CENTRAL BANK OF INDIA vs DINESH KUMAR MALYA

CENTRAL Bank of India, Opposite Party/Appellant filed an Appeal by being aggrieved by the Order passed by the District Forum, Bhopal in case No. 4/93 on 29.5.93 granting an amount of Rs. 5,600/- with interest at the rate of 12% per annum to the Complainant/Respondent as compensation, with the further direction that in case, the Opposite party, bank refused to issue pay order at the request of the complainant in future, then on each occasion the opposite party, will pay to the Complainant a sum of Rs. 50/- as compensation.

THE points to be resolved in this Appeal are, whether the District Forum under the provisions of Consumer Protection Act, 1986, has a right to grant such a relief Under Section 14 of the Act? Whether the relief granted by the District Forum by awarding Rs. 5,600/- with interest at the rate of 12% per annum and the direction to the bank, to issue pay order as and when the Complainant. Respondent requests and on each occasion bank will pay to the Complainant/Respondent Rs. 50/- as compensation is right ? The case of the Complainant before the District Forum was that the pay orders were being issued by the Bank, Appellant in the course of normal banking practice and they were being issued right from 30.1.92 to 31.10.92, whether the refusal to issue pay orders will be called as deficiency in service on the part of the bank ? The bank contended that the pay orders are issued, for making payments of their own expenses and charges, and that the facility is not available to the customers. The learned District Forum, was of the view that as an earlier occasions the bank, Appellant/Opposite Party issued Twenty-five pay orders right from 21.12.91 to 19.4.92 and charge for such pay orders was Rs. 25/-. Now the change of practice and to force a customer that instead of pay orders the demand Drafts be issued.

The reasoning given by the learned District Forum in Para 6 of the Order is that the learned Counsel for the Opposite Party has not shown any banking rule prohibiting the issue of pay orders to the customers. The burden to prove that the complainant had a right under the banking rules to have the facility of the pay orders was on the Complainant/Respondent If a facility was granted to show a favour to a particular customer and which was ultimately found to be wrong by the successor of the previous Bank Manager. The customers cannot be allowed to say that a facility which the banking rules procedure does not permit should be continued for ever.

THE learned District Forum made vague observations that the practice followed by the bank, Opposite Party in issuing pay orders to the complainant must have some legal origin that Forum should have put its finger on that legal origin and the legal origin cannot be perused by the favorable practice followed by a person. The learned District Forum lost sight of the fact that the damages claimed by the Complainant/Respondent from 30.1.92 to 31.8.92 and a list of transaction with other banks, i.e., Allahabad Bank, Bhopal, State Bank of India, Bhopal, Central Bank of India, Sagar, Punjab National Bank, they have charged for draft. They have never granted him the facility of pay order, when all the banks, granted, Central Bank of India did not grant him, the facility of pay order, how he expected that facility from the Appellant/Opposite party?

THE observations that the bank being nationalized and as an instrumentality of the State, it is bound to act in a just, fair and reasonable manner consistent with certain norms and its Officers cannot act on their whim, fancy or caprice, their actions must be based on reason and relevance. THEse observations by the District Forum are unwanted in the present case. The very fact that the list of the Demand Drafts issued by the various banks charging Rs. 75/-, every time is furnished by the respondent himself. So if a pay order facility is not furnished by the other nationalized banks, this was a facility being enjoyed by the respondent/ customer as an unusual grace by a Branch Manager, who occupied that post earlier and if this unusual practice is stopped by a bold man or a man who wanted to follow a right practice economically and financially in the interest of the banking institutions, his act which is in the interest of the bank and not illegal cannot be penalised by granting a relief like the one granted by the District Forum. In Para 7 of the Order the learned District Forum has referred to Definition of term "Service" as per Section 2 (1)(o) of the Consumer Protection Act, 1986. The definition of term "Service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

THERE is no dispute that the bank renders service to a prospective user, to a potential user and bank provides facilities to the customers. Whether by refusing to render a service which is not beneficial to the bank interest and the other financial institutions while ask for it did not grant him that facility, whether the Appellant, bank by refusing to such service which cannot be rendered, will be termed as deficiency in service. To our mind, the approach by the learned District Forum is not justifiable.

