Ram Surat Ram Maurya, Member (Presiding):— Heard Mr. O.P. Gaggar, Advocate, for the appellants and Mr. Abhilash Mohanti, Advocate, along with Dharmendra Chauhan, son of respondent-1. Respondent-2 filed his written reply in the appeal on 31.05.2017 but he did not appear at the time of arguments.
2. This appeal has been filed from the order of State Consumer Disputes Redressal Commission, Maharashtra dated 14.09.2016, passed in CC/37/2008, allowing the complainant and holding the appellants as guilty of committing deficiency in service and directing the opposite parties, jointly and severally to refund the amount of Rs. 2528515/- along with interest @6% per annum, from the date of its deposit, in the bank of the appellants till the date of its realization and awarding the compensation of Rs. 2 lacs and cost of litigation of Rs. 25000/-, payable within three months, to the complainant.
3. Smt. Buniyadevi Chauhan (respondent-1) filed CC/37/2008, for directing the appellants and respondent-2, jointly and severally to refund of Rs. 2528515/- and to pay compensation of Rs. 10/- lacs. It has been stated in the complaint that Late Shambhunath Amrit Chauhan (the husband of the complainant) was working as the welder on the vessel PV HARMONY and holding Indian Passport No. E0683523, dated 08.01.2002, issued at Mumbai. He died in an accident during employment on 10.01.2003 at Tianjin Port, PR China. On his death, the claim for compensation was filed through Indian Embassy, Singapore against the employer i.e. Pan United Shipping PTE. Ltd., in which a compensation of Singapore $98315.76 was awarded. Out of the aforesaid compensation, the employer sent Singapore $94227.10, equivalent to US$55000/- to the legal heirs of the deceased namely Smt. Buniyadevi Chauhan, Dharmendra Chauhan, Ravindra Chauhan and Ms. Sneha Chauhan. Cheque No. 80265 dated 01.06.2004 of US$55000/- was handed over to the complainant on 30.08.2004, from the office of the employer in Bombay, in presence of the complainant's husband's brother Gulabchandra Amrit Chauhan (opposite party-3). The complainant, having faith in Central Bank of India as it was a nationalized bank, approached its Branch opposite party-2, on 30.08.2004, for opening her Saving Bank Account, accomplished with her husband's brother Gulabchandra Amrit Chauhan (opposite party-3) and her nephew Manoj Nebulai Chauhan, who insisted the complainant to open an account at this branch. The complainant specifically told the Branch Manager of her willingness of opening her Saving Bank Account, in that bank. Opposite Parties-2 and 3 took advantage of illiteracy of the complainant and took her thumb impression on a blank paper at her brother's home. The complainant, who had faith in Opposite Parties-2 and 3, affixed her thumb impression on the blank paper. Opposite Party-2, instead of adopting the procedure for opening Saving Bank Account, took a letter dated 31.08.2004, from Opposite Party-3, for adding the name of the complainant, in his Saving Bank Account No. 26589, opened on 12.12.1995 in that branch and without any investigation and identification of the complainant, added her name in the account of Opposite Party-3, on the same day, without following the Rules and Regulations of the Reserve Bank of India. The complainant bonafide believed that her Saving Bank Account was opened, in the branch, Opposite Party-2 and deposited her cheque No. 80265 dated 01.06.2004 of US$55000/-. Thereafter, she went to her native place at village Karahi Pandey, district Deoria, U.P. and remained there from September, 2004 to 25.08.2005. The said cheque was deposited in Saving Bank Account No. 26589, of Opposite Party-3 and credited in it and Opposite Party-3 has withdrawn almost all the amount, from this account. The complainant gave an application on 01.09.2005 to the Account Officer for seizing the debit transactions of the said joint account but nothing was done. The complainant made oral and written complaints to Zonal Office, at D.N. Road, Mumbai-400023 and Regional Office at Bandra Kurla Complex, Central Bank of India, on 23.08.2006. On which internal inquiry was held but the complainant did not receive any response. On the allegations, that the Branch Manager committed deficiency in service, inasmuch as, instead of opening separate Saving Bank Account of the complainant, he joined her name in Saving Bank Account No. 26589, of Opposite Party-3, without following the procedure and guidelines of Reserve Bank of India and permitted Opposite Party-3 to withdraw almost entire money of the complainant, from this account, the complaint was filed on 07.03.2008, through Dharmendra S. Chauhan, her son and Power of Attorney, for refund of her amount and compensation.
