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2014 DIGILAW 498 (UTT)

HARDEV KUMAR v. ORIENTAL BANK OF COMMERCE

2014-10-28

B.C.KANDPAL, D.K.TYAGI

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ORDER (Per: Mr. D.K. Tyagi, Member): These two appeals, one by the complainant and another by the opposite party, under Section 15 of the Consumer Protection Act, 1986, are directed against the judgment and order dated 28.09.2011 passed by the District Forum, Haridwar in consumer complaint No. 269 of 2006, whereby the District Forum has allowed the consumer complaint and directed the opposite party to pay to the complainant a sum of Rs. 7,00,000/- from the date of deposit till the date of final payment alongwith 8% interest within one month from the date of order and has also directed the opposite party to pay Rs. 10,000/- as damages to the complainant. 2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that there is savings bank account No. 9838 of the complainant Sh. Hardev Kumar with the opposite party–Oriental Bank of Commerce, Branch Kharkhari, Haridwar. The complainant do construction work as a contractor in the name of Panesar Construction, for which he receives amount through cheques and drafts and also pay amount through cheques. The complainant received a cheque No. 772404 dated 05.09.2005 for a sum of Rs. 4,00,000/- of Punjab National Bank, Railway Road, Haridwar from Baba Lal Ji, Dhyanpur Charitable Trust, Khankhal, District Haridwar, which was deposited by him in his bank account at opposite party. The complainant issued a cheque No. 581918 dated 29.03.2006 for a sum of Rs. 6,50,000/-, which has been returned by the Bank to the complainant showing insufficient fund in his account. The complainant received a demand draft No. 112693 dated 08.08.2005 for a sum of Rs. 3,00,000/- of Punjab National Bank, Hoshiyarpur from Maa Bhaageshwari Dhaam, Haridwar, which was to be withdrawn at Punjab National Bank, Apar Road, Haridwar. On 10.08.2005, the complainant also deposited this draft in his bank account at opposite party, but the opposite party did not credit the same in his savings bank account. The complainant made a complaint before the opposite party-bank, who has informed the complainant through two letters dated 30.03.2006 and 26.04.2006 respectively, that on receiving the complaint, an inquiry is going on, but no action has been taken by the bank and the said amount was not deposited in the complainant’s savings bank account. The complainant sent a complaint to the Reserve Bank of India in this regard. The complainant sent a complaint to the Reserve Bank of India in this regard. When the complainant inquired in the Punjab National Bank, Railway Road, Haridwar about a cheque of Rs. 4,00,000/- and also inquired in the Punjab National Bank, Apar Road, Haridwar about a demand draft of Rs. 3,00,000/-, then they informed him that the clearance of cheque of Rs. 4,00,000/- and draft of Rs. 3,00,000/- have been sent to the opposite party–Oriental Bank of Commerce, Haridwar. The complainant came to know that the officers of the opposite party have misappropriated the amount of his cheque and draft by transferring the amount in other account, for which the opposite party is responsible. The complainant has alleged that this act of the bank comes under the deficiency of service, due to this the complainant suffered a mental, physical and economical loss. The complainant suffered a loss of Rs. 7.00 lacs, for which the opposite party be directed to pay a sum of Rs. 7.00 lacs with interest and Rs. 1.00 lac for mental, physical and economical loss and Rs. 15,000/- towards litigation expenses. 3. The opposite party has filed its written statement before the District Forum and pleaded that it is admitted that the savings bank account of the complainant is running with the opposite party. It is also admitted that the cheque and draft of Rs. 4,00,000/- and Rs. 3,00,000/- were cleared from the Punjab National Bank, Railway Road, Haridwar and Punjab National Bank, Apar Road, Haridwar respectively. The opposite party has stated that the official of the opposite party namely Sh. Rajpal Singh Aswal and the complainant had conspired to usurp the amount of the bank. Sh. Rajpal Singh Aswal was giving undue advantage to the complainant, for which an inquiry was conducted by the bank and it was came in the light that Sh Rajpal Singh Aswal was posted as Special Assistant and had made several irregularities in several accounts between the year 2000 to 2005. It was disclosed on 12.11.2005 after the death of Sh. Rajpal Singh Aswal. After inquiry, an F.I.R. against Sh. Rajpal Singh Aswal and his wife was lodged on 18.12.2005. After investigation, the police department close the case and final report was submitted in the court. During inquiry, it was found that Sh. Rajpal Singh Aswal had transferred Rs. It was disclosed on 12.11.2005 after the death of Sh. Rajpal Singh Aswal. After inquiry, an F.I.R. against Sh. Rajpal Singh Aswal and his wife was lodged on 18.12.2005. After investigation, the police department close the case and final report was submitted in the court. During inquiry, it was found