THE Consumer Protection Act, defines the term "Deficiency" it means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. In the light of this definition, it cannot be said that by refusing the pay order facility that is a wrongful gain to the customers and a wrongful loss to the bank. THE Appellant-bank can be condemned for disservice or deficient service. The learned District Forum has over looked the correspondence in between the parties, notices were exchanged and their notices are on record. Notice dated 10.3.92 can be referred that was on 30.1.92 that the new Manager has stopped the issuing of pay orders even the Regional Manager has refused to help them and then on page 3 of notice of 10.3.92, Appellant ventilated his mind. x x x x x Text in Hindi omitted x x x x X x x x x x This proves that the complainant had grievance about the behavior of the Bank Officers and he has realized the issue of pay orders is not a prominent issue. Naturally it means that a facility which is not provided by the banking institutions to the customers was being enjoyed by the Respondent/Complainant and stopping of such a practice was beneficial to the Bank. It has been termed as deficiency in service by the learned District Forum.

The relief which can be granted under Section 14 of the Act, particularly in the present reference is 14 (l)(d) that is to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party, whether stopping of such a practice which was financially harmful, which was resulting in loss of Rs. 50/- at every time with instead of Demand Draft which costs Rs. 75/- resulting a net gain of Rs. 50/-causing loss to the Nationalised Bank. In such a case the Bank Manager can be said to be negligent or vigilant, when he stopped a wrong practice.

THERE are number of authorities that unless there is a legal obligation or liability to grant a particular facility in absence of that, no com-pensation can be awarded under Sec. 14(1)(d) of the Act. This is the principle laid down in the Federal Bank v. Shir Bijon reported in Consumer Protection by Singhai, 1991 Edition Page 233 by the National Commission. The Hon''ble National Commission in the case of Mukesh Jain v. V.K. Gupta reported in Consumer cases by Dr. R.G. Chaturvedi on Page 87, has laid down that the bar of persons having borrowed amounts from banks under Overdraft of Cash Credit facility etc., cannot seek relief against bank, under Consumer Protection Act, on the ground that the bank had failed to advance further amounts or discontinued overdrafts or Cash Credit facility. In another authority Consumer Unity and Society, Calcutta v. Chairman & Managing Director Bank of Baroda reported in Consumer cases by Dr. R.G. Chaturvedi, Edition 1991 on Page 307. The National Commission has interpreted Section 14 (1)(d) by laying down : "to pay such amount as may be awarded by it as compensation to the consumer due to the negligence of the opposite party". Under this Clause compensation can be awarded to a consumer only in respect of any loss or injury found to have been suffered by him due to the negligence of the Opposite Party. It is of the essence of this provision that the loss or injury for which compensation is to be adjudged and awarded should be found to have been caused by the negligence of the Opposite Party. The complainant has, therefore, to establish that there was negligence on the part of the Opposite Party and that as a consequence, thereof loss or injury was suffered by him. It is only in such event that award of compensation would be warranted under provision of this Sub-Clause. This authority by the National Commission persuades us to say that such relief cannot be granted.

THE learned District Forum did not stop here. It has not only awarded Rs. 5,600/- with interest as compensation. THE Complainant/ Respondent had to pay rightly refusing to render service but has given a handle to the Complainant/Respondent to obtain that facility even in future and in case the Appellant/Opposite Party bank fails, the Complainant shall be entitled for Rs. 50/- as compensation. THE relief granted by the District Forum is illegal and in result, this Appeal succeeds and the Order of the District Forum is set aside. THE Respondent shall bear the cost of the Appellant-bank in this court and the District Forum. THE Counsel fee for this Court shall be Rs. 200/-. Appeal dismissed.