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2018 DIGILAW 1913 (HP)

ICICI Bank Ltd. v. C. p. Aysha

2018-11-01

RANJIT R., S.S.SATHEESACHANDRAN, T.S.P.MOOSATH

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JUDGMENT T.S.P.Moosath, Judicial Member. - The second opposite party in CC.No.02/12 of the Consumer Disputes Redressal Forum, Kasaragod, in short, the district forum has filed the appeal against the order passed by the district forum by which they were directed to refund an amount of Rs 4, 00, 000/- with interest at the rate of 12% per annum from 06.10.2010 onwards, to pay compensation of Rs 50, 000/- to the complainant together with cost of Rs 5000/-. 2. The averments contained in the complaint filed by the complainant are in brief as follows. The first opposite party approached the complainant and introduced himself as an employee of the second opposite party and canvassed for investment of amount in mutual funds run or sponsored by the second opposite party. The complainant went to the office of the second opposite party and verified more details from there and after being satisfied, invested the amount through first opposite party who used to collect amounts from customers and invest the same in mutual funds. On 15.03.2008 the complainant gave a cheque for Rs 2, 00, 000/- and Rs 2, 00, 000 in cash to first opposite party for investment in mutual funds in the name of the complainant through the scheme sponsored by the second opposite party. Towards the end of 2009 the complainant wanted to redeem some of the funds and the first opposite party offered to do all what is necessary in the matter. He brought the applications and obtained the signatures of the complainant in them. The complainant had to leave for USA on 13.04.2010 and the first opposite party assured that the amount invested would be redeemed by the time the complainant returned from USA. Thereafter returning from USA the complainant made enquiries and realized that the first opposite party has not remitted Rs 4, 00, 000/- which was entrusted by the complainant to deposit in mutual funds through the second opposite party, but made false entries through internet in the accounts of the complainant and made her to believe that the amount was invested with the second opposite party. There was deficiency in service by opposite parties. The complainant sustained loss of Rs 4, 00, 000/- and the acts of the opposite parties caused mental agony to her. Notice to the first opposite party was returned unserved and hence notice was published in newspaper and he was set exparte. There was deficiency in service by opposite parties. The complainant sustained loss of Rs 4, 00, 000/- and the acts of the opposite parties caused mental agony to her. Notice to the first opposite party was returned unserved and hence notice was published in newspaper and he was set exparte. The second opposite party filed version raising the following contentions. The complaint is not maintainable. The complainant has not paid any amount to the second opposite party and the second opposite party is bank and they are not dealing with mutual fund business. The opposite party had worked with the second opposite party as a temporary employee up to July 2009. The entire transactions as alleged in the complaint were between the complainant and the first opposite party and the second opposite party has no connection with those dealings. The second opposite party has no knowledge regarding the transactions between the complainant and the first opposite party. There is no deficiency in service on the part of the second opposite party as alleged by the complainant. The complainant is not entitled to get any relief against the second opposite party. 3. The husband of the complainant was examined as PW1 and Exts. A1 to A11 were marked on the side of the complainant. The Branch Manager of the second opposite party was examined as DW1 and Exts.B1 & B2 were marked on their side. After considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order. Aggrieved by the order passed by the district forum the second opposite party has filed the present appeal. 4. Heard both sides. Perused the records. 5. According to the complainant the first opposite party approached her and introduced himself as an employee of the second opposite party and canvassed for investment of amount in mutual funds, run or sponsored by the opposite party no.2. The complainant, after verification of the details from the office of the second opposite party and after being satisfied, invested amounts through the first opposite party who used to collect amounts from customers and invest the same into the mutual funds. The complainant, after verification of the details from the office of the second opposite party and after being satisfied, invested amounts through the first opposite party who used to collect amounts from customers and invest the same into the mutual funds. According to the complainant on 15.03.2008 she gave a cheque for Rs 2, 00, 000/- and Rs 2, 00, 000/- in cash to the first opposite party for investment in mutual funds in the name of the complainant in the schemes sponsored by the second opposite party. The complainant wanted to return the investments since she had to leave U.S.A on 13.04.2010. At that time the first opposite party assured that the amounts invested would be redeemed by the time she returned from U.S.A. After return from U.S.A the complainant made enquiries and realized that the first opposite party has not remitted Rs 4, 00, 000/- which she had entrusted to the first opposite party for deposit in mutual funds.Second opposite party made her to believe that the amountswere invested with the second opposite party, and, she had sustained loss of Rs 4, 00, 000/-. The first opposite party was exparte. In the version filed by the second opposite party, they have not specifically denied the statement of the complainant that she had given Rs 4, 00, 000(Rs 2, 00, 000 by way of cheque and Rs 2, 00, 000/- in cash) to the first opposite party and their contention is that they have not received any amount from the complainant. The husband of the complainant was examined as PW1 and Exts.A1 to A11 were marked on the side of complainant. PW1 gave deposition in tune with the statements made in the complaint by the complainant and he deposed about the payment of Rs 4, 00, 000 by complainant with the first opposite party. In cross examination of PW1 his statement that his wife, complainant had entrusted Rs 4, 00, 000/- with the first opposite party was not challenged. In Ext.A1 the entrustment of the cheque for Rs 2, 00, 000/- dated 10.03.2008 by the complainant with the first opposite party is noted. The district forum, considering the deposition of PW1 and the documents produced by the complainant, especially Exts. In Ext.A1 the entrustment of the cheque for Rs 2, 00, 000/- dated 10.03.2008 by the complainant with the first opposite party is noted. The district forum, considering the deposition of PW1 and the documents produced by the complainant, especially Exts. A1, A2 and A4 to A6, came to the conclusion that the complainant has proved that she had entrusted Rs 4, 00, 000/- with the first opposite party for investment in mutual funds and he has misappropriated