4. The opposite parties-1 and 2 filed its joint written reply and contested the complaint. It has been stated by opposite parties-1 and 2 that Gulabchandra A. Chauhan son of Amrit Chauhan opened his Saving Bank Account No. 26589, in the branch Opposite Party-2 on 12.12.1995. Gulabchandra A. Chauhan along with Smt. Buniyadevi Chauhan approached the branch, Opposite Party-2 on 30.08.2004 and introduced her as his brother's widow and they requested to add the name of Smt. Buniyadevi Chauhan, in Saving Bank Account No. 26589 as joint account holder, with operation instructions “Either or Survivor”. Gulabchandra A. Chauhan gave a letter to the branch Opposite Party-2, requesting for addition of the name of Smt. Buniyadevi Chauhan, in his Saving Bank Account No. 26589. As per rules, the bank took two passport size photos of Smt. Buniyadevi Chauhan and Xerox copy of her ration card. The branch manager obtained fresh specimen signatures of Gulabchandra A. Chauhan and thumb impressions of Smt. Buniyadevi Chauhan and converted Saving Bank Account No. 26589 as a joint account in the names of both the persons with operational instructions of “Either or Survivor”. For conversion of account in single name into joint accounts, the rules as prescribed by Reserve Bank of India were strictly followed. It is evident from the letter of M/s. Pandi Correspondents Pvt. Ltd. and admitted also that Smt. Buniyadevi Chauhan and Gulabchandra A. Chauhan together went to the office on 31.08.2004, for receiving the cheque of the compensation, which shows that they were close relatives and had full trust in each other at that time. It has been specifically denied that Smt. Buniyadevi Chauhan ever told the branch manager for opening her separate saving account. Since Gulabchandra A. Chauhan was a joint account holder with right to operate singly, it was not possible for the bank to stop withdrawal of the amount from the joint account. For the first time, Smt. Buniyadevi Chauhan gave her application on 01.09.2005 for stopping withdrawal of the amount from Saving Bank Account No. 26589. There was no deficiency in service on the part of the bank, either in converting Saving Bank Account No. 26589 into joint account or in not stopping Gulabchandra A. Chauhan, from withdrawing money from this account with his signature. The bank is not liable to pay the amount deposited by the complainant as it was withdrawn by her joint account holder nor any compensation.
5. State Commission, by the impugned order, found that the bank ought to have insisted the complainant, an illiterate lady, to open her separate account and deposit cheque of US$55000/- in it. The bank, on a simple application, of opposite party-3, made the complainant as a joint account holder, in his account. The bank has permitted huge withdrawal of about Rs. 800000/-, including Rs. 150000/- to Rs. 200000/- on withdrawal form, from the account, in a month, without insisting to obtain thumb impression or presence of other account holder. When the joint account holder was an illiterate lady, the cheque book, would not have been issued. On these findings, it has been held that the bank has committed deficiency in service and the complaint was allowed, as mentioned above.
6. I have considered the arguments of the counsel for the parties and examined the record. The appellants took the case that Gulabchandra A. Chauhan (respondent-2) had his Saving Bank Account No. 26589, in Wadala branch since 12.12.1995. Gulabchandra A. Chauhan along with Smt. Buniyadevi Chauhan approached the Wadala branch, on 30.08.2004 and introduced Smt. Buniyadevi Chauhan as his brother's widow and they requested to add the name of Smt. Buniyadevi Chauhan, in Saving Bank Account No. 26589 as joint account holder, with operation instructions “Either or Survivor”. Gulabchandra A. Chauhan gave a letter dated 30.08.2004 to the branch officer, requesting for addition of the name of Smt. Buniyadevi Chauhan, in his Saving Bank Account No. 26589. As per rules, the bank took two passport size photos of Smt. Buniyadevi Chauhan and Xerox copy of her ration card. The branch manager obtained fresh specimen signatures of Gulabchandra A. Chauhan and thumb impressions of Smt. Buniyadevi Chauhan and converted Saving Bank Account No. 26589 as a joint account in the names of both the persons with operational instructions of “Either or Survivor”. For conversion of account in single name into joint accounts, the rules as prescribed by Reserve Bank of India were strictly followed. Smt. Buniyadevi Chauhan was identified by Gulabchandra A. Chauhan, the account holder in the bank and her identity and address proof was ration card. In support of the reply, Affidavit of Evidence of Rajeev Govind Thatte and Krishna Vishwanathan Kilakkanchay were filed. The complainant did not file any application for their cross examination, before the State Commission. The complainant has not produced any contrary rules or instruction of Reserve Bank of India, in respect of adding the name of any other illiterate person, in the existing account in the bank as joint account holder.
