DOF.23.10.08

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 May  2010.

C.C.No.242/2008

K.Satheeshan,

ParambathHouse,

Peringatoor,

Thalassery.

 (Rep.by Adv.V.R.Nasar)                                   Complainant

1. The Manager,

   North Malabar GraminBank,

   Peringathur Branch,

   Kannur.

  (Rep. by Adv.P.K.Ramesh)

2. Manager,

   ICICI Bank,

   Chamaraj Pett Branch, 132,

   Bull Temple Road,

   Bangalore 18.

  (Rep. by M.K.Associates)

3. R.Manoharana,

   Manu Enterprises,

   154/1,S.M.S Travels Building,

   Chambray Pett,

   Bangalore 18.            :                                                Opposite Parties         

                                                                        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 Parties to payRs.35, 000/- with interest and cost.

         The case of the complainant in brief is as follows: The complainant had presented a cheque dated 10.7.07 for Rs.25, 000/- before 1^st opposite party for collection and the same was sent to 2^nd opposite party. The cheque was misplaced from the 2^nd opposite party. Though frequently contacted 1^st opposite party there was no positive response. On 7.1.08 the complainant had contacted 1^st opposite party and they have informed that 2^nd opposite party informed that they have not received the cheque at Bangalore till date. In fact the 1^st opposite party was well aware that the cheque was dated 10.7.07 and the validity of the cheque will be expired by 10.1.2008. Complainant send lawyer notice to 1^st and second opposite parties and both of them received notice. The 1`st opposite party sent reply with false contentions. Then complainant sent a notice to 3rdopposite party to issue another cheque for to pay the amount covered by the cheque but as expected the 3^rd opposite party unclaimed the notice and returned the same. The cheque was misplaced only due to the negligence of opposite parties 1 and 2. Complainant sustained loss. The complainant estimates the loss to the tune of Rs.10, 000/- apart from the cheque amount. Thus complainant is entitled to get an amount of Rs.35, 000/- from opposite parties. Hence this complaint.

         Pursuant to the notice opposite parties 1 and 2 entered appearance and filed version separately. 3^rd opposite party served properly. Acknowledgement returned but remained absent and thereby declared exparte.

         The contentions of 1^st opposite party in brief are as follows: 1^st opposite party does not admit that a cheque bearing NO.003958-560229009-10 drawn by the 3^rd opposite party for Rs.25,000/- favouring the complainant was presented by complainant for collection to 1^st opposite party on 19.10.07. The cheque was sent for collection to the second opposite party on 22.10.07 by registered post with AD vide postal receipt No.601 dt.22.10.2007 of post office Peringathur and the delivery to 2^nd opposite party on 26.10.07 was confirmed by postal authorities by attested copy of the postal acknowledgement by the postal authorities. Though made enquiry there was no response from 2^nd opposite party. Complainant caused again notice on 19.1.08 demanding details. Accordingly this opposite party addressed 2^nd opposite party to furnish details. Since there was no response reminder was sent to 2^nd opposite party but not sent any reply. 1^st opposite party has done all possible arrangements for collection and also to get details of missing. It is evident that 2nd opposite party received the instrument on 26.10.07. But they did not reply to any of the queries of 1^st opposite party. The cheque was with the 2^nd opposite party and 2nd opposite party is liable for the loss. There is no deficiency of service on the part of 1^st opposite party. Hence to dismiss the complaint as against 1^st opposite party.

         2^nd opposite party contended that 2^nd opposite party is an unnecessary party. The case of 2^nd opposite party in brief is as follows: It is false to say that the cheque drawn on the 2nd opposite party that was presented to 1st opposite party for collection was sent to 2^nd opposite party. The allegation that the said cheque was misplaced by 2^nd opposite party and the information was passed by 1^st opposite party to 2^nd opposite party is false. 2^nd opposite party has not received the cheque mentioned in the complaint for collection. Thus there is no question of misplacement of cheque. There is absolutely no deficiency in service on the part of 2^nd opposite party. Hence to dismiss the complaint.

