This case has arisen out of application U/s 12 of the Consumer Protection Act, 1986.
The case of the complainant is that the petitioner is a bonafide consumer under the O.Ps and having A/c No-10100802 in the name of the petitioner lying with O.P.No-1Bank. On the death of Md. Rafik in a motor accident 04 cheques have been issued in the name of his wife Nayema Bewa, Daughters namely Sakila Bibi& Sakhina Bibi and son Ketabulla/petitioner in terms of the order of MAC Tribinal, Raiganj. The petitioner deposited his cheque vide No:-013633 dated 07/11/2017 with the O.P.No-1bank on 20.01.2018 but same was not encashed and finding no other alternative petitioner sent an Advocate’s letter dated 21.03.2018 replied by O.P.No-1 on 29.03.2018 which gives rise cause of action to file the case with a prayer to clear & disburse the cheque of Rs.1,43,969/-, compensation of Rs.50,000/- for mental pain & agony and litigation cost of Rs.6,000/-.
O.P.No-1 contested the case by filing written version denying the case of the petitioner stating that it received the cheque-in-question on 20.01.2018, then bank was remain closed for consecutive three days i.e 21.01.2018 to 23.01.2018 as holidays of the bank & financial institution and on 24.01.2018 after resumption of official works, all the collected cheques were accumulated and maintaining official procedure said cheque was sent to RCCB, Tungidighi Branch on 25.01.2018. From 25.01.2018 to 07.02.2018 said cheque was moved from one branch to other branch of different banks as a general rule of official procedure it might got expired in between the transportation process, so there was no intentional negligence of deficiency in service on the part of O.P.No-1. Thus it prays for dismissal of the case with cost.
O.P.No-2 also contested the case by submitting written version stating that it issued four cheques as per order of MAC Tribunal, Raiganj and deposited the cheques before the said Tribunal and after proper identification cheques were handed over to the petitioner, his mother and two sisters. O.P.No-2 has no role about the deposit of the cheque or encashment thereof, but the petitioner whimsically made it a party to the case, so it prays for dismissal of the case with cost of Rs.50,000/-.
O.P.No-3 contested the case by filing separate written version stating that no cheque vide No:-013633 dated 07/11/2017 has ever been sent to the O.P.No-3 bank for encashment and /or disbursement, as such there was no deficiency in service on the part of the OP.No-3, but it has willfully and intentionally made a party to the case, so it also prays for dismissal of the case with cost of Rs.20,000/-.
O.P.No-4 also contested the case by filing W.V stating that as the petitioner is an account holder of O.P.No-1 bank it received cheques from petitioner on 20.01.2018 and deposited it to RCCB Ltd., Tungidighi Branch for clearing on 24.01.2018, who sent it on 25.01.2018 to Head office of RCCB Ltd., Raiganj, who received it on 29.01.2018 as because 25.01.2018 to 29.01.2018 there were holidays. The Head Office of RCCB Ltd. sent said cheque to UTI/Axis Bank, Malda Branch for clearance on 01.02.2018 as because the RCCB Ltd. takes the assistance of UTI/Axis Bank, Malda Branch, as the cheque was issued on Indian Bank, Malda Branch. The cheque was not cleared in due time rather bounced by Indian Bank, Malda Branch, which was conveyed by Indian Bank to Axis Bank , Malda Branch, who intimated Head Office of RCCB Ltd., Raiganj, on 07/02/2018 through clearing system and the cheque was returned for the reason “out of date”, as the cheque was outstation cheque for clearance it needs time and branch does not get sufficient time for clearance. O.P.No-4 had no role to clear or disburse the cheque and no deficiency in service or unfair trade practice was done by O.P.No-4, so it also prays for dismissal of the case with cost.
Points for consideration:-
- Whether there was/ is any deficiency in service or unfair trade practice on the part of the O.P (s) which gives rise cause of action to file the case?
- Whether the petitioner is entitled to get relief (s) as prayed for?
D e c I s I o n w I t h r e a s o n s
Admittedly, the petitioner is a bonafide consumer under O.P.No-1/bank having A/c No-10100802.
It is also admitted that on the death of Md. Rafik in a motor accident, four cheques of Rs.151380/-, 143968/-,143969/-& 143969/- have been issued favoring deceased’s wife Nayema Bewa, two daughters Sakila Bibi & Sakhina Bibi and son Ketabullah / petitioner, in terms of the order of MAC Tribunal, Raiganj, by O.P.No-2/Insurance Company, all dated 07/11/2017.
It appears that on 20.01.2018 (Saturday) the petitioner deposited his cheque bearing No:-013633 dated 07/11/2017 amounting to Rs.143969/- drawn on Indian Bank, Malda Branch / O.P.No-3 (the banker of O.P.No-2/Insurance Company), with the O.P.No-1/ Bank, for credit in his A/c No:-10100802 on “collection”.
As argued the petitioner received said cheque on 22/12/2017, so the delay/ lapse of 29 days to deposit the cheque for collection, held inordinate, the reason best known to the petitioner only.
It is stated by O.P.No-1/ bank that the bank was remain closed for consecutive three days i.e from 21.01.2018 to 23.01.2018. It appears that 21.01.2018 was Sunday. Notification dated 22.09.2017 of Govt. of West Bengal shows that during the year 2018, 22.01.2018 & 23.01.2018 were holidays for Saraswati Puja (Sree Panchami) & birthday of Netaji.
