State Consumer Disputes Redressal Commission
Mahesh Kumar Agrawal vs State Bank Of India on 8 February, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No. A/15/1318
(Arisen out of order dated 02/07/2015 in complaint No.309/2014 D.F. Central Mumbai)
Mr.Mahesh Kumar Agrawal
1/8, Railway Officers Quarters
Nesbit Road, Mazgaon,
Mumbai - 400 010. ...........Appellant (s)
Versus
State Bank of India
Dadar Millenium Branch,
Sarifa Mansion,
Swami Gynjiven Das Marg,
Dadar (East), Mumbai - 400 014. ............Respondent (s)
BEFORE:
Usha S. Thakare Presiding Judicial Member
D. R. Shirasao Judicial Member
For the Appellant in person.
Appellant:
For the None.
Respondent:
ORDER
Per Mrs.Usha S. Thakare, Hon'ble Presiding Judicial Member
1. Original complainant/appellant-Mr.Mahesh Kumar Agrawal has filed this appeal to challenge the order passed in consumer complaint no.CC/14/309 on 02/07/2015 by the Learned District Consumer Disputes Redressal Forum, Central Mumbai.
2. By the impugned order the learned District Forum was pleased to allow the consumer complaint partly filed by complainant Mr.Mahesh Kumar Agrawal. The opponent/respondent bank is directed to pay interest from 01/11/2012 till 22/06/2014 to the complainant applicable to Railway Salary Package Account on the balance amount in the account of the 1 complainant at the relevant time. The opponent bank was also directed to pay Rs.10,000/- to the complainant towards costs. The opponent bank was directed to comply the order within a period of one month. The main grievance of the complainant is that the opponent bank is liable to pay interest since 12/08/2008 to 22/06/2014.
3. Facts giving rise to present appeal in short are as under:-
Complainant-Mr.Mahesh Kumar Agrawal had filed consumer complaint under section 12 of Consumer Protection Act, 1986 by alleging deficiency against the opponent -State Bank of India. Complainant opened saving account with the opponent bank on 23/10/2002. The saving account was changed to Saving Plus Account on 12/08/2008. As per the terms and conditions, any surplus fund in the account exceeding threshold limit for a minimum amount of Rs.10,000/- and in multiple of Rs.1000/- are transferred as Term Deposit and earned interest as applicable to Term Deposits. According to the complainant, opponent bank approached to employer of the complainant with a scheme of Railway Salary Package to railway employees. The complainant opened the account on 19/03/2012. His Saving Plus Account was changed to Railway Salary Package account. As per the terms and conditions, there was auto swipe facility -surplus amount in saving bank account is transferred automatically into term deposit in multiple of Rs.1000/-. There was free draft facility. In spite of free draft facility, the opponent deducted the amount towards the draft charges. In spite of Term Deposit Facility, no interest was credited in the account of the complainant. Therefore, he contacted the Branch Manager. The Branch Manager informed that there is problem in service provider and the said problem was corrected on 22/06/2014. Auto generation fixed deposits started operation in the account of the complainant. The complainant made complaint about deducting charges for drafts. However, his complaint was not considered and there was no compliance. As a result, the complaint was filed before the Banking Ombudsman on 01/08/2014 2 through e-mail. The bank submitted reply and admitted that the account was converted to Saving Plus Account on 12/08/2008. The Salary Package Account was opened on 19/03/2012. However, no fixed deposits were generated by the system due to technical problem. It was submitted that bank is ready to refund the draft charges. However, the bank did not pay the interest. Therefore, the complainant was constrained to file consumer complaint to direct the opponent for payment of interest since 12/08/2008 to 22/06/2014 as per Term Deposit. Complainant also claimed amount of Rs.56,400/- towards loss in working time and energy. Complainant claimed compensation of Rs.2 lakhs for mental pain and agony and amount of Rs.15,000/- towards costs of litigation.
4. The opponent bank resisted the consumer complaint by filing written statement and denied all adverse allegations. It is admitted that the complainant's Saving account was converted to Saving Plus Account on 12/08/2008 and then to Railway Salary Package on 19/03/2012. As per condition of this package, account holder is entitled for two free drafts per month with a sealing of Rs.50,000/- on each draft. The bank has refunded the draft charges of Rs.146/- recovered from the complainant and the same is credited into the savings account of the complainant on 27/10/2014. Therefore, the complaint is not maintainable. It is submitted that there was system failure on 12/08/2008 till 22/06/2014. The technical problem was set right on 22/06/2014. The fixed deposit was auto generated. The complainant has not pointed out that Term Deposit was not generated and interest was not paid. Therefore, it was the fault of the complainant. The complainant has claimed interest from 2008. The prayer is barred by limitation and, therefore, consumer complaint is liable to be dismissed.
5. After considering evidence adduced on behalf of both the parties and after giving thoughtful consideration to the arguments advanced on behalf of both the parties, the Learned District Forum was pleased to hold the opponent bank as guilty of deficiency in service. However, the Learned 3 District Forum arrived at the conclusion that the complainant is entitled to claim interest from 01/11/2012 till 22/06/2014 under Railway Salary Package account on the balance amount in the account of the complainant. It was observed that rest of the claim of the complainant pertaining to interest is barred by limitation. Ultimately, Learned District Forum by order dated 02/07/2015 partly allowed the consumer complaint. Direction was given to the opponent bank to pay interest from 01/11/2012 till 22/06/2014 to the complainant applicable to Railway Salary Package Account on the balance amount in the account of the complainant at the relevant time. The opponent bank was also directed to pay Rs.10,000/- to the complainant towards costs of litigation. The opponent bank was directed to comply the order within a period of one month from the date of order.
6. Being aggrieved by this order, appellant has filed this appeal. Heard appellant Mr.Maheshkumar Agrawal in person. None appeared for respondent to argue the matter. It is vehemently argued by the appellant that order passed by the Learned District Forum is partly illegal and incorrect. The Learned District Forum failed to consider that the appellant opened Saving Bank account with respondent bank on 23/10/2002. On request from the officials of the respondent bank, saving account was converted to Saving Plus account. Saving account was changed to Saving Plus account on 12/08/2008. The Learned District Forum rightly held the respondent bank for guilty of deficiency in service but without any sufficient and cogent reason and rejected the claim of interest since 12/08/2008. It is apparent from the fact that the claim of the complainant/ appellant is based on continuous cause of action. For the default of the respondent bank, the complainant /appellant should not suffer. The appellant requested to rectify the order passed by the Learned District Forum by allowing appeal to avoid injustice.
7. The learned District Forum rightly held the opponent/respondent as guilty of deficiency in service. The learned District Forum partly allowed 4 the complaint and directed the opponent bank to pay interest from 01/11/2012 till 22/06/2014 to the complainant applicable to Railway Salary Package Account on the balance amount in the account of the complainant at the relevant time. By filing consumer complaint, complainant/appellant has claimed payment of loss of interest since 12/08/2008 till 22/06/2014.
8. The defence of the respondent bank is that there was a system failure from 12/08/2008 till 22/06/2014. The technical problem was set right on 22/06/2014. The fixed deposit was auto generated. The complainant has not pointed out that Term Deposit was not generated and interest was not paid. Therefore, it was the fault of the complainant.
9. The system was under the control of the respondent bank. It was for the respondent bank to find out the fault and rectify the same. The respondent bank cannot shift liability on the complainant. The defect was rectified on 22/06/2014. In fact, the respondent bank should have rectified the defect earlier. For the fault of the bank, consumer should not suffer. If the system was rectified in time, the complainant should have come to know about non- payment of interest much earlier. Appellant rightly urged that cause of action arose when defect in system was rectified. Auto generated fixed deposit started on 22/06/2014. The appellant realized his loss on 22/06/2014. The cause of action arose on 22/06/2014. Appellant filed consumer complaint within two years from the date of cause of action. We find no hesitation to hold that consumer complaint filed by appellant is based on continuous cause of action. For default of respondent bank, appellant should not suffer. In case of continuing breach of contract or in case of continuing tort, a fresh period of limitation begins to run at every moment of time during which the breach or tort as the case may be continues.
