BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 6^th April 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDERS IN

C.C.No.124/2013

(Admitted on 10.5.2013)        

1. Mrs. Neetha Feema Pinto,

W/o Joseph Varghese DSouza,

Aged about 32 years.

2. Mr. Josheph Varghese D Souza,

S/o late Leo Dennis D Souza,

Aged about 32 years,

Both are permanent residents of

Dsouza House, Kalladi, Bajpe,

                                                            ……… Complainant

(Advocate for Complainant by Smt. MNA)                                                                                                         

VERSUS

Canara Bank,

Farangipet Branch,

Mangalore Taluk,

Represented by its Branch Manager.

                                                                                             ….. Opposite Party

        (Advocate for Opposite Party Sri. MSKP)      

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D

1. 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.

The brief facts of the case are as under:

          One Late Mr. Leo Dennis DSouza is the father of complainant No.2 and father in law of complainant No.1 and he had an account in Syndicate Bank, Bajpe Branch at till his death.  On 15.11.2011 account No.0143204002999. The complainant used to issue cheque in favour of cheque Leo Dennis D Souza for his maintenance which he used to encash through the Opposite Party Bank. In the Month of June 2011, the complainant in consultation with complainant No.2 issued a cheque bearing No.223059 dated 05.6.2011 for Rs.1,00,000/  drawn on Opposite Party in favour of Leo Dennis D Souza mentioning  his name as well as account number in cheque  and after intimating Mr. Leo Dennis D’Souza was sent by post.  However the cheque was not received by the addressee even after 15 days. When Opposite Partys manager was contacted about encashment of the cheque and the amount debited from complainant’s NRI account by letter dated 16.6.2011 complainant mentioned the cheque amount was illegally debited to by the paying to an unknown 3^rd person other than account holder.  The Opposite Party after repeated insistence on 12.8.2011 lodged the complaint before the Station House Officer, Rural Police station by Opposite Party was not followed.  Opposite Party ought not have paid the amount of cheque to anybody other than Leo Dennis D’souza as both his and account number is mentioned.  Hence seeks direction to Opposite Party to pay the amount along with damages as claimed in the complaint as failure of Opposite Party’s to make to payment and despite legal notice amounts to deficiency in service.

2. Opposite Party filed written version admits the NRI joint account in their bank of complainants maintained since 2009. The Opposite Party not aware Leo Dennis DSouzas account at Syndicate Bank, Bajpe but admits complainant’s upon used to issue cheque in favour of Leo Dennis DSouza.  The issue of the cheque in question by complainant No.1 in favour Leo Dennis DSouza sent by post of the cheque not admitted. In all probabilities the complainants signed blank cheque with Leo Dennis DSouza by sending of the cheque by post is denied.   The pass book updated when same was brought to the bank of cheque encashment of the cheque by 3^rd person mentioned is being in the cheque when presented the same was honoured and amount was paid across the counter by following procedure. When the matter was brought to the notice of the bank proper enquiry was held and the police complaint dated 12.8.2011 was lodged.  The allegations as brought unauthorised payment and negligence on the part of Opposite Party in payment of cheque amount is denied.  The complainants ought to have taken the primary caution and responsibility that their cheque is not placed in the wrong hands.  There is no deficiency on the part of Opposite Party hence dismissal.

III.  In support of the above complaint the complainant Mr.Walter Monteiro, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C4 as detailed in the annexure here below.  On behalf of the opposite party Mr. Purushotham K. (RW1) Manager, Canara Bank, of opposite party also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked Ex.R1 to R3 as detailed in the annexure here below.

IV.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

          The learned counsels filed notes of arguments. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties.  Our findings on the points are as under are as follows:           

                         Point No.  (i) : Affirmative

                         Point No.  (ii) : Affirmative

                         Point No. (iii): As per the final order.

REASONS

V.  POINTS No. (i):  The complainants having a joint NRI account with Opposite Party Bank there by relationship of consumer and the service provider between them is undisputed. The cheque in question mentioned in the complaint issued by complainant to the name of Leo Dennis DSouza with his S.B. Account No. 0143204002999 in Syndicate Bank, Bejpe was not paid to the said account of Leo Dennis D’Souza and instead paid same through across counter to same person by Opposite Party without authorities alleged by complainants is disputed by Opposite Party.  Hence there a live dispute between the complainants and Opposite Party as contemplated under section 2 (1) (e) of C.P. Act.  Hence we answer point No. 1 in the affirmative.

