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Judgment
M. Shreesha, J
Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act") is to the order dated 10.06.2014 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (for short "the State Commission") in First Appeal No. 134 of 2010. By the impugned order the State Commission has dismissed the Appeal preferred by the Complainants and concurred with the findings of the District Consumer Disputes Redressal Forum, Chennai (North) (for short "the District Forum").
Briefly stated, the facts of the case are that the Complainants were having separate SB Accounts with the First Opposite Party (hereinafter referred to as "SBI") and on 23.01.2007 the First Complainant deposited an amount of Rs. 2,53,963/-. While so, on 08.02.2007 he came to know that an amount of Rs. 80,000/- was withdrawn on 02.02.2007 by using forged signature withdrawal slip. Likewise, the Second Complainant came to know that an amount of Rs.40,000/- and Rs. 25,000/- were withdrawn on 29.01.2007 and 31.1.2007 once again by using a forged withdrawal slip and a sum of Rs. 30,000/- was deposited on 02.02.2007. It is averred that even this amount was not actually deposited by the Second Complainant. When this fact was brought to the notice of SBI, the Complainants were asked to give a police complaint. The Complainants sent a letter dated 23.02.2007 to both the Opposite Parties by certificate of posting. Thereafter on 06.03.2007, the Complainants gave a Police Complaint on 14.03.2007 to Commissioner of Police, Egmore Chennai. Thereafter, on 29.03.2007, the Complainants sent a detailed letter by R.P.A.D. and called upon the SBI to recredit a sum of Rs. 1,45,000/- withdrawn from the Complainants' account by way of his forged signatures. Since the Complainants did not receive any reply to their letters, a legal notice dated 12.04.2007 to re-credit a sum of Rs. 80,000/- and Rs. 65,000/- to the First and Second Complainants' accounts was issued. SBI replied vide letter dated 20.04.2007 denying all the allegations.
The Complainants sent a rejoinder dated 30.04.2007 that only when the Complainants presented the pass book for entry on 08.02.2007 did they come to know of the said transactions. In the Complaint, it was pleaded that the Second Complainant never signed the withdrawal slip used by the third party Mrs. R. Kala. The First Complainant also denied that the withdrawal slip was signed by him which were withdrawn by the third party Mr. C.Babu. The Complainants denied that they even knew the said Mrs. R. Kala and C. Babu. It was also stated that they had never handed over the pass book to any third party.
It was averred that as per the Bank Rules, the withdrawal form should be used only by the account holder accompanied by the pass book and no third party is permitted to withdraw the amount. The Bank should not accept withdrawal slips from third party. SBI does not deny that the signatures were forged and did not tally with the specimen signatures. Vexed with the attitude of the bank officials in not re-crediting the amount, the Complainants who were husband and wife approached the District Forum seeking the following reliefs:-
i) pay a sum of Rs. 1,19,600/- with interest at 12% p.a. on Rs. 1,15,000/- from the date of complaint till date of payment;
ii) pay the compensation of Rs. 25,000/- towards mental agony for deficiency in service;
iii) pay the Litigation expenses at Rs. 10,000/- and
iv) pass such further or other relief which this Hon'ble Forum may deem fit, just and equitable and thus render justice.