that Sh. Rajpal Singh Aswal had transferred Rs. 1,50,000/- from the complainant’s account to his own account, for which the complainant was called in the bank on 30.11.2005, who had told the bank that Sh. Rajpal Singh Aswal transferred the money only on his direction. At the same time the complainant–Sh. Hardev Kumar also gave in writing that the balance amount of his account is Rs. 1662.16, which is correct. The complainant and Sh. Rajpal Singh Aswal were running parallel banking activities and the complainant had already received his money through Sh. Rajpal Singh Aswal. The complainant made complaint about his two cheques amounting Rs. 3.00 lacs and 4.00 lacs respectively after seven months. During this period, the complainant use to come in the bank, but he never complained that the amount of Rs. 3.00 lacs and Rs. 4.00 lacs were not credited in his savings bank account. Rs. 3.00 lacs was misappropriate by Sh. Rajpal Singh Aswal, which was received from Punjab National Bank. It was misappropriated with the help of Sh. Hardev Kumar–the complainant. But Sh. Rajpal Singh Aswal deposited the cash on 17.10.2005 in account No. 9838. Again Sh. Rajpal Singh Aswal misappropriate other cheque of Rs. 4.00 lacs with the help of Sh. Hardev Kumar–the complainant. Sh. Hardev Kumar-the complainant also received the amount of Rs. 4.00 lacs. An F.I.R. was lodged against Sh. Rajpal Singh Aswal. The police after investigation submitted the final report. There is no deficiency on the part of the opposite party. The complainant has received his total amount and he confirmed it on 30.11.2005. 4. The District Forum on an appreciation of the material on record allowed the consumer complaint vide order dated 28.09.2011 in the above terms. Rajpal Singh Aswal. The police after investigation submitted the final report. There is no deficiency on the part of the opposite party. The complainant has received his total amount and he confirmed it on 30.11.2005. 4. The District Forum on an appreciation of the material on record allowed the consumer complaint vide order dated 28.09.2011 in the above terms. Not satisfied with the relief awarded by the District Forum, the complainant has filed the First Appeal No. 217 of 2011 for enhancement and whereas aggrieved by the said order, the opposite party has filed First Appeal No. 334 of 2013 for setting aside the impugned judgment dated 28.09.2011, wrongly written as 30.09.2011, passed by the District Forum, Haridwar and also for dismissal of the consumer complaint. 5. We have heard learned counsel for the parties and also perused the material placed on record. 6. There is no dispute with regard of savings bank account of Sh. Hardev Kumar–complainant running in the opposite party-bank. There is also no dispute that the complainant deposited a cheque No. 772404 dated 05.09.2005 for a sum of Rs. 4.00 lacs of Punjab National Bank, Railway Road, Haridwar and also a demand draft No. 112693 dated 08.08.2005 for a sum of Rs. 3.00 lacs of Punjab National Bank, Apar Road, Haridwar in the opposite party-bank. It was an official of the opposite party-Bank Sh. Rajpal Singh Aswal, who either did not credit the amounts of cheque and draft of the complainant in savings bank account of the complainant or misappropriate the said money. This official of the opposite party expired in the year 2005 and after his death, the bank lodged an F.I.R. against Sh. Rajpal Singh Aswal alongwith his wife for misappropriation of money and some other frauds committed by him during his life time. The respondent-bank admitted in its written statement that on 30.11.2005, when the complainant was called in the bank he had given in writing that the balance amount of his savings bank account is only Rs. 1662.16 paise, which is correct. The bank has also mentioned in its written statement that the amount of Rs. 4.00 lacs and 3.00 lacs were already deposited in the complainant’s savings bank account. Even then the Learned District Forum has mentioned in the impugned order dated 28.09.2011 that there is no evidence regarding deposition of Rs. 4.00 lacs and Rs. 1662.16 paise, which is correct. The bank has also mentioned in its written statement that the amount of Rs. 4.00 lacs and 3.00 lacs were already deposited in the complainant’s savings bank account. Even then the Learned District Forum has mentioned in the impugned order dated 28.09.2011 that there is no evidence regarding deposition of Rs. 4.00 lacs and Rs. 3.00 lacs respectively in the complainant’s savings bank account and no official of the bank, who credited this amount in the complainant’s savings bank account, came before the District Forum and had not stated on oath for the same. Therefore, the impugned judgment dated 28.09.2011 was passed in the manner that the opposite party-bank should pay Rs. 7.00 lacs from the date of deposition of this amount till the date of final payment alongwith 8% interest within one month from the date of order. Aggrieved by the said order, the appellant-complainant Sh. Hardev Kumar preferred the First Appeal No. 217 of 2011. 