State Consumer Disputes Redressal Commission
Shri Rameshlal Harakchand Singi vs Shri. M.N. Tapikar, Chief Manager (Mktg ... on 18 July, 2011
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. A/10/297
(Arisen out
of Order Dated 15/12/2009 in Case No. 24/09 of District Additional DCF,
Pune)
1. SHRI RAMESHLAL HARAKCHAND SINGI
SHRI VIHAR SOCIETY, SEC-B, BUILDING A-8, FLAT NO.3,
NIGDI, PUNE 411 044
...........Appellant(s)
Versus
1.. SHRI. M.N. TAPIKAR, CHIEF MANAGER (MKTG &
PUBLICITY)
BANK OF MAHARASHTRA,
LOKMANGAL, 1501, SHIVAJI NAGAR, PUNE -5
2. SHRI KISHOR VAZE, GENERAL MANAGER
BANK OF MAHARASHTRA,
PUNE CIRCLE
OFFICE, 1183 A, YASHOMANGAL, F.C.
ROAD, SHIVAJI NAGAR, PUNE - 5
3. SHRI BHALCHANDRA KULKARNI, DY. GENERAL MANAGER,
BANK OF MAHARASHTRA,
PUNE CITY REGION, 1183 A, YASHOMANGAL, F.C. ROAD, SHIVAJI NAGAR, PUNE -5
4. SHRI. V.V. PATASKAR, BRANCH MANAGER,
BANK OF MAHARASHTRA,
KALBHOR BHAWAN, PUNE-MUMBAI
ROAD, AKRUD, PUNE - 35
5. SHRI N.M. CHITALE
MAHESH SAHAKARI BANK, PIMPARI CHINCHWAD
...........Respondent(s)
BEFORE:
Hon'ble Mr.Justice S.B.Mhase PRESIDENT
Hon'ble Mr. D. N. Admane MEMBER
Hon'ble Mr. Narendra Kawde MEMBER
PRESENT:
Appellant in person
Ms Pallavi Khangaonkar, Advocate for Respondent No.s
1 to 4
ORDER
Per Justice Mr. S.B. Mhase, Honble President :
Appellant in person present. Ms. Pallavi Khangaonkar, Advocate for Respondent Nos. 1 to 4 present. Respondent No.5 though served remained absent.
Heard both sides. This appeal is directed as against the order passed by the Additional District Consumer Disputes Redressal Forum, Pune in consumer complaint No. 24/2009 decided on 15.12.2009. By the impugned order, the appellant was directed by the District Forum to pay an amount of `10,000/- to the Respondent No.s 1 to 5 within period of six months.
Being aggrieved by this order, the original complainant has filed this appeal. The respondents in this appeal are the original opponents.
In this appeal, following facts are admitted between the parties :
The appellant/original complainant was having an account No. 14528 with the opponent No. 4 i..e. Branch Manager, Bank of Maharashtra, Akurdi, Pune. Original Opponent No.s 1 to 3 are the respective officers of the Bank of Maharashtra. Opponent No.5 is the Branch Manager of Mahesh Sahakari Bank situated at Pimpri-Chinchwad. Apart from the saving bank account of the complainant above referred, the son of the complainant was also having an account No. 17457 with the opponent No.4, Branch of the Bank of Maharashtra. The dispute between the parties is in respect of the entry effected in the account of the complainant on 31.10.2006.
