Delhi

StateCommission

C-42/2003

MS MISUKI EXPORTS PVT.LTD. - Complainant(s)

Versus

AMERICAN EXPRESS BANK LTD. TRAVEL RELATED SERVICES - Opp.Party(s)

09 Nov 2017

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                                             Date of Decision: 09.11.2017

 

Complaint Case No. 03/42

 

In the matter of:

 

M/s Misuki Exports Pvt. Ltd.

D-815, New Friends Colony

New Delhi-110065                           ........Complainant

Versus

 

1. American Express Bank Ltd.

(Travel Related Services)
A, A-1 and A-2 Enkay Centre

UdyogVihar, Phase C

Gurgaon-122016

 

2. Associated Forex Services Ltd.

C-37, Mezzane Floor

Atma Ram House

Connaught Place

New Delhi-110001                       ........Opposite Parties

                                     

CORAM

 

N P KAUSHIK                        -                  Member (Judicial)

 

1.         Whether reporters of local newspaper be allowed to see the judgment?                   Yes

2.         To be referred to the reporter or not?                                                                  Yes

 

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGMENT

 

1.         Complainant M/s Misuki Exports Pvt. Ltd. is a company incorporated under the Companies Act 1956 and doing its business of exporting garments. The American Express Bank Ltd. (in short the OP-1) is doing the business of selling travellerscheques.Associated Forex Services Ltd. (OP-2) is one of the agents of OP-1. Complainant purchased 50 travellers cheques from OP-2 on 06.12.2002 for a sum of Rs. 12,20,000/-. Travellerscheques were lost on the very next day i.e. 07.12.2002 while the complainant was boarding a flight to US. Factum of loss was reported to the Police Station New Friends Colony New Delhi on 09.12.2002. Complainant gave instructions to his banker for stopping payment in respect of the balance payment of Rs. 6,20,000/-. OP-2 gave an assurance to the complainant that the travellerscheques would be replaced for a sum of Rs. 6.0 lacs already received by them. Replacement cheque dated 23.12.2002 was issued. Complainant gave replacement cheque for an amount of Rs. 6,20,000/-. Grievance of the complainant is that the OP-2 presented the said cheque dated 23.12.2002 without giving any travellers cheques.
2.         Contention of the complainant is that he was prompt enough in reporting the factum of loss of travellerscheques to both the OPs and the police. Complainant further submitted that the OP-1 asked him for furnishing a claim form alongwith requisite documents on 11.12.2002. Complainant provided the same on 13.12.2002. Submission of the complainant was recorded by OP-1. Complainant submitted that despite full co-operation from his side, both the OPs failed to refund the money despite letters dated 25.12.2002, 31.12.2002 and 06.01.2003 written to OP-1. OP-1 simply wrote the letter dated 27.01.2003 asking for certain particulars. Complainant was also informed that his claim was under process. Finally complainant sent a legal notice dated 29.01.2003 and the same too was not replied.
3.         On the basis of the aforesaid spectrum of facts, complainant has by way of the present complaint claimed the amount of travellers cheques of Rs. 12,20,000/-loss on air ticket to the tune of Rs. 80,000/-, business loss and consequential damages of Rs. 6,35,000/-. Besides this, compensation on account of mental agony to the tune of Rs. 50,000/- has also been sought. Thus the complainant has prayed for directions against the OPs for payment of an amount of Rs. 19,75,000/- alongwith interest @ 24% p.a.
4.         Both the OPs filed written versions. OP-1 raised an objection that the complainant was not a consumer within the ambit of section 2(1)(d) of the Consumer Protection Act 1986. He has not come to this court with clean hands. OP-1 admitted that the complainant had purchased travellerscheques worth 25000 US$ (Rs. 12,20,000/-). Complainant had initially issued two cheques, one for an amount of Rs. 6,00,000/- and another for Rs. 6,20,000/-. Later the complainant replaced the said two cheques with one payee order of Rs. 6,00,000/- and another cheque of Rs. 6,20,000/-. The second cheque (cheque for an amount of Rs. 6,20,000/-) was dishonouredon presentation.
5.         Defence raised by OP-1 is that the FIR for the loss of travellerscheques was lodged only on 11.12.2002 i.e. 04 days after the loss. Complainant filed the statement of claim with OP-1 on 18.12.2002. Contention of OP-1 is that the complainant was careless in safeguarding the travellerscheques. For this he relied upon the submission made by the complainant on 18.12.2002 which is reproduced below:

“While leaving home I had put one envelope containing all my TCs, air tickets and passport in the back side of my briefcase/handbag. At the airport I took out the passport & ticket for immigration and check in etc. After all initial formalities of check-in I went to the pharmacist shop at the airport to buy medicines as I was not feeling well in my stomach and was in fever also. After going through immigration I lie down for some rest in the KLM lounge. It was about 12:30 in the night. I boarded the aircraft at about 1.15 am in the morning and flew.”

 

6.         Written version was also filed byOP-2 i.e. the agent of OP-1. He submitted that he was merely a selling agent of the travellerscheques being sold by OP-1. He had no liability towards the complainant. OP-1 alone was responsible for loss/theft of the travellerscheques. Travellerscheques were purchased by one Sh. Ratan Mani representative of the complainant after delivering two cheques to OP-2. The same weredishonoured on presentation. Till date no payment has been made to OP-2. OP-2, therefore, filed a complaint under Negotiable Instrument Act against the complainant which was pending adjudication in the court of a Ld. MM.
7.          Rejoinder to both the written versions was filed by the complainant. Affidavits towards evidence were filed by the parties. OP-2 thereafter absented himself from the proceedings. He was proceeded against ex-parte vide orders dated 08.08.2017.
8.         I have heard at length the arguments addressed by the counsel for the complainant Sh. Vatsal Kumar and the counsel for OP-1 Sh. ShishirMathur.
9.         Broadly there are two controversies in the matter. The first one is in relation to the fact whether the complainant paid two cheques, one for an amount of Rs. 6,20,000/- and another forRs. 6,00,000/-. Second point for consideration is whether OP-1 was ‘deficient in service’.
10.  Letter dated 22.01.2003 written by the complainant to OP-2, copy of which is placed on record by the complainant, shows that the amount of Rs. 6,00,000/- paid by the complainant by way of a DD alone has been credited to the account of OP-1 through OP-2. Coming to the question of deficiency in service, it is admitted case of the OPs that they did not send any communication in writing to the complainant repudiating his claim. Complainant as referred to above wrote several letters to the OPs. OP-1 finally sent a letter dated 27.01.2003 asking for certain information. The requisite information was however furnished. OPs remained silent thereafter. The amount of Rs. 6,00,000/- clearly was never refunded to the complainant. OP-1 has, therefore, indulged in ‘unfair trade practice’and had been guilty of‘deficiency in service’as well.
11. It may be mentioned here that OP-1 raised anobjection to the effect that the complainant was not a ‘consumer’. The travellerscheques have been purchased for commercial purposes. Ld. Counsel for the complainant has heavily relied upon the case of American Express Bank Ltd. v. Narendra Kumar Rai, IV (2006) CPJ 161 (NC). The relevant portion of the judgment is reproduced below:

“12. It is not the case of the appellant that these were ever presented for encashment and they have paid after comparing the signatures of the complainant on those cheques. When the cheques were not utilized and were lost complainant/purchaser/consumer is entitled to get back the money. Otherwise, the person who issued these travellers cheques would make an unjust enrichment and the purchaser would be unnecessarily made to suffer the loss. The appellant could have verified these facts as has been mentioned by the learned State Commission in its order with the help of all the facilities of computerization in modern techniques.”

 

12. In view of the reasons given, OP-1 is directed to refund to the complainant an amount of Rs. 6,00,000/- alongwith interest @ 12% p.a. w.e.f. 27.01.2003 till the date of its realization. OP-1 is also directed to pay a compensation to the tune of Rs. 3,00,000/- to the complainant for causing harassment, inconvenience, frustration and mental agony to the complainant. Complaint is accordingly disposed of.
13. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be sent to Records.

 

(N P KAUSHIK)
MEMBER (JUDICIAL)