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

1. Whether there is any deficiency of service on the part of the Opposite Parties?
2. Whether the Complainant is entitled to get the remedy as prayed in the complaint?
3. Relief and cost.

The evidence consists of the oral testimony of PW1, DW1, and Exts.A1, Ext.B1 to B11.

Issue No.1 to 3

            Admittedly the alleged cheque bearing NO.003958-560229009-10 drawn by  3^rd opposite party favouring the complainant for Rs.25,000/- was presented to 1^st opposite party on 19.10.07 for collection. Ext. B1 is the photo copy of the bills for collection. Ext.B 2 postal receipt dt.22.10 proves that 1^st opposite party sent the said cheque for collection to 2^nd opposite party. Ext.B3 letter dated 7.1.08 regretting the inconvenience proves that the above said material was delivered to the addressee on26.10.07 from Bangalore 19 PO. Ext.B5 the attested copy of the addressee’s receipt of RI can also be considered as evidence that the article delivered to 2^nd opposite party. Ext.B7 acknowledgement and Ext.B10 proves that the cheque was delivered to 2nd opposite party. Hence the above facts makes it clear that complainant  has presented the cheque for Rs.25,000/- to1st opposite party on 19.10.07 for collection and the same has been sent to 2^nd opposite party by 1^st opposite party. The 2^nd opposite party has taken the stand that negligence and deficiency in service are explicitly clear as that of 1^st opposite party alone. Complainant has no burden to prove whether the instrument in question was properly sent for collection by 1^st opposite party to 2^nd opposite party through proper mode and usual practice in banking transaction affairs. Complainant could successfully proved that the cheque in question was misplaced due to the negligence and deficiency in-service on the part of the1st opposite party and 2nd opposite party. It is quite natural that complainant might have suffered mental tension and economic losses.

            There is no dispute with respect to the amount of cheque. The case of the complaint  that he has sustained total loss of the amount cannot be rejected. But it is a fact that he has not produced any evidence to show that he has made attempt to get another cheque. But it does not affect the liability of 1^st opposite party and 2^nd opposite party towards the complainant to compensate the loss sustained by him. Hence we are of opinion that an amount of Rs.15, 000/- as compensation will meet the end of justice. Thus the complainant is entitled to get an amount of Rs.15, 000/- as compensation together with a sum Rs.1000/- as cost of these proceedings. The issues 1 to 3 are answered infavour of the complainant and order passed accordingly.

            In the result, the complaint is allowed directing the opposite parties 1 and 2 to pay Rs.15, 000/- as compensation together with Rs.1000/- as cost of this proceedings to the complainant. The opposite parties are jointly and severally liable to pay the amount within one month from the date of receipt of this order, failing which it shall be attracted interest for the amount of compensation @12% from the date of filing of the complaint. Complainant is also at liberty to execute the order as per consumer protection act after the expiry of one month.

     Sd/-                      Sd/-                                        Sd/-     

President                Member                                   Member

APPENDIX

Exhibits for the complainant

A1.Receipt issuedy OP

Exhibits for the opposite parties

B1Copy of bills for collection receipt

B2.Copy of postal regn. receipt

B3 & 4.Letter  dt.7.1.08 and 26.3.08 sent by customer care centre

B5.Attested copy of addressee’s receipt

B6.Copy of the letter dt.12.1.08 sent by NMG Head office to OP2

B7.Acknowledgement card

B8. Copy of the letter dt.29.2.08 sent by NMG Head office to OP2

B9.Acknowledgement card

B10. Copy of proof of delivery

B11.Letter dt.4.8.09 sent by Supdt.CPIO Bangalore to OP1

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties

DW1.V.Prakash Chandran

                                                      /forwarded by order/

Senior Superintendent

Consumer Disputes Redressal Forum, Kannur