State Consumer Disputes Redressal Commission
The Manager State Bank Of India Chennai- ... vs Rathnasamy S.F.G No.30A, Halls Road, ... on 7 March, 2011
9BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru S. SAMBANDAM MEMBER II F.A.NO.115/2010 (Against order in C.C.NO.109/2008 on the file of the DCDRF, Chennai (North) DATED THIS THE 7th DAY OF MARCH 2011 The Manager State Bank of India Park Town Branch Chennai- 600 003 Appellant/ Opposite party Vs. Rathnasamy S.F.G S/o. Susainathan (Senior Citizen) Shobanapriya Apartments, 1st Floor No.30A, Halls Road, Kilpauk Chennai- 600 010 Respondent/ Complainant The Respondent as complainant filed a complaint before the District Forum against the opposite party praying for the direction to the opposite party to pay a sum of Rs.75/- which was debited by the opposite party, alongwith 18% interest, to pay Rs.60/-, to pay a sum of Rs.90000/- towards compensation. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.19.01.2010 in CC. No.109/2008. This petition coming before us for hearing finally today. Upon hearing the arguments of the appellant counsel for the appellant, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order in the open court: Counsel for the appellants/ Opposite parties: M/s. P.D. Audikesavalu, K.Kumaran M. THANIKACHALAM J, PRESIDENT (Open court) 1.
The opposite party is the appellant.
2. The respondent in this appeal, as complainant, filed a case against the opposite party/bank, alleging certain deficiencies, claiming certain reliefs, as detailed in paragraph 6 of the complainant, which was opposed on various grounds.
3. The District Forum, after going through the affidavits and averments, passed an order on 19.1.2010, wherein complaint was allowed, issuing certain directions, which is under challenge, before this commission.
4. From this commission, notice was taken to the complainant / respondent, which was returned as the addressee deceased. Thereafter the appellant, filed a memo, with the death certificate of the complainant, by name S.F.G.Rathnasamy, which would disclose, that the complainant died on 21.5.2009, i.e., after filing the complaint, before pronouncing the order.
5. Unfortunately, the death of the complainant was not intimated to the District Forum, and the District Forum proceeded, as if the complainant was alive, since the argument was heard on 9.12.2009, the fact being even before that, the complainant died on 21.5.2009. Therefore, we cannot find fault with the District Forum, for passing an order, on the complaint filed by the complainant, though he died subsequently. It is not the case of pronouncing order, after hearing, judgement reserved, then the complainant expired, whereas it is proved fact, at present, that before the case was taken for hearing, before the District Forum, reserved the order, before pronouncing the order, the complainant died on 21.5.2009 itself, thereby showing an order was passed in favour of the dead person, which should be construed as non est, is the submission of the learned counsel for the appellant, which we are unable to disagree.
6. The learned counsel for the appellant also, brought to our notice, the judgement of the Apex Court in Chinna Gounder & Ors. Vs. Periya Gounder & another, in Civil Appeal No.4317/2000, wherein also, this kind of situation had arisen, ofcourse in the appellate stage, and when the matter reached the Apex Court, the Apex Court has observed, that when the appeal was abated, the High Court, should not have passed an order, which dictum is applicable to the present case also. From the dates quoted above, it is clear that on the date of passing the order, of the District Forum on 19.1.2010, already complaint abated, and therefore, when the complaint ought to have been dismissed as abated, without knowing the date of death, the District Forum has opposed an order, and the said order, in the eye of law, should be construed as non est, and in this view, the order of the District Forum is liable to be set aside, as one passed in favour of a death person.
7. If the complainants legal heir is aggrieved, liberty is given to move the Forum or elsewhere, as the case may be, to work out their remedy as available under law, and with this observation, giving liberty to the complainants legal heir, we are inclined to set aside the order of the District Forum, against one passed the dead person, that too, after abatement.
8. In the result the appeal is allowed, setting aside the order o the District Forum in CC.No.109/2008, dt.19.1.2010, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposited Receipt, made by way of mandatory deposit, to the appellant, duly discharged S.SAMBANDAM M. THANIKACHALAM MEMBER II PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/Open court-