 POINTS No.(ii):  Ex.R1 is the cheque in question issued by the complainants in favour of Leo Dennis DSouza by mentioning his name and bank account member.  The account number mentioned at Ex.R1 was struck off and signature is put on the struck off position.  Learned counsel for Opposite Party wanted the forum to believe that the signature tallies with specimen signature of complainant No.2 of Ex.R1 and as such Opposite Party is justified in making payment across the counter when the cheque was presented encashment by cancelling the account number written at Ex.R1.

          However learned counsel for complainant referred to a reported case in Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in CDJ 1994 APSCDRC 001.  In this repudiated case in this circumstances similarly to the one on hand it is observed when the account of cheque in reported case was Rs.20,000/-, it was proper to get the person indenting to obtain cash across counter identified by person holding an account in bank.  But in the case on hand Opposite Party is has taken any such steps. Further as per the ‘important RBI announcement’ on alterations in cheques on alterations is the relevant announcement of RBI copy of produced by the complainant where is thus This is with regard to recent guidelines issued by the Reserve Bank of India (RBI) on alterations or corrections on payment instruments (cheques) vide RBI circular-DPSS. CO.CHD.No. 1832/01.07.05/2009.10 dated 22^nd February 2010.

          As per the guidelines 

1. Customers are no longer allowed to alter the amount or the payee name while issuing a cheque
2. Cheques with such corrections will no longer be honoured effective 1^st July 2010

we would encourage you to advise all of your investors to issue fresh cheques in case they need to make any corrections.

Your customers need to know that cheques with alterations or corrections(despite having their signature next to them) will no longer get cleared by banks after 1^st July2010.   

In fact the learned counsel for complainant referred to a circular issued by RBI as per Annexure to Circular DPSS.CO.CHD. No.1832/04.07.05/2009 2010 dated 22^nd February 2010  CTS-2010 Standard for cheque Forms Specifications it is mentioned item 1.8 

Prohibiting alterations/corrections on cheques: No changes/corrections should be carried out on the cheques (other than for date validation purposes, if required).  For any change in the payees name, courtesy amount (amount in figures) or legal amount (amount in words), etc, fresh cheque forms should be used by customers.  This would help banks to identify and control fraudulent alterations     

Thus on going this RBI announcement in respect of the cheque in the case on hand the Opposite Party was required to mention in view of this announcement of the RBI but Opposite Party bank has not taken that case.  Hence in our view this amounts to deficiency in service.  Thus it is clear there is also a violation of 22^nd  February 2010 circular 1.8 by Opposite Party. As a striking off the account number having a signature amounts to an alterations within the meaning of the circular at 1.8. complainant substaining deficiency in service on the part Opposite Party , Hence we answer point No. 2 in the Negative.

          In this circumstances Opposite Party shall be directed to pay the amount of Rs.1,00,000/ of the cheque by Opposite Party to complainants with interest at 9% from the date of payment of cheque or 15.4.2011 till the date of payment. Opposite Parties shall be directed to pay Rs.25,000/ as compensation to complainant towards mental agony and inconvenience caused to them , advocate fee fixed at Rs.5,000/.

POINTS No. (iii): Wherefore the following order

ORDER

                The Complaint is allowed with cost.  Opposite Parties directed to pay Rs.1,00,000/  to complainants  with interest at 9% from 15.4.2011 till date of payment. 

2. Opposite Party is directed to pay Rs.25,000/ as compensation to complainant.

3. Advocate fee fixed at Rs.5,000/. 

Opposite Party is granted 30 days time to make payment. Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

 (Page No.1 to 8 dictated by President to the Stenographer typed by him, revised and pronounced in the open court on this the 6^th April 2017)

             MEMBER                                              PRESIDENT

     (T.C. RAJASHEKAR)                        (VISHWESHWARA BHAT D)

 D.K. District Consumer Forum                D.K. District Consumer Forum

  Additional Bench, Mangalore.                  Additional Bench, Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1  Mr.Walter Monteiro,

Documents marked on behalf of the Complainants:

Ex.C1: 16.6.2011: Copy of the Letter written by complainant No.1

Ex.C2: 12.8.2011: Copy of the complaint issued by Opposite Party.

Ex.C3: 05.06.2011: Copy of cheque bearing No.223059.

Ex.C4: Original power of Attorney

Witnesses examined on behalf of the Opposite Party:

 RW1: Mr. Purushotham K. Manager, Canara Bank

Documents marked on behalf of the Opposite Party:

Ex.R1: 05.6.2011: Original Cheque Bearing No.223059 for Rs.1,00,000/

Ex.R2: Specimen signature of complainant No.1 viz Neetha Feema Pinto

Ex.R3: Specimen signature of complainant No.2 viz, Joseph Vergeese Dsouza.

Dated: 6.4.2017                                        PRESIDENT