(Passed on 07.03.2013)
Per Mr S M Shembole, Hon’ble Presiding Member
This appeal is directed against the judgement & order dtd.07.09.2000 passed by District Consumer Forum, Yavatmal allowing the Consumer Complaint No.A/95/344 directing the appellant / o.p. No.2 – Bank to pay to the respondent No.1 / complainant cheque amount Rs.38,964.32 with interest @ 12% p.a. w.e.f. 09.12.1992 and further Rs.1,000/- more towards expenses, etc.
(For the sake of brevity the appellant is hereinafter referred as “the o.p.No.2 - Bank” and respondent No.1 as “the complainant” and other respondents as “the o.ps”.)
Brief facts giving rise to this appeal are that :-
1. Complainant – Chandrashekhar Mor had received a cheque Rs.38,694.32 from o.p.No.5 – HPCL, which was drawn on o.p.No.1 – Bank of India. However, according to the complainant the same cheqeue was misplaced somewhere. Thereafter, he made enquiry with o.p. No.5 by sending letters and thereafter on 15.09.1993 he came to know that somebody enchashed the same cheque through o.p.No.2 – Bank of Maharashtra, Branch Kamthee by opening account in the name of C B Mor. Thereafter, he sent notice to the o.p. – Bank and claimed the amount of cheque with interest and thereafter filed the Consumer Complaint alleging deficiency in service on the part of the o.p.No.2 – Bank (i.e. Bank of Maharashtra) and as well as org. o.p. No.1 – Bank (Bank of India) and other o.ps, claiming the amount of cheque and also compensation of Rs.10,000/- and cost of the proceedings.
2. The o.ps resisted the complaint by submitting Written Version. O.p.No.2 & 4 by their separate Written Version submitted that one Chandu Baburao Mor opened Saving Bank Account with o.p.No.2 – Bank and deposited the cheque and thereafter withdrew the amount twice from his account. It is also admitted that the cheque was in the name of C B Mor and while opening the account by C B Mor he was introduced by existing customers of the same Bank and therefore, there was no deficiency in service. It is denied that the Branch Manager of o.p. No.2 in collusion with said C B Mor, committed any fraud, etc. It is denied that the same cheqeue was in the name of complainant – Chandrashekhar Brijmohan Mor, etc. They have denied all the averments made by the complainant and submitted to dismiss the complaint.
3. The other o.ps also denied the complaint. They have specifically raised preliminary objection contending inter alia that there was no privity of contract between the complainant and them specifically the complainant and o.p.No.2 – Bank and therefore, complainant is not being their consumer, complaint is not maintainable. It is submitted to dismiss the complaint.
4. On hearing both the sides and considering the documents on record the Forum held that the o.p. bank as well as other o.ps acted negligently in allowing one C B More to open account with the o.p.No.2 - Bank and therefore, the o.p. No.2 - Bank is responsible and liable to pay amount of cheqeue as well as compensation and cost of the proceeding to the complainant and accordingly allowed the complaint directing o.p.No.2 - Bank to pay amount of cheque and compensation as noted above. However, the Forum discharged the other o.ps. No.1, 3, 4 & 5.
5. Feeling aggrieved by this judgement & order o.p.No.2 – Bank has preferred this appeal.
6. We heard Mr J C Shuka Ld. Counsel for the appellant – o.p. No.2 - Bank and Adv.Mr Bhishikar Ld. Counsel for the complainant and perused the Written Notes of Argument submitted by them, so also we perused the copies of impugned judgement & order, complaint, Written Version and other documents.
7. The undisputed facts are that the complainant C B Mor has received a cheque from o.p.No.5 – HPCL and the same cheque was drawn on o.p.No.1- Bank of India. It is also admitted fact that one C B Mor opened Saving Account with his name with o.p.No.2 – Bank of Maharahstra, Kamptee, Nagpur by depositing the same cheque. Cheque was issued by o.p.No.5- HPCL in the name of Mr C B Mor and one Chandu Baburao Mor enchased that cheque by opening the account with the o.p.No.2 – Bank.
8. The crux in this matter is as to whether complainant Chandrashekhar Brijmohan Mor is the consumer of o.p. No.2 – Bank (Bank of Maharashtra) and if not whether the consumer complaint is maintainable.
9. Adv. Mr N Bhishikar for the complainant submitted that except the complainant there is no other person by name Chandrashekhar Brijmohan Mor but one Chandu Baburao Mor falsely got misused the said cheque by opening the account with o.p.No.2 – Bank representing him as C B Mor. In collusion with the Bank employees he opened the account and got encashed the cheque. Therefore, the o.p.No.2 – Bank is being responsible for the same, committed deficiency in service, etc. and therefore, according to Adv. Mr Bhishikar complainant C B Mor is the consumer of o.p.No.2 - Bank.
10. To which it is denied by Mr J C Shukla, Ld. Counsel for the o.p.No.2 – Bank and submitted that the complainant is not having any account with o.p.No.2 - Bank. It is further submitted that there is no privity of contract between the complainant and the o.p.No.2 – Bank and therefore, the Consumer Complaint is not at all maintainable.
11. However, Adv. Mr Shukla for the o.p.No.2 - Bank submitted that the person named Chandu Baburao Mor himself received the cheque from the HPCL and rightly encashed the cheque by opening the account with o.p. No.2 – Bank at Kampthi. He was also introduced by existing old account holder of the Bank. Not only this, but he has further made submission at bar that said Chandu Baburao Mor is still operating the account with the o.p.No.2 _ Bank, etc. Further he has also submitted that if said Chandu Baburao Mor would have illegally encashed the cheque, he would have closed the account immediately after withdrawing the entire amount of cheque.
12. Moreover, Adv. Mr Shukla for the o.p.No.2 – Bank submitted that on the basis of complaint made by the complainant, Police Authorities as well as o.p. No.2 – Bank made enquiry but the complainant has not produced any enquiry report. He has also submitted that if the o.p. No.2 – Bank would have illegally allowed Chandu Baburao Mor to open his account the complainant would have filed the complaint against the o.p. No.2 – Bank as well as Chandu Baburao Mor. But no such action was taken by the complainant and therefore, he created doubt as to whether the complainant has received any cheque issued by the o.p. No.5 – HPCL in the name of complainant Chandrashekhar Brijmohan Mor or not.
13. Considering the evidence on record and the facts of the case, we find much force in the submission of Adv. Mr J C Shukla for
the o.p. No.2 – Bank.
14. Any how, since this is the Consumer Complaint and it is obvious from the record that the consumer complaint is not maintainable as there was no privity of contract between the complainant and the o.p.No.2 – Bank, we are not required to consider other facts as submitted by Adv. Mr Shukla.
15. For the foregoing reasons the submission of Adv. Mr Bhishikar for the complainant that the complainant is the consumer of the o.p. No.2- Bank and the complaint is maintainable, cannot be sustained. But it appears from the copy of impugned judgement & order that the Forum without considering the legal aspect, jumped to the wrong conclusion that the complainant is the consumer of o.p.No.2- Bank. Not only this, but without giving specific finding about the legal aspect, the Forum entertained the complaint and further committed error in allowing the complaint. Such erroneous judgement & order cannot be sustained.
16. In the result, the o.p. No.2 – Bank / appellant herein succeeds and appeal deserves to be allowed.
Hence, the following order:-
ORDER
i. Appeal is allowed.
ii. Impugned judgement & order passed by District Consumer Forum, Yavatmal in Consumer Complaint No. CC/95/344 is set aside. Consequently, the complaint is dismissed.
iii. No order as to cost.
iv. Copy of this order be supplied to the parties.