7. The appellant has not mentioned in the grounds of appeal that in compliance of the impugned order or earlier, the opposite party-bank has not deposited or credited the amount of Rs. 7.00 lacs alongwith interest or compensation awarded by the District Forum. This shows that the bank has already complied with the directions passed by the District Forum in the impugned order. 8. So far granting the rate of interest @ 8% is concerned the learned District Forum has not mentioned whether the rate of interest is simple interest or compound interest. In the present circumstances of this case, we are of the view that the rate of interest awarded by the District Forum is on a higher side, as the existing rate of interest in the banks is near about 6% to 7% simple interest and not more on savings bank account. So far the amount of compensation granted towards mental pain and agony is concerned, we are of the view that as the complainant–appellant is getting his money alongwith interest, therefore, granting damages against mental agony is not justified. The District Forum is not justified to grant 8% interest per annum as well as damages to the appellant-complainant. So far the amount of compensation granted towards mental pain and agony is concerned, we are of the view that as the complainant–appellant is getting his money alongwith interest, therefore, granting damages against mental agony is not justified. The District Forum is not justified to grant 8% interest per annum as well as damages to the appellant-complainant. Therefore, the impugned judgment and order dated 28.09.2011 passed by the District Forum requires modification regarding rate of interest and in these circumstances we are of the view that the rate of interest on the amount of Rs. 7.00 lacs should be 7% per annum simple interest and the impugned order regarding the amount of damages to the tune of Rs. 10,000/- is liable to be set aside. Therefore, this way the appeal bearing No. 217 of 2011 filed by the complainant-appellant is modified and the rate of interest is reduced to 7% per annum. The order of granting damages is set aside. 9. With the result, the First Appeal No. 217 of 2011 for enhancement of amount of compensation is dismissed. 10. So far the appeal filed by the appellant-opposite party bank bearing First Appeal No. 334 of 2013 is concerned, the appellant-bank itself admitted that the complainant has already received the entire amount of alleged two instruments from Sh. Rajpal Singh Aswal. From the perusal of the impugned order, it is evident that though in written statement the bank stated that the entire amount has been received by the complainant, but no evidence either in the form of affidavit of any employee of the bank who credited the amount in the complainant’s account has been filed or no such document or statement of account placed before the District Forum, therefore, it was held that the bank has not deposited or credited the amount in the complainant’s account. So far the cause of action is concerned the complainant is the account-holder of the opposite party-bank, so he is the “consumer” of the bank and he can file the consumer complaint before the District Forum against any deficiency of service on the part of the opposite party-bank. So far the jurisdiction of the District Forum is concerned, the opposite party-Oriental Bank of Commerce, branch Kharkhari is situated in District Haridwar and the cheque of Rs. 4.00 lacs as well as the demand draft of Rs. So far the jurisdiction of the District Forum is concerned, the opposite party-Oriental Bank of Commerce, branch Kharkhari is situated in District Haridwar and the cheque of Rs. 4.00 lacs as well as the demand draft of Rs. 3.00 lacs were cleared by two banks situated in Haridwar city. Therefore, the District Forum, Haridwar has jurisdiction to decide the matter. The opposite party-bank is a service provider to the complainant, therefore, the consumer complaint filed by the complainant before the District Forum was also maintainable. So far the case of fraud is concerned, the appellant bank has lodged F.I.R. against the bank’s employee Sh. Rajpal Singh Aswal after his death and also against his wife. That matter might be pending before the Criminal Court, but so far the matter before the District Forum is concerned the complainant was competent to file the consumer complaint, as the complainant is a “consumer” of the bank. Therefore, the District Forum has jurisdiction to decide the matter summarily. The First Appeal No. 217 of 2011 filed by the complainant-appellant has ended into dismissal as the impugned order is modified up to the extent that the opposite party-Oriental Bank of Commerce shall pay 7% simple interest per annum and the order of granting damages to be set aside. Therefore, the appeal filed by the opposite party-Bank bearing No. 334 of 2013 is partly allowed. 11. For the reasons aforesaid, the First Appeal No. 217 of 2011 filed by the complainant-appellant is dismissed and the First Appeal No. 334 of 2013 filed by the opposite party-appellant-bank is partly allowed. Rest of the impugned order is confirmed. Costs of the appeals made easy. 12. Let the copy of this order be placed in the file of First Appeal No. 334 of 2013.