The son of the appellant/original complainant was desirous of purchasing a flat and therefore, complainants son had entered into an agreement with the Siddha Manas Developers. The said flat was to be purchased for an amount of `8,51,025/- . As against the agreement, son of the appellant had paid `85,025/- to the said Siddha Manas Developers. But subsequently, Siddha Manas Developers and the son of the appellant cancelled the said agreement mutually and therefore, Siddha Manas Developers agreed to return the amount received under the agreement viz. `85,025/- to the son of the appellant. The account of the said Siddha Manas Developers was/is with the opponent No. 5 i.. Mahesh Sahakari Bank and since it was agreed between the said developer and the son that the amount is to be returned, the said Siddha Manas Developers has drawn a cheque of `85,025/- in the name of the son of the appellant on 30.10.2006. But it appears that the Siddha Manas Developers has not given the said cheque directly to the son of the appellant. Instead of handing over the said cheque to the son of the appellant, the said Siddha Manas Developers deposited the said cheque with the opponent No.4 by a pay-in-slip attached to the said cheque. The said pay-in-slip is signed by the persons of the Siddha Manas Developers. However, on the said pay-in-slip, the Siddha Manas Developers should have stated the account number of the son of the appellant but they committed a mistake either intentionally or malafiedly and on that pay-in-slip, saving account number of the appellant was/is stated. Since the pay-in-slip showed the account number of the appellant, the opponent No.4 credited the said amount of `85,025/- in the saving account of the complainant. This mistake committed by them was brought to the notice of the complainant on second day. Since this was not an amount of the complainant, complainant also conveyed by an application that this amount may be debited to this account and may be returned to the Siddha Manas Developers. Therefore, the demand draft was drawn in favour of the Siddha Manas Developers for an amount of `85,025/-. The said demand draft was taken by opponent No.4 so as to transmit it or hand over to the Siddha Manas Developers. Subsequently, the complainant noted that even though the demand draft has been taken by them and the acknowledgement has been given to the complainant by the opponent No.4, opponent No.4 has not transmitted the said demand draft to the Siddha Manas Developers upto 5.12.2006.
Therefore, having found no action on the part of the Bank to return the said amount to the Siddha Manas Developers, the complainant requested the Bank to credit that amount in his account and thereafter, the complainant has transmitted the said amount and also additional amount, total amount of `2,75,025/- to the Siddha Manas Developers. That was done by the complainant on 6.11.2006. The said amount was accepted by the Siddha Manas Developers and according to the complainant, the complainant has sent the original amount and additional amount so that the flat which was booked by the son of the complainant shall be available to the complainant and his son, they being members of the same family. However, Siddha Manas Developers had sent that amount by cheque to the son of the complainant and thus the said amount is credited in the account of the son of the complainant. In the result, the grievance of the complainant is that the flat which he was to purchase, he could not purchase it and thus because of the lapse on the part of the original opponent No.s 1 to 4, he suffered loss of flat and therefore, he filed the present complaint claiming deficiency in service on the part of the opponent No.s 1 to 4.
The above referred facts are on record.
Only dispute on the part of the Bank is that the Bank was not aware of the fact that there was transaction of sale and purchase of a flat between the complainant and the Siddha Manas Developers. The case made out by the Bank is that the entry of a cheque of `85,025/- made on 31.10.2006 was incorrect and the Bank has accordingly intimated to the complainant. Bank wanted to correct that entry and therefore, demand draft was drawn with the consent of the complainant. They accepted that the demand draft was given to the officer of the opponent No.4 by the complainant so as to transmit it to the Siddha Manas Developers.
They also accepted that till 5.11.2006, the said cheque/demand draft was not transmitted to the Siddha Manas Developers. It was stated that on 6.11.2006, the cheque of `2,75,025/-
drawn from the account of the complainant was given by the complainant to the Siddha Manas Developers and the said amount was deducted from the saving bank account of the complainant. Therefore, there is only ignorance in respect of the transaction of the flat purchasing.
Under these circumstances, after the complainant has realized that there is a deficiency in service on the part of the opponent No.s 1 to 4, complainant has made complaint to the Reserve Bank of India and Reserve Bank of India ultimately informed to approach any Court or any Forum by letter dated 7.5.2009 and thereafter, the complainant has filed this complaint. Apart from the above grievance made by the Bank, Bank also made one more grievance viz. so-called transaction claiming deficiency in service on the part of the Bank is of the period 31.10.2006 and the complaint has been filed on 12.2.2009 and therefore, the complaint is barred by limitation.