the same. We consider that there is no reason / ground to interfere with the finding of the district forum regarding that aspect. The district forum also found that the complainant entrusted the amounts with the first opposite party as an employee of the second opposite party to be invested in the mutual funds of the second opposite party and the first opposite party accepted the amounts from the complainant for and on behalf of the second opposite party and so the second opposite party is vicariously liable for the acts of the first opposite party and there was deficiency in service on the part of the opposite parties 1 & 2. The said findings are challenged by the appellant in the present appeal. It is the case of the second opposite party that they have not accepted any amount from the complainant and the complainant had directed transaction with the first opposite party and hence they have no liability regarding the transactions between the complainant and the first opposite party. It is the case of the second opposite party that they are not doing any mutual fund business. Ext.A8 is a publication made by ICICI bank in which they announced investments and mutual funds as part of their business. In Ext.A3 Account statement of Reliance mutual fund, in the name of the complainant, the name of the broker is stated as ICICI bank limited and the branch address is given as that of the second opposite party. In Ext.A3 the sub broker code mentioned is that of the first opposite party. In Exts. A4 to A6 also the broker s name is stated as ICICI Bank. Exts. A3 & A8 shows that the contention of the second opposite party that they are not doing business of mutual funds is false. 6. In Ext.A3 the sub broker code mentioned is that of the first opposite party. In Exts. A4 to A6 also the broker s name is stated as ICICI Bank. Exts. A3 & A8 shows that the contention of the second opposite party that they are not doing business of mutual funds is false. 6. The main contention of the appellant / second opposite party is that the entire transactions were done by the complainant with the first opposite party and the loss alleged to have sustained by the complainant is due to the fraudulent misappropriation by the first opposite party in which the appellant was never a party. Therefore, the fraudulent act of the first opposite party even if he was an employee of the appellant cannot mulct the appellant with any responsibility of having committed deficiency of service. In Para 2 of the complaint it is stated by the complainant that the first opposite party approached her and introduced himself as an employee of the first opposite party and canvassed investments of amounts in mutual funds run or sponsored by the second opposite party and complainant went to the office of the second opposite party and after verifying more details and after being satisfied invested the amount through the first opposite party who used to collect amounts from customers to invest the same mutual funds. PW1 gave deposition regarding these aspects. It is to be noted that in the version filed by the second opposite party they have not specifically denied the statements of the complainant that the first opposite party was their employee. In the version filed by the second opposite party it is stated that the first opposite party worked under them as a temporary employee up to July 2009. In Ext.A3 the Account statement of Reliance mutual fund in the name of the complainant, the name of the broker is stated as ICICI bank and sub broker code is stated as 5082098. In Ext.A4 also the name of the broker is stated as ICICI bank and sub broker code is stated as 5082098. Ext.A10 shows that code no.5082098 was given to the first opposite party by the second opposite party, bank. In Ext.A4 also the name of the broker is stated as ICICI bank and sub broker code is stated as 5082098. Ext.A10 shows that code no.5082098 was given to the first opposite party by the second opposite party, bank. Exts.A3 to A8 show that first opposite party was acting as an agent of the second opposite party for collecting amounts from the customers to be invested in the mutual funds of the second opposite party. So the second opposite party cannot contend that they are not responsible for the alleged misappropriation of the amounts by the first opposite party. As found by the district forum the second opposite party is vicariously liable for the misappropriation of the amount by the first opposite party since he had received amount from the complainant for and on behalf of them and since the complainant had entrusted the amount with the first opposite party as he was an employee of the second opposite party. In Indian Iron Steel Co.Ltd Vs Bihar State Electricity Board and others, 2004 KHC 3775 it was held that the bank is liable to compensate the loss and damages caused to the petitioner due to the negligence and mistake committed by the officer and employees of the bank. In that decision it was held that master is liable to third person for injury or damages done through the negligence or unskillfulness of a servant acting in his master s employment. The reason of this is that every act which is done by a servant in the course of his duty is regarded as done by his master s orders and consequently it is the same as if it were the master s own act. If a servant does negligently that which he was authorized to do carefully or if he does fraudulently that he was authorized to do honestly, or if he does mistakenly that he was authorized to do correctly, his master will answer for that negligence, fraud or mistake. In Haryana Gramin Bank and Another V.Madan Lal, 2011 KHC 5304 it was held that appellant bank is vicariously is liable for wrong doingsof its staff resulting in monetary loss to the respondent / complainant. In Haryana Gramin Bank and Another V.Madan Lal, 2011 KHC 5304 it was held that appellant bank is vicariously is liable for wrong doingsof its staff resulting in monetary loss to the respondent / complainant. In the light of the dictums laid down in the above cited decisions and considering the facts and circumstances of the case it can be seen that there is nothing to interfere with the finding of the district forum that the second opposite party is vicariously liable for the acts of the first opposite party and there was deficiency in service on the part of the both opposite parties. It is submitted by the counsel for the appellant that even though the district forum found that there was deficiency in service on the part of the opposite parties 1 & 2, the direction to refund the amount of Rs 4, 00, 000/- was made against the second opposite party only. It is true that the district forum directed the second opposite party only to refund the amount of Rs 4, 00, 000/- but the second opposite party / appellant after payment to complainant can very well realize that amount from the first opposite party. We find that the compensation and cost ordered by the district forum is just and reasonable and no interference is called for regarding the compensation and cost ordered by the district forum. For the above reasons, the appeal is to be dismissed. In the result, the appeal is dismissed Parties are directed to suffer their respective costs.