KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL No. 24/2009JUDGMENT DATED: 23.07.2010 PRESENT:- SMT. VALSALA SARANGADHARAN : MEMBER SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER; SHRI. M.K. ABDULLA SONA : MEMBER APPELLANTS The Branch Manager, Canara Bank, Muzhappilangadu Branch P.O., Muzhappilangadu, Kannur. (Rep. by Adv. Sri. P. Balakrishnan.) Vs RESPONDENTS 1. C.V. Razik, S/o Abdul Shukoor, Ranath P.O., Muzhappilangad, Kannoor. 2. P.M. Basheer, Managing Partner, Janatha Service Station P.O., Chirakkara, Thalassery Taluk. 3. The Branch Msanager, North Malabar Gramin Bank, Kannur. . (R1 Rep by Adv. Sri. Gopakumar G.K, K.Ratnakumar& Deepesh A.S.) JUDGMENT SMT. VALSALA SARANGADHARAN : MEMBER This appeal is filed against the order dated. 2.12.2008 in C.C. No. 321/2005 of C.D.R.F, Kannur, whereby the Forum directed the first and second opposite parties to pay the cheque amount of Rs. 3,00,000/- with 9% interest from 8.3.2005 till the date of realization along with a compensation of Rs. 5,000/- and a costs of Rs. 500/- 2. The case of the complainant is that he is an account holder of the first opposite party, bank and had presented a cheque for Rs. 3,00,000/- dtd. 8.3.2005 for collection to the first opposite party, Bank. The complainant several times approached the opposite party for cash. But it was in vain. Hence the complainant issued a registered letter to the first opposite party to which the opposite party had not given a satisfactory reply. He sent a lawyer notice to the first opposite party and in their reply, the first opposite party stated that the matter was under consideration by the higher authorities. Consequent to the above communication, the complainant issued a registered notice to the second opposite party to which the second opposite party sent reply stating that the complainant had obtained the cheque fraudulently and forged the same and presented it for collection and hence he was constrained to close the account. The first opposite party did not returned the cheque or give the cheque amount. Hence alleging deficiency in service on the part of the opposite party he filed complaint before the Forum. 3. The first opposite party filed version and admitted that the cheque presented by the complainant was sent for collection to the 3rd opposite party through Canara Bank, Kannur branch on 24.3.2005. The third opposite party returned the cheque on 30.3.2005. But it was not received by the first opposite party and on enquiry, it was revealed that the cheque was lost in transit from the Canara Bank, Camp Bazar Branch and the matter was informed to the complainant in their reply notice and the first opposite party came to know that the second opposite party had disputed the liability and transaction alleging fraud on the complainant. Hence the issues to be decided are cheating and fraud which the Forum had no jurisdiction. Moreover if there was any dispute with regard to the transaction the complainant ought to have sued against the second opposite party. So the first opposite party has no liability and prayed for dismissal of the complainant as against first opposite party. 4. The third opposite party filed a version and admitted that the cheque presented for collection was received and the same was returned unpaid, since the account was not in existence at the time of presentation of the cheque. In the closure request by the second opposite party, he had represented that the cheque leaves has been used up completely and had not surrendered any unused leaves. The third opposite party submitted that the averment that the cheque was not reached to the first opposite party from the third opposite party is incorrect and evidently the cheque has been returned. So the third opposite party has no liability to give any amount to the complainant. Pleading that there was no deficiency in service, on the part of the 3rd opposite party, they prayed for dismissal of the complaint as against them. 5. We heard the learned Counsel for the appellant, first respondent and 3rd respondent. The learned counsel for the appellant/first opposite party argued before us that the Forum has passed the order without appreciation of the facts and circumstances of the case. He submitted that it is possible for the complainant to prove his case by filing a civil suit against the drawer. But he has not resorted to proceed against the drawer. Moreover since the cheque dtd. 8.3.2005 was presented for collection to the first opposite party and they sent it for collection on 24.3.2005 and on 30.3.2005, the third opposite party returned the cheque for the reason “ Account Closed” and the cheque sent by the Camp Bazar Branch to the appellant was lost in transit. The cheque has been sent at the risk of the complainant which he had agreed at the time of opening the account. So there was no deficiency on their part and in this case, the drawer of the cheque has been imp leaded as a party. He did not