The grievance of the complainant is with the Reserve Bank of India. In respect of the transaction, he wanted certified copy of the cheque so as to approach Consumer Disputes Redressal Forum. In short, he wanted documents, those were not provided and directions were not given to the opponent to supply documents by Reserve Bank of India and directed complainant to file complaint. Complainant find that Reserve Bank of India did not help him and he filed complaint on 12.2.2009.
Therefore, under these circumstances, we have to consider the validity of the order which was passed by the Consumer Disputes Redressal Forum. The Consumer Disputes Redressal Forum has observed that the complainant has failed to satisfy the Consumer Disputes Redressal Forum on the point of limitation and while considering this, Consumer Disputes Redressal Forum considered that the Reserve Bank of India has communicated on 15.10.2008 that his grievance cannot be entertained and the complainant shall approach to the appropriate Court or other Forum and thus, has concluded that there is a delay but it has not been explained. In fact, it is admitted position on record that after the disputed transaction, the complainant wanted necessary documents before filing the complaint. Those documents were not given by the opponent No.s 1 to 4. Therefore, complainant filed an application to the Reserve Bank of India on 18.3.2007. That application was disposed of by the Reserve Bank of India by letter dated 7.5.2009 communicating to the complainant that he shall file appropriate proceedings. Prior to this communication, complaint was already filed on 12.2.2009. It appears that at the subsequent stage of the proceedings, complainant has also submitted an application. It appears that alongwith said complaint, an application was submitted by the complainant which was prior to 9.2.2009 and presented alongwith the complaint wherein he has prayed for condonation of delay in filing the complaint.
Apart from the facts stated in respect of the Reserve Bank of India proceedings, he has further stated that on 13.11.2003, he had undergone coronary bye-pass surgery and therefore, he was a heart patient and on this ground also, he claims condonation of delay. What is important in view of this application on record that District Forum ought to have decided this application but there is no such order passed by the District Forum on this application. Apart from that to file a complaint, necessary documents are necessary and if the basic documents are not made available in spite of complainant approaching to the Reserve Bank of India, a person/consumer is handicapped to file a complaint. In fact, Bank of Maharashtra which is public sector and national undertaking of the Government, should have been informed to supply necessary documents on payment of fees to supply copies to the consumer and more specifically to the customer who has account with them. Under the Bankers Book Account Act, the Bank is under legal obligation to supply the copies of the transaction to the customer and the account-holder. It is an admitted position till this Commission specifically direct them to produce the account and the supporting documents in respect of the entries in the account books, the Bank did not produce those documents before any Forum. The opponent to produce necessary documents and Reserve Bank of India also in spite of proper direction has to supply necessary documents, disposed of application of the complainant stating to approach appropriate Forum for getting grievances redressed. This conduct on both the Banking institutions of the Central Government is not in consonance with the statutory provisions and the rights of the customers vis--vis the consumers and therefore, if the consumer who is undergone bye-pass surgery and who is a retired person desires to have a flat in town and therefore, trying to have transaction with the builder/developer, is put to the inconvenience due to conduct of the Bank and therefore, it does not lie in the mouth of the Bank to say that the complaint is barred by limitation. On the contrary, all the types of transactions operated by Bank by not supplying copies of original documents to the consumer and depriving him to exercise rights to file the complaint under the Consumer Protection Act. Why copies were not supplied to him and why these documents were not produced by the Bank before the District Forum , has been not also explained. Thus, what we find is that the present consumer is handicapped to file complaint because of non-cooperation by the Bank and therefore, we hold that in all probability, as early as possible, the consumer tried to approach the District Forum for Redressal and also sought to get condone the delay and therefore, the ground that the complaint is not within limitation has no substance and hereby stands rejected, since we find the delay which technically occurred, is satisfactorily explained.
