BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Sri R.Ramachandra Reddy B.Com., LL.B., Member
Wednesday the 17th day of May, 2006
C.D. No.60/2005
1. M. Yella Reddy,
S/o. M. Pampa Reddy,
Aged 68 years, Advocate.
2. M. Vamsikrishna Reddy,
S/o. Late M. Karunakar Reddy,
Aged 22 years,
Both are residence of Chinna Tekur (V),
Kallur (M), Kurnool Dist. . . . Complainants
-Vs-
1.The Branch Manager,
Bank of Baroda,
Tilaknagar, Hyderabad.
2.The Chairman & Managing Director,
Bank of Baroda (Head Office),
Suraj Plaza-1, Sayajigunj,
Baroda.
3.Bhoomatha Agri Tech Seed Processing
Plant by its Partner Bhoji Reddy,
Door No. 2-2-185/55/B, Bagh Amberpet,
Hyderabad. . . . Opposite parties
This complaint coming on this day for Orders in the presence of Sri M. Yella Reddy, Advocate, Kurnool for represented by inperson, Sri N. Nanda Kishore, Advocate, Kurnool for opposite parties No.1 and 2 and Sri A. Rama Subba Reddy, Advocate, Kurnool for opposite party No.3, and stood over for consideration till this day the Forum made the following.
O R D E R
(As per Sri.K.V.H.Prasad, Hon’ble President)
1. This case of the complainant is filed under Section 12 of C.P. Act, seeking in order and opposite parties to pay to the complainant Rs.10,00,000/- as compensation for loss sustained in loosing earning member – Karunakara Reddy – at the deficit act of service committed by the opposite parties in dishonouring the cheque.
2. The brief facts of the complainants case is that a cheque bearing No.871402 chargeable to account No.45 of the opposite party No.1 bank for Rs.1,00,000/- was issued on 12-8-2001 in favour of Karunakara Reddy by opposite party No.3, was sent through Vijaya Bank, Chinnatekur, through opposite party No.1 for the collection was dishonoured by the opposite party No.1 on 3-10-2001 alleging the reason as “Stop payment by the drawer” vide a memo to that effect. But in the cheque return register reason was recorded on 24-9-2001 as “16(b).exceeds arrangements.” The said return of cheque resulted in financial problems besides to mental agony and emotional suffering which ultimately lead to the demise of said Karunakara Reddy – Son and father of the complainants 1 and 2. As the said cheque returned unpaid the opposite party No.3 proceeded in CC 618/2001 under section 138 Negotiable Instruments Act before JFCM Kurnool and an account of demise of said Karunakar Reddy pendenty lite his L.Rs – present complainants and the widow and daughter of said deceased came on record and continued prosecution of the matter against the opposite party No.3 and it during its trial the opposite party No.1 was summon to give evidence and produce record pertaining to the SB account No.45 of opposite party No.3 and his stop payment letter submitted a letter dated 23-8-2004 alleging the reason for return of the cheque was under section 16(b) – exceeding arrangement and the same being noted in cheque return outward register and expressing its inability to located produce any letter purported to have been return by the opposite party No.3 as it was of the year 2001 and must have been destructed consequent to close of said account in the year 2002 as old stationary. The opposite party No.3 in said criminal case blaming opposite party No.1 deposed that reason “Exceeds Agreement” for dishonouring the cheque is false as in his account an amount of Rs.5,00,000/- is available and so the dishonour of the cheque by opposite party No.1 inspite of sufficient funds in said account and opposite party No.3 saving of said issual of said stop payment letter 3-10-2001 and making an inconsistently entry in cheque return register was malafide which ensured to several injuries to said Karunakara Reddy has mentioned in page No.6 in para 11 of the complaint and this ultimate demise on account of their previlative effect, even though the opposite party No.3 was convicted in said criminal case for one year R.I and fine of Rs.5,000/-. As a bank of Baroda is a Nationalized Bank functioning under statue meant for lending services to the public at large with many branches in the country and the opposite party No.2 being an employer of opposite party No.1 the vicarious liability for the default acts of service at the jurisdiction to this Forum as part of cause of action i.e. presenting the cheque for encashment has arisen within the territorial jurisdiction of this Forum.
