BEFORE THE DAKSHINA KANNADA DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM,  ADDITIONAL BENCH, MANGALORE                       

Dated this the 10^th February 2017

PRESENT

     SRI VISHWESHWARA BHAT D    : HON’BLE PRESIDENT

     SRI T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDER IN

C.C.No.68/2014

(Admitted on 19.02.2014)

1. Mr. Suraj Noronha,

    S/o Late Julian Noronha,

    Aged about 41 years,

    R/at Padil House,

    Joseph Willa, Mangalore,

    By G.P.A Holder,

    Mr. Cyprian Moras,

    S/o Ligory Moras,

    Aged about 40 years,

    Florence House, A.P.M.C. Road, Puttur.

2. Mrs. Rita Toras,

    W/o. Late Felix Albuquerque,

    Aged about 61 years,

    R/at Aroma House,

    Madanthyar,

    Belthangady Tq.

                                                            ….. COMPLAINANTS

(Advocate for the Complainants: Sri SD)

VERSUS

1. Manager,

    Catholic Syrian Bank Ltd.,

    Mangalore Branch,

    Kunnil Centre, Mangalore.

2. Chief Manager,

    Catholic Syrian Bank Ltd.,

    International Banking Division,

    P.B. No. 1156, DJM Building,

    Market Road, Ernakulam, Kochi  11.

3. Manager,

   State Bank of India,

   Goregaon East,

   Mumbai Branch, Mumbai.

                                                               …..........OPPOSITE PARTIES

(Advocate for the Opposite Party No.1 & No.2: Sri BSN)

(Advocate for the Opposite Party No.3           : Sri BNK)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

1.      The above complaint filed under Section 12 of the Consumer Protection Act 1986 by the complainant against opposite parties alleging deficiency in service claiming certain reliefs to pay Rs.5,25,000/ with 12% interest from 11.10.2012 till payment, to pay Rs.3,00,000/ as compensation and to pay Rs.50,000/ as expenses.

2.  In support of the above complaint the complainant Mr. Cyprian Moras filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents marked Ex.C1 to C11 detailed in the annexure here below.  On behalf of the opposite parties Mr. Davis George N (RW1) Branch Manager also filed affidavit evidence and answered the interrogatories served on him.

The brief facts of the case are as under:

          We have perused the complaint and the version of the parties. This dispute is with regard to the demand draft honored by the opposite party on fraudulent presentations. According to complainant he had purchased a D.D. in favor of the 2^nd complainant and sent by post to the 2^nd complainant  but it is missed in the transit and it was enchased by a stranger by causing alteration in the instrument from the Opposite parties and the Opposite parties by negligently paid the fraudulently altered D.D. and hence deficiency in service on the part of the Opposite parties. In contest there of the opposite party no 1states that they are not connected with the transaction and the cause of action, the D.D. was drawn in abroad and it was collected through opposite party no 3 from the opposite party no 2. The opposite party no 1 is the only payable at branch but it is not presented through their branch and hence there is no any part played by this opposite party but added only for the jurisdiction purpose and hence the complaint to be dismissed against them as not necessary party, as minus this opposite party no 1 there is no territorial jurisdiction to the complaint. The opposite party no 2 contends that the D.D. was received from the opposite party no

3 from Bombay and the same has been paid by the opposite party no 2. The genuineness of the D.D. should have been verified by the opposite party no 3 before sending D.D. for collection. This opposite party seen the D.D. and cross verified the D.D. number date and amount as usual and paid it to Mr Arun Joshi. There is no any negligence or fraudulent intention on their part. Opposite party no 1 and opposite party no 2 contended that there is negligence on the part of the complainant in sending the D.D. without safety and security norms like it was sent un crossed, the payee Account name not mentioned, and it was sent by ordinary post. Other contention of the opposite party no 1 & 2 is the Arun Joshi is also necessary party since he has taken the proceeds of the D.D. hence there is non-joinder of the necessary parties. The opposite party no 3 even though

represented by an advocate not filed version and participated in the proceedings. These are being the facts of dispute in resolving this dispute we consider the following

POINTS FOR ADJUDICATION

          We have taken into consideration the evidence and the pleadings of the parties studied the documents produced by the complainant. The Opposite parties not produced and marked any documents to prove their case. The admitted facts are, the purchase of D.D. for ₹ 525000 on 11.10.2012 in the name of Smt Rita Toras the 2^nd complainant herein by the complainant from the HABIB QATAR INTERNATIONAL EXCHANGE LTD., here in after called  HQIEL which was made payable at The

CATHOLIC SYRIAN BANK LTD., herein after called CSBL at its branch at Mangalore. It is admitted that the said D.D. was encashed by one Mr Arun Joshi fraudulently and a criminal case is booked against Arun Joshi  by the CSBL branch at Ernakulam kochi kerala state the opposite party no 2 herein. It is also admitted that the HQIEL had sent an email confirmation to the opposite party no 2 on 11.10.2012 as soon as the D.D. is issued in the name of the 2^nd complainant with D.D. counter foil copy. It is denied that there is contributory negligence on the part of the complainant. The opposite party no 1 denies that he is the party to the complaint and the opposite party no 2 denies that he is liable for the wrong payment by alleging the opposite party no 3 is liable for not acted carefully by sending the D.D. for collection. In gist these are being the admissions and the denials we consider the following points for consideration in resolving this dispute:

1. Whether the complaint is consumer and this form has jurisdiction under Consumer Protection Act 1986 and is the complaint is bad for non joinder and misjoinder of the parties?
2. Whether the Opposite parties proves there is no deficiency in service on their part?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

We have carefully examined the documents and evidence lead. Considered the facts and instances meticulously, considered the notes of the parties and submissions and answered the points as under:

1. First part in the affirmative and the second in the negative.
2. In the negative.
3. In the affirmative.
4. As per delivered order.

REASON

POINT NO 1: The complainant no 1 is the purchaser of the D.D. in favor of the complainant no 2 and the D.D. is payable at the opposite party no 1 the branch office of the opposite party no 2 situated at Mangalore in the territory of this Forums jurisdiction. The branch which supposed to honor the D.D. is the opposite party no 1, in the absence of wrong payment. So the complainant no 2 is the prospective customer of the opposite party no 1 and suppose to serve. The opposite party no 2 is the H.O. clearing house of opposite party no 1 and hence also termed as serving the complainant  no 1 as the D.D. is taken on their bank branch. Hence both complainants are consumers. Also as per Sec. 11 (2) b the complaint can be filed where the opposite party has branch office. Hence first part in the affirmative. The opposite party no 1 & 2 claims that opposite party no 1 is not a necessary party and hence misjoinder and also the person who encashed the D.D. is the necessary person and not joined as party. On considering the facts opposite party no 1 is the prospective service provider and the complainant is the consumer as the D.D. is purchased in their name and hence no misjoinder. With regard to Arun Joshi is concern he is not a necessary party in deciding this dispute. What is to be decided is whether there is deficiency in service on the part of the Opposite parties. It is immaterial for the complainants to whom the payment made or how payment made. Only point to be decided is any negligence on the part of the opposite party in honoring the D.D. and resulted in wrong payment. Committing of fraud on banker is a different issue where the Opposite parties have to take up the matter with appropriate authority for their grievance. Hence the Arun Joshi is not a necessary party as for as the complainants are concern hence we answered in the negative negative. As such we answered the point no 1 first part in the affirmative and the second in the negative.

POINT NO 2: The facts and events on which the dispute arose is. The D.D. purchased on 11.10.2012 by the 1^st complainant is said to be sent to the 2^nd complainant by airmail and the 2^nd complainant not received the same. After coming to know about the D.D. not reached the 2^nd complainant reported to the HQIEL the issuer of the D.D. on 24.11.2012

to give stop payment order. On 07.12.2012 the HQIEL has wrote to the opposite party no 2 to stop payment but the opposite party no 2 replied (EX C 4) that the said D.D. has been cleared on 08.11.2012 which was presented through the opposite party no 3 the State Bank of India Gorega on Mumbai branch by one Mr Arun Joshi. How a D.D. issued admittedly in the name of 2^nd complainant payable at opposite party no 1 the Mangalore branch of opposite party no 2 could be presented from the branch of state bank of India  Goregaon Mumbai branch is presumed to be a fraud. And the opposite party no 1&2 admits the fraud played by the Arun Joshi and they have registered a criminal proceedings also in Mumbai jurisdictional magistrate.

2.     The opposite party no 2 facing the allegation of negligence in making payment to a wrong person shifts the charges on the opposite party no 3 stating that the opposite party no 3 is negligent in sending the D.D. for collection without verification. This allegation is not tenable. Because the opposite party no 3 on examining the D.D. and if there is no prima facie reason to believe the alteration or fraud and there is no reason to believe with reasonable examination that the payee name is altered has credited the Arun Joshi Account. The other contention of the opposite party 2 is the 1^st complainant has not taken enough care and caution in sending the D.D. According to opposite party no 2 the 1^st complainant   should have crossed the D.D. and should not have sent it by ordinary post and belated stop payment. In our opinion it is the choice of the Account holder as per their requirement can transfer the funds. The un crossed D.D. to be paid to the barer or order is also one of the legally recognized method of transfer. The opposite party have the practice of honoring such type of D.D. and now when the problem comes cannot expect something new. With regard to ordinary post the complainant stated in answering to suggestion how and since how many years the money being sent to the 2^nd complainant from the 1^st complainant, it answered as by D.D. through postal dept. since 10 years. In our opinion since 10 years a practice is followed and succeeded we cannot expect some other method one should follow for the convenience of the Opposite parties. Also it is born by record that the 1^st complainant has taken the D.D. to make it payable at Mangalore where we presume the customer is personally known since there is 10 years of transaction. That apart the HQIEL has informed the opposite party no 2 about the issue of D.D. with particulars through email by attaching the counter foil. The opposite party no 2 had the material well in advance to verify the authenticity of the D.D. but not used the tool adopted by the HQIEL to safe payment of the D.D. It is also derived from the reply of the opposite party no 1 for the interrogatories of the complainant in Q. No 15 that what is the procedure after receiving the D.D. confirmation, it is answered as D.D. confirmation file is uploaded in the system as and when received. So it is clear at the time of honoring the D.D. the system had the details with opposite party no 2 while payment made. In our considered opinion the opposite party no 2 had details in the system but not utilized it for the cross checking for the purpose for which the confirmation sent. In modern electronic era we understood even physical examination or cross checking is replaced by the automatic cross check by the system itself if  feed properly. The system will not allow if there is mismatch of the details. So we find there is negligence on the part of the opposite party no 2 while paying the amount to Mr Arun Joshi Account in the opposite party no 3 branch. The very purpose of sending pre information and confirmation of the issue of D.D. with details to payee branch is thrown in air and the complainants have to suffer because of the negligence of the opposite party no 2.

3.     We also observed in the interrogatories served by the complaint to opposite party no 1 & 2 who examined as RW-1, the answer given by the opposite party no 1 only and the question related to opposite party no 2 is not answered and shown innocence. The opposite party no 2 not answered the interrogatories posed to them. With these above discussion we hold the opposite party no 2 is committed the deficiency in service and liable for the complainants ‘loss. The opposite party no 2 not proved the as there is no deficiency in service from their part and we answered the point no 2 in the negative.

POINT NO 3: As per above discussion it is proved that the opposite party no 2 is negligent in paying the D.D. wrongfully in spite of duty bound to pay to the right person and had enough material opportunity and equipped with details well in advance of D.D. confirmation from the issue bank. The complainant sought for the refund of ₹ 525000/ with interest of 12%. But in our considered view the complainant is entitled for the said sum but with an interest of 10 % per annum from the date of wrong payment (08.11.2012 as per EX C 4) till the date of payment. The complainants also claimed an amount of ₹ 3 lakhs as compensation but not produced any evidence to prove the worth of it. Hence we consider an amount of ₹ 50000/ as compensation and ₹ 10000/ as litigation expenses. With regard to opposite party no 1, they have not participated in any of the events and there is no cause of action as there arise no occasion for this opposite party no 1 to render any sort of service in this particular dispute and discharged from the liability. The opposite party 3 as we observed earlier the D.D. in bona-fide presumed to be not having observed any prima facie alteration or irregularities have sent for the collection. It is pertinent to note and to infer in adverse the opposite party no 2 not produced any documents lest the original D.D. for our examination in spite of having in their custody as per Q no 18 and answer for the interrogatories served by the complainant on the RW 1. It is stated that the original D.D. is in the custody of the Ernakulum service branch. It was necessary for them to produce to prove the opposite party no 3 is at fault. Hence we discharge the opposite party no 3 from the liability.

POINT NO 4: In the light of above discussion and adjudication of the above points we deliver the following.

ORDER

          The complaint is allowed. The opposite party no 2 shall pay the complainants an amount of ₹ 5,25,000/ (Rupees Five lakh Twenty Five thousand only) with an interest of 10% per annum from the date 08.11.2012 till the date of payment and an amount of ₹ 50,000/  (Rupees Fifty thousand only) towards compensation and ₹ 10,000/ (Rupees Ten  thousand only) as legal expenses within 30 days from the date of copy of this order received. The opposite party no 1 and 3 are discharged from liability.     

      Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 11 directly typed by member revised and pronounced in the open court on this the 10^th February 2017)

                  MEMBER                                              PRESIDENT

    (SRI T.C. RAJASHEKAR)                 (SRIVISHWESHWARA BHAT D)

  D.K. District Consumer Forum                  D.K. District Consumer Forum

   Additional Bench, Mangalore                   Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1  Mr. Cyprian Moras

Documents marked on behalf of the Complainants:

Ex.C1: 11.10.2012: Copy of the D.D. in favour of complainant No.2

Ex.C2: 11.10.2012: Copy of the e-mail with attachment

Ex.C3: 11.10.2012: Copy of the altered D.D

Ex.C4: 19.12.2012: Copy of the letter addressed by 2^nd opposite party to complainant No.1

Ex.C5: 30.12.2012: Letter addressed by Habib Qatar International Exchange Ltd. To 2^nd OP

Ex.C6: 26.11.2012

          27.11.2012

          25.11.2012

          12.12.2012: Email exchanged between Habib Qatar International exchange Ltd & 2^nd OP

Ex.C7: 12.12.2013: O/c of the regd. Lawyer’s notice

Ex.C8: 13.12.2013: Postal Acknowledgement of 1^st O.P

Ex.C9: 16.12.2013: Postal Acknowledgement of 3^rd O.P

Ex.C10:23.12.2013: Reply of the 2^nd OP

Ex.C11:23.01.2014: Original G.P.A. executed by complainant  No.1         

Witnesses examined on behalf of the Opposite Parties:

RW1 Mr. Davis George N, Branch Manager

Documents produced on behalf of the Opposite Parties:

 Nil 

Dated:  10.02.2017                                         MEMBER