Next question is that the cheque was deposited by the Siddha Manas Developers wrongly in the account of the complainant when the complainant was not supposed to get that amount. The amount of the said cheque was to be received by the son of the complainant who had separate account with the opponent No.4. It is very interesting to note that the mistake was committed by the builder while filling the pay-in-slip by wrongly stating the account number of the complainant but when the cheque is to be credited and when the Bank should have noticed that the cheque is not drawn in favour of the complainant and therefore, the Bank should have further scrutinized the cheque in order to find out whether there is an endorsement made by the payee of the said cheque in favour of the complainant.
The cheque is a negotiable instrument. It is an admitted position that this cheque of `85,025/-
was not negotiated by the son of the complainant in the name of the complainant and therefore, the bank should not have credited that amount in the account of the complainant and should have put up an objection to that effect and return the cheque to the depositor viz. the Siddha Manas Developers. This is deficiency in service on the part of the Bank.
Instead of correcting entry, a mistake committed by them, they called up by the complainant informing this mistake and obtained a letter from him so as to demand draft can be drawn in his account and amount sent to the builder. Here what we have to note that the conduct of the consumer is fair and clean. He gave an application and also drawn cheque in the name of his son and handed over to the opponent No.4 so as to he should transmit it to the Siddha Manas Developers. When demand draft is drawn and handed over to the opponent No.4 so as to transmit it to the Siddha Manas Developers, there should have been a debit entry of the said amount in the account of the complainant.
This was not effected. Not only that but till 5.11.2006, said demand draft was not handed over and transmitted to the Siddha Manas Developers and therefore, it is found that the bank is not doing anything so as to clear the transaction and undo the erroneous omissions or commissions.
What is important to be taken into consideration is that here is consumer/customer who having find certain amount wrongly credited in bank and he has come forward to draw a demand draft from his account and handed over to the office of the bank-opponent No.4. Opponent No.4 who has failed to and not given that demand draft to the concerned builder/developer. Having found that the complainant collected that demand draft and issued a fresh cheque to the builder/developer, therefore, we do not find any fault with the complainant. On the contrary, we find that having realized the mistake or not taking entry in his account, he has supported opponent No.4 by giving an application to draw demand draft from his account. This conduct on the part of the bank shows sub-standard service of bank and deficiency in service on the part of the bank.
Submissions by the bank that the said amount of `2,75,025/- which was paid by the complainant to the Siddha Manas Developers is of in consequence so far as bank is concerned. The stand of the bank that there were other cheques which were to be honoured and therefore, he maintained credit of this amount is not correct. There were no cheque drawn and issued by the bank to the third party which was payable by the complainant. On the contrary, cheques were issued by the complainant so as to return amount which was wrongly credited in his account.
While doing that, he transmitted more money to that party. Therefore, this is a complete case of failure on the part of the bank rendering appropriate service. This process of correction of entry is not according to the law and the banking practices to be followed in respect of the course of wrong entries in the account-holder and especially, when the account-holder is not party to the wrong entry. This is case wherein the complainant was not responsible for wrong entry being effected in his account.
In respect of the order of the District Forum, it is directed to the complainant to pay the amount of `10,000/- to the opponent No.s 1 to 5, we find that there is no role of the opponent No.5. Except cheque of opponent No.5 issued by the Siddha Manas Developers, there is no involvement of opponent No. 5. Opponent No.5 was joined as party to the complaint only by way of proper party and there was no claim/relief claimed against them. Therefore, the order which was passed in favour of the opponent No.5 was not sustainable. Not only that, the opponent No. 5 has remained absent before the District Forum though served and they are also absent before the State Commission and therefore, order has been set aside so far as opponent No.5 is also concerned.
Therefore, we come to the conclusion that this case is a case of failure on the part of the bank in rendering appropriate service. Service rendered was deficient and sub-standard service and the act of the bank is covered by deficiency in service under the Consumer Protection Act.
Under these circumstances, District Forum ought to have allowed the complaint. Apart from this deficiency in service, a demand draft was drawn and again credited in his account and some other cheques required to be issued, the commission has been deducted from the account of the consumer and on this account `172/- charged to the consumer and paid to the bank which the bank is under obligation to return it to the complainant.