3. In pursuance of the receipt of the notice of this Forum as to the case of the complainant the opposite parties No.1,2&3 contested the case by filing written version denying their liability to the claim of the complainant questioning the maintainability of complainant’s case both in law and facts on the aspects of competency of the complainant disputing the status of consumer to the complainant and there by the entitleness of the complainant and bar of limitation and as to the proper cause of action against the opposite parties.
4. In substantiation of the contentions while the complainants side has taken reliance on documentary record in Ex.A1 to A6 and the sworn affidavit of the complainant and third party – Padmavathi W/o deceased Karunakara Reddy, and interrogatories and replies exchanged, the opposite party side has merely relied upon the sworn affidavit filed on behalf of opposite party No.1 and of a third party and interrogatories and replies exchanged with the other side.
5. Hence the point for consideration is whether the complainant has made out any deficiency of service on the part of the opposite party and there by any of their liability to the complainants claim.
6. It is contended by the complainant side that the opposite party No.1 and 2 are not represented by any of its authorized persons and hence there being any valid return version for opposite parties 1 and 2 and valid to the material filed on opposite parties 1 and 2 side the case has been proceeded under section 13(2)(b) (ii). But as to the competency of the person to represent the opposite parties was held by the Hon’ble State Commission in its order dated 28-12-2005 in RP No.98/2005, the said stand of the complainant side doesn’t hold good.
7. The opposite party side especially on behalf of opposite parties 1 and 2 submits that the complaint as its stands not maintainable. Firstly it’s a joint complaint verified by the complainant No.1 only and as such it doesn’t remain as a valid complaint of complainant 2. Secondly, non of the complainants even if otherwise of the validity of the complainant, holds “any consumer” status to file this complaint against the opposite parties as there is any privy of relationship to the complainants with the opposite party No.1 and 2 as service provider for consideration and as such any status of consumer to the complainant at the dispute has any elements of consumer dispute. Thirdly, the complainant has now they stand, as father and son of one Karunakara Reddy – have any locus stande to file this case as legal heirs of the said deceased as section 13(7) of consumer Protection Act contemplates the continuation of pending proceedings that the consumer complainants or opposite party dies its pendenty lite and not enables them to file the consumers case a fresh alleging themselves as legal representatives of any person alleging him as consumer or themselves as beneficiaries of said consumer, fourthly the cause of action that arose to Karunakara Reddy – the drawee of said cheque was an account of its dishonour was due to be instructions of opposite party No.3 who issued said cheque and not on account of any reasonable attribution to the opposite party No.1 and the opposite party No.3 was proceeded and the loss suffered was received from the opposite party No.3 in said criminal complaint proceedings. Sixthly, the complainant No.1 being class II hair he cannot have any sueble interest against the opposite parties in the presence of Class I hair viz. Complainant No.2, wife Padmavathamma and daughter of said deceased Karunakara Reddy and said Class I hairs of said Karunakara Reddy having not filed this complaint there is any valid complaint at all against the opposite parties. Seventhly, the case of the complainant as bared by statue limitation of 2 years prescribed under the Act has cause of action of giving an incorrect and inconsistent reason alleged against opposite party No.1 and 2 dates back to 3-10-2001.
8. Hence remaining point for consideration as to how far they are worthwhile and leaving any bearing on the case of the complainant.
9. The complaint from its cause title appears beyond doubt that it is a joint complaint. Even though it appears to have been side by complainant No.1 and 2 the said pleadings of the complainant were not verified jointly by the complainants No.1 and 2 but only by the complainant No.1. When such is so the complainant No.1 is to be deemed as one proceeding for himself and other complainant and so under section 12(1) (c) of C.P. Act require to obtain the permission of the Forum for doing so and when it is not the said complaint is short of the said statutory requirement to hold its validity and the competency of the complainant No.1 to act or proceed for the complainant No.2 also.
