Punjab National Bank vs RAMA KANT YADAVA

THIS appeal is directed against order dated 2nd April, 1993 passed by the District Forum, Bhojpur at Arrah in Complaint Case No. 139 of 92 in which the appellants here were the opposite party and the respondent here was the complainant before the District Forum.

THE facts of the case as put in by the complainant may be briefly stated. Ram Sagar Gowala who is in service in Singapore and is the father of the present complainant had Saving Fund Account No. 2512 in the Punjab National Bank, Arrah. Ram Sagar Gowala has been making deposits in his that account and he withdrew Rs. 2,000/- only from that account in 1971. In January, 1983 the complainant went to the opposite party Bank for getting the interest on the amount lying in the account of his father calculated and he learnt that Rs. 14,000/- has been withdrawn from that account. According to the complainant this amount of Rs. 14,000/- has not been withdrawn by his father and some body had withdrawn that amount by committing fraud. THE complainant complained to the Bank Authorities for illegal withdrawal of the amount from his account and an information was lodged by the Regional Manager, P.N.B., Arah Branch at the Arah Town Police Station on the basis of which Arah Town Police Case No. 160 dated 7.7.84 was instituted. THE police after investigation submitted final report in the case stating ''no clue'' which was accepted by the C.J.M. and the case was dropped. Subsequent thereto the complainant filed this case before the District Forum, Bhojpur at Arrah claiming Rs. 14/000/- from the opposite party-Punjab National Bank with interest thereon and compensation for the mental anguish suffered by him due to negligence and deficiency in service on the part of the opposite party. The said withdrawal of Rs.l4,000/- was on the basis of three cheques purporting to have been issued by the account holder Ram Sagar Gowala on 6.2.82,27.2.82 and 31.3.82 respectively. The cheque dated 6.2.82 was in favour of self and for Rs. 4,000/-. Cheques dated 27.2.82 and 31.3.82 were in favour of one Suresh Yadava and one Munna Yadava respectively for Rs. 5,000/- each. It appears from the signatures on the back of these three cheques that the account holder Ram Sagar Gowala received the amount under the cheque dated 6.2.82 and the amount under the remaining two cheques were received by the respective payees mentioned therein. The case of the complainant is that these cheques were not issued by his father Ram Sagar Gowala.

On being noticed the opposite party Punjab National Bank filed written version challenging the claim of the complainant and stating inter alia that the signature of the account holder Ram Sagar Gowala on these cheques were compared with the specimen signature in the Bank and the amount mentioned in these cheques were paid thereafter. It has been further averred that under the Banking Law and Practice a Bank is under no obligation to issue cheque unless the same is demanded by the account holder and that in the instant case the account holder has asked for only three cheque leaves which were issued to him. The opposite party had also challenged the maintainability of the case under the Consumer Protection Act (hereinafter called the Act) on the ground that the complainant is not a consumer within the Act and, therefore, the case is not maintainable. It has been further stated that the claim has become time barred on the date on which the complaint petition was presented before the District Forum and the complainant, therefore, is not entitled to get any relief with regard to his stale claim. On these grounds the opposite party has pressed for dismissal of the complaint petition.

IT appears that the Bank-opposite party got the signature of Ram Sagar Gowala on the three cheques and the back of cheque dated 6.2.82 compared with his admitted signature by Sri P.M. Dayal a Handwriting Expert who is retired Chief Estate Examiner of Question Documents-cum-Director Police Laboratory, C.I.D., Bihar and Sri Dayal has submitted his report dated 30th December, 1991 in which he has specifically said that the signature marked Y to Y4, the signatures of Ram Sagar Gowala on the three cheques and on the back of cheque dated 6.2.82 and his specimen signature marked B to B4 are written by one and the same person. The complainant has not produced any evidence u/ Section 13(2) of the Act to establish that the signature of Ram Sagar Gowala on these cheques are not his signatures and are forged one nor Ram Sagar Gowala has come forward to support the allegation made by the complainant. Neither his affidavit has been filed nor he has been examined on oath. But that apart the opposite party has taken the preliminary objection regarding maintainability of the case under the Act stating that the complainant is not a consumer within the Act. For deciding the preliminary objection the definition of the consumer u/Section 2(1)(d) which runs as follows may be looked into. 2(i)(d) ''consumer'' means any person who; (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) 2 (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 2 (hires or avails of) the services for consideration paid or promised/or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;"

CLAUSE No. 1 of this section is not relevant for deciding the case. The complainant has claimed to be a consumer under CLAUSE 2 of this definition. Undisputedly the complainant has not hired the services of the Bank. Rather his father Ram Sagar Gowala had opened the Saving Fund Account in the Bank and thus hired the services of the opposite party. The complainant claims to have filed this complaint petition on the basis of power of attorney. But Section 2(1)(b) of the Act defines the complaint under the Act which reads as follows: 2(1 )(b) ''complaint'' means: (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or (iii) the Central Government or any State Government, who or which makes a complaint; (iv) one or more consumers, where there are numerous consumers having the same interest.

A person holding power of attorney has not been included in this definition of complainant under the Act. Hence the present complainant is not entitled to file this case as a complainant under the Act. Moreover, Section 12 of the Act lays down the manner in which a complaint shall be made under the Act and it reads as follows: Section 12. Manner in which complaint shall be made: A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided may be filed with a District Forum, by - (a) the consumer to whom such goods are sold or delivered or any service provided or agreed to be provided ; (b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not; (c) one or more consumers, where there are numerous consumers having the same interest with the permission of the District Forum, on behalf of, or for the benefit of all consumers so interested; or (d) the Central or the State Government."

NOW, this Section 12 clearly states that a complaint in relation to any service provided or agreed to be provided may be filed with a District Forum by the consumer to whom such service is provided or agreed to be provided. NOW undisputedly the Bank provides service to the account holder. Therefore the complaint ought to have been filed by Ram Sagar Gowala as complainant in this case. Of course the complainant could have presented that complaint before the District Forum on behalf of his father on the basis of the power of attorney in his favour.

IT has been submitted on behalf of the complainant respondent that he is a beneficiary u/Section 2(1)(d)(ii). But without deciding this question it may be mentioned that the requirement of Section 12 is that the complaint has to be filed by a consumer to whom such service is provided or agreed to be provided. Therefore it is none else but the account holder Ram Sagar Gowala who could file this case. Therefore we are of the opinion that the present complaint by the son of the account holder Ram Sagar Gowala is not maintainable under the Act. But on this technical ground alone we would not have dismissed this complaint and we would not have afforded an opportunity to the complainant to add his father as complainant in the petition. But we find that the claim of the complainant had become time barred on the date the complaint was filed before the District Forum and therefore it ought not to have been entertained by the District Forum. Admittedly the withdrawals were made in the year 1982 and it has been asserted by Ram Sagar Gowala in his letter dated 1.3.89 addressed to the opposite party No. 2 that his son the complainant came to know of these fraudulent withdrawals in January, 83. But the case was presented before the District Forum in the Year 1992 about nine years thereafter.

Of course the complainant has tried to impress that the claim is not time barred because the inquiry regarding those cheques were being made by the opposite party and the complainant was intimated by the Superintendent, Regional Office by his letter dated 14.1.92 that the matter is being enquired into and he would be duly intimated in respect thereof and also on the basis of the letter dated 28.11.92 issued by the opposite party No. 2 to the complainant denying their liability in respect of those cheques. But these letters do not help the complainant because they do not give any fresh lease of life to the claim of the complainant and extend the period of limitation.

HENCE we find and hold that on the date on which the complaint was presented before the District Forum it had become stale and the District Forum ought to have dismissed the complaint on this ground alone. Hence we allow this appeal and set aside the impugned order passed by the District Forum. The complaint is hereby dismissed.

THE complainant-respondent is directed to pay Rs. 250/- as cost to the appellant. Appeal allowed.