THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Sri. K.N. Radhakrishnan, Member
CC No. 50/2010
Friday, the 28th day of October , 2011
Petitioner : Sophiamma George,
Kasamkulam House,
Mannanam P.O
Kottayam.
(By Adv. G. Jayasankar)
Opposite party : The Branch Manager,
State Bank of India,
Mannanam, Kottayam.
(By Adv. Sebi K. Velamparambil)
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of the petitioner, filed on 3..3..2010, is as follows. Petitioner’s son and his wife were working in Ireland. On 25..11..2009 son of the petitioner sent a Cheque, kept in NRI account of the opposite party, for Rs. 4,00,000/- Dtd: 25..11..2009 to the petitioner. According to the petitioner Cheque was stolen by somebody else, materially altered the same and withdraw the said amount of Rs. 4,00,000/- from the account maintained by the son of the petitioner. Petitioner states that legally opposite party is duty bound to compare signature of the account holder in the negotiable instrument with signature which is kept in the bank. Due to act of deficiency committed by the opposite party an amount of Rs. 4,00,000/- was debited from the account of the petitioner’s son. According to the petitioner act of the opposite party in not identifying the signature of the customer amounts to deficiency in service. So, he prays for a direction to the opposite party to pay an amount of Rs. 4,00,000/-. Petitioner claims Rs. 10,000/- as compensation and cost of the proceedings.
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Opposite party entered appearance and filed version contenting that petition is not maintainable. According to the opposite party, petitioner is not a consumer or a beneficiary as envisaged under Consumer Protection Act. The Cheque in question for Rs. 4,00,000/- was paid by the bank in due course good faith without negligence, to the bearer of the instrument. The averment with regard to material alteration and forged signature are denied. Employees of the opposite party done their duty in accordance with law and there is no deficiency in service on their part. So, opposite party prays for dismissal of the petition with their costs.
Points for determinations are:
i) Whether petitioner is a consumer or not?
ii) Whether there is deficiency in service on the part of the opposite party?
iii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to
A4 documents on the side of the petitioner and Ext. B1 document on the side of the opposite party.
Point No. 1
Opposite party has a definite case that petitioner is not a consumer because petitioner is not an account holder of the opposite party. Considering the dispute involved petitioner cannot be termed as beneficiary. So, she is not a consumer or beneficiary as envisaged under the Consumer Protection Act. In our view the said contention of the opposite party is not sustainable because as per section 2 (d) (ii) any person, who hires or avails service and also the consumer includes any beneficiary of the service other than the person who hires or avails service for consideration. Here admittedly petitioner’s son is an account holder of the opposite party bank Cheque in question, as per the case of the petitioner, is sent to the petitioner for producing before the bank for encashment. So, in our view petitioner is a beneficiary to service availed and the petition is maintainable before this Fora.
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Point No. 2
Petitioner alleges deficiency in service on the part of the opposite party, stating that, Cheque in question has not identified or compared with the signature of the customer which is kept in the bank. Counsel for the petitioner vehumently argued that it is the duty of the employees of the bank to identify the signature of their customer on the instrument with the specimen signature kept in the bank. Petitioner’s definite case is that Cheque was materially altered and signature was forged by somebody else and the same was presented before the opposite party bank. Petitioner failed to prove that the Cheque was materially altered and signature was forged. In the instant case opposite party produced a certified copy of the Cheque in dispute and the same is marked as Ext. B1. From Ext. B1 it can be seen that alterations made in the instruments were authenticated by the drawer with signature. Further more all the signature on the negotiable instrument were apparently same. As far as the opposite party is concerned the payment done in this case is a payment in due course. Counsel for the petitioner is relying on decision rendered by the Allahabad High Court in L. Pirbhu Dayal Vs. Jwala Bank (reported in 1938 Alahabad 374) in the said case the Hon’ble Alahabad High Court find that it is the duty of the employee of the Bank to be able to identify the signature by their customer and if they fail to discharge their duty it is to be compensated. The fact and circumstances of the said case is entirely different with the instant case. In the said case one of the Cheque leaf of the customer was stolen and by putting forged signature in the instrument the amount was debited from the customers account. Here a signed Cheque was sent by the petitioner’s son to the petitioner. Further, more when the
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Cheque in question was presented on 11..12..2009 for payment, the words “A/c No. 10458218582, SBI, Mannanam appearing on the Ext. B1 instrument had been struck off under the full signature of the drawer, making negotiable instrument a bearer one by the drawer. It is also noted that Cheque in question was not a stale, post dated, or account payee crossed. As per negotiable instrument act a Cheque are payable on demand. The bearer of Cheque is payable on demand over the counter to the person who brings it for payment. The drawer of the Cheque is also duty bound to sent the instrument worth huge amount by registered post. Further, more the drawer has not cared to issue an account payee Cheque or a crossed Cheque. In our view we cannot attribute any deficiency in service on the part of the opposite party in honoring the disputed Cheque. Point No. 2 is found accordingly.
Point No. 3
In view of the finding in point No. 1 and 2 petition is dismissed. Considering the facts and circumstances of the case no cost and compensation is ordered.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 28th day of October , 2011.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents for the petitioner:
Ext. A1: Copy of Cheque bearing No. 723582
Ext. A2: Copy of statement of account of Sophyamma George
Ext. A3: Copy of statement of account of Shinto George
Ext. A4: Copy of Fax Message Dtd: 9..1..2010
Ext. A5: Copy of reply Dtd: 4..2..2010
Documents for the opposite party
Ext. B1: Copy of the Cheque bearing No. 723582.
