Advocate A.S.Dhobale for the Complainant
Advocate G.K.Odhekar for the Opponent No.1
Advocate S.R.Taware for the Opponent No.2
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 12th December 2013
This complaint is filed by consumer against the bank and the courier service for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is dealing in the profession of selling and purchasing sarees. Complainant used to purchase sarres from various dealers from Kolkata, Jaipur, Delhi etc and it is usual practice that it used to place order with concerned parties. The parties used to send sarees through road transport and after receiving the consignment, complainant used to sent the cheques of the bill amount through courier. Opponent No.2 is dealing in the courier service. Complainant has opened account in the opponent No.1 Bank in the name of partnership Firm. One Rajesh Gandhi was one of the partners who is operating the said account. Complainant had issued five cheques in the name of various dealers from Kolkata during the period of 10/8/2009 to 1/10/2009 through courier i.e. opponent No.2. When complainant had obtained statement of bank account from the opponent No.1, he found that the cheques were honoured in the name of Mia Rahul Amin who has no concern with the complainant. Hence, he made inquiry with the opponent No.1. Opponent No.1 had furnished copies of cheques which were in the custody Kolkata branch. It was transpired from the said cheques that the opponent No.2 had not supplied the cheques which were sent by the complainant to proper person and Opponent No.1 had negligently encashed those cheques without verifying the contents of the cheque. Opponent No.1 had encashed those cheques eventhough there were overwriting and scratching. Both opponents have caused deficiency in service. Hence complainant has filed present complaint and claimed compensation of Rs.4,50,000/- from both the opponents.
[2] Opponent Nos. 1 and 2 both have resisted the complaint by filing written version. It is the case of the opponent No.1 that the cheques were bearer cheques. The Kolkata Branch has verified that the signature on the cheques was genuine. Hence, the cheques were encashed. It is also contended by the Opponent No.1 that opponent No.1 has not caused any deficiency in service and they are not liable for loss of Rs.3,48,670/- which was sustained by the complainant due to wrong payment. Opponent No.1 has prayed for dismissal of the complaint.
[3] Opponent No.2 has denied in the written version that it has caused deficiency in service. It is the case of the opponent No.2 that the complainant had not disclosed while sending the cheques through courier that the envelopes were containing cheques and that is against the terms and conditions between the parties. It is also contended that the envelopes were served at proper address and there is no deficiency in service. It has prayed for dismissal of the complaint.
[4] After considering the pleadings, affidavits and written arguments of both parties, scrutinizing the documents which are produced before the Forum and hearing the argument of both counsel, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has proved that there is deficiency in service on the part of the opponents ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
Reasons
As to the Point Nos. 1 and 2-
[5] The admitted facts between the parties are that the complainant had sent five cheques to various parties of Kolkata through courier i.e. Opponent No.2. It is not in much dispute that the five cheques which were issued in the name of various traders were encashed by person named as Mia Rahul Amin and those were encashed in the Kolkata branch of opponent No.1. The copies of the cheques are furnished by the complainant and it reveals from the same that there is overwriting on the cheques, there are two stamps of Ganapati Sarees on the said cheques. Primafacie it appears that the opponent No.1 bank did not take proper care while encashing the said cheques. Eventhough all cheques were in the name of different traders they were encashed by single person named as Mia Rahul Amin. It reveals from the cheques itself that the opponent No.1 was negligent while encashing the cheues. There is no more record produced by the opponent No.1 to show that it has taken reasonable precaution while encashing the cheques in the name of various traders to Mia Rahul Amin. In such circumstances, we held that the complainant has convincly established that there is gross deficiency in service on the part of the opponent No.1.
[6] It is the case of the Opponent No.2 that it was not aware as to whether complainant has send cheques through courier. It is common experience that the documents which can be send by post can be send through courier. Hence, the said defence of opponent No.2 cannot be accepted. However, opponent No.2 cannot be held responsible for encashment of the cheques by wrong person. But it appears that those cheques were not supplied to proper person by the Opponent No.2. Hence that amounts to deficiency in service. In the result, this Forum is of the opinion that opponent No.1 should pay Rs.3,48,670/- i.e the amount of cheques to the complainant. In addition to that amount opponent No.1 should pay Rs.25,000/- by way of compensation for deficiency in service and opponent No.2 should pay compensation of Rs.10,000/- to the complainant for deficiency in service.
In the light of the above discussion this Forum answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. Opponent No.1 is directed to pay amount of Rs.3,48,670/- to the complainant i.e. the amount of cheuqes and Rs.25,000/- by way of compensation for deficiency in service within six weeks from the date of receipt of copy of order.
3. Opponent No.2 is directed to pay amount of Rs.10,000/- by way of compensation for deficiency in service within six weeks from the date of receipt of copy of order.
4. Opponent Nos. 1 and 2 are jointly and severally directed to pay Rs.10,000/- towards compensation for mental agony and physical sufferings and costs of litigation.
5. Both parties are directed to collect the sets which are provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 12/12/2013
