Tamil Nadu

South Chennai

306/2009

R.Dinesh - Complainant(s)

Versus

Branch Manager,Dena Bank,&others - Opp.Party(s)

G.MUNENDRAN

15 Feb 2018

ORDER

                                                                                                                           Date of Filing  : 25.03.2009

                                                                          Date of Order : 15.02.2018

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNA (SOUTH)

2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L,                    : PRESIDENT

                 TMT. K. AMALA, M.A. L.L.B.                                :  MEMBER-I

                DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

CC. NO.306 /2009

THURSDAY THE 15^TH DAY OF FEBRUARY 2018

                                              

R. Dinesh,

S/o. Late Dr.P.Rabindran,

F-1, Jains Edan Park,

25,  Judge Jambulingam Road,

Mylapore, Chennai 600 004.                 .. Complainant

                                      ..Vs..

 

1. The Branch Manager,

Dena Bank,

Hamilton Road, Branch,

25, Royapettah Road,

Chennai 600 014.

 

2. The Branch Manager,

HDFC Bank Ltd.,

Gopalapuram Branch,

Chennai 600 086. ..Opposite parties.

 

 

Counsel for complainant           :  M/s. G.Munendran    

Counsel for opposite party-1    :  M/s. P.S.Prakasam & another

Counsel for opposite party-2    :  M/s. Adhivarahan & others    

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section  12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.12,150/- with interest and also Rs.1,00,000/- as compensation for mental agony and loss and to pay cost of the complaint.

1. The averments of the complaint in brief are as follows:

          The complainant submit that he has savings bank accounts with the 1^st opposite party and another savings bank account jointly with his wife with the 2^nd opposite party.  On 6.8.2008  the complainant deposited  a crossed SB account cheque No.632749 with the 1^st opposite party’s bank to his joint S.B account No.03231000017385 of the 2^nd opposite party along with duly filled in pay in slip in the drop box of the 2^nd opposite party bank.    Thereafter the complainant was out to station from 7.8.2008 and returned to Chennai on 11.8.2008 when the complainant wanted to ascertain the balance in his joint account with the 2^nd opposite party through the phone Banking service of the 2^nd opposite party, the said crossed cheque amount of Rs.12,150/- is yet to be credited to his account.  Hence the complainant lodged his complaint with Phone Banking service of the 2^nd opposite party, since the Phone Banking service officer  has not responded properly; therefore the complainant went to the 1^st opposite party on 12.8.2008  and to get the entries in his account pass book.   While so the complainant was  shocked to know  from the pass book of the 1^st opposite party that crossed cheque amount of Rs.12,150/- was  unlawfully debited in his account on 7.8.2008. The complainant lodged a complaint with police on 16.8.2008 as well as the same to the Banking Ombudsman.  Despite of repeated calls and letters to the opposite parties regarding the mishandling of the crossed cheque by both the opposite parties neither any attempt was made by them to investigate the genuine complaint of their valuable customer nor this complaint was referred by the opposite parties to the police for proper investigation.   Accordingly the complainant sent a legal notice to the opposite parties on 19.1.2009 for which only the 2^nd opposite party replied through their counsel reply notice dated 3.2.2009 and 16.2.2009 without accepting the liability of the 2^nd opposite party in respect of Drop box issue.  The 1^st opposite party is yet to respond to the legal notice.   As such the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant. 

2. The brief averments in the written version filed by the 1^st  opposite party is as follows:

The  1^st opposite party deny each and every allegations except those that are specifically admitted herein.   The 1^st opposite party also state that the complainant have an account with the 1^st opposite party.  It is the case of the complainant is that he has dropped the cheque No.632749 dated 6.8.2008  for a sum of Rs.12150/- drawn on 1^st opposite party and deposited in the drop box maintained by the 2^nd opposite party HDFC Bank on 6.8.2008.   The 1^st opposite party strictly denies the entire allegations stated in para-6 of the complaint.  The complainant accuses the 1^st opposite party  and its  officials that the staffs of the first opposite party are acted in negligent manner, which is false.  The disputed cheque bearing No.632749 was duly presented in the bank counter on 7.8.2008 and the payment was made in cash to the person, who presented the cheque, as it was the bearer cheque.   Originally the said cheques was crossed but later on the crossed portion was canceled and written as pay cash and contain with the complainant’s signature.  The 1^st opposite party paid cash after verifying the same.  There is no variation between the signatures.    The 1^st opposite party sent a detailed reply letter dated 2.9.2008  clearly explained their position and the fault is not on their side and only on the side of complainant’s carelessness.   The 1^st opposite party never made a wrong payment to any cheque.  The 1^st opposite party acted with due care and caution so no deficiency or negligence on the part of the 1^st opposite party   and the complaint is liable to be dismissed.

