PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :

1) In brief consumer dispute is as under –

    That the Complainant M/s. Maheshkumar & Bros., is a Partnership firm carrying on business of suiting and shirting and dress materials. The Complainant has Current Account with the Opposite Party Bank since 1984.

2) It is the case of the Complainant that as per the order received from their customer M/s. Subham Trading Company, Dehri-on-Sone, Bihar, they sold the goods to the customer was Rs.52,760/-. Particulars of the bill, date of transaction are stated in the complaint para no.3. It is submitted that aforesaid goods were dispatched to their customer at Dehri-on-Sone, Bihar through East India Transport Industry which is recognized by Opposite Party Bank under their LR NO.27085, 27086 & 27087 dtd.04/03/02. Alongwith complaint, the Complainant has produced xerox copies of the aforesaid LR.

3) By letter dtd.05/03/02, the Complainant informed the Opposite Party that they have sold goods and goods are forwarded by East India Transport Co. The Complainant then entrusted above mentioned documents and LR receipt to the Opposite Party for collection of the bill amount for which the Opposite Party had issued 3 receipts all dtd.11/03/02. The Complainant had produced copies of the 3 acknowledgment receipts issued by the Opposite Party alongwith the complaint at Exh.‘C’colly.

4) It is submitted that after waiting for considerable period the Complainant addressed letter dtd.06/05/02 to the Opposite Party, complaining about non receipt of the said bills payment. Then the Opposite Party vide letter dtd.13/05/02 informed the Complainant that the said bills and documents were sent to Dehri-on-Sone, Bihar branch by R.P.A.D. but the same were not received at the destination. The Complainant sent another letter dtd.14/06/02 to the Opposite Party. Somewhere in July, 2002 Opposite Party had forwarded a xerox copy of letter dtd.11/07/02 addressed by Dehri-on-Sone, Biharbranch of Opposite Party alongwith enclosure to the Complainant. After receipt of aforesaid letter dtd.11/07/02 and after going through said xerox copy of letter dtd.11/07/02, it was revealed that said envelope sent by the Opposite Party by R.P.A.D. were received by the branch of Opposite Party at Dehri-on-Sone, Bihar branch but the same did not contained the documents i.e. bills and lorry receipt entrusted by the Complainant to the Opposite Party but some other irrelevant document and papers which were not concerned with the Complainant. Opposite Party by another letter dtd.31/12/02 informed the Complainant that some unscrupulous elements had managed to intercept the bank’s envelope sent by R.P.A.D. and got the delivery of goods sent by the Complainant. The Opposite Party further stated and informed that they were in process of making complaint to the vigilance department, post authority, GPO and advised client to lodge FIR to MRA Marg Police Station.

5) After passing of considerable time and considering the conduct Opposite Party, Complainant was constrained to send letter dtd.26/02/04 through advocate to the Opposite Party and thereby called upon the Opposite Party to reimburse the said payment. Opposite Party by their letter dtd.21/06/04 informed the Complainant that they have already complained to MRA Marg Police Station. It is alleged by the Complainant that Opposite Party was avoiding the value clearance so on 04/10/06 he again sent letter to Opposite Party through his advocate and copy of the letter was sent to the Reserve Bank of India and thereby called upon Opposite Party to reimburse the said payment. The Complainant’s advocate received a letter dtd.21/11/06 sent by Governer Reserve Bank of India, in which it was informed that complaint has been forwarded to the Opposite Party for necessary action. It is alleged by the Complainant that employees of the Opposite Party have removed said documents from postal envelope sent by R.P.A.D. and illegally and unlawfully took delivery of the goods. LR furnished to the Complainant clearly shows that said LR bears Rubber Stamp of Opposite Party Dehri-on-Sone, Bihar branch. According to the Complainant it amount to deficiency in service on the part of Opposite Party. In such circumstances the Complainant was constrained to file this complaint before this Forum. The Complainant has requested to direct Opposite Party to pay to the Complainant sum of Rs.52,760/- towards loss suffered by the Complainant. Further he has requested to direct Opposite Party to pay compensation of Rs.2 Lacs together with interest @ 18 % p.a. and cost of this complaint.

