Department Of Post And Ors. vs HANUMAN PRASAD

THIS revision petition has been filed by the petitioners against the order dated 16.01.2013 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ''the State Commission'') in Appeal No. 1851 of 2010 - Hanuman Prasad Vs. Department of Post, Alwar by which, while allowing appeal, order of District Forum dismissing complaint was set aside and it was held that complainant is entitled to get interest on his account under the NSS Scheme.

BRIEF facts of the case are that complainant/respondent opened Account No. 6001771 under NSS Scheme of 1987 on 25.02.1991 with OP No. 2/Petitioner No. 2 by depositing a sum of Rs. 5,000/ -. Complainant again deposited Rs. 6,000/ - on 26.2.1991 and Rs. 13,100/ - on 17.3.1992. Compound interest @ 11% was payable, but after 16 years only Rs. 17,812/ - has been added as interest @ 3 1/2 p.a. which is contrary to law and OP has made payment of only aforesaid amount of interest and principal Rs. 24,100/ - whereas total Rs. 1,10,833/ - should have been paid. It was further alleged that OP has not paid interest of Rs. 432/ - for the month of December, 2007. On inquiry, OP intimated that under the scheme, one person can open only one account for NSS 1987 scheme and complainant''s account was contrary to rules which has been closed after giving simple interest. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OPs resisted complaint and submitted that complainant opened Account No. 2200003 in another Post Office on 23.3.1990, which was closed on 12.10.2006 and aforesaid Account No. 6001771 was contrary to rules; hence, interest was paid, as payable on Saving Bank A/c. and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint. Appeal filed by complainant was allowed by learned State Commission vide impugned order against which, this revision petition has been filed. Heard learned Counsel for the parties finally at admission stage and perused record.

LEARNED Counsel for the petitioner submitted that Account in dispute opened by respondent was contrary to rules and in such circumstances, interest paid by petitioner was as per rules and learned District Forum rightly dismissed complaint, but learned State Commission committed error in allowing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

IT is not disputed that complainant opened Account No. 2200003 in Arya Nagar, S.P.O.: Alwar on 23.3.1990 in NSS Scheme of 1987 and another Account No. 6001771 in Alwar Head Office P.O. on 25.02.1991. Rule 4 of the NSS Rules 1987 provides that a depositor can open not more than one Account under the Scheme meaning thereby, opening of one Account was permissible under the Scheme and no one can open two Accounts in the NSS 1987 Scheme. Rule 21 of these Rules provides that at the time of opening of NSS account, depositor has to give declaration that he is not maintaining any other Account under the NSS Scheme 1987. Learned Counsel for the petitioner submitted that as petitioner''s second Account was contrary to the rules, petitioner has not committed any deficiency in awarding interest @ Saving Bank A/c. whereas, learned Counsel for the respondent submitted that as respondent was not aware about the rules, merely by opening second Account, he cannot be deprived from grant of usual interest under the Scheme. Learned Counsel for the respondent placed reliance on judgment of this Commission in, I (1998) CPJ 107 (NC) - Department of Posts & Telegraphs Vs. Dr. R.C. Saxena in which 4 -Member Bench of this Commission held that they though opening of two accounts under Rule 4 of the Scheme are not permissible; even then, it does not bar payment of interest and Rule is meant only for administrative convenience. Learned Counsel for the petitioner placed reliance on later 3 -Member Bench judgment of this Commission in : I (2003) CPJ 167 (NC) - K.M. Singh Vs. Senior Post Master, Ramesh Nagar, New Delhi in which it was held that if Account has been opened in violation of rules, depositor is not entitled to interest. In the aforesaid judgment, earlier judgment of this Commission in Dr. R.C. Saxena case (Supra) was considered and observed as under: "We have examined the relevant provisions of the Government Saving Bank Act, 1873 and the rules framed thereunder. These rules are statutory and have been framed by the Central Government in the exercise of its power conferred by the Act. Singh cannot feign ignorance of these rules. In fact the number of accounts opened by him would rather show that he was quite well versed in the opening of monthly income accounts. Singh referred to the decision of this Commission in the case of Department of Post and Telegraphs vs. Dr. R.C. Saxena -, 1997 (1) CPR 74 wherein in somewhat similar circumstances this Commission held that Rule 4 of the Post Office Savings Bank General Rules 1981 was made for the administrative convenience of the Department and did not bar the payment of interest on an account opened by the depositor in ignorance of that Rule. We are afraid, we are unable to accept the view so expressed earlier. Perhaps in that case National Commission was guided by the facts and circumstance of that case. Here the rules were National Savings Scheme rules, 1987 also framed by the Central Government in exercise of powers conferred on it under Section 15 of the Government Saving Bank Act, 1873. Rule 4 provided that depositor may open not more than one account under the scheme. This Rule is the law and cannot be said merely administrative instructions. The judgment in the case of Department of Posts & Telegraphs vs. Dr. R.C. Saxena does not, therefore, lay a good law. Singh then referred Rule 10 which as noted above, empowers the Central Government if it is satisfied that operation of any of the provisions of the Rules caused undue hardship to the depositor then it may by order, for reasons to be recorded in laying relaxation, requirement of that provision in a manner not inconsistent with the provisions of the Act. We are afraid the Central Government should have exercised that power or not under Rule 10 is not for us to decide or comment on."