10. It appears that when the complainant raised his grievance by filing complaint application before the bank, it was not acted upon and it was not considered. Ultimately, complainant/appellant filed grievance before the 5 Banking Ombudsman on 01/08/2014 through e-mail. Before the Ombudsman respondent bank filed reply. Appellant submitted that the bank did not pay interest to the complainant/appellant since 12/08/2008 till 22/06/2014, as per term deposit. Therefore, appellant filed consumer complaint.
11. Under the provisions of law remedy is provided to the aggrieved person to approach before the Banking Ombudsman. The claim of the appellant was rejected by Banking ombudsman after considering the say of the respondent bank. After rejection of the claim by the banking ombudsman, the appellant had filed consumer complaint before the learned District Forum. Order of Ombudsman is not filed on record. But it can be gathered that consumer complaint is filed within two years from the date of order of Ombudsman. The grievance was referred before the banking ombudsman on 01/08/2014. The consumer complaint was filed in the year 2014. Considering all these facts, we are of the view that consumer complaint is based on continuous cause of action. It is filed within two years from the date of auto generation of amount. It is well within limitation.
12. The learned District Forum committed an error while upholding that claim of the complainant since 12/08/2008 till 22/06/2014 is barred by limitation. The observation of the learned District Forum is not based on sound reasoning. In fact respondent bank is liable to pay interest to the complainant applicable to Railway Salary Package Account since 12/08/2008 to 22/06/2014 in view of interest as per term deposit. Order is required to be rectified by allowing the present appeal. Complainant suffered loss due to mistake of the respondent bank. He was required to file complaint before the banking ombudsman. He was trying to settle the dispute. Due to loss, he suffered mental pain and agony. His grievance was taken lightly by the bank. The system was rectified on 22/06/2014. The complainant/appellant is entitled for compensation for mental pain and 6 agony. In spite of request, learned District Forum did not consider the prayer of compensation. Certainly, part of order passed by the Learned District Forum is illegal and incorrect. It requires to be set aside by allowing the present appeal.
13. It is to be noted here that the respondent bank filed appeal bearing no.A/15/860 to challenge the impugned order passed in CC/14/309 dated 02/07/2015. It was dismissed in default by order dated 19/01/2018. Respondent bank obtained stay to the execution of impugned order. It is brought to our knowledge that the respondent bank has deposited an amount as per direction of the learned District Forum, before this Commission, while obtaining stay order. Appellant is claiming the amount deposited by the respondent bank. Appeal filed by the respondent bank bearing no.A/15/860 is dismissed for default by order dated 19/01/2018. Appellant is entitled to receive the said amount after revision period is over. With this view, we pass the following order:-
ORDER
1. Appeal bearing no.A/15/1318 is hereby allowed.
2. Order passed by the learned District Forum is hereby set aside. In place of it following order is substituted:-
"i) Complaint no.CC/14/309 is partly allowed.
ii) It is hereby declared that opponent bank is guilty of deficiency in service.
iii) The Opponent bank is directed to pay interest to the complainant from 12/08/2008 to 22/06/2014 applicable to Railway Salary Package Account on the balance amount in the account of the complainant at the relevant time.
iv) The opponent bank do pay to the complainant an amount of Rs.15,000/- towards compensation for mental pain and agony and do pay Rs.10,000/- towards costs of litigation."7
3. Respondent bank had deposited an amount of interest as per direction of the learned District Forum from 01/11/2012 till 22/06/2014. Respondent to deposit remaining interest and amount of compensation within a period of one month from the date of this order. Appellant is entitled to withdraw the amount of interest deposited by the respondent bank in this Commission after revision period is over.
Pronounced on 8th February 2018.
[ Usha S. Thakare ] PRESIDING JUDICIAL MEMBER [ D.R. Shirasao ] JUDICIAL MEMBER Ms. 8