6) Alongwith complaint the Complainant has produced copies of the document as per list of document and application for condonation of delay. Notice of the delay condonation application was sent to the Opposite Party. Opposite Party filed return reply and thereby raised objection to condone the delay. Then President and Members of this Forum after hearing both the parties allowed the Complainant’s application for condonation of delay and condoned the delay caused in filing of this complaint.

7) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending interalia that there is no deficiency in service on the part of Opposite Party and therefore, complaint deserves to be dismissed with cost.

8) Opposite Party has admitted contents of correctness of complaints para no.1 to 3. They have not denied the correctness of complaints para no.4, 5 & 6 submitting that Complainant has Current Account with Opposite Party since 02/05/84 and on 05/03/02 the Complainant submitted for collection to the Opposite Party 3 bills bearing no.1902, 1903, 1904/02 dtd.02/03/2003 drawn by the Complainant’s firm M/s. Subham Trading Company, a cloth merchant at No.317, radhakatraj Koyla Depot, Post Dehri-on-Sone, District Rohtas, Bihar, alongwith Lorry Receipt No.270585, 270586 and 270587 dtd.04/03/02 of East India Transport Co. All the 3 bills were for total Rs.52,760/-and the Consignment Notes duly endorsed in favour of the Opposite Party’s favour for sending the same on collection basis to the Opposite Party’s Branch at Dehri-on-Sone branch at Bihar. As per bank’s rules the consignment notes were in turn endorsed by the Opposite Party in favour of Dehri-on-Sone branch and all the 3 bills (alongwith consignment notes for collection under the covering schedule) were sent by the Opposite Party to their Dehri-on-Sone, at Bihar by R.P.A.D. on 11/03/02 through GPO, Bombay. GPO Authority acknowledged the same with their seal and initial in the enclosed receipt. Postage of Rs.28/- by franking was paid to the GPO. Copy of Extract issued by the Registration Branch, Indian Post and Telegraph Department showing that the RPAD bearing No.5790 have been dispatched to Bank of India, Dehri-on-Sone, Bihar Branch is produced alongwith written statement at Exh.‘A’

9) Opposite Party has admitted that contents of para no.7, 8 & 9 stating that Complainant had made a complaint to Opposite Party that payment was not received by the Complainant from the drawee M/s. Subham Trading Company, Dehri-on-Sone, Bihar through the bank and they made inquiry with the bank about the fate of their bills. According to the Opposite Party their Dehri-on-Sone, Bihar branch informed them that the said branch had received under Registration a plain cover addressed to them from M/s. Mahendra Kumar and Bros. at No.13/22, Kalbadevi Road, Mumbai with 21/- Rupees postage stamp and it was containing blank paper and reminder letters some other party. Vide letter dtd.11/07/02, Opposite Party’s Dehri-on-Sone, Biharbranch informed the Complainant that they have not received RPAD cover from Opposite Party and further informed that RPAD cover received from M/s.Mahendra Kumar and Bros. and was containing useless papers.

10) According to the Opposite Party the said consignment have been cleared by the Fraudster from the Lorry Depot named Satamarhi at a distance of about 350 kms., from Dehri-on-Sone, Opposite Party’s Bihar branch informed Opposite Party that endorsement on the TRs/Lorry Receipts are forged ones and some fraudulent elements have misused their branch name, used fake Rubber Stamp and has cleared the consignments. Aforesaid letter dtd.11/07/02 received by the Opposite Party is produced at Exh.‘B’alongwith written statement. Opposite Party being a Nationalized Bank has sent aforesaid document with printed envelops showing their address at Bombay as ‘From’ address and the address of their branch, at Dehri-on-Sone, Bihar was hand written. However, envelop cover received by their Dehri-on-Sone, Branch was plain one with affixed postage stamp of Rs.21/- containing blank/irrelevant documents. The Opposite Party has also not received acknowledgment receipt from GPO in respect of envelope sent by them to their Dehri-on-Sone, Biharbranch.

