BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B., Member
Tuesday the 15th day of November, 2005
CD No.27/2005
P.Narayana Rao, S/o P.Nagoji Rao, Retired Head Post MNaster,
R/o H.No.81-2-2, Raghavendra Nagar, B-Camp Post Office, Kurnool.
. . . Complainant
-Vs-
- The Superintendent of Post Offices,
B-Camp Sub Post Office, Kurnool.
- The Chief Manger,
State Bank of India, Main Branch, Kurnool.
. . . Opposite parties
The complaint coming on 9.11.2005 for arguments in the presence of Sri.N.Ramachandra, Advocate, Kurnool for complainant and Sri.M.D.V.Jogaiah Sarma, Advocate, Kurnool for opposite party No.1 and Sri.D.A.Aneesh Ahamed, Advocate, Kurnool for opposite party No.2 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)
CC/27/2005
1. This CD Case of complainant is filed under section 12 of Consumer Protection Act, 1986 seeking a direction on the opposite parties 1 and 2 for payment to the complainant the cheque amount of Rs.20,000/- with interest thereon from 05-10-2004 till realization, Rs.5,000/- towards mental agony and suffering and costs of this proceedings alleging that a cheque bearing No.816037 was sent by post by the complainant son from America to the complainants care of address i.e., B-Camp Post Master, Kurnool and the said has not reached the complainant but on the other hand the cheque therein was encashed from opposite party no.2 bank by a wrong person on 05-10-2004 and the opposite parties did not properly respond to the grievance of the complainant in the above regard and its exhibits their deficiency of service and necessitated this proceedings for redressal.
2. The written version of the opposite party No.1 besides denying the truth and bonafidies of the complaint averments and any of its deficiencies and there by any of its liability to the claim of the complainant, seeks dismissal of the complaint alleging statutory protection to it under section 6 of Indian Postal Office Act as the alleged cheque was sent from America in ordinary post and under clause No.17 (d) of the postal office guide part 1 for an article containing a cheque registration is obligatory and compulsory.
3. The written version of opposite party No.2 also besides denying the truth and bonafidies of complaint averments and any of its deficiency in service to the complainant, allege that the alleged cheque was paid across the counter in due course of business to its presenter as it was a bearer cheque in proper compliance of the provisions of Law under section 10, 85 and 85A of Negotiable Instruments Act and so for want of proper cause of action to the complainant seeks the dismissal of the complaint with costs.
4. Hence, the point for consideration is whether the complainant has made out any deficiency of service of the opposite parties so as to make the opposite parties liable for the claim of the complainant.
5. The complainants side filed some unattested Xerox documents with any justifiable grounds for their marking and hence they are not marked as exhibits.
6. In the Xerox copy of the legal notice dated 20-01-2005 the complainant alleges that the complainant came to know vide letter dated 31-10-2004 of his son that a cheque bearing No.816037 for Rs.20,000/- was sent to him by post and on approach to the opposite parties 1 and 2 he learnt as to the fraudulent encashment of said cheque by someone else by 05-10-2004 itself and hence on 10-11-2004 complaint was made to bank authorities and it was not responded properly, but where as an unattested Xerox copy of complaint said to have been addressed to the opposite party No.2 bears the date of it as 10-10-2004 and its signing by the complainant on 11-10-2004 and thereby cash any amount of doubt on the bonafidies of the legal notice averments to the effect that the complainant could not know of the missing cheque till he received a letter from his son on 31-10-2004 and the fact of its fraudulent encasement on 05-10-2004 on subsequent approached to the concerned.
7. There appears an unattested Xerox copy of the letter said tohave been signed by P.Rama Mohan Rao (S/o P.Narayan Rao) on 11-11-2004 addressed to the opposite party No.2 and an unattested letter dated 31-10-2004 signed by said P.Rama Mohan Rao and which was said to have been addressed to the complainant. None of the two letters gives out any specific details of the letter under which the alleged missed cheque was sent. But on the other hand the supra stated letter dated 31-10-2004 says of sending under earlier letter not only the alleged cheque for Rs.20,000/- but also another cheque for 100/- dollars. If the said earlier letter containing both the above stated cheque one for Rs.20,000/- and another for 100/- dollars has not reached in actuality the complainant, there would have been a complaint for not receiving the same instead of alleging it only to a cheque of Rs.20,000/- and there would have been an address to the bank authorities not to honour the said 100/- dollars cheque also if placed by anybody for encashment. In the absence of any such bonafidy diligent conduct on the part of the complainant at the matters the alleged non receipt of an earlier letter consisting of the alleged cheque of Rs.20,000/- said to have been sent by complainant son and its alleged fraudulent encashment by someone else other than the complainant is remaining in high degree of doubt.