Further, instead of upholding the grievance of the complainant, District Forum directed the complainant to pay `10,000/- to the opponent No.s 1 to 5 by way of compensatory cost.
Compensatory cost is also directed because District Forum found facts in respect of the complaint which was jointly filed by the complainant and his son as against the builder the Siddha Manas Developers was suppressed. The District Forum has taken into consideration order dated 31.8.2007 in the said complaint. What we find that the finding recorded by the District Forum that there is suppression of material facts by the complainant, is wrong. The fact that the complainant has filed complaint against the Sidda Manas Developers is not a material fact for the decision of this complaint because grievance is against the Siddha Manas Developers in respect of the flat to be purchased, delivery in possession of the flat and that the complaint was based on the agreement of the complainant and his son with the Siddha Manas Developers. The facts in respect of those transactions are brought in the present complaint by referring that in what manner and under what circumstances, a cheque of `85,025/- was issued. However, they were not the material facts on the basis of which the District Forum has to consider whether relief granted under the present complaint is granted or not. The material facts are those facts that which if not brought on record, the relief which is not claimed, may not be granted and/or will be granted. The suppression of the material facts contemplates suppression and suppression shall resulted into getting relief which otherwise complainant would not have been got. Dismissal of complaint with the builder/developer has nothing to do with the account entries effected in the complainants account by opponent bank.
It is important to note that when the reliefs are granted, on finding that the complaint is vexatious on, District Forum was under obligation to issue notice to the complainant, calling him to show cause. It is concluded by the District Forum that it is vexatious complaint and it imposed cost of `10,000/-. The District Forum is ignoring the fact that section 14 of the Consumer Protection Act, 1986 also permits District Forum to impose cost and also either dismiss it or impose cost on the other side but not the costs as levied. Therefore, the order imposing any cost of `10,000/- is not sustainable in law as against the complainant.
Thus, we allow the appeal and set aside the order which is passed by the District Forum. Since we have found that there is deficiency in service on the part of the bank, complaint is required to be allowed.
Next question which has been considered is quantification of the compensation/damages payable to the complainant. What we find that the amount `85,025/- which was wrongly entered in the account of the complainant was ultimately returned by the complainant to the Siddha Manas Developers as discussed in the earlier part of this order. But for the return of this amount, complainant has to do all this exercise and in this exercise, complainant has to suffer inconvenience.
The simple thing was mad very complicated because of the conduct of the opponent and he has to approach the Reserve Bank of India for his Redressal. He was required to file complaint in the District Forum and District Forum has given him 7 to 8 dates which he attended.
Thereafter, his complaint was dismissed and he filed present appeal. There were also 7 to 8 dates and for attending, he was coming from Pune to Mumbai. Therefore, we quantify `10,000/- as compensation for mental agony which the complainant has suffered from 2006 till today, `10,000/- as expenses and also of work he has suffered for attending the dates in District Forum and State Commission. Since the appeal has been allowed, amount which has been deposited by the complainant at the time of filing appeal in the Commission, be return to the complainant. Some original cheques and documents were produced before the Commission today, office is directed that the Xerox copies verified by the Registrar, shall be maintained on record and original cheques and documents shall be returned to the bank. Therefore, we pass the following order :
O R D E R
1. Appeal is allowed.
2. Impugned order passed by the Additional District Consumer Disputes Redressal Forum, Pune is hereby quashed and set aside.
3. Complaint filed by the complainant is partly allowed.
4. The opponent No.s 1 to 4 are hereby directed to pay the amount of `172/- which was taken by them by way of compensation to draw the demand draft in favour of the builder/developer for correcting of wrong entry in the saving bank account of the complainant made by the opponent No.s 1 to 4.
This amount should be paid within a period of 30 days and if not, opponents will have to pay penal interest @ 15% p.a. Accordingly, appeal is disposed.
Pronounced dated 18th July 2011.
[Hon'ble Mr.Justice S.B.Mhase] PRESIDENT [Hon'ble Mr. D. N. Admane] MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER aab