11) It is submitted by the Opposite Party that they have learnt that Mr. Rajkumar Singh claimed to be one of the partners of M/s. Subham Trading Co. had approached the Complainant on 28/02/02 and placed order for the clothes by paying cash advance of Rs.4,000/- and assured to make further payment through bank. The said Mr. Rajkumar Singh was not known to the Complainant earlier. It is alleged by the Opposite Party that said Mr. Rajkumar Singh might have indulged in the aforesaid fraudulent acts of cheating both the Complainant as well a Opposite Party. Opposite Party has lodged complaints to various authorities including Post Master, GPO, Vigilance Department, Bombay, MRA Police Station, etc.

12) Opposite Party has denied the allegations made in the complaint para no.17 to 24 submitting that in this case there is no deficiency in service on the part of Opposite Party and therefore, complaint is liable to the dismissed with cost.

13) Alongwith written statement Opposite Party have produced xerox copies of documents at Exh.‘A’ to ‘Z’.

14) The Complainant has filed affidavit of evidence and produced number of documents alongwith affidavit of evidence. The Opposite Party has also filed affidavit of evidence of Dilip S. Ramode, Chief Manager of Opposite Party Bank, written argument and they have also produced number of documents alongwith affidavit of evidence cum written argument.

15) Heard oral submissions of Ld.Advocate Mr. B.S. Sutar, for the Complainant and Ld.Advocate Mr.Ibrahim h/f Ratina Maravarman and then complaint closed for order.

16) Following points arises for our consideration and our findings thereon are as under -

          Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Party ?

       Findings    : Yes.

          Point No.2 : Whether the Complainant is entitled to recover Rs.52,760/- with interest, compensation and cotsof this      

                            complaint from the Opposite Party?

         Findings     : As per final order.

Reasons :-

Point No.1 :-The following facts are admitted fact that the Complainant M/s. Maheshkumar & Bros., is a Partnership firm carrying on business of suiting and shirting and dress materials. The Complainant has Current Account with the Opposite Party Bank since 1984. The transaction in question took place in the month of March, 2002 i.e. prior to the amendment of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. It is admitted fact that the Complainant had received order from one of their customer M/s. Subham Trading Company, Dehri-on-Sone, Bihar. The Complainant had sold suiting, shirting, etc. vide 3 bills for total Rs.52,760/- to M/s. Subham Trading Co.. The Complainant had dispatched goods to their customer at Dehri-on-Sone, at Bihar through East India Transport Industry which is recognized by Opposite Party Bank under their LR NO.27085, 27086 & 27087 dtd.04/03/02. It is undisputed fact that on 05/03/02 the Complainant informed the Opposite Party that Complainant had sold goods and forwarded the goods to their customer through East India Transport Industry. It is admitted fact that the Complainant had entrusted document i.e. said Bills and LR receipt to the Opposite Party for collection of the bill amount for which the Opposite Party had issued 3 receipts of the Complainant. The Complainant had given instructions to the Opposite Party to hand over the documents to the party only against the payment and to recover interest and commission each. According to the Opposite Party 3 bills aggregating Rs.52,760/- submitted by the Complainant and the consignment notes were in turn duly endorsed in favour of the Opposite Party for sending the same on collection basis to the Opposite Party’s branch at Dehri-on-Sone, Bihar were sent by the Opposite Party under the covering letter to their Dehri-on-Sone, Bihar branch by RPAD through GPO. It is not in dispute that by letter dtd.06/05/02, the Complainant made enquiry regarding the payment with Opposite Party. Then Opposite Party by letter dtd.1305/02 informed the Complainant that the bills and documents were sent to their Dehri-on-Sone, Bihar branch by RPAD. Thereafter the Complainant again made enquiry so Opposite Party made enquiry with their branch at Dehri-on-Sone, Bihar. Opposite Party’s branch Dehri-on-Sone, Bihar informed Opposite Party that registered envelop was received by the said branch was white envelop sent by M/s. Mahendra Kumar & Bros. and it was bearing postage stamp of Rs.21/- and it was containing useless papers. According to the Opposite Party documents given by the Complainant which was sent by RPAD was intercepted by fraudster and the said fraudster by forgering endorsement TRs-Lorry Receipt and misusing their branch name and using fake Rubber Stamps cleared delivery of the goods which were sent by the Complainant.

