Date of Filing: 04/05/2017

Date of Order: 02/02/2019

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:  2^ND DAY OF FEBRUARY 2019

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.916/2017

V/s

ORDER

BY SRI.H.R. SRINIVAS PRESIDENT:

1.  This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred to as O.Ps) alleging deficiency in service and to direct the O.Ps  to pay Rs.90,000/- towards damages  and order such other relief as this Hon’ble Forum deems fit and proper along with costs and such other expenses.

2.     Brief facts of the complaint are that: the complainant issued a cheque for payment for admission fee to his daughter K.P.Pooja   to admit her to 2^nd PUC  through cheque No. 321284 dated 11.02.2016 for a sum of Rs.45,000/- drawn on Canara Bank cantonment branch favoring V.V.S Sardar Patel PU College. The said cheque was first honoured but later, the same was dishonoured on 24.05.2016  by the Op  on the ground of ‘Insufficient Funds’ though the sufficient balance  was maintained by the complainant in his account.   Complainant made online complaint dated 07.06.2016 for which complainant received reply as no document uploaded and requested the complainant to visit the branch for getting solution for the same. When the complainant contacted the O.p, O.p expressed their distress caused due to system error.  Further he contended that though there is no financial loss, it has embarrassed him and put into shame in front of others and has caused damages and loss to his reputation.  Op informed the complainant they are ready to compensate as good will gesture @ Rs.100/- per Rs.5,000/- subject to a maximum of Rs.1,000/- as per the bank compensation policy 2016-17. Thus Op agreed to give of Rs.9,00/- as compensation, but he disagreed for the same.  Hence he prayed to award a compensation of Rs.90,000/-.Hence the complaint.  

3.     Upon the service of notice, O.P 1 to 3 appeared through their counsel and filed version. It is contended that the complaint is not maintainable; it is vexatious, frivolous, incorrect, false and liable to be dismissed.    O.Ps have admitted that the complainant is an account holder with the Op bank enjoying over draft facility to the tune of Rs.20,000/- against the security  of fixed deposit. On 24.05.2016 cheque was presented for clearance. There was credit balance of Rs.27, 283.41 and hence cheque was debited during the morning hours on 24.05.2016. Due to system error same was rejected. There was no financial loss to the complainant. Earlier complainant filed a complaint before banking ombudsman on same subject matter and on the same cause of action. On the order passed by the banking ombudsman, the Op bank complied the said order. Such being the scenario, complainant cannot seek dual course of benefits from the different statutory bodies. Complainant has attempted to make un-law full gain. Further complainant has not shown any deficiency of service on the part of Op. As such complainant is not entitled for any compensation. Hence complaint is gross of abuse of social welfare legislation. Hence prayed to reject the complaint by imposing cost.

4.     Further Op.4 filed its version stating that complainant has issued a cheque for Rs.45,000/- which was dishonoured by Op.3 bank  for the reason ‘insufficient funds’ though complainant had balance of Rs.47,000/- in his account. Thus the complainant registered a complaint under banking ombudsman scheme before bank ombudsman. The ombudsman carefully examined the complaint and comments of the bank and observed that the bank has not established the lapse on the part of the complaint of issuing of cheque against over draft limit which has expired and also not informed about the expiry of the overdraft facility. In view of the above deficiency on the part bank, benefit of doubt was given to complainant and the bank was asked to compensate the complainant in terms of their compensation policy. Further it is also stated that the complainant has failed to furnish any documentary evidence of actual loss suffered by him on account dishonor of cheque. However, the bank offered compensation of Rs.900/- as service gesture. The banking ombudsman is fully competent to decide the complaint. When the bank admitted its deficiency in service, there was no need to hear the complainant. Hence no award was passed. Hence it prayed the forum to dismiss the complaint against him by imposing cost of Rs.10,000/-.

5.     In order to substantiate the case, complainant and O.Ps have filed their affidavit evidence. We heard the arguments of complainant and arguments of O.Ps taken as heard as they remained absent at the time of arguments.

6.     The following points will arise for our consideration is:-

                                1)   Whether the complainant has proved the

                      deficiency in service on the part of the

                      O.Ps?

2)  Whether the complainant is entitled to

     the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT 1):         In the Affirmative.

POINT 2):         In the Negative for the following.

REASONS

POINT No.1:-

8.     On perusal of the complaint evidence and documents filed by the both sides it is clear that the complainant is a customer of Op.1 to 3 Bank.  It is also admitted that he is also having an account bearing No. 0404252008441, and he issued a cheque for a sum of Rs.45,000/  favoring V.V.S. Saradar Patel PU College. When the said cheque was presented through Canara bank cantonment branch, the concerned officials without making scrutiny over the balance in the complainant accounts straight away dishonoured the cheque though there was balance of Rs.47,000/- in the said account. For which Op 1 to 3 have taken contention that when the complainant presented cheque for encashment, by that time, the credit balance in the account of complainant was of Rs.27,831.41 only and the complainant had facility of overdraft to a tune of Rs.20,000/- against the security of fixed deposit. Thus the cheque was honoured during the morning hours on 24.05.2016 due to system error same was rejected afterwards.   But on the same day the said cheque was honoured after making rectification of said error, due to this incident complainant did not have any financial loss. This arguments cannot be acceptable because, as we have observed the observation made by the banking ombudsman it is clear that when the cheque was presented before the Op bank by that time the complainant has got sanctioned overdraft limit of Rs.20,000/- along  with credit balance amount  of Rs.27,283.41 in his account. As such there was a balance of Rs.47,283.41  sufficient to meet the cheque issued by the complainant.  Op bank has dishonoured the same without going through the records. Further it is also observed that the bank has not issued any letter to the complainant informing him about the expiry of the overdraft account and requesting him to renew the limit of overdraft facility. Cheque bounce is a criminal offence. It is the duty of the banker to take care of each and every aspect before dishonor of cheque presented before them. But hear Op bank has shown sheer negligence while dishonoring the cheque.  Further the Op.4 i.e., banking ombudsman also made it clear that there is a deficiency on the part of Op and also drawn the inference against the Op bank and benefit of doubt was given to the complainant. Further the Op bank wrote a letter to the complainant on 30.07.2016 wherein they admitted that there was a sufficient balance available in the complainant account on the day of the presentation of cheque and hence the account had been debited for a sum of Rs.45,000/-, however, due to some technical error, the clearing cheque was re-credited to account of complainant at the end of the same day. For which they apologized for inconvenience caused to the complainant.  These facts clearly shows the negligence on the part of Op.

9.     Op.4 is banking ombudsman like a quasi judicial authority ment for discharging the functions as prescribed under the banking ombudsman scheme 2006. Further it is also clear that there is no privity of contract between complainant and Op.4 and it has not rendered any service on payment of cost as contemplated under the provision of C.P. Act. Thus there is no deficiency of service of on the part of Op.4 and they are not liable to pay any compensation to the complainant.  Hence we answer Point No.1 in the affirmative. Against Op.1 to 3 only.

POINT NO.2:

10.    In view of the above discussion, admittedly it is clear that Op.1 to 3 are held liable to compensate the complainant for their negligent act. However, it is also observed that due to act of OP, there is no financial loss caused to the complainant.  It is just a technical error beyond the control of human knowledge. Thus while granting compensation for the negligence of the Op it is just and proper to give nominal relief for the same. Since  as the ombudsman has already given compensation in that respect, we feel that  complainant is not entitle for any compensation.  O.Ps have apologized for the lapse well before the complainant issued notice.  It is to be held here that there is no malafide intention of O.Ps.  Inspite of it, complainant filed the complaint, in order to gain wrongfully. No loss has been suffered by the complainant.  Hence we are of the opinion that this is a unrighteous litigation for which complainant is not entitle for any of the reliefs and also litigation expenses.  Hence Point No: 2 in the negative and we proceed to pass the following:-

ORDER

1. The complaint is dismissed.  Parties to bear their costs.

2. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the complaints/ version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this     2^nd Day of February 2019)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Sri. Prasad.K.P., -Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1:                Copy of cheque No.321264

Doc.No.2:                Cheque dishonoured memo 25.05.2016

Doc.No.3:                Complaint copy dated.07.06.2016

Doc.No.4:                CANT/OD 404.252.8441/2016-17/ RSB

                       Date: 30.07.2016

Doc.No.5:        Ombudsman Complaint Annexure a copy dated.07.09.2016

Doc.No.6:                E-mails

Doc.No.7:        Copy of ombudsman scheme

Doc.No.8:                Compensation police of Canara Bank

Doc.No.9:                Pass sheet of overdraft for the period

                       01.03.2016 to 06.06.2016

Doc.No.10:      Aadhar Card of complaint

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1 : Sri. Rakesh Nair  – of Op

Copies of Documents produced on behalf of Opposite Party/s

Doc.No.1:           Copy of the banking ombudsman scheme

MEMBER                        PRESIDENT