Undisputedly O.P.No-1/bank has no power to clear any cheque directly. It is stated on behalf of O.P.No-1 bank that it received the cheque on 20.01.2018 (Saturday in afternoon) and following three holidays from 21.01.2018 to 23.01.2018, after resumption of official works, on 24.01.2018 (Wednesday) on accumulating the cheque(s )collected, maintaining official procedures and required entries it sent said cheque to RCCB, Tungidighi Branch, on 25/01/2018.
It is admitted that branches of RCCB including Tungidighi Branch has no clearance system, so it/they had to sent the collected cheque(s) to the Head Office of RCCB, Raiganj. As the petitioner has no account with RCCB, Tungidighi Branch, so O.P.No-1/bank received the cheque from petitioner and deposited the same with the nearest bank (RCCB, Tungidighi Branch).
In 2nd Para of Page-2 of memo of evidence Amit Kr Chatterjee, Authorized Officer of RCCB, Raiganj (Head Office) stated that the cheque was deposited to RCCB, Tungidhi Branch on 24.01.2018 & its Tungidighi Branch sent that cheque on 25.01.2018 to their office and their office i.e Head Office of RCCB, Raiganj received the cheque on 29.01.2018 (Monday), as because in between 25.01.2018 to 29.01.2018 there were few holidays.
It appears that 26.01.2018, 27.01.2018 & 28.01.2018 were holidays for Republic Day, 4th Saturday and Sunday respectively.
Thus doubt/difference apparent between the version of O.P.No-1 and O.P.no-4 as to whether O.P.No-1 sent the cheque to RCCB, Tungidighi Branch, on 25.01.2018 (as stated by O.P.No-1) or the cheque was deposited to RCCB, Tungidighi Branch on 24.01.2018 & its Tungidighi Branch sent that cheque to their office i.e Head Office of RCCB, Raiganj on 25.01.2018. Said doubt/difference has been cleared from cross-examination of O.P.W.1/Amit Kr Chatterjee, who stated that on seeing the cheque he cannot say on which date their bank i.e head Office of RCCB, Raiganj received that cheque, adding further that RCCB, Tungidighi Branch received the cheque from O.P.No-1/Bank on 25.01.2018, so statement of O.P.No-1/Bank stands correct. Cheque details for collection dated 25.01.2018 further corroborated that date i.e 25.01.2018.
In Para-2 page2 of memo of evidence Amit Kr Chatterjee further stated that their office (Head Office of RCCB, Raiganj) sent that cheque to Axis Bank Ltd (erstwhile UTI Bank Ltd), Malda Branch for clearance on 01.02.2018 (cheque collection advice dated 01.02.2018 corroborate it), as because RCCB takes the assistance of Axis / UTI Bank for clearance in Malda District, as the O.P.No-2/ Insurance Company issued said cheque on Indian Bank, Malda Branch/O.P.No-3
O.P.W.1/Amit Kr. Chatterjee stated in his cross examination that they sent the cheque through courier but they did not receive any acknowledgement or service report from the courier agency. He added that he cannot say on which date UTI/Axis Bank Ltd., Malda Branch received that cheque. Further he added that said cheque was returned to them on 17.02.2018 and they sent back said cheque to RCCB, Tungidighi Branch on the same day i.e 17.02.2018 (Cheque return advice/memo with reason 34 “out of date” produced).
It is undisputed that said cheque has never been sent to Indian Bank, Malda Branch/O.P.No-3 for encashment/clearance. We are of the opinion that Insurance Company/O.P.No-2 & Indian Bank, Malda Branch/O.P.No-3 had / has no role as to the deposit and /or encashment/clearance of the cheque and there was no deficiency in service or unfair trade practice on the part of O.P.No-2 & 3.
It is apparent that the cheque was issued on 07.11.2017 and deposited for encashment on 20.01.2018, causing inordinate delay of two months & thirteen days, for the reason best known to the petitioner only. Assuming that petitioner received the cheque on 22.12.2017 and deposited on 20.01.2018, causing inordinate delay of 29 days also on the part of the petitioner, the reason also best known to him.
Assuming the delay, if any, caused for the dilatoriness on the part of RCCB, Tungidighi Branch, and or UTI/Axis Bank Ltd, Malda Branch, any deficiency in service and / or unfair trade practice on their part cannot be fixed in their absence. Deficiency in service and/or unfair trade practice on the part of O.P.No-1/ Bank & Head Office of RCCB, Raiganj /O.P.No-4 has also not been proved up to the mark.
Considering all aspects we are of the view that for just decision it would be proper to direct the Insurance Company/O.P.No-2 to issue fresh/revalidated cheque of same amount favoring the petitioner, but he is not entitled to get any amount as compensation for alleged mental pain & agony and also as litigation cost, on failure of proof of deficiency in service and/or unfair trade practice on the part of the O.P(s) as alleged.
In the result the case stands, in part.
Hence, it is
O R D E R E D
that the C.C-23/2018 be and the same is allowed on contest against the O.Ps, in part.
We direct the Insurance Company O.P/No-2 to issue fresh/revalidated cheque of Rs.143969/- favoring the petitioner within one month from the date of order, failing which the petitioner will get interest @6% from the date of order till realization in full and the complainant will be at liberty to recover the same through execution.
No order as to cost and/or compensation on any other account.
Let a copy of this order be given to the complainant free of cost.
