Before the District Forum:Kurnool
Present: Sri K.V.H.Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B., Member
Thursday the 28th day of August, 2003
C.D.No.13/2003
P.V.C. Industries,
Represented by its G.P.A. Holder,
k.Narayana Setty,
S/o K.Hanumanthaiah Setty,
Kosigi Village and Mandal,
Kurnool District. ...Complainant represented by his counsel
Sri.E.Subbarayudu and Sri.P.C.Hussain Saheb
-Vs-
- The Branch Manager,
Indian Bank,
Adoni,
Kurnool.
- The Regional Manager,
Indian Bank,
Regional Office,
Liberty Plaza,
Hyderabad. ...Opposite parties 1 & 2 represented by their counsel
Sri.E.Sreenivasulu, Advocate.
- The Branch Manager,
State Bank of India,
Yemmiganur,
Kurnool District. ...Opposite party No.3represented by their counsel
Sri.S.Siva Rama Krishna Prasad, Advocate
O R D E R
1. This Consumer Dispute of the complainant is under section 12 of C.P. Act, 1986 seeking a direction on the opposite parties to pay to the complainant Rs.39,460/- i.e., cheque amount with interest at 24% per annum from 10-05-2002, costs of the complaint and such other reliefs which the complainant may be entitled to the exigencies of the case.
2. The brief facts of the complainant’s case, as per the complaint filed by the General Power of Authority of the complainant, are that they PVC Industries dealing with the pesticides business having its Head Office at Hosepet and branch offices at Adoni and Guntakal and being it partnership concerned appointed K.Narayana Setty as its general Power of Attorney and a cheque bearing No.730025, dated 10-05-2002 was issued for Rs.39,640/- by the Yemmiganur Agro Private Limited, was presented to the opposite party No.1 (The Branch Manager India Bank, Adoni) for collection. As there is no intimation as to honouring or dis-honouring of the said cheque the opposite party No.1 was addressed twice by the complainant besides being addressed on 02-10-2002 by the opposite party No.2 i.e., Regional Manager, India Bank, Regional Office, Hyderabad also as to the said cheque, the opposite parties 1 and 2 except informing to the complainant that the matters is under probe did not do any needful, a legal notice was caused by the complainant on 12-09-2002 on the opposite parties 1 and 2 for which the opposite party No.1 replied on 14-12-2002 stating of its sending the said cheque for collection to the S.B.I., Yemmiganur through Franch Express Courier and the acknowledgement of the same by the State Bank of India, Yemmiganur and so advising the complainant for the further prove to the SBI, Yemmiganur and the S.B.I. ADB Branch, Yemmiganur and to proceed Under Section 138 and 142 Negotial Instrument Act if warranted. As the said conduct of the opposite party as amounting to deficiency of service of the opposite parties towards the cheque of the complainant constrained the complainant to resort to the Forum for the redressal.
3. The complainant files two sworn affidavit of his in reiteration of the complaint averments besides relying on the following documents Viz., (1) Certified copy of the General Power of Attorney dated 29-03-2001. (2) Certified copy of Form-A of PVS Industries. (3) Certified copy of Form-C of PVS Industries. (4) Counter foil dated 10-05-2002 issued by the Indian Bank to the PVS Industries. (5) Letter dated 21-06-2002 addressed by the opposite party No.1 to the complainant. (6) Carbon copy of the Letter dated 25-07-2002 addressed by complainant to the opposite party No.1. (7) Xerox copy of Letter dated 02-08-2002 addressed by the opposite party No.2 to the opposite party No.1 and marked copy to the complainant. (8) Office copy of Lawyer’s Notice dated 12-09-2002 issued on behalf of the complainant to the opposite parties 1 and 2. (9) Letter dated 23-09-2002 addressed by the opposite party No.3 to the opposite party No.1. And (10) Reply Notice dated 14-10-2002 issued by the opposite party’s (1) counsel to the complainant’s counsel and they are marked as Ex.A1 to Ex.A10.
