorship and not due to any intended disguise.
8. It is pertinent to mention that Ext.X1 is opinion evidence regarding the signatures only. The execution of the commencing stroke subsequent wavy strokes and terminal stroke were found to vary with the standard items. But to a nacked eye this difference is not very significant. In a bank only the signature will be compared with the specimen signature before disbursing the amount and bank employees certainly do not compare the signatures to the extent an expert does . Added to this the deposition of PW1 the daughter of deceased complaint is relevant, It appears from her evidence that Mr.Kuttisankara Menon was in the habit of appointing managers both men and women. Some of them were very close to him and weilded his confidence. It was his practice to take with him such persons in whom he had confidence while going to the bank. PW1 admitted that the bank is bound to disburse the amount in case the signature tallied, if there was cash in the account and if the person who came to encash the cheque had with him bearer cheque. Admittedly there was no intimation to stop payment on the ground that the FD receipt was missing. In fact, the amount covered by the FDR was credited to the SB account and thereafter withdrawn. The purported signature of Kuttisankara Menon does not show any significant difference recognizable by an ordinary prudent person. So the cumulitative circumstances lead to the inevitable inference that the complainants have not succeeded in establishing that the disputed amount was disbursed due to any act of opposite parties 1 & 2 amounting to deficiency in service. It follows that the appeal is devoid of merit and is accordingly dismissed but without costs.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
V.V.JOSE : MEMBER
Be/
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER