D.O.F. 20.08.2009

                                                                                  D.O.O. 20.11.2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri.K.Gopalan                :         President

                                      Smt. K.P.Preethakumari:         Member

Smt.M.D.Jessy               :        Member

Dated this the 20^th day of November, 2010.

C.C.No.221/2009

Smt. Chinnamma Baby,

C/o. Thomas V.John,

Vadakkekuri kattu,  33/380,                      :                  Complainant

Desodharini Cross Road,  Malaparamba,

Calicut                                                                 

(Rep. by Adv. K.K. Chithran)  

1.  The Manager, Federal Bank Ltd.,

     Vallithode Branch,

     P.O. Kiliyanthara  670 706

     Kannur District.

2.  The Manager, Federal Bank Ltd.,

     Iritty Branch, Iritty.

  (1 & 2 Rep. by Adv. K.K. Balaram)            :                  Opposite party

3.  Binoy Chacko, S/o. Chacko,

     Nr. New Priya Associates,

     Kelan Peedika, P.O. Kiliyanthara

     Iritty.

 (Rep. by Adv. C.O. Pradeesh)          

O R D E R

Sri. K. Gopalan, President.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay an amount of             ` 37,500 and also to pay ` 10,000 as compensation together with the cost of this proceedings.

          The case of the complainant in brief is as follows :  Complainant is an account holder of the 1^st opposite party Bank.  He presented a cheque dated 16.08.2008 for collection before the 1^st opposite party on 02.02.2009.  This cheque was issued in favour of the complainant by one Binoy Chacko in discharge of his legal liability of ` 37,500.  When complainant enquired about his cheque, the Manager of the 1<sup>st</sup> opposite party told him the cheque was returned for reasons of insufficient fund and the same has been lost in transit.  On 05.03.2009 the Manager issued a certificate to that effect.  Since the cheque was returned complainant issued statutory  notice to party in consequence of which he met complainant and offered the amount but demanded the cheque to be returned.  She was not able to return the cheque since the 1<sup>st</sup> opposite party did not return the same.  Thus the complainant virtually lost her   ` 37,500 due to the loss of cheque.  It is a dereliction of duty on the part of opposite parties 1 & 2 that amounts to deficiency in service.  The complainant is entitled for compensation.  Complainant issued notice to 1^st opposite party demanding the payment of ` 37,500 on 23.07.2009 they send reply seeking him to reply the legal notice.  Opposite party has not complied the demand of the complainant.  Hence this complaint.

          In pursuance of notice opposite parties entered appearance and filed version.  Opposite party 1 &2 filed version together and opposite party 3 filed version separately.

          The contents of the contentions raised by the opposite party 1 & 2are as follows :  Complainant is an account holder of 1^st opposite party Bank.  She presented a cheque on 02.02.2009 for collection. On 05.03.2009 complainant approached the 1^st opposite party and enquired about the cheque.   The Manager represented that the cheque was sent to Iritty branch of the bank opposite party 2 on 04.02.2009 but for the reason of insufficient fund the same returned to the 1^st opposite party.  Unfortunately the cheque returned has been lost in transit and the Manager issued a certificate. The 3^rd opposite party admitted the issuance of cheque.  Complainant can  take steps to recover the amount from 3^rd opposite party itself.  But he did not take steps so, since he is in collusion with the 3^rd opposite party.  The allegation that complainant sent notice to opposite party 3 and opposite party 3 denied payment since the dishonoured cheque has not been returned to him and thus she virtually lost her ` 37,500 are not known to opposite parties.  The complainant and opposite party 3 have colluded with each other to extract money from the opposite party by unlawful means.  The possibility of loss of cheque is only during the course of transit.  There is separate provision in N.I. act under such circumstance to get the amount realized from the concerned party who has issued the cheque.  There is no negligence on the party of opposite party and it is a loss in transit.  Complainant can very well initiate legal step as per the provision of NI Act.  Hence to dismiss the complaint.

          Opposite party 3 filed version separately contenting as follows : Opposite party 3 has issued the alleged cheque in favour of complainant towards the liability of ` 37,500.  He has received a legal notice on 07.07.2009 issued by complainant.  On receipt of the notice he approached the complainant and tendered ` 20,000 in cash and asked to give back the dishonoured cheque and to settled the matter.  It was at that context the complainant disclosed the factum of loss of the cheque.  Then this opposite party was not ready to pay the amount and settle the matter since dishonoured cheque was not returned.  At that juncture the complainant demanded for a new cheque which was denied by this opposite party.  The complaint is only as a result of the collusive act of the complaint on opposite party 1 & 2.  Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.     Whether the complainant is a consumer?

2.     Whether there is any deficiency in service on the part of opposite party?

3.     Whether the complainant is entitled for the remedy as prayed in the complaint?

4.     Relief and cost.

Issues 1 to 4 :

          Opposite parties 1 & 2 has taken the plan that complainant is not consumer.  Opposite parties admitted that the alleged cheque was presented by the complainant before the 1^st opposite party Bank for collection and the 1^st opposite party has received the service charge from the complainant and 1^st opposite party is bound to give service to the complainant as consumer of the 1^st opposite party.  Hence detailed discussion is not necessary to conclude that complainant is a consumer.  The version itself speaks that complainant is a consumer.  We conclude free from doubt that on payment for service complainant became the consumer of the Bank.

          It is an admitted fact that complainant presented cheque before 1^st opposite party Bank.  On enquiry the complainant was informed by the Manager of the Bank that the cheque was sent to the opposite party’s Iritty branch for collection on 02.02.2009 and it has been retuned by opposite party 2 Iritty Branch on 04.02.2009 for the reason of insufficient fund and sent to the office of the 1^st opposite part but unfortunately the cheque has been lost in transit.  Hence regarding the loss of cheque there is no dispute.

          Then the case of complainant is that the loss of cheque is a result of deficiency in service on the part of opposite party 1.  Complainant could not give the dishonoured cheque to the drawer to settled the matter to get the amount back.  So complainant virtually lost her cheque amount ` 37,500 due to loss of cheque.  Opposite party on the other hand takes the defence that if a cheque is lost remedy is provided V/45A of N1.Act r/w 0.VII R.6 of the Code of Civil Procedure Code for recovery of the amount.  Opposite party issued certificate so as to facilitate complainant to file such a suit to recover the amount.  Failure to take steps to recover the amount from the 3^rd opposite party, the drawer of the cheque is an indication that this application has been filed in collusion with the 3^rd party.

          Even if it has been granted that the complainant can seek remedy to recover the cheque amount it cannot be ignored the fact that the scope of taking proceeding under Section 138 of N.I. Act is lost by the complainant, the consequence of which cannot be substituted by any other section or Act.  The remedy available under Section 138 N.I.Act is much strong and effective than any other law existing for the time being.  It is a matter of great overawe that creates mental agony, though for argument sake it is possible to point out that all the remedies are not exhausted under law.   Hence we have no hesitation to hold that there is deficiency of service on the part of opposite party 1 & 2 for which they are  liable to meet the consequences. 

          The contention raised by the opposite party that there are other remedies apart from S:138 N.I. Act, in any way cannot be rejected outright.  There is remedy.  In other words the entire remedy to realize the amount of cheque dishonoured, has not been exhausted.  Hence complainant is not entitled to the cheque amount until and unless it is proved that other remedies apart from S:138 of N.I.Act to recover the amount of dishonoured cheque has been exhausted already.  Complainant has neither taken such plea nor placed any evidence to this aspect.  Hence it is not safe in allowing the cheque amount, though he was overawed and put under consequential mental agony.

          In the light of the above discussion we are of opinion that the opposite party 1 & 2 are not free from liability since there is deficiency in service on the part of opposite party 1 & 2.  Taking into consideration the different aspects in the above case we hold that complainant is entitled for an amount of ` 5,000 as compensation together with a sum of ` 1000 as cost of this litigation.  Thus issues 1 to 4 are answered in favour of complaint.

In the result the complaint is allowed directing opposite party 1 & 2 to pay an amount of ` 5000 as compensation and a sum of ` 1000 within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order after expiry of one month as per the provisions of Consumer Protection Act.

          Dated this the 20^th day of  November, 2010.

                                                                      Sd/-                       Sd/-                 Sd/-

  President                Member            Member

APPENDIX

Exhibits for the Complainant

A1.      The certificate issued by the 1^st O.P. dated 05.03.2009.

A2.      Copy of legal notice issued by Advocate of 1^st O.P. dated

           07.07.2009.

A3.      Acknowledgment Card dated 09.07.2009.    

A4.      Reply sent by 1^st O.P. dated 23.07.2009.

A5(a)   Acknowledgment dated 08.04.2009.

A5(b)   Postal receipt dated 04.04.2009.

A6.      Copy of registered letter dated 01.04.2009.

Exhibits for the opposite party

B1.  Computerised Account Extract of 3^rd O.P. maintained in the Federal

       Bank, Iritty Branch dated 13.07.2010.

Witness examined for the complainant

PW1.  Complainant

Witness examined for opposite party

DW1.  Abraham Mathew

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT