BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.

Consumer Complaint (C.C.)No. 1470/2016

Complaint filed on 23.09.2016

Date of Judgement.13.04.2017

PRESENT                                : 1. Shri Ramachandra  M.S.,  B.A., LL.B.,

                                                          PRESIDENT

                                      2. Shri  Thammanna,Y.S., B.Sc., LL.B., 

                                           MEMBER

Complainant/s               :                   1. Mrs. Meenakshamma,

W/o Late Krishna Chari

                                                          Aged about 53 years,

                                                          Dadadakalla Halli Post and Village,

                                                          Yelwala Hobli, Mysuru Taluk,

                                                          Mysuru District-571130.

(Sri Manjunatha Chari, D.K., Advocate)

V/s

Opponent        /s                     :       1.Branch Manager,

                                                          Canara Bank

                                                          Gungral Chatra Branch,

                                                          Yelwala Hobli,

                                                          Mysuru Taluk,

                                                          Mysuru district-571130.

(Sri  Kantharaj. A.R., Advocate)

SHRI RAMACHANDRA . M.S.,

 PRESIDENT

JUDGEMENT

The complaint filed under section 12 of Consumer Protection Act, for a direction to opposite party to pay cheque amount, compensation  and other reliefs as prayed in the complaint.

2. The brief facts of the complainant  that the complainant’s  husband late Sri Krishna Chari was maintaining Saving Bank account No 4040108004204 the opposite party since 26 Aug 2013.

The complainant respectfully submits that, her husband had been suffering from liver disease, got admitted in JSS hospital , Mysuru, spent huge amount for medical expenses and applied for medical financial assistance form Govt. Of Karnataka under. Scheme.

3. The complainant respectfully submits that, her husband Sri Krishna Chari has sanctioned a financial  assistance for Rs. 12,000/- from Govt. Of Karnataka under chief Minister’s relief fund bearing reference no CM/16847/CMRF/15 No. 12152/15 through account payee cheque bearing no 422996 dated 11 Jun 2015 drawn on State Bank of Mysore, Treasury Branch, Bangalore in the name of Krishna Chari S/o Late Cheluva Chari, Subsequently, the said cheque was deposited for clearing to above said SB account maintained at opposite party on 22 July 2015 through challan and opposite party has acknowledged the same .

4. The complainant respectfully submits that, complainant visited opposite party several time to enquire regarding the crediting the said cheque amount but opposite party gave frivolous reasons and assured complainant to wait some more time.

5. The complainant respectfully submits that, during Nov-2015 complainant was shocked to hear from opposite party that, said cheque was lost in transit and opposite party that, said cheque was lost in transit and opposite party again assured that , they will take up the matter with taluk office Mysore, opposite party has given to complainant a photocopy of letter bearing reference No Ms/SB 108/4204/2015 dated 02.11.2015 addreassed to the Thasildhar Taluk office, Yelwala requesting for issue duplicate new cheque.

6. The complainant respectfully submits that, during last week of Nov-2015 complainant has again shocked and surprised that, opposite party has returned to complainant said original cheque bearing no 422996 dated 11.06.2015 along with a return memo/ endorsement dated 19.11.2015 which was lost in transit by opposite party.

7. The complainant respectfully submits that, as per return memo of opposite party, presented the dais cheque on 18.11.2015 which complainant presented to opposite party on 22.07.2015 i.e., after a lapse of nearly 3 months 27 days Even though the opposite party knowing that the said cheque is outdated, they have goofed up by presenting outdated cheque for clearing. Ultimately, opposite party was returned the cheque to complainant along with return memo as if, no fault of opposite party . The opposite party has shown negligence, deficiency in service and unprofessionalism in transit the above said cheque in clearing system.

8. The notice to the opposite party duly served represented by counsel  and filed version  has contended that complainant is not a consumer within the making of the Act as such she has no locus standi to file this complaint.

9. The opposite party has admitted para 2 of complainant and contends that the averments of para 3 is not within his knowledge.

10. The opposite party denies the entire averments of para 4 of complainant.

11. The opposite party has admitted the averments of para 6 complainant i.e, they admit that the allotted cheque was lost in transit clearing the process of claiming( but the opposite party has lodged)

12.Further opposite party contends due to non co-operative the said cheque was no processed he also states that there is no negligence on his part.

13. Opposite party has stated he has not committed any negligence or dereliction of duty as narrated in complainant. Finally opposite party has denied all other averments of complaint and prays for the dismissal of complaint.

14. Both the complainant opposite parties have filed their chief examination affidavit along with supporting documents in support of their contention heard  arguments after perusal of written argument matter is set down for orders.

15. The points that arise for our consideration are;-

1. Whether the complainant proves that there is deficiency in service on the part of opposite party by misplacing the  complainant cheque and thereby he is entitle for the reliefs sought?

2. What order?

16. Our answer to the above points is as follows;

1. Point No.1: Partly in the affirmative.

2. Point No.2: As per final order for the following;

REASONS

17 . Point No.1: The first and foremost facts that merits for the consideration is that, the as per the contention of opposite party  that whether the complainant is a consumer u/sec 2(1) D of CP act of 1986 admittedly complainant husband late Krishna Chari is an account holder of opposite party bank, the cheque which was issued by government of Karnataka in favour of complainant husband was presented to the opposite party bank for encashment the instrument was lost transit during as admitted by him.

18. Here admittedly there is a bank account of complainant husband with opposite party ,it is also evident that there is transaction pertaining Govt .cheque for Rs 12,000/- through opposite party bank for encashment when the opposite party due to their negligence  they lost the cheque during transit as per their admission in their version from these facts  we held that the complainant is consumer u/s 2(1)(d) of CP Act.

19. Further the opposite party has admitted the issuance of cheque by the Govt of Karnataka in favour of complainant husband for a sum of Rs. 12,000/- thereafter opposite party also admitted in the un numbered version  para 5 that the cheque  dated 11 June 2015 drawn on SBM. Which was deposited by complainant through his account with opposite party bank for encashment was lost in transit , by the opposite party bank this fact is also admitted by opposite party further in the month of Nov last week 2015 opposite party has returned the original cheque  dated 11.06.2015. With a return memo, where complaint presented the said cheque on 2201.2015 for encashment with opposite party bank. After a lapse of nearly 3 months 27 days opposite party bank has returned the cheque with memo  “cheque out dated “here all these facts  and events is categorically admitted by the opposite party  in the version and the letter dated 02.11.2015 issued by opposite party .

20. Further these facts reveals that the above  cheque was lost in transit when the same was in the custody of opposite party bank, which resulted of 3 months delay due to which even when the original cheque was traced  it was out dated cheque ,  further  has acted negligently  has failed to take due care and action of cheque, when it was under his custody this act of opposite party  is nothing but deficiency in service on his part.

21. Further opposite party when they admits the loss of cheque during transit  and contents that there is no deficiency in service on his part this attitude and conduct of opposite party clearly shows the way in  which the opposite party is rendering service to their customer, as per the Indian evidence Act “Admitted facts need not be proved” here which opposite  party has admitted the above facts in view of his  admission we are of the opinion that there is deficiency in service on the part of opposite party for which they are liable to pay compensation and other relief  to the complainant.

22. For the above reasons by looking at the facts and documents produced by complainant has proved his case beyond reasonable doubt and also complainant proved that there is deficiency  of service on the part of opposite party no.3  by doing unfair trade practice.

23. According to this forum we answered Point no.1 in the partly affirmative and pass the following:

24. Point no.2:- For the above discussion we here by proceed to pass the following:

ORDER

1. The complaint is hereby allowed in part.
2. The opposite party is directed to pay Rs. 12,000/- to the complainant within 60 days this order with interest at the rate of 20% p.a from the date 11. July 2015 to till payment made.
3. The opposite party is directed to pay Rs. 10,000/- towards deficiency in service, Rs. 5,000/- towards mental agony, and Rs. 5,000/- towards cost of proceeding to the complaint within 60 days of this order.
4. In default to pay the above order amount of Rs. 20,000/- opposite party shall pay interest at the rate of 15% p.a. from the date of filing complaint till payment made.

5 . In case of default to comply this order, the opposite party shall

    undergo imprisonment and also liable for fine under section 27 of

     the CP Act, 1986.

6.Give the copies of this order to the parties, as per Rules.

(Dictated to the stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on the 13^th   April  2017)  

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                             President.                                           

LIST OF WITNESSES EXAMINED AND DOCUMENTS PRODUCED ON BEHALF OF COMPLAINANT

Evidence by way of affidavit on behalf of complainant:

CW-1           :   Smt. MEENAKASHAMMA

List of Documents on behalf of complainant:

1        :         Bank passbook  

2        :         Cheque produced challan

3        :         Canara bank letter given to Tasildar Mysuru dated 02.11.2015

4        :         Cheque  dated 11.10.2015

5        :         Bank endorsement dated 18.11.2015.

6        :         Legal notice copy dated 17.08.2016

LIST OF WITNESSES EXAMINED AND DOCUMENTS PRDOUCED ON BEHALF OF OP.

Evidence by way of affidavit on behalf of OP :

Rw-1 :         PRAKSAHA BANDARY

List of Documents on behalf of OP :

Nil

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                             President.