3. The brief averments in the written version filed by the 2^nd   opposite party is as follows:

The  2^nd  opposite party deny each and every allegations except those that are specifically admitted herein.   The 2^nd  opposite party also state that as per rules and regulations act 1949 cheque drop box facility is provided.  The cheque dropped boxes which would be processed for collection and later credited into the customer accounts.  This facility is in addition to the regular system wherein the customers could tender the cheques across the counter and obtain acknowledgment for the deposit of cheque in their counterfoils of the pay in slip.    The 2^nd opposite party  received a phone Banking complaint from the complainant that the cheque allegedly dropped by him in the drop box  at its branch at Gopalapuram on 6.8.2008 had not been credited to his account.   Subsequently the 2^nd opposite party received a complaint dated 13.8.2008 from the complainant claiming that he had deposited a crossed cheque in the box which had been unlawfully encased across the counter from the 1^st opposite party; for which the 2^nd opposite party sent reply on 20.8.2008 explained in detail.    Further the 2^nd opposite party also submit that the alleged police complaint given by the complainant are all false.   The customers of the bank always have the option of taking acknowledgement for the cheque deposited by depositing the cheques with the branch staff and collect acknowledgment.   The said option is also prominently displayed in the branch.   Hence there is no deficiency in service on the part of the 2^nd opposite party and the complaint is liable to be dismissed.

4.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A15 marked.  Proof affidavit of the opposite parties filed and Ex.B1 to Ex.B6  marked on the side of the  opposite parties.

5.      The points for consideration are :

1. Whether the complainant entitled to a sum of Rs.12,150/- with interest as prayed for ?

2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony and unfair trade practice with cost as prayed for ?

6.      POINTS 1 & 2:

        Both parties filed their respective written arguments. Heard the complainant and opposite party-2 counsel also.   Perused the records (viz.) compliant, written version, proof affidavits and documents.   The learned counsel for the complainant contended that  he having savings bank accounts with the 1^st opposite party and savings bank account jointly with his wife with  the 2^nd opposite party is admitted.  On 6.8.2008  the complainant deposited  a crossed SB account cheque No.632749 with the 1^st opposite party’s bank to his joint S.B account No.03231000017385 of the 2^nd opposite party along with duly filled pay in slip in the drop box of the 2^nd opposite party bank as per Ex.A1 & Ex.A2.   Thereafter the complainant was out to station from 7.8.2008 and returned to Chennai on 11.8.2008 when the complainant wanted to ascertain the balance in his joint account with the 2^nd opposite party through the phone Banking service of the 2^nd opposite party; it is seen that the cheque amount of Rs.12,150/- was not credited in his joint  account No.03231000017385.  Hence the complainant lodged his complaint with Phone Banking service of the 2^nd opposite party as per Ex.A3.   Since the Phone Banking service officer  has not responded properly; therefore the complainant went to the 1^st opposite party on 12.8.2008  and to get the entries recorded in S.B. account No.6247.   While so the complainant was  shocked to see that the aforesaid crossed cheque amount of Rs.12,150/- was permitted to be withdrawn directly by a stranger without any authority from the complainant on 7.8.2008  establishes the deficiency of service of the 1^st opposite party.   The complainant lodged a complaint with police on 16.8.2008 as well as the same to the Banking Ombudsman which ended in vain.  Hence the complainant filed this complaint claiming  a sum of Rs.12150/- with interest and compensation