4. In pursuance of the notices of this Forum as to this case the opposite parties made their appearance and while the opposite parties 1 and 3 filed their written version in defence of the complainant’s case separately to contest the matter the opposite party No.2 filed a memo adopting the written version of the opposite party No.1. The opposite parties 1 and 3 also filed their sworn affidavit in reiteration of their stands in their written versions and got marked as Ex.B1 to Ex.B6 the following documents Viz., (1) Letter dated 18-06-2002 addressed by the opposite party No.1 to the Franch Express Courier Service, Adoni. (2) Letter dated 25-06-2002 addressed by the Franch Express Courier, Adoni to the opposite party No.1. (3) Letter dated 25-07-2002 addressed by the Franch Express Courier, Adoni to the opposite party No.1. (4) Office copy of the Letter dated 30-08-2002 addressed by the opposite party No.1 to the complainant. (5) Letter dated 05-09-2002 addressed by the Deputy General Manager, Indian Bank, Hyderabad to the Officer In-Charge, Customer Grievances Cell, Hyderabad. And (6) Letter dated 23-09-2002 addressed by the opposite party No.3 to the opposite party No.1.
5. The written version of the opposite party No.1 besides questioning the justness and the maintainability of the complainant’s case requiring the strict proof of complaint averments. Even though it admits the submission of the cheque to it by the complainant for its collection it disowns of nay of its liability to account for the said cheque as it has sent the said other bank cheque for its collection to the State Bank of India, Yemmiganur (Opposite part y No.3) and when the issuer of the said cheque was holding account with the SBI, Yemmiganur it is for the later to honour or disnohour for any cogent region. Even then, it submits, as a matter of curtsey, the it has addressed several letters to the opposite party No.3 regarding the said cheque and ultimately came to know vide the letter of the opposite party No.3 dated 23-09-2002 as to the missing of the said cheque with the opposite party No.3 apart from the fact of the issuer of the cheque not having sufficient funds with the opposite party No.3 for matting the said cheque as the said account is in operative with the less than minimum balance. Hence allege no deficiency of service at its end towards the complainant and seeks the dismissal of the complainant case with costs.
6. The written version of the opposite party No.3 that the drawyer (issuear) of the said cheque i.e., Yemmiganur Agro Private Limited, Yemmiganur as not maintaining any account with the SBI, Yemmiganur (opposite party No.3) and by mistake a cover addressed to the SBI, ADB Branch, Yemmiganur was delivered to it by the courier service and with a bonafide intention of extending customer service enquired with the said SBI, ADB Branch, Yemmiganur and learnt insufficient of funds in the account of drawyer and inoperativeness of the said account with less than the minimum balance and the misplacement of the said cheque with it in the mean while and its non-tracel in-spite of sincere effort and hence informing of the same to the payee (Complainant) and the opposite party No.1 when the later enquired as to the said cheque sent for encashment and also of its sending a cheque lost cum non-payment certificate dated 23-09-2002 issued by the SBI, ADB, Yemmiganur Branch to enable the payee i.e., the complainant to proceed against the drawyer of the said cheque legally and the said misplacement of the cheque was not on account of any deliberate negligence of the opposite party No.3 and hence it does not amounts to any deficiency at its end as the mere loss of the instrument on account of its missing does not extinguish the liability of the drawyer and basing on the certificate received as to the loss of cheque and the non drawal of the said instrument the complainant could proceed against the drawyer of the said cheque for its dis-honour by the Bank for want of sufficient funds in the account of the drawyer and it does not owe any liability for making food of the amount of dis-honoured cheque and therefore seeks the dismissal of the complaint with costs.
7. Hence the point for consideration is whether the complainant has made out any deficiency of service of the opposite parties towards him as to the alleged cheque and thereby made out his entitleness to the reliefs sought.
8. The fact of sending the cheque by the complainant to the opposite party No.1 for its collection and its transmission to the opposite party No.3 by the opposite party No.1 for necessary disposal and on that the opposite party No.3 enquiring as to the said cheque and coming to know of the insufficiency of funds in the in-operative account of the drawyer of the said cheque which is with the less than the minimum balance amount at the SBI, ADB, Yemmiganur at the misplacement of the said cheque at the end of the opposite party No.3 is not much in dispute. The only point in controversy for adjudication is whether the said circumstances as to the loss of dis-honoured cheque due to its misplacement by the opposite party No.3 and its non-honoured cheque due to its misplacement by the opposite party No.3 and its non tracel in-spite of sincere efforts on the part of the opposite party No.3 whether would amounts to any deficiency of service as contemplated under the C.P. Act especially when the fact of furnished to the complainant the cheque lost-cum-nonpayment certificate issued by the SBI, ADB, Yemmiganur in favour of the payee (complainant) alleged in the Para No.5 of the written version of the opposite party No.3 was not disputed by the complainant not any circumstances is placed by the complainant as to the invalidity of the said certificate leading him with an inability to lay any required legal proceedings for realization of the said amount from the drawyer (issuear) of the said cheque which was dis-honoured on insufficiency of the amounts in the in-operative account with less than the minimum balance.
9. The service contemplated Under Section 2(o) of the C.P. Act should not be a service free o fcharge or under a contract of personal service. Neither the complainant nor any of the opposite parties allege the complainant was charged with any costs price for rendering the service of collection of the amount of the said cheque from the other Branch. Hence in the absence of any such material that the said service were charged without any cost or price it is very hard to believe the said service rendered by the opposite parties 1 and 3 as to the collection of the said bounced cueque was a service that is contemplated under the definition service in Section 2(o) of the C.P. Act. Hence the cause of action of the complainant’s case suffers primafaciea for want of its privy to the Consumer Protection Act for being adjudicated there under.
10. The cheque that was said to have been lost was due to in advertent misplacement of it by the opposite party No.3 and it non tracel in-spite of sincere efforts of the opposite party No.3. Hence even if a deficiency of service is to be believed for a movement subject to its coming within the scope of Section 2 of the C.P. Act. It shall be only to the extent of non return of dis-honoured instrument and not for the amount for which it was did-honoured. Hence there appears no justification in the claim of the complainant for the value of the dis-honoured cheque.
11. Further the fact of furnishing to the complainant the “cheque lost cum nonpayment certificate” alleged in the Para No.5 of the written version of the opposite party No.3 being not denied by the complainant and the complainant has not even placed any such circumstances as to the invalidity of the said certificate or the defect of his claim when based the necessary legal proceedings on the said certificate e, there remains hardly any material to believe the deficiency of the service of the opposite party No.3 even towards the complainant as the opposite party No.3 appears to have bonafidely made whatever the efforts on its part for enabling the complainant to take up appropriate legal action against the drawyer of the said cheque.
12. Therefore, in the above circumstances, as there being neither any element of service contemplated under the C.P. Act in the alleged cause of action of the complainant not there being any entitleness to the complainant from the opposite parties for the value of the dis-honoured cheque amount the case of the complainant remains advoid of merits and force and there by any of his entitleness of the reliefs sought. Consequently, the complainant’s case is dismissed with costs.
Dictated to the Stenographer, Typed to the Dictation corrected by us, Pronounced in the open Court, this the 28th day of August, 2003.
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MEMBER PRESIDENT MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant:- Nil For the opposite parties:-Nil
List of Exhibits marked for the complainant:-
Ex.A1 Certified copy of General Power of Attorney dated 29-03-2001.
Ex.A2 Certified copy of Form-A of PVS Industries.
Ex.A3 Certified copy of Form-C of PVS Industries.
Ex.A4 Counter foil dated 10-05-2002 issued by Indian Bank to PVS
Industries.
Ex.A5 Letter date d 21-06-2002 addressed by opposite party no.1 to the
complainant.
Ex.A6 Carbon copy of Letter dated 25-07-2002 addressed by complainant
to opposite party No.1.
Ex.A7 Xerox copy of Letter dated 02-08-2002 addressed by opposite party
No.2 to opposite party No.1 and marked copy to the complainant.
Ex.A8 Office copy of Lawyers Notice dated 12-09-2002 issued on behalf
of complainant to opposite parties 1 and 2.
Ex.A9 Letter dated 23-09-2002 addressed by opposite party No.3 to opposite party No.1.
Ex.A10 Reply Notice dated 14-10-2002 issued by opposite party No.1 counsel to the complainant counsel.
List of Exhibits marked for the opposite parties:-
Ex.B1 Letter dated 18-06-2002 addressed by opposite party No.1 to the Franch Express Courier Service, Adoni.
Ex.B2 Letter dated 25-06-2002 addressed by Franch Express Courier Service, Adoni to the opposite party No.1.
Ex.B3 Letter dated 25-07-2002 addressed by Franch Express Courier Service, Adoni to the opposite party No.1.
Ex.B4 Office copy of Letter dated 30-08-2002 addressed by opposite party No.1 to the complainant.
Ex.B5 Letter dated 05-09-2002 addressed by Deputy General Manager, Indian Bank, Hyderabad to the Officer In-charge Customer Grievances Cell, Hyderabad.
Ex.B6 Letter dated 23-09-2002 addressed by opposite party No.3 to opposite party No.1.
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MEMBER PRESIDENT MEMBER