SBI filed its Written Version stating that both the Complainants have been maintaining Savings Bank Account with them from 03.08.1999. While they were having cheque facility, on certain occasions the Complainants had withdrawn money from their accounts by issuing withdrawal slips and such withdrawals had been entered in their passbooks. The Bank had paid the amount under the withdrawal slip only after satisfying themselves with the signatures of the account holders. SBI admits that on 02.02.2007 a sum of Rs. 80000/- was withdrawn from the account of the first Complainant; it is stated that the First Complainant had no right to make entries by himself in the Savings Bank Account; the entries were being made only by SBI officials in the discharge of their duties; the amount withdrawn under the impugned withdrawal slips were allowed to be withdrawn by the Bank after verifying the signatures on the withdrawal slips presented with Pass Book; it was denied that the signatures of the Complainants on the withdrawal slips were forged; it is stated that in the absence of the cheque book, payment under withdrawal slips are permitted; the Bank made payment under the withdrawal slips in good faith and without negligence; the very fact that the Second Complainant who has been maintaining account since 1999 was present, there was no question to doubt about the genuineness of the transaction under the impugned withdrawal slip; the amount of Rs.80000/- was received by third party Sri Babu under the withdrawal slip, which was duly signed by First Complainant, both on the front and reverse side of the withdrawal slip, which enabled Sri Babu to withdraw the amount on 02.02.2007; it is further stated that on the same day Rs. 30000/- was deposited in the account of Second Complainant and she was fully aware of the withdrawal from the account of First Complainant and deposit of Rs. 30000/- in her account; when the First Complainant alleged that withdrawal was not made by him on 02.02.2007, the Branch Manager verified the records and found that when the amount was withdrawn under the withdrawal slip, the same was duly accompanied by pass book; it is stated that since the amount had been paid in good faith and without negligence under the withdrawal slip as per the apparent tenor, the question of re-crediting the amount to the account of the First Complainant does not arise; it is stated that the facts and circumstances of the case raises doubt as to the possible connivance and conspiracy between the Complainants and the parties who had withdrawn the amount; SBI admits that the Second Complainant is the wife of the First Complainant and was maintaining an account with the Bank since 03.08.1999. However, it was stated that it was not for three years; it was denied by the Bank that the withdrawal slips under which the amount of Rs. 40000/- and Rs. 25000/- were withdrawn, contained forged signatures of the Second Complainant; it was stated that the withdrawal slips were accompanied by passbooks and due entries have been made therein; it is stated that the amount of Rs. 30000/- was deposited on 02.02.2007 by the Second Complainant which clearly indicates that the money deposited was the amount withdrawn under the withdrawal slip signed by First Complainant on 02.02.2007 and was paid to Sri Babu; it is stated that these transactions are fully known to the Second Complainant who is the wife of First Complainant; it is denied that the signatures appearing on the withdrawal slips dated 29.01.2007 and 31.01.2007 was not of the Second Complainant and it was further stated that the matter is under investigation by the Police and the Bank denies its liability to pay any amount claimed by the Second Complainant.
The District Forum based on the evidence adduced dismissed the Complaint and on an Appeal preferred by the Complainants, the State Commission concurred with the findings of the District Forum after observing as follows:-
"We have heard both sides contentions in this regard and perused the materials. It is the case of the complainants that from their SB Accounts by forging their signatures withdrawal slips were used for the purpose of withdrawal of money by miscreants and when the opposite parties questioned about this they have not responded for the same. But the opposite parties contended that those transactions were done with the knowledge of the complainants and the withdrawal slips are accompanied with the pass book and those withdrawals were made by one Smt. R. Kala and through one Baby and those withdrawal slips were signed by the complainants and the said Latha is having account with their bank deposited a sum of Rs. 50,000/- and obtained F.D. receipts for 6 months and also after maturity withdrawn the amount from her SB account and deposited Rs. 30,000/- in the account of the 2nd complainant which had later been withdrawn by the 2ndcomplainant and the said Latha is said to have been a tenant of the complainant and are living in one and the same address and there was a collusion between the complainants and the said Latha and thereby a police complaint came to be filed in Crime No. 379/2007 under Sec. 465, 467, 468, 471, 419 and 420 of IPC. The complainants have also said to have given police complaint regarding the fraud and in those circumstances when the opposite parties alleged collusion with the parties it is the duty of the complainants to disprove the same by way of proving their signatures genuineness or otherwise by producing the withdrawal slips and original signature's documents, specimen signatures details etc. by way of send for those documents and through the expert evidence, even though prima facie the opposite parties are expected to show that they have acted in good faith during the course of business in allowing the withdrawals. In this case, the District Forum elaborately discussed with both sides materials on the basis of both sides contentions and documents and also observed the complainants have not taken any steps to send for the disputed withdrawal slips and specimen signatures for expert evidence and the opposite parties have stated that the entire records relates to those transactions have been taken custody by the crime branch Police as per Ex. B3 FIR for investigation and the opposite parties have stated that suspected accused are complainants and one Latha, Smt. R Kala etc. it is the duty of the complainant to disprove the same and as pointed out by the District Forum in the absence of any relevant records this Forum cannot come to the conclusion to decide the matter without elaborate evidence, enquiry and investigation for which the Consumer Forum is not a proper Forum and thereby the Complaint was dismissed with which findings we find no error or infirmity in this regard and thereby there is no merits in the appeal which is liable to be dismissed."
Learned Counsel appearing for the Complainant vehemently contended that the three withdrawal slips have not at all been sent by the Complainants and that as per Bank Rules, the amount cannot be withdrawn and given to a third party based on the withdrawal slip without properly verifying the same and thus SBI committed an act of deficiency of service. On a pointed query from the Bench as to why the Bank has not filed the copy of the withdrawal slip which is the subject matter of dispute, learned Counsel appearing for the Bank submitted that the original has been handed over to the Police and that he does not have the copy of the same. Learned Counsel drew our attention to the withdrawal slips dated 27.06.2006, 09.10.2006 and 18.10.2006 which are not the subject matter of the dispute here. Learned Counsel appearing for the Complainants submitted that the three withdrawal slips which the Counsel for the Bank placed reliance on have been signed by the Complainants and do not pertain to the present cause of action.
Learned Counsel for the Bank submitted that an Affidavit was filed by the Branch Manager of the Bank in the National Commission on 12.09.2017 stating as follows:-
"2. That in the order dated 27.07.2017 this Hon'ble Commission has ordered the Respondent Bank to file the Affidavit detailing the practices which were prevalent at the time of transaction which is the subject matter of the case.
On the last date of hearing, the counsel for the Respondent Bank produced the Manual (Codified Circular Instructions Deposit Schemes) which prescribes the instructions for the management of the Savings Bank Accounts, etc. The Clause 2.21 deals with the Withdrawal of Amounts which reads as under:-
2.21 WITHDRAWLS OF AMOUNTS
The withdrawal order form (COS 161A) will be used for withdrawal from Savings Bank account either by the depositor himself or his representative. No separate letter of authority is required for effecting payment to third parties. In terms of S.B. rule No. 34, there is no need to refer a withdrawal form for more than Rs. 5000/- to Branch Manager/Divisional Manager whether it is a cheque operated account or not but such payments should be made by the passing official concerned to the extent of his passing powers, on their being referred to him, by the ledger keeper in the Cheques Referred and Returned Register, in which a separate section may be opened for the purpose. In case such withdrawals are frequent, necessary enquiries should be made and follow up action taken."
It is pertinent to mention that the cause of action of the present Complaint is dated 31.01.2007 whereas the Affidavit was filed by the Branch Manager on 12.09.2017, in compliance of the order of the National Commission, 10 years subsequent to the dates of withdrawals. Be that as it may, the Branch Manager has not specified as to when the subject rule has been changed and if the subject rule was prevailing at the time of cause of action. In the absence of any such clarity, we find it relevant to address ourselves to the Rules with respect to the Savings Bank Withdrawal Forms Rules. The said Rules specify that the amount has to be paid to 'SELF ONLY'. Learned Counsel for the Bank relied on Clause 7 which is reproduced as hereunder:-
"7. THE PASS BOOK MUST BE PRESENTED FOR ALL WITHDRAWALS OTHER THAN BY CHEQUES. Deposits may be made without the production of the passbooks are presented at intervals for updating. A pass book tendered while transacting or for completion of entries will be made up and returned to the Account Holders or to their authorized representative the same day. If left overnight, the Bank will issue a receipt in the form of a paper token which must be surrendered in exchange of the pass book within a week, failing which the Bank will dispatch the passbooks to them by Registered A.D. post at their costs. (Rule Nos. 15, 16). "
We are of the considered view that Clause 7 cannot be read in isolation and has to be interpreted after reading with Clause 12. For better understanding of the case Clause 12 is re-produced as hereunder:-
"12. Bank's standard withdrawal form must be used for withdrawing monies otherwise than by cheques. Withdrawal froms cannot be used for making payments to third parties. Amount smaller than Rs. 50/- cannot be withdrawn and all withdrawals must be in multiple of Rupee one only. For withdrawing monies through authorized representative a letter of authority (in the prescribed form) duly signed should be presented alongwith the passbook. The thumb impression of the illiterate Account Holder on the letter of authority should be attested by two persons known to the Bank or by a magistrate under his court seal. (Rule No. 25,26).