7.     Further the learned counsel for the complainant contended that the allegation of dropping the cheque before the 2^nd opposite party bank is denied by the 2^nd opposite party cannot be accepted; against the document Ex.A2.   Equally the withdrawal of a  sum of Rs.12,150/- through the crossed cheque by making endorsement to pay cash permitted by the 1^st opposite party amounts to unfair trade practice and negligence in duty as per Ex.A1.   But on a careful perusal of Ex.A1 cheque it is apparently clear that the signature of the complainant in the cheque and the cancellation of crossing with an endorsement pay cash and affixing signature is totally different.   It is visible to necked eye also.  The 1^st opposite party has not obtained any identification  details for such material alteration and payment made to  i.e. 3^rd  party in Ex.A1 cheque.  Further the learned counsel for the complainant contended that after deposited the cheque before the 2^nd opposite party bank in the cheque Drop box,  how the cheque was presented before the 1^st opposite party’s bank in such a crossed nature is not questioned by the 1^st opposite party amounts to deficiency in service and giving room of mal practice.   Further the contention of the complainant is that the Ombudsman rejected the claim as per Ex.A11 in order to safeguard the opposite party stating that

On taking up the matter with HDFC bank, we have been informed by them that the disputed cheque was not received by them in the drop box and the bank has also categorically denied the allegation  of misuse of the cheque deposited in the drop box.  In view of the above, there is no cause for further action on the complaint by this office and accordingly this office has rejected your complaint under clause 13(g) of the Banking Ombudsman Scheme 2006 which reads as under:

“The Banking Ombudsman may reject a complaint at any stage if it appears to him that the complaint made is requiring consideration of elaborate documentary and oral evidence and the proceedings before the Banking Ombudsman are not appropriate for adjudication of such compliant”

   The learned counsel cited a decision reported in

I (2007) CPJ 131

TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL

•  

STATE BANK OF INDIA & ANR.

1.  

GOWRI RAMAKRISHNAN & ANR.

Held that

Consumer Protection Act, 1986 – Section 2 (1) (g) – Banking and Financial Services – Forged cheque passed – Material alterations in cheque not been authenticated at all – Drawer’s signatures forged – Same clearly visible to naked eye – Signature on cheque not bearing even remotest resemblance to specimen signature furnished – Bank rules require that corrections have to be authenticated with full signatures – Same not been done – Clumsy attempts made to effect corrections in cheque – Deficiency in service proved – Bank rightly held liable to pay cheque amount with interest @ 12% p.a. and Rs.10,000/- compensation.

8.     The learned counsel for the 1^st opposite party contended that admittedly the complainant have an account with the 1^st opposite party.  It is the case of the complainant that he has dropped the cheque No.632749 dated 6.8.2008  for a sum of Rs.12150/- drawn on 1^st opposite party and deposited in the drop box maintained by the 2^nd opposite party HDFC Bank on 6.8.2008.   It is obviously visible that the cheque was presented with 1^st opposite party’s bank counter for payment with clear instruction “pay cash” to the bearer.   The cheque  was drawn in favour of the complainant  who is the drawer as well as payee of the instrument presented in the counter of the 1^st opposite party.  The complainant has put his signature on the reverse side of the cheque also.  In these circumstances it is crystal clear that the complainant herein has handed over the cheque to some person who is close to him for withdrawing the cash.   In the absence of the findings how the cheque deposited with 2^nd opposite party has come to the cash counter of the 1^st opposite party failing which both the opposite parties will be put to hardship and loss.   The 1^st opposite party with precautionary measures verified the cheque and also got the name, signature and the phone number of the bearer of the cheque on the reverse of the instrument and made the payment to the bearer of the instrument as the cross made by the drawer was duly honoured.   But on a careful perusal of the cheque Ex.A1 it is visible to necked eye that the signature in the front page itself is differ.    The 1^st opposite party has not inclined to mark the original cheque in this forum also.  The 1^st opposite party has not explained the reason for non production of the original cheque in this forum.  Further the contention of the 1^st opposite party is that immediately after the receipt of letter dated 19.8.2008 from the complainant due reply letter dated 2.9.2008 was sent in detail. The Banking Ombudsman also rejected the complaint of the complainant.

