Tamil Nadu

South Chennai

CC/464/2006

M. Ranghanathan - Complainant(s)

Versus

Centurian Bank Ltd., - Opp.Party(s)

K.Akhilandeshwari

04 Oct 2018

ORDER

                                                                        Date of Filing  : 10.08.2006

                                                                          Date of Order : 04.10.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (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

 

C.C. No.464/2006

DATED THIS THURSDAY THE 04^TH DAY OF OCTOBER 2018

                                 

M. Raghunathan,

S/o. Mr. N. Mani,

Residing at: No.3,

2^nd Cross Street,

Rajesh Nagar Extension,

Narayanapuram,

Pallikaranai,

Chennai – 601 302.                                                      .. Complainant.                                                   

 

                                                                                  ..Versus..

 

1. The Manager,

HDFC Bank,

Shanta Durga Nivas,

M.G. Road,

Panaji,

Goa – 403 001.

 

2.  The Branch Manager,

HDFC Bank,

Padma Complex,

No.320, Anna Salai,

Nandanam,

Chennai – 600 035.                                             ..  Opposite parties.

          

Counsel for complainant            :  M/s. K. Akilandeswari & another

Counsel for 1^st opposite party   :  Exparte

Counsel for 2^nd opposite party  :  M/s. K. Raghavendran & Associates

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 praying to pay the value of cheque for a sum of Rs.45,000/-, to pay a sum of Rs.50,000/- towards damages incurred by him and to pay a sum of Rs.2,50,000/- towards compensation for mental agony and suffering with cost of Rs.5,000/- to the complainant.

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

The complainant submits that he is having SB account in the 2^nd opposite party bank vide No.0006157700001.  On 04.10.2004, the complainant presented a cheque bearing No.619848 dated:15.07.2004 for a sum of Rs.45,000/- drawn on State Bank of India and was deposited for collection in the 2^nd opposite party bank.   Since the 2^nd opposite party has not paid the cheque amount, the complainant issued a letter dated:20.10.2004 calling upon the 2^nd opposite party regarding the cheque deposited for collection.  On 21.10.2004, the complainant approached the 2^nd opposite party in person and was informed by the 2^nd opposite party that the cheque was misplaced.  The opposite party also issued a letter dated:21.10.2004 stating that the cheque was returned unpaid on 06.10.2004 with an endorsement as account closed and enclosures namely photo copy of cheque and copy of Return Memo dated:21.10.2004 establishes the deficiency in service i.e., the cheque was deposited on 04.10.2004 was returned as account closed on 06.10.2004 and was informed only on 21.10.2004.  The reason for such inordinate delay has not been informed by the opposite party till 21.10.2004.  As per the Negotiable Instrument Act, 15 days time after return of cheque notice shall be issued to the parties also lapsed.   Further the complainant submits that legal notice dated:30.10.2004 was issued to the opposite parties was duly acknowledged on 02.11.2004.  The 2^nd opposite party contacted the complainant over phone on 05.11.2004 and intimated to proceed further in accordance with the Negotiable Instrument Act.  But as per the Act, the 15 days time was lapsed.  

2.     Further the complainant submits that he filed a complaint before the Hon’ble VII Metropolitan Magistrate Court under section 138 & 142 was returned with an endorsement that the complaint should be filed along with original returned cheque.  Since the opposite parties negligently lost the cheque, the complainant was not able to file any case under the Negotiable Instrument Act.   Further the complainant submits that one R.C. Arumugam promised the complainant to place a job at Chennai Harbour and demanded a sum of Rs.1,00,000/- and was paid by the  complainant.  Further the complainant submits that the said Arumugam has not procured any job and cheated the complainant.   Hence a police complaint was filed before the Joint Commissioner of Police.    Thereafter, the said Arumugam issued the impugned  cheque which was returned as account closed.   The complainant further issued a legal notice dated:08.11.2004 to the said R.C. Arumugam and waited for 15 days for payment of the said amount from R.C. Arumugam.  The act of the opposite parties caused great mental agony.  Hence the complaint is filed.

3.     Inspite of receipt of the notice, the 1^st opposite party has not chosen to appear before this Forum and hence the 1^st opposite party was set Exparte. 

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

The 2^nd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.   The 2^nd opposite party states that the complainant had SB account with opposite party bank.  The cheque deposited for collection by the complainant was returned dishonoured with an endorsement as ‘Account Closed’ and was misplaced due to heavy work.   The photo copy of the cheque and Return Memo was sent to the complainant for taking appropriate action.   The 2^nd opposite party states that the complainant has not preferred a petition U/S 138 and 142 of the Negotiable Instrument Act and even if it is preferred and the learned VII Metropolitan Magistrate has returned the same, to represent with Original or copy of the cheque as stated in the complaint the  complainant can represent the copy of the cheque to the VII Metropolitan Magistrate since a copy of the misplaced cheque was given to the complainant on 06.10.2004.  Further the 2^nd opposite party states that the complainant is not entitled to any amount towards the value of the cheque.   There is no deficiency in service on the part of the 2^nd opposite party and the complaint is liable to be dismissed.