10. Section 2 (d) (1) (ii) of C.P. Act holds status of consumer to a person who buys any goods or hires any services for consideration. When there is complaint of defect in goods or deficiency in service.
11. The complainant except alleging the cheque was presented for encashment to the opposite party No.1 doesn’t envisage anywhere what kind of service it hired that what value of consideration from the opposite party No.1. Hence for want of such cogent material as to the services sought for consideration the said Karunakara Reddy itself is not acquiring any status of consumer and there by nothing devolves on the complainants under said Karunakara Reddy to fight any consumer dispute on the opposite party No.1 and 2 in this Forum.
12. The complainants 1 and 2 were described in the complaint as father and son of deceased Karunakara Reddy to whom the opposite party No.3 issued a cheuqe which was not honoured by the opposite party No.1. The complainant No.1 as such being a class II hair of said Karunakara Reddy shall have any priority over the I class hairs of said Karunakara Reddy Viz. surviving wife, son and daughter of said Karunakara Reddy.
13. But the learned counsel and complainant No.1 takes the attention of this Forum to a decision of Hon’ble National Commission, delivered in Dr. Sr. Louie and Another V/s Smt. Kannolil Pathumma and another reported in 1993 (1) CPR page 422 wherein the entitleness of L.Rs of deceased estate was held to file complaint in case of Medical Negligence. In said case the deceased was having a consumer dispute and hence in the L.Rs were held entitled to file the case. But here in this case the very deceased Karunakara Reddy being having ‘any consumer’ status and consumer interest to say any deficiency of service for consideration from the opposite parties No.1 and 2, the said decision doesn’t come to the rescue of the complainant especially when the said deceased Karunakara Reddy has left any consumer dispute case pending against the opposite parties No.1 and 2 enabling the complainants to continue the same under section 13 (7) of C.P Act, or as beneficiaries of said deceased Karunakara Reddy.
14. When no privy of service of deficiency for consideration lies in between the complainants and opposite parties No.1 and 2 are any such privy was there in between said Karunakara Reddy and opposite parties No.1 and 2 and the grievance of dishonour of cheque was sufficiently met in criminal case proceeded against the opposite party No.3 and having been reimbursed of said amount in said proceedings from the opposite party No.3 there remains any valid cause of action to the complainants to proceed against the opposite parties No.1to 3.
15. As the said Karunakara Reddy as has not paid to opposite party No.1 bank any valuable consideration for enchasing the cheque, the furnishing of incorrect or inconsistent reasons for dishonouring the cheque doesn’t amount to any deficiency of service as there exists any privy of ‘service availer’ and service provider for consideration in between them and hence said grievance and its consequential results being out of the purview of the consumer dispute it cannot be entertained in this Forum.
16. The cause of action of dishonour of cheque as dates to 3-10-2001 against the opposite party No.3 for the reasons assigned by the opposite party No.1 for its dishonour and on said the said Karunakara Reddy agitated any grievance on the opposite party No.1 but proceeded against opposite party No.3 only and had sufficient reimbursement getting said cheque amount from the opposite party No.3 and the nature of grievances against opposite parties No.1 and 2 in assigning inconsistent reasons for dishonouring doesn’t amount to any deficiency of service as discussed earlier and there by bring the case of the complainant into a consumer dispute any circumstances of taking of cause of action from the date of knowing such inconsistency during the criminal proceedings can arise the against opposite parties 1 and 2 with any valid cause of action. The case of the complainant itself remains as bad for want of proper cause of action.
17. The learner counsel for the complainant take the attention of this Forum to the decision of Hon’ble Supreme Court delivered in Ghaziyabad Development Authority V/s Balbirsing reported in 2004 SAR page 583, wherein it was held that compensation could be granted not only for the value of the goods but also for injustice suffered. But the said rational being entertained in a case where the value of the goods or services are involved and the said value of goods or services as contemplated under Act. This Forum being limited and meant for deciding the consumer disputes only and not having any other jurisdictions than meant under said stature and its rules, regulations and notifications issued there under it cannot be extended to other matters other than consumer disputes and the grievance of the complainants as not remaining as consumer dispute the injustice if any suffered by the complainants are their predecessors on account of other reasons other than coming under consumer dispute are not entertainable before this Forum. And hence there appears any applicability of above decision to the facts and circumstances of this case.
18. The decision of Hon’ble State Consumer Dispute Redressal Commission, Gujarat at Ahmadabad in State Bank of Sourastra V/s Ramila Ben Amruthalal Sony reported in 1 (1992) CPJ page 388, wherein was held the making of employee of bank, who misappropriate the amount deposited for crediting into account, as necessary party was held compulsory and at the same time held the amount deposited by the father of the employee cannot be credited in the account of complainant is having any relevancy to the facts and circumstances of the case and there by of any of its applicability.
19. Another decision cited by the learned counsel and complainant No.1 is of the Hon’ble Supreme Court of India delivered in Apparal Export Promotion Counsel V/s A.K.Chopra reported in 2000 NCJ (SC) page 603, wherein what is sexual harassment was delt finds little relevancy of its applicability to the facts and circumstances of this case which is quite different in their nature.
20. As the grievance of the complainant doesn’t at all fall under consumer dispute entertainable by this Forum the inconsequences of health, the aggrieved if at all met due to its effect, matters little for giving any adjudication by this Forum, the text book authority – Kalpana’s Clinical Hypertension placed by the counsel complainant No.1 remains with little relevancy for its consideration in this case.
21. When the nature of the grievance of the complainants itself are not falling under consumer dispute the documentary record in Ex.A1 to A6 and other consequential incidental record of both sides remains with little consequence for any appreciation in this case.
22. In the result of the above discussion, there being any element of any consumer dispute in the grievance of the complainant and their any entitle ness to file this case there appears any liability of the opposite parties to the claim of the complainant and so the case of the complainants dismissed with costs.
24. In the circumstances discussed above as the case against the opposite parties as remaining without any proper cause of action and devoid of element of consumer dispute to fight in this Forum and there by it remains as a frivolous and vexatious complaint against the opposite parties especially opposite party No.1 the complainants are directed jointly and severally under section 26 of C.P. Act to pay to the opposite party No.1 a sum of Rs.5,000/- as costs within a month of the receipt of this order, in default it shall be payable by the complainants to the opposite party No.1 with interest at 12% per annum till the date of payment.
Dictation to the Stenographer, transcribed by him, corrected and pronounced by us in the Open Forum this the 17th day of May 2006.
MEMBER PRESIDENT
APPENDIX OF EVIEDNECE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
List of exhibits marked for the complainant:
Ex A.1Certified copy of cheque No. 871402, dt 12.8.2001 for Rs.1,00,000/- of
Opposite party No.1.
Ex A.2 Certified copy of said entry issued by Bank of Baroda, Tilak nagar,
Hyderabad.
Ex A.3 Certified copy of letter, dt 23.8.2004 of opposite party, along with cheque
returned out ward Register.
Ex A.4 Certified copy of affidavit of opposite party No.3 in CC No. 618/2001.
Ex A.5 Office copy of Legal notice, dt 21.12.2004 to Regional Manager, Bank of
Baroda, Hyderabad.
Ex.A.6 Reply, Dt.28-12-2004 to notice of Ex.A5.
List of Exhibits Marked for the opposite parties : Nil
MEMBER PRESIDENT
Copy to:
1.Sri M. Yella Reddy, S/o. M. Pampa Reddy, Aged 68 years, Advocate,
R/o Chinna Tekur (V), Kallur (M), Kurnool Dist.
2.Sri N. Nanda Kishore, Advocate, Kurnool.
3. Sri A. Rama Subba Reddy, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