appear before the Forum which itself would show that he has to pay the cheque amount to the complainant. The learned counsel has also relied on the decision of the Hon’ble National Commission in State Bank of India Vs. Muntha Lakshmi Kumari – 2009(1)CPR 82(NC) wherein it is held that where the cheque sent for collection by bank was lost in transit, bank could not be held liable for cheque amount in the absence of proof that cheque was misused causing loss to payee – consumer, but bank would be liable to compensate for deficiency in service. Thus he argued for the position that there was no deficiency in service on the part of the appellant bank and submitted that the Forum cannot be justified in directing the appellant to give the cheque amount with compensation and costs along with the second opposite party. Thus the appellant requested for setting aside the impugned order passed by the Forum. 6. On the other hand the learned counsel for the first respondent /complainant supported the findings and conclusions of the Forum below. He argued before us that the appellant was careless and negligent in giving the dishonored cheque to the complainant/respondent and submitted that so far as the cheque was not returned and not issued any memo or certificate which would enable the complainant to proceed against the drawer of the cheque. So the complainant could not proceed against the second respondent/ second opposite party which caused heavy monitory loss and mental agony to the complainant. Contenting that the appellant had committed deficiency in service, the learned counsel argued for dismissal of the appeal. 7. The learned counsel for the 3rd respondent / 3rd opposite party submitted that the second opposite party closed his account on 8.12.2004, hence the cheque dtd. 8.3.2005 could not be en cashed and the same was returned to the first opposite party, Bank. It was admitted by them also. Hence there is no deficiency on their part and that there was no finding as against the 3rd opposite party. 8. On hearing the learned counsel for the appellant, first respondent and third respondent and also going through the records we find that it is the admitted case of all the parties that the cheque which was entrusted by the complainant to the first opposite party for collection was lost in transit. The Forum below directed the first and second opposite parties to pay the cheque amount along with 9% interest from 8.3.2005 and also directed to pay Rs. 5,000/- as compensation and Rs. 500/- costs to the complainant. The Forum below could not be justified in directing to pay the cheque amount but it does not mean that there was no deficiency on the part of the appellant/first opposite party. Taking the ratio of the decision of the Hon’ble National Commission in State Bank of India’s case (cited Supra) the payment of cheque amount cannot be allowed. But compensation can be given to the complainant for the deficiency in service. Taking into consideration of the facts and circumstances of the case we find that a compensation of Rs. 30,000/- will be payable by the appellant/Ist opposite party for their deficiency in service. This judgment will not affect the right of the complainant to proceed against the 2nd opposite party in the said complaint for realization of the decreed amount awarded by the Forum below against the 2nd opposite party, the drawer of the cheque as the 2nd opposite party has not challenged the impugned order passed against him. It is made clear that the complainant can also proceed against the drawer of the cheque for realization of the amount covered by the cheque which was lost in transit and that the complainant is also entitled to get the benefit under Sec. 14 of the Limitation Act to get the period of limitation condoned. In the result, the appeal is allowed in part with the modifications indicated above thereby the appellant/first opposite party is directed to pay Rs. 30,000/- as compensation with costs of Rs. 500/- to the complainant. The amounts are to be paid within 2 months from the date of receipt of this order, failing which the amount of Rs. 30,000/- will carry interest @ 9% per annum from the date of default till the date of payment. The impugned order passed by the Forum below against the 2nd opposite party/2nd respondent, the drawer of the cheque will stand unchallenged and unaffected. The complainant/Ist respondent will be at liberty to proceed against the 2nd opposite party for realization of the amount awarded against the 2nd opposite party/drawer of the cheque. The appellant/Ist opposite party, bank is further directed to issue necessary certificates or letters to the Ist respondent/complainant for taking necessary actions for the purpose of realizing the amount covered by the lost cheque. As far as the present appellant is concerned, there shall be no order as to costs. VALSALA SARANGADHARAN : MEMBER M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA : MEMBER ST | 