5.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A27 are marked.  Proof affidavit of the 2^nd opposite party filed and no documents filed and marked on the side of the 2^nd opposite party. 

6.      The points for consideration is:-

1. Whether the complainant entitled to a sum of Rs.45,000/- towards the value of cheque as prayed for?

 

2. Whether the complainant is entitled to a sum of Rs.50,000/- towards compensation for damages and another sum of Rs.2,50,000/- towards compensation for mental agony with cost of Rs.5,000 as prayed for?

7.      On point:-

The 1^st opposite party remained Exparte.   The complainant filed his written arguments. The 2^nd opposite party has not filed any written arguments.   Heard both sides.   Perused the records namely the complaint, written version, proof affidavits, documents etc.  The complainant pleaded and contended that he is having SB account in the 2^nd opposite party bank vide No.0006157700001.  On 04.10.2004, the complainant presented a cheque bearing No.619848 dated:15.07.2004 for a sum of Rs.45,000/- drawn on State Bank of India and was deposited for collection in the 2^nd opposite party bank.   Since the 2^nd opposite party has not paid the cheque amount, the complainant issued a letter vide Ex.A11 dated:20.10.2004 calling upon the 2^nd opposite party regarding the cheque deposited for collection.  On 21.10.2004, the complainant approached the 2^nd opposite party in person and was informed by the 2^nd opposite party that the cheque was misplaced.  The opposite party also issued a letter dated:21.10.2004 stating that the cheque was returned unpaid on 06.10.2004 with an endorsement as account closed and enclosures namely photo copy of cheque and copy of Return Memo as per Ex.A13 dated:21.10.2004 establishes the deficiency in service i.e, the cheque was deposited on 04.10.2004 was returned as account closed on 06.10.2004 and was informed only on 21.10.2004.  The reason for such inordinate delay has not been informed by the opposite party till 21.10.2004.  As per the Negotiable Instrument Act, the 15 days time after return of cheque notice shall be issued to the parties also lapsed.   Further the contention of the complainant is that legal notice dated:30.10.2004 vide Ex.A14 was issued to the opposite party was duly acknowledged on 02.11.2004.  The 2^nd opposite party contacted the complainant over phone on 05.11.2004 and intimated to proceed further in accordance with the Negotiable Instrument Act.  But as per the Act, the 15 days time was lapsed.   Eventhough the complainant filed a complaint before the Hon’ble VII Metropolitan Magistrate Court under section 138 & 142 was returned with an endorsement that the complaint should be filed along with original returned cheque as per Ex.A20.  Since the opposite party negligently lost the cheque, the complainant was not able to file any case under the Negotiable Instrument Act.   

8.     Further the contention of the complainant is that one R.C. Arumugam promised the complainant to place a job at Chennai Harbour and demanded a sum of Rs.1,00,000/- and was paid by the  complainant as per Ex.A1 & Ex.A2.  Evenafter inordinate delay the said Arumugam has not procured any job and cheated the complainant.   Hence a police complaint was filed before the Joint Commissioner of Police as per Ex.A5.    Thereafter, the said Arumugam issued the impugned  cheque which was returned as account closed as per EX.A9.  The complainant further issued a legal notice dated:08.11.2004 to the said R.C . Arumugam as per Ex.A17 and waited for 15 days for payment of the said amount from R.C. Arumugam.  Since the cheque was misplaced by the opposite party, the complainant was not able to take suitable action under the Negotiable Instrument Act proves deficiency in service.  The complainant is claiming the cheque amount of Rs.45,000/- along with a compensation of Rs.3,00,000/- under different heads with cost. 

9.     The learned Counsel for the 2^nd opposite party contented that admittedly, the complainant had SB account with opposite party bank.   The cheque deposited for collection by the complainant was returned dishonoured with an endorsement as ‘Account Closed’ and was misplaced due to heavy work proves deficiency in service.   The photo copy of the cheque and Return Memo was sent to the complainant for taking appropriate action.  Further the contention of the 2^nd opposite party is that the complainant has not represented the complaint u/s 138 and 142 enclosing the Xerox copy of the returned cheque and Memo.   But on a careful perusal of the Ex.A20, the VII Metropolitan Magistrate Court instructed the complainant to represent the complaint along with original documents.