8. Now coming to the other aspects of the bonafidies of the complainant case concerned.
9. Leaving a part the strict proof of the earlier letter with Rs.20,000/- cheque to have been sent by complainant son from America to the complainant in Kurnool by ordinary post to his care of address as Post Master B-Camp, Kurnool, in the light of such a statement of the opposite party No.1 which amounts to denial of said fact for want of any knowledge to it or any material record such as an affidavit of said letter evidencing said facts, under clause 171(d) of the post office guide part I any article enclosed therein a cheque requires to be sent under registration i.e., by Register Post and section 6 of Indian Postal Office Act and (VI of 1898) exempts from liability the Government (Postal Authorities) for loss miss-delivery, delay or damage if any to the postal article in course of transmission by post except in so far as such liability may in express terms be under taken by the Central Government or any officer of the post office for such act unless any fraudulently, willful act or default of his. Any such cogent material is placed by the complainant to seek shelter under the said exceptions. Hence in the absence of any such cogent material and in the light of the above mandatory statutory provisions, there appears any deficiency of service or conduct on the part of the opposite party no.1 in the alleged missing of letter to the complainant and in its further alleged conse3quences and therefore the opposite party No.1 is not remaining liable for the claim of the complainant.
10. Now as to the liability of the opposite party no.2 is concerned as to alleged deficiency of service to the complainant.
11. The alleged cheque which was said to have been fraudulently encashed by else other than the complainant is a mere bearer cheque as it’s appears from the perusal of the said cheque produced into the record by the opposite party No.2. Further it is bearing an endorsement on the revise page of said instrument as “Pleas pay to the bearer of this cheque P.Narayana Rao”. Hence Prima Facie from its apparent tenor it is mere bearer cheque with a specific endorsement thereon to pay ordering it’s to the bearer of said cheque. As such it is payable to bearer under section 10 of negotiable instrument acts as payment in due course and must have been made accordingly generally in the absence of any exceptions envisaged under said section 10 of Negotiable Instrument Act. Therefore there appears any un maturity in the reply dated 24-01-2004 of opposite party No.2 as to the payments of said bearer cheque No.816037 dated 20-09-2004 for Rs.20,000/- across the counter to its bearer how presented it and hence thereby any deficiency of service on the part of the opposite party no.2 in its honoring for payment to the concern bearer. Further when the said cheque was a mere bearer cheque endorsed by P.Narayan Rao ordering its payment to its bearer and it being a not an account payee cheque and the said instrument when not disclosing the identity of said P.Narayana Rao as an account holder of bank with nay account No. there will not be any necessity or possibility to the bank to doubt the bonafidies of the said signature of P.Narayana Rao under said payment endorsement in favour of the bearer of said cheque who present it across the counter for encashment. As far as the said cheque is concerned the said P.Narayana rao appears to be a stranger to the bank for want of his identification particulars there will not be any circumstances to the bank to doubt the bonafidies of the signature of P.Narayana Rao at the said endorsement. Hence there appears no malafides or deficiency of service on the part of the opposite party No.2 in making such payments across the counter to its bearer in accordance with the section 10 of Negotiable Instruments Act.
12. But on the other hand the lapsive deficient conduct of non-deligency appears to be more on the part of the complainants son in alleged sending of a valuable instrument without necessary precautions in a fool proof manner and so for his said lapsive and omitive and non deligent conduct, the opposite parties who appears to be deligent and in conducting themselves in accordance with the statutory provisions can neither be found fault with nor could be blamed for the allege inconvenience of the complainant fastening any liability for the complainant claim.
13. Consequently, in the result, of the above discussion as no deficiency of service of the opposite parties is made out fastening, there liable to the complainant’s claim, there appears any merit and force in the case of the complainant and hence it is dismissal with costs.
Dictated to the Stenographer, transcribed by her, corrected and pronounced by us, in the Open Forum, on this the 15th day of November, 2005.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
List of Exhibits Marked for the complainant:- Nil
List of Exhibits Marked for the opposite parties:- Nil
PRESIDENT
MEMBER MEMBER
Copy to:-
1. Sri.N.Ramachandra, Advocate, Kurnool.
2. Sri.M.D.V.Jogaiah Sarma, Advocate, Kurnool.
3. Sri.D.A.Anees Ahamed, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