             From the admitted fact that it is clear the Complainant had given bills of the material sold to M/s. Subham Trading Co., Dehri-on-Sone, Biharalongwith Lorry Receipt mentioned in the complaint to the Opposite Party for collection of the bill amount. As per Opposite Party they had sent aforesaid document by RPAD to their Dehri-on-Sone, Bihar branch. However, some fraudulent element, intercepted said registered the envelope and took out original document i.e. bills Lorry Receipt, etc. and by making fraudulent endorsement and using fake Rubber Stamp cleared delivery of the goods sent by the Complainant. Absolutely there is no evidence on record to support the allegations made by the Opposite Party in their written statement that Mr. Rajkumar Singh who placed order for purchase of goods with the Complainant is a same fraudster who was involved in doing aforesaid illegal activities. Admittedly the aforesaid document were entrusted to the Opposite Party for collection of bills and the documents sent by Opposite Party to their branch at Dehri-on-Sone, Bihar were not received by their branch. Some unknown fraudster intercepted the said envelope might have in transit or at the Opposite Party’s said branch opened said envelop and taken out original documents and obtained delivery of goods and thereby the Complainant has suffered financial loss. The Complainant had availed services of Opposite Party for consideration. The Opposite Party has failed to fulfill their contractual obligation. Therefore, considering the facts and circumstances of the case we hold that the Complainant suffered financial loss due to the deficiency in service on the part of Opposite Party. Therefore, we answer point no.1 in the affirmative.

Point No.2: As discussed above, the Complainant had given all the bills and lorry receipts of the goods sold to M/s. Subham Trading Co. at Dehri-on-Sone, Bihar aggregating Rs.52,760/- to the Opposite Party for the purpose of collection of bills. However, due to deficiency of service on the part of Opposite Party, said original document were intercepted by the fraudster and they took delivery of the said bills and thereby the Complainant has suffered financial loss. Hence, we think it just to direct Opposite Party to pay to the Complainant an amount of Rs.52,760/-.

             The Complainant has claimed interest @ 18 % p.a. on aforesaid amount from 15/03/02. Considering the facts an circumstances of the case, we think it just to direct Opposite Party to pay interest on aforesaid amount of Rs.52,760/- @ 9 % p.a. from 01/04/02 till realization of entire amount to the Complainant.

               The Complainant has claimed compensation of Rs.2 Lacs towards mental agony and harassment from the Opposite Party. The amount claimed by the Complainant towards compensation is exorbitant. The Complainant has not adduced evidence to support his claim for compensation of Rs.2 Lacs. Considering the facts and circumstances of the case, we think it just to direct Opposite Party to pay to the Complainant an amount of Rs.10,000/- as compensation towards mental agony and harassment. The Complainant has claimed Rs.5,000/- as cost of this proceeding. Considering the nature of proceeding, we think it just to direct Opposite Party to pay to the Complainant an amount of Rs.2,000/- as cost of this complaint, hence, we answer point no.2 accordingly.

            For the reasons discussed above, we pass the following order -

                                                             O R D E R

        i. Complaint No.88/2007 is partly allowed.

      ii. Opposite Party shall pay an amount of Rs.52,760/- (Rs. Fifty Two Thousand SevernHundred Sixty Only) to the

          Complainant with interest @ 9 % p.a. from 01/04/2002 till realization of entire amount.

      iii. Opposite Party shall pay an amount of Rs.10,000/- (Rs. Ten Thousand Only) as compensation for mental agony

         and harassment and Rs.2,000/- (Rs. Two Thousand Only) towards cost of this proceeding to the Complainant

       iv.Opposite Party shall comply with the aforesaid order within period of 1 month from the date of receipt of this 

         order.

       v.Certified copies of this order be furnished to the parties.