10.    The learned Counsel for the 2^nd opposite party cited the Provision 146 of the Negotiable Instruments Act that

Bank’s slip prima facie evidence of certain facts –

“The Court shall, in respect of every proceeding under this Chapter, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonor of such cheque, unless and until such fact is disproved”.

 11.   The learned a Counsel for the 2^nd opposite party also cited a decision reported in:

Civil Appeal No.7335/2008 (2017) 2 Supreme Court Cases 301

Between

Chief Administrator, Haryana Urban Development Authority and Another

-Versus-

Shakuntala Devi

Held that

        “Held, it is precondition that there must be proof of loss or injury suffered by consumer due to negligence of opposite party – Once this proof is adduced, Consumer Forum needs to decide on quantum of compensation – Computation of compensation has to be fair, reasonable and commensurate to loss or injury – It is duty of Consumer Forum to take into account all relevant factors for computation of compensation – Consumer Protection Act, 1986, Ss.12, 13, 14, 18 and 22”.

12.    Further the contention of the 2^nd opposite party is that the complainant is not entitled to any amount towards the value of the cheque.   The compensation claimed is exorbitant.  Considering the facts and circumstances of the case this Forum is of the considered view that the misplacement of original cheque along with returned Memo is a total negligence amounts to deficiency in service.  The VII Metropolitan Magistrate Court also returned the complaint under the Negotiable Instrument Act for filing along with original documents.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties shall pay a sum of Rs.45,000/- being the value of cheque with interest and a sum of Rs.15,000/- towards compensation and cost of Rs.5,000/-.

  In the result, this complaint is allowed in part.   The opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.45,000/- (Rupees Forty five thousand only) being the value of cheque with interest at the rate of 9% p.a. from the date of complaint  i.e. 10.08.2006 to till the date of this order and to pay a sum of Rs.15,000/- (Rupees Fifteen thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payablewithin 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 Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 04^th  day of October 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	18.07.2008	Copy of Jewel Mortgaged Receipt
Ex.A2	18.07.2008	Copy of Security Deposit Bill
Ex.A3	24.07.2008	Copy of Offer issued by the General Manager of Thermal Harbour acceptance letter by the complainant dated:05.08.2002
Ex.A4	03.08.2008	Copy of Telegram sent by the General Manager
Ex.A5	03.05.2004	Copy of the complaint given to the Joint Commissioner of Police by the complainant and letter from the Sub-Inspector of Police
Ex.A6	17.07.2004	Copy of counter foil of the 2nd opposite party
Ex.A7	20.07.2004	Copy of reason for return copy Memo by the 2nd opposite party
Ex.A8	04.10.2004	Copy of Counter Foil of the 2nd opposite party
Ex.A9	06.10.2004	Copy of Cheque
Ex.A10	06.10.2004	Copy of return Memo of the cheque issued by the 2nd opposite party
Ex.A11	20.10.2004	Copy of representation sent by the complainant to the 2nd opposite party
Ex.A12	20.10.2004	Copy of Courier receipt of the complainant’s representation
Ex.A13	21.10.2004	Copy of letter issued by the 2nd opposite party
Ex.A14	30.10.2004	Copy of legal notice sent by the complainant to the opposite parties
Ex.A15	02.11.2004	Copy of acknowledgement card acknowledged by the 2nd opposite party
Ex.A16	04.11.2004	Copy of acknowledgement card acknowledged by the 1st opposite party
Ex.A17	08.11.2004	Copy of legal notice sent by the complainant to RC. Arumugam
Ex.A18	09.11.2004	Copy of acknowledgment card acknowledged by RC. Arumugam
Ex.A19	23.12.2004	Copy of the complaint filed before the VII Metropolitan Magistrate
Ex.A20	25.02.2005	Copy of the complaint returned to represent the cheque by the VII Metropolitan Magistrate
Ex.A21	31.03.2005	Copy of legal notice sent by the complainant to the opposite parties
Ex.A22	04.04.2005	Copy of acknowledgment card acknowledged by the 1st opposite party
Ex.A23	25.04.2005	Copy of requisition letter to the Sub-Post Master
Ex.A24	23.06.2005	Copy of reply letter by the Sr. Supdt, of Post Office
Ex.A25	06.07.2006	Copy of legal notice sent by the complainant to the opposite parties
Ex.A26	08.07.2006	Copy of Acknowledgment card acknowledged by the 2nd opposite party
Ex.A27	10.07.2006	Copy of Acknowledgment card acknowledged by the 1st opposite party

 

2^ND OPPOSITE  PARTY SIDE DOCUMENTS:  NIL

 

 

MEMBER –I                                                                      PRESIDENT