WE agree with the view taken by this Commission in K.M. Singh (Supra) case in the light of judgment of Hon''ble Apex Court in : III (2011) CPJ 25 (SC) - Arulmighu Dhandayudhapaniswamy Vs. Director General of Post Offices Ors. in which it was held that Post Office was justified in declining to pay interest for deposited amount since the same was not permissible as scheme had already been closed prior to deposit; even though, by mistake Post Master deposited amount from 5.5.1995 to 16.8.1995 whereas scheme was discontinued from 1.4.1995.

IN the case in hand admittedly, complainant opened first account in 1990 in NSS Scheme and second account in 1991 which was not permissible and petitioner rightly refused to pay interest in the second account as per NSS Rules and rightly paid interest @ Saving Bank Account. In Arulmighu Dhandayudhapaniswamy (Supra) case, deposits were accepted by Post Master in ignorance of the fact that scheme had already been closed; even then, Hon''ble Apex Court refused to grant interest whereas in the case in hand, complainant was at fault in opening second account under NSS Scheme which was not permissible.

COMPLAINANT has not come with clean hands. He has suppressed fact of first account No. 2200003 opened on 23.3.1990 in NSS Scheme in his complaint. As per opposite party only after audit it was found that complainant opened two accounts in different Post Offices and on this basis, he was not granted interest as per scheme which was in accordance with law. Learned District Forum rightly dismissed complaint, but learned State Commission committed error in allowing appeal and impugned order is contrary to law; hence, liable to set aside.

CONSEQUENTLY , revision petition filed by the petitioner is allowed and impugned order dated 16.1.2013 passed by learned State Commission in Appeal No. 1851 of 2010 - Hanuman Prasad Vs. Department of Post, Alwar is set aside and order of District Forum is affirmed with no order as to costs. Dated: 16.09.2015

Vinay Kumar, Member

The department of Posts has challenged the order of Rajasthan State Consumer Disputes Redressal Commission in FA/1851/2001. The impugned order has set aside the decision of the District Forum, Alwar and allowed the appeal of the respondent/complainant, Hanuman Prasad.

THE brief facts, as extracted from the record, are that the complainant had opened a Post Office Savings Bank Account on 23.3.1990 with a deposit of Rs. 9,500/ - in Alwar. On 25.2.1991 he opened another account, in another Post Office of Alwar, in which three deposits of Rs. 5000/ -, 6000/ - and 13,100/ - were made during February -March 1991. Consumer dispute arose when the Postal Department refused to pay the interest, as per the Scheme on the second account, on the ground that it was opened in violation of the relevant rules. He was paid interest at 3.5 % which was the savings bank account rate. Allegedly, after 16 years, he was paid Rs. 41,912/ - as against the payable amount of Rs. 1,10,833/ -. Before the District Forum the Complainant sought the following relief - - "(a) The balance amount of Rs. 68,921/ - with interest @ 18% p.a. be ordered to be given to the complainant.

(b) Rs. 20,000/ - to be paid to the complainant on account of mental and physical harassment.

(c) Rs. 5000/ - as counsel fee and a sum of Rs. 1000/ - for the cost of the complaint,

(d) Any other such relief."

THE case of the revision petitioner/OPs before the District Forum was - - "As per the Post Office, SB Manual Vol. 1, Rule 156, a depositor like complainant can open only one NSS 1987 A/c. all over India. The complainant has given the wrong statement/declaration in the forms for opening the said accounts. Therefore, the interest which has been paid to the complainant was according to the rules."

The District Forum referred to the contention of the OPs and held that - - "According to the aforesaid submissions, we find that it was the duty of the complainant to disclose the fact with regard to the earlier account number opened by the complainant. According to the aforesaid Rule and submitting the false declaration by the complainant, we do not find any deficiency of services on the part of the respondents/opposite party and in the absence of proving any deficiency against the opposite party, we do not find any merit in the complaint of the complainant."

Significantly, the District Forum order does not refer to any evidence that was examined to show that the complainant was aware of the requirement of disclosure and yet failed to disclose. This has to be viewed in light of the pleadings before the District Forum. Para 7 of the Complaint Petition, referring to the communication of 23.5.2008 in which he was informed why he could not be paid more than 3.5% interest, categorically states that - -

"7. That the aforesaid letter dated 23.05.08 is arbitrary against the rules and the complainant is the consumer and at the time of the opening of the account, the rules were to be followed by the respondents and the same have not been disclosed to the complainant and therefore, the complainant is not liable for any alleged mistake and till 2007, the respondents have not given any intimation nor has done anything against the complainant meaning thereby, now the respondents are exercising their dominating position and committing the deficiency of services."

ON this question the State Commission, disagreeing with the District Forum, has given a very clear finding. The impugned order says - - "We are fully in agreement with the contentions for the ld. Counsel for the appellant that the respondents/opposite party has to prove that the complainant has made a false declaration in the year 1991. The opposite party had taken sufficient time to prove the said fact. But no record has been produced by the opposite party. Under these circumstances, we do not accept the contention of the respondents with regard to the submission of false declaration by the complainant. The opposite party has also not proved the fact when the opposite party has come to know about the submitting of false declaration by the complainant whereas, the account was running since last 16 years. The opposite party has also not able to prove whether they had come to know about the said false declaration either after 16 years or prior thereto.

If the opposite party was aware about the submission of false declaration by the complainant prior to 16 years, then the opposite party could have closed the account of the complainant by issuing a notice to this effect. The onus to prove the fact that a complainant cannot get the opening of two accounts was solely upon the opposite party and not upon the complainant. Whether, the complainant was made a aware about the said declaration at the time of opening of the account or not, this fact stand not proved nor the opposite party has proved any record to this effect nor any affidavit has been submitted."

IN this background, learned Counsel for the revision petitioner was given an opportunity to produce the proposal form or undertaking given by the complainant in evidence of their contention of willful non -disclosure by him. He failed to produce any such document. I therefore, find myself in full agreement with the view of the State Commission cited above. Equally, I find it necessary to go beyond and take note of the following additional facts - - a. The revision petitioners/OPs have consistently relied upon the National Savings Scheme Rules 1987, on the point that an individual can open only one account (Rule 4). The same Rules cast a duty upon the department to obtain an undertaking from the depositor, at the time of opening of an account, that he is not maintaining another account under the Scheme (Rule 21). There is nothing to show that such an undertaking was obtained.

a. The complainant''s case is that he was never informed that second account was not permissible. No evidence was led by the OPs to rebut it.

a. As per the pleadings of the OPs, the complainant had acted with "deliberate intention in order to cause deceit to the respondents". There is no explanation how.

a. We may note that the same Rules permit a depositor to deposit up to Rs. 40,000/ - in a year Rule 5(3). His total investment, in both accounts put together, was well within Rs. 40,000/ -. He therefore, had nothing to lose by making all deposits in one account only. In other words, he would have acquired no additional benefit by ''deceitfully and knowingly'' opening a second account. No attempt is made by the petitioners to explain this.

Further, it is abundantly clear that the OPs had full opportunity before the fora below to lead evidence in support of their contention that the complainant had given wrong statement at the time of opening the second account and that it was done deliberately and deceitfully. The revision petition and learned counsel for the petitioner have both failed to show what evidence was led in this behalf which was either misconstrued or ignored by the fora below. The petitioners/OPs have thus failed utterly to prove that a declaration was actually obtained in which the respondent/complainant had chosen not to disclose the existence of an earlier account. The District Forum was wrong in accepting the plea of the OPs without a shred to supporting evidence. The State Commission was therefore right in setting aside this finding of the District Forum.

IN my view the conduct of the revision petitioners/OPs needs to be viewed as a clear case of deficiency of service for which the OPs are held liable to compensate the complainant. Accordingly, the OPs are directed to pay a sum of Rs. 20,000/ - to the respondent/complainant within a period of three months. In this view of the matter, I respectfully disagree with the view taken by my learned brother in para 10 of his order that the complainant has not come with clean hands.

IN so far as the question of payable rate of interest on the deposits made by the complainant is concerned, the matter has already been considered by my learned brother in terms of the law laid down by Hon''ble Apex Court in Arulmighu Dhandayudhapaniswamy Vs. Director General of Post Offices : III (2011) CPJ 25 (SC). I see no need to delve further into it. In the result, the revision petition is partially allowed and the impugned order is set aside, to the extent it allows the claim of the complainant, for payment of balance of interest as under the Scheme. However, for the reasons detailed earlier in this order, compensation of Rs. 20,000/ - shall be paid to him by the Petitioners/OPs within a period of three months. Dated : 16.09.2014

K.S. Chaudhari, J. (Presiding Member)

IN R.P. No. 1573 of 2013 - Department of Post & Anr. Vs. Shri Hanuman Prasad arguments were heard on 24.07.2014 by our Bench. Judgment was dictated by Hon''ble Mr. Justice K.S. Chaudhari, Presiding Member and sent for approval to Hon''ble Mr. Vinay Kumar, Member. Hon''ble Mr. Vinay Kumar sent dissenting judgment. As Members of the Bench differed in their opinion, the matter may be placed before Hon''ble President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. The legal question is: i) Whether cost can be imposed on the petitioner while allowing revision petition?

Dated : 31.07.2015

Ajit Bharihoke, J. (Presiding Member)

CONSEQUENT upon the difference of opinion between members of Bench No. 4, namely, Hon''ble Mr. Justice K.S. Chaudhari, Presiding Member and Hon''ble Shri Vinay Kumar, Member, this matter has been referred for third member opinion in view of Section 20(i)(iii) of the Consumer Protection Act, 1986, on the following legal question: "Whether cost can be imposed on the petitioner while allowing revision petition -

On going through the record and the respective judgments, it was noticed that question referred for opinion has not been properly formulated. Thus, vide proceedings dated 13.05.2015, the point of difference was reformulated as under: "In view of the law laid down in Arulmighu Dhandayudhapaniswamy Vs. Director General of Post Offices : III (2011) CPJ 25 (SC), whether the award of compensation for deficiency in service against the petitioner is justified -

THERE is no need to reproduce the facts as the facts have been duly extracted in the respective orders of Hon''ble Mr. Justice K.S. Chaudhari and Hon''ble Mr. Vinay Kumar.

NO one appeared on behalf of the respondent for arguments. Therefore, I have heard ex parte arguments on behalf of the petitioner. I have the benefit of going through the reasoned orders passed by the respective members. On careful consideration of record as also the judgment of the Apex Court in the matter of Arulmighu Dhandayudhapaniswamy Vs. Director General of Post Offices : III (2011) CPJ 25 (SC) referred to by both the Members, I tend to agree with the view taken by Hon''ble Mr. Justice K.S. Chaudhari. Undisputedly, as per rules of NSS Scheme, 1987, opening of two NSS accounts under the scheme by an individual was not permissible. The complainant by opening second NSS account in a different post office obviously has violated the rules. Therefore, in my considered view, the petitioner opposite party has not committed any deficiency in service by allowing interest applicable to saving bank account on the second NSS account. As such, in view of the judgment of the Hon''ble Supreme Court in the matter of Arulmighu Dhandayudhapaniswamy (supra), there was no justification for award of compensation to the respondent/complainant.

THE third Member reference is answered as above. Registrar is directed to place the aforesaid opinion before the concerned Bench for pronouncement of order. Dated : - 07.08.2015

K.S. Chaudhari, J. (Presiding Member)

IN R.P. No. 1573 of 2013 - Department of Post & Anr. Vs. Shri Hanuman Prasad arguments were heard on 24.07.2014 by our Bench. Judgment was dictated by Hon''ble Mr. Justice K.S. Chaudhari, Presiding Member and sent for approval to Hon''ble Mr. Vinay Kumar, Member. Hon''ble Mr. Vinay Kumar sent dissenting judgment. As Members of the Bench differed in their opinion, the matter was placed before Hon''ble President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. Hon''ble President referred the matter to Hon''ble Mr. Justice Ajit Bharihoke. Hon''ble Mr. Justice Ajit Bharihoke agreed with the judgment delivered by Hon''ble Mr. Justice K.S. Chaudhari, Member. In the light of majority judgment, revision petition filed by the petitioners are allowed with no order as to costs.