It is vehemently denied by the Complainants that the passbooks were accompanied by the withdrawal slips. Be that as it may Rule 12 clearly stipulates that withdrawal slips cannot be made to use for making payments to third parties. For withdrawing money through authorized representatives, a letter of authority duly signed should be presented along-with the pass book. In the instant case there was no such authority letter given by the Complainants to the Bank to have released these amounts. It is the case of the Complainants that withdrawal slips were never signed by them. This submission coupled with Rule 12, which clearly mandates that the withdrawal slip should be accompanied by letter of authority and without that payment cannot be made to third party substantiates the stand of the Complainants that the Bank has committed an act of deficiency of service in releasing the amounts based on the withdrawal slip. It is pertinent to mention that Bank has failed to file disputed withdrawal slips dated 29.01.2007, 30.1.2007 and 02.02.2007. If the originals were with the police, even the copies of the same were not filed either before the Fora below or before us to enable the Commission to verify the specimen signatures. The Complainants were devoid of the opportunity of sending the same to a hand-writing expert for verifying the signatures. We find force in the contention of the Complainants that the withdrawal slips were never accompanied with the passbooks and the entries were made subsequently when the passbooks were produced by the Complainants and it was only then that the Complainants came to know about the forged transactions.
Learned Counsel for the Bank further contended that since fraud and cheating has been alleged by the Complainants, they ought to go to a Civil Court and the FIR filed by the Bank is still pending. We find it a fit case to place reliance on the Judgement of the Hon'ble Supreme Court in J.J. Merchant vs. Shrinath Chaturvedi (2002), 6 SCC 635 in which it was observed by the Apex Court that the National Commission is required to be headed by a retired Judge of the Supreme Court whereas State Commission is required to be headed by a retired High Court Judge and they are competent to decide complicated issues of laws or facts and thus relegating the Complainant to a Civil Court as a matter of routine is not proper. The subject matter of dispute herein is with respect to deficiency of service against the Bank and, therefore Consumer Fora has jurisdiction to entertain the Complaint. A perusal of the FIR evidences that the Complainant has stated that the withdrawal slip was never accompanied by a pass book. We find force in the contention of the Complainants that had the passbooks been presented with the withdrawal slips, then the entries would have been updated on the same date, but instead, only on the production of the passbooks by the Complainants that the entries were updated and the Complainants came to know about the withdrawals. Hence we are of the view that the Bank ought to have been more vigilant in verifying the signatures and adhering to the SB Rules before releasing the amounts to third parties merely based on the withdrawal slips. At the cost of repetition, the copy of the subject withdrawal slips was not produced before us.
For all the afore-noted reasons, we are of the considered view that there is deficiency of service on the part of the Bank and we allow this Revision Petition setting aside the orders of the Fora below and we direct the Bank to pay an amount of Rs.1,15,000/- to the Complainants along with interest @ 9% p.a. from the date of the filing of the Complaint till the date of realization together with costs of Rs.10,000/-. Time for compliance within four weeks from the date of receipt of the copy of the order failing which the awarded amount shall carry interest @ 12% p.a. for the same period.