7. The complainant took the plea for opening her Saving Bank Account, Smt. Buniyadevi Chauhan went to Wadala branch of the bank on 30.08.2004, accomplished with her husband's brother Gulabchandra Amrit Chauhan (respondent-2) and her nephew Manoj Nebulai Chauhan, who insisted the complainant to open the account at this branch. The complainant specifically told the Branch Manager for opening her separate Account, in that bank. Opposite Parties-2 and 3 took advantage of illiteracy of the complainant and took her thumb impression on a blank paper at her brother's home. Neither the Affidavit of Evidence of the complainant nor the Affidavit of Evidence of Manoj Nebulai Chauhan was filed. Dharemendra Chauhan was not present, either at the Wadala branch or at the home of his maternal uncle, where, thumb impression of Smt. Buniyadevi Chauhan was allegedly taken, as such, his affidavit is not relevant to prove these facts. Gulabchandra Amrit Chauhan (respondent-2) has supported the case of the bank. As such, the pleading that Smt. Buniyadevi Chauhan told the bank officer to open her separate account or her thumb impression was obtained on a blank paper at her brother's home have not been proved.
8. On 30.08.2004, Smt. Buniyadevi Chauhan, had not collected cheque No. 80265 dated 01.06.2004 of US$55000/- from Pandi Correspondent Pvt. Ltd. rather it was collected on 31.08.2004. As such on 30.08.2004, there was no material before the bank manager to say that Smt. Buniyadevi Chauhan was willing to open her own account for deposit of the cheque of compensation, in it. As such, it was not expected from the bank manager to advise her for opening her separate account. In the complaint, it has not been alleged that Smt. Buniyadevi Chauhan had informed the branch manager that for depositing the cheque relating to the amount of compensation, she wanted to open her separate account. State Commission has illegally raised presumption in this respect in favour of the complainant and remarked that as huge amount of cheque was sought to be deposited, the bank would have insisted for opening separate account.
9. Although Smt. Buniyadevi Chauhan was an illiterate lady but it cannot be said that she was totally unknown to the banking transactions as she had Current Account along with her husband Shambhu Nath Chauhan, in Central Bank of India, branch Bharwa Tiwari, Deoria, U.P. as such it was highly improbable that she might not have any idea relating to pass-book of the bank, of her account. In case, Smt. Buniyadevi Chauhan had any intention of opening her separate account, then, she would have inquired about her pass-book of the bank after some times of opening the account. There is nothing on record to prove that for one year, she made any effort for obtaining pass-book of her account. This circumstance is contrary to the case of the complainant rather it clearly proves that she knew well that she had joined as joint account holder in the account of Gulabchandra Amrit Chauhan, who was not an stranger but her husband's brother.
10. On the basis of information supplied on 01.10.2015, the counsel for respondent-1 argued that even if the cheque book had been issued to Gulabchandra Amrit Chauhan prior to 30.08.2004, i.e. joining of the complainant as joint account holder, the bank ought to have either withdrawn the cheque or not permitted withdrawal through cheque. The information relied upon by the counsel for respondent-1 in this respect is quoted below:—
“So far as procedure for accounts of illiterate person is concern, as per IBA policy, the bank may at its discretion open deposit accounts other than Current Account of illiterate person. The account of such person may be opened provided he/she calls on the bank personally along with a witness who is known to both the depositor and the bank. Normally no cheque book facility is provided for such Saving Bank Account. At the time of withdrawal/repayment of deposit amount and/or interest, the account holder shall affix his/her thumb impression or mark in the presence of the authorised officer, who should verify the identity of the person. The Bank will explain the need for proper care and safe keeping of the pass-book etc. given to the account holder. The Bank official shall explain the terms and conditions governing the account to the illiterate/blind person.”
11. This reply is related to a separate new account of an illiterate/blind person and not for an illiterate person joining in the existing account of the literate person. On the basis of this reply, it cannot be said that the bank ought to have withdrawn the cheque book already issued to Gulabchandra Amrit Chauhan or stopped payment on its basis.
12. Saving Bank Account No. 26589 was converted as a joint account in the names of Gulabchandra Amrit Chauhan and Smt. Buniyadevi Chauhan, with operational instructions of “Either or Survivor” w.e.f. 30.08.2004 as such the bank could not stop payment of the cheque or withdrawal form signed by Gulabchandra Amrit Chauhan. It cannot be said that by making payment on the basis of cheques/withdrawal form signed by Gulabchandra Amrit Chauhan, the bank has committed deficiency in service. So far as Gulabchandra Amrit Chauhan, is concerned, he did not challenge signing of the cheques of withdrawal form. Findings of State Commission in this respect of withdrawal of money by Gulabchandra Amrit Chauhan, is not based upon any rules/instruction of Indian Banking Association or Reserve Bank of India.
In the result the appeal succeeds and is allowed. The order of State Commission dated 14.09.2016, passed in Consumer Complaint No. 37 of 2008 is set aside. The complaint is dismissed. If the appellants have deposited any amount before this Commission or before State Commission, it may be returned to the appellants, along with accrued benefits.