FRENNIE FITTER Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) The complainant has alleged serious deficiencies in the working of the State Bank of India in her complaint. Shortly stated, the facts are that the complainant had a savings bank account bearing No.11059/57 with the State Bank of India, Juhu-Tara Branch, Bombay having a deposit of Rs.80,000/-. Another Account No.11058/57 was in the name of her son having a balance of Rs.95,000/- and the third Account No.11056/57 was in the name of her major daughter Parizaad Fitter, with the balance of Rs.80,000/-. Accordingly to the complainant by the end of February, 1989, Rs.80,000/- each have been withdrawn from the aforesaid three accounts aggregating to Rs.2,40,000/- by the complainant's ex-husband Minoo Fitter. According to complainant, the opposite parties allowed Minoo Fitter to withdraw the aforesaid amount through three accounts without having any source of authority to operate those accounts. The complainant further alleged that she informed this fact to one Mrs. Lele, employee of the Opposite Party No.2, who in turn discussed the matter with Mr. Joshi of the same Branch in her presence. The complainant was accompanied by one Mrs. Yasmin Ghaswalla. The complainant further alleged that in the presence of Mrs. Ghaswalla, both Mrs. Lele and Mr. Joshi admitted that they had no record to show that Minoo Fitter was having any authority from the Account-holders to withdraw the amount of Rs.2,40,000/- from the above referred three accounts. At the instance of complainant, her solicitors M/s. D. H. Nanavati, addressed a letter dated 25.3.1989 to the opponents to credit the amounts withdrawn in the three respective accounts. In reply the opponents by their letter dated 25.4.89 admitted to look into the matter. It seems that Rs.80,000/- were credited in the account of complainant's daughter but so far as her own account and her son's account are concerned, Rs.1,60,000/-has not been credited till the date of filing of this complaint.2. In short, the allegations of the complainant are that the service of the Opposite Party was seriously deficient, in as much as without the advice and instructions of the Accounts Holders, the Opposite Party permitted withdrawal of the amounts from their accounts without any authority to operate the accounts by Minoo Fitter. The complainant, therefore, claims Rs.1,60,000/- together with interest at the rate of 21% p. a. plus Rs.10,000/- as costs and Rs.50,000/- as compensation. In response to a notice u/sec.13 of the Consumer Protection Act, 1986 dated 3.6.1992, the complainant and opposite parties filed a written version. Interalia, the opposite parties submitted that this Commission has no jurisdiction to entertain the complaint and in the absence of Minoo Fitter, as a necessary party, the complainant may be referred for decision to Civil Court. It is also submitted that for the just decision of this complaint evidence is required to be adduced and that complaint is barred by limitation.3. We have heard the complainant with Shri Sayyad Akhtar, Advocate and Shri Dharmadhikari, Advocate for Opposiste Party. The withdrawal of amount from the complainant's account and from her daughter and son's accounts by Minoo Fitter as alleged in the complaint at the relevant time is not in dispute. Similarly, restoration of balance in respect of daughter's Account No.11056/57 is also not in dispute. In reply the opposite party in para 7-A admitted to have cleared three cheques for Rs.80,000/- each in favour of Minoo Fitter in good faith. Similarly, in Para 7-C, it is also admitted that on oral representation of Minoo Fitter, the State Bank allowed him to withdraw the amount from the three Accounts.4. The admission of the opposite party is very elloquent as regards the withdrawal made by Minoo Fitter. But the opposite party failed to establish that there was any advice or any written instructions flrom the three account holders to operate their accounts by Minoo Fitter. Opposite Party has failed to show any authority from complainant to operate the three accounts by Minoo Fitter. In the case of Mr. Kambli V/s. Bhandari Co-operative Bank, this Commission has taken the view that this is a deficiency in the service of a Bank if the amounts are allowed to be withdrawn from the account of an account holder without his/her instructions. The decision of this Commission has been upheld by the National Commission, New Delhi in Appeal No.7/91. In our considered view, therefore, the opposite party committed serious deficiency in their service allowing unauthorised withdrawal from the complainant's account and the account of her son and daughter thereby causing the loss. It, therefore, clearly appears in this case that just to oblige Minoo Fitter to operate the three accounts without any authority, the opposite party flouted all established norms as a Bank to protect the money of a depositors deposited in their accounts. The opposite party tailed to satisfy this Commission by showing any rule or justifying the withdrawal by Minoo Fitter from the Savings Bank Accounts of Frennie Fitter, her son and daughter.5. We have perused the Pass Books issued by the Opposite Party in favour of the complainants. At the end of the Pass Book, there are printed instructions by the State Bank of India in the form of a representation made to the customers. Nowhere in the said Rules it is mentioned that the amount of Account Holder can be withdrawn from his/her account without his/her authority and consent. Both the pass books have been in the custody of the complainant and were not produced before the Bank authority at the time of making the payment to Minoo Fitter. Moreover, the Cheque Books were also in the custody of the complainant as regards the three accounts. It is, therefore, crystal clear that the opposite party allowed Minoo Fitter to withdraw the amounts from the three accounts without producing the pass books or the cheques issued by the complainants. The complainant had denied that any such authority was given by her and her son and daughter to Minoo Fitter for withdrawing the money. The Opposite Party did not produce before us any documentary evidence in favour of Minoo Fitter for the withdrawal of the aforesaid amounts.6. Shri Dharmadhikari, learned Advocate for the opposite party raised some technical points. The first point according to Shri Dharmadhikari is that this Commission has no jurisdiction and that the Minoo Fitter is a necessary party and, therefore, the complaint be referred to the Civil Court. u/sec.2 (o) of the Consumer Protection Act, 1986 , any deficiency in the service of the Bank clearly falls within the four-comers of the Consumer Protection Act, 1986 . Similarly, there is no necessity of making Minoo Fitter as a party as no relief is claimed against him. Hence, this submission is totally untenable.7. As regards the other ancillary contentions raised by Shri Dharmadhikari about the recording of the evidence is concerned, we find that the facts are so simple and since admitted by the opposite party, there is no necessity of recording any evidence in this case. Lastly, Shri Dharmadhikari submitted that the complainant's complaint is barred by limitation. Considering the facts of this complaint, we find that the complainant learnt about the fraud committed by Minoo Fitter in the end of February, 1989 through correspondence. On 7.1.1991, the Opposite Party informed the complainant that it acted prudently without any negligence and was, therefore, unable to accept her claim. Moreover, the notice was sent to the State Bank of India dated 5.12.1991 by complainant's Advocate which was replied to by the opposite party subsequently. In view of these circumstances, we And that the complaint is not barred by limitation. The National Commission, New Delhi in the case of S. Vellinayagam and Company V/s. New India Assurance Company Ltd., 1992 1 CPJ 313 has taken the view that the Limitation Act in terms is not applicable to proceedings before Consumer Protection Forums. It is also held in the said case on the basis of Supreme Court decision that it is not proper that the Government and instrumentalities of State should seek to avoid the adjudication of a claim made against them merely on the technical plea of bar of limitation when there has not been any manifest and deliberate latches on the part of the citizen putting forward the claim. It is found in this case that Opposite Parties are responsible for the delays in settling the claims. The ratio of the aforesaid decision clearly applied to the facts of this case. Under these circumstances, we find that the complainant has proved her allegations in the complaint. The complainant is, therefore, entitled to receive from the opposite party Rs.80,000/- in her own account and Rs.80,000/- in the account of her son together with the interest at the existing bank rate. Similarly, the complainant is also entitled to receive compensation and expenses which we quantify at Rs.10,000/-. Hence, we pass the following order:-