9.     The contention of the 2^nd opposite party is that as per rules and regulations act 1949 cheque drop box facility is provided.  The cheques dropped boxes would be processed for collection and later credited into the customer accounts.  This facility is in addition to the regular system wherein the customers could tender the cheques across the counter and obtain acknowledgment for the deposit of cheque in their counterfoils of the pay in slip.    Further the 2^nd opposite party is that he received a phone Banking complaint from the complainant that the cheque allegedly dropped by him in the drop box  at its branch at Gopalapuram on 6.8.2008 had not been credited to his account.   Subsequently the 2^nd opposite party received a complaint dated 13.8.2008 from the complainant claiming that he had deposited a crossed cheque in the box which had been unlawfully encased across the counter of the 1^st opposite party; for which the 2^nd opposite party sent reply on 20.8.2008 explained in detail as per Ex.B1.   Further the contention of the 2^nd opposite party is  that  the complainant lodged a complaint before the Royapettah Police Station on 16.8.2008 as per Ex.A4 and lodged the complaint before the Banking Ombudsman on 18.8.2008  as per Ex.A5 the Banking Ombudsman decided the matter on 15.12.2008 as under

“       On taking up the matter with HDFC Bank, we have been informed by them that the disputed cheque was not received by them in the drop box and the bank has also categorically denied the allegation of misuse of the cheque deposited in the Drop Box.  In view of the above,  there is no cause for further action on the complaint by this office and accordingly this office has rejected your complaint under clause 13(g) of the Banking Ombudsman Scheme 2006.”

 

But neither the 1^st opposite party nor the 2^nd opposite party has not whispered anything with regard to the transit of cheque alleged to be dropped in the drop box of 2^nd opposite party bank establishes deficiency in service.   Considering the facts and circumstances of the case this forum is of the considered view that the 1^st opposite party shall refund a sum of Rs.12,150/- and also shall pay compensation of Rs.10,000/- for mental agony with cost of Rs.5,000/- and points are answered accordingly. 

In the result the complaint is allowed in part.   The 1^st opposite party shall refund a sum of Rs.12,150/- (Rupees twelve thousand one hundred and fifty  only) and also shall pay compensation of Rs.10,000/- (Rupees ten thousand only) for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant. 

The above  amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

Dictated  by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 15^th  day of February 2018. 

MEMBER –I                       MEMBER-II                              PRESIDENT.

COMPLAINANT SIDE DOCUMENTS:

Ex.A1- 6.8.2008    - Copy of front side of the Dena bank cheque.

Ex.A2- 6.8.2008    - Copy of pay in slip of the 2^nd opp. party.

Ex.A3- 13.8.2008  - Copy of letter to 2ndopp. Party by the complainant.

Ex.A4- 16.8.2008  - Copy of complaint filed before the Royapettah Police station.

Ex.A5- 18.8.2008  - Copy of the complaint lodged against the 2^nd opp. party.

Ex.A6- 19.8.2008  - Copy of complaint lodged against the 1^st opp. party.

Ex.A7- 19.8.2008  - Copy of complaint lodged with 1^st opp. party.

Ex.A8- 20.8.2008  - Copy of reply sent by the 2^nd opp.party.

Ex.A9- 2.9.2008    - Copy of reply sent by the 1^st opp. party.

Ex.A10- 16.9.2008         - Copy of letter sent to the 1^st opp. party.

Ex.A11- 15.12.2008- Copy of order of the Banking Ombudsman.

Ex.A12- 22.12.2008- Copy of the order of the Banking Ombudsman.

Ex.A13- 19.1.2009         - Copy of legal notice.

Ex.A14- 3.2.2009  - Copy of interim reply notice.

Ex.A15-16.2.2009 - Copy of reply notice. 

OPPOSITE  PARTIES SIDE DOCUMENTS:

Ex.B1- 20.8.2008  - Copy of reply notice.

Ex.B2- 15.12.2008         - Copy of order of banking Ombudsman RBI.

Ex.B3- 16.2.2009  - Copy of reply notice.

Ex.B4- 6.8.2008    - Copy of records related to opening of the cheque drop box.

Ex.B5-             - Copy of photos

Ex.B6-                - Copy of photos

 

 

MEMBER –I                       MEMBER-II                              PRESIDENT.