IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.Ashok Kumar J.Dhole<br /> B.A(Hons), LL.B - President<br /> <br /> 2. Smt.M.Mahadevi<br /> M.Sc., M.Ed., -Member<br /> <br /> 3. Shri.G.V.Balasubramanya<br /> B.E, LL.B - Member<br /> <br /> CD 160-05 DATED 26-10-2005<br /> <br /> Complainant H.Srinidhi, 1227, “Koustubha”, 3rd Cross, 4th Stage, Paduvana Road, T.K.Layout, Kuvempunagar, Mysore-570023.<br /> (By Sri.S.Sampath Kumar, Advocate)<br /> <br /> Vs. <br /> <br /> Opposite Party Branch Manager, <br /> HDFC Bank Ltd., Vishvamanava Double, 17th Main, Saraswathipuram, <br /> Mysore-570009.<br /> (By Sri.S.Shankar, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 23-06-2005<br /> Date of appearance of O.P. : 12-07-2005<br /> Date of order : 26-10-2005<br /> Duration of Proceeding : 3 ½ MONTHS<br /> <br /> <br /> PRESIDENT<br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. Ashok Kumar J.Dhole<br /> President,<br /> <br /> 1. Complainant H.Srinidhi is the customer of HDFC Bank Ltd., Branch Saraswathipuram, Mysore, having S.B. Account no.1411050017500. This complaint is filed under section 12 of the C.P.Act, 1986, claiming an amount of Rs.7500 with interest at the rate of 18% p.a, apart from damages and cost of Rs.2100; on the ground that a cheque, which was handed over to the O.P. Bank for collection was lost due to the negligent act of the O.P. It is further contended that complainant was humiliated when he approached the O.P. bank and ultimately he was forced to file this complaint.<br /> 2. Notice was duly served on the O.P, who appeared and seriously contested the complaint by filing version and affidavit. Both parties are examined as C.W.1 and R.W.1. Heard the learned counsels for both sides.<br /> 3. The facts, which are undisputed are as under:-<br /> Complainant is having savings bank account in the O.P. Bank. There is no dispute that LIC, Hyderabad has issued a cheque bearing no.13392 for an amount of Rs.7500 in favour of the complainant. There is also no dispute that this cheque was presented by the complainant for the purpose of collection, to O.P. Bank on 5-4-05. There is also no dispute that O.P. Bank has informed the complainant by letter dated 4-5-05 and 16-6-05 that the cheque, which was sent through courier to Hyderabad for collection was lost during transit. As per these letters, O.P. bank has requested the complainant to visit personally the Manager of the Bank.<br /> 4. It is the case of complainant that he visited the O.P. Bank on 15-4-05 and 18-4-05 when oral information was given that the cheque was lost during transit. When complainant approached specifically on 25-4-05, a casual reply was given by the officers of the Bank. It is further contended that complainant submitted a letter in writing on 21-4-05, and a casual reply was given on 4-5-05. It is the case of complainant that due to negligent act of the O.P. he has spent an amount of Rs.100 towards phone charges, he has incurred traveling expenses of Rs.1000, he has suffered hardship which is fixed at Rs.500/-. Complainant has also claimed an amount of Rs.400 towards mental agony part from the cost.<br /> 5. The simple defence of the O.P is that there was no negligent act and deficiency in service. The cheque, which was presented by the complainant for collection was sent to Hyderabad branch of HDFC, and it was lost in transit. The O.P. would have obtained a duplicate cheque from the LIC, if complainant would have given a letter of authority, authorizing the O.P. to collect such cheque. But, the complainant has failed and neglected to do so, and also refused to issue such letter as desired by the LIC. Due to this reason, the O.P. was not able to collect the duplicate cheque for the purpose of payment. For the above reasons O.P. has prayed for dismissing the complaint with cost.<br /> 6. The learned counsel for the complainant vehemently argued and relied on 3 decisions and submitted that the negligent act of the O.P. has been proved and he is entitled to recover the amount with interest and damages, on the ground that deficiency in service. The learned counsel for O.P. submitted that there is fault on part of the complainant in not giving letter of authority, hence, the complaint is liability dismissed. <br /> 7. Points for our consideration are as under:-<br /> 1. Whether complainant has proved deficiency in service on the part of the O.P.?<br /> 2. If so, to what relief is entitled?<br /> <br /> REASONS<br /> <br /> 8. Points no. 1 and 2:- It is undisputed facts, that LIC Hyderabad has issued a cheque no.13392 for an amount of Rs.7500 payable to the complainant. There is no dispute that this cheque was presented for collection to the O.P. Bank on 5-4-05. Though, the O.P. bank has taken up contention that this cheque was sent through courier for collection to it’s branch at Hyderabad, no material is produced before the Forum to show that such cheque was really forwarded to Hyderabad. O.P. has neither produced the courier receipt nor produced the copy of forwarding letter. The mere say of the O.P. that such cheque was forwarded to it’s branch at Hyderabad, and the same was lost during transit is a self serving statement, which can not be accepted as true. For the above reasons, we have no hesitation to come to conclusion that the cheque submitted by complainant was lost due to negligent act of the O.P.<br /> 9. The learned counsel for the complainant relied on the following three decisions in support of his contentions:-<br /> a. LIC of India and another Vs. V.Lakshminarayana Rao, reported in I (2000) CPJ 331.<br /> b. State Bank of Patiala Vs. Vishwas Ahuja, reported in I (2004) CPJ 413.<br /> c. Udaipur Central Co-operative Bank Vs. Anurag Nagar, reported in I (2004) CPJ 496.<br /> 10. In the first decision stated above, the Bank has failed to take precaution of sending the cheque by RPAD, which was held has deficiency in service, and the bank was directed to refund of Rs.5907 with interest at the rate of 18% p.a. along with damages of Rs.3000/-. In the 2nd decision referred above, it is observed that, if the cheque is lost during transit by a courier, the courier acts as an agents of the O.P. bank and such bank has got independent right to proceed against such courier for his negligent act. In the 3rd decision referred above, it was held that when the cheque is entrusted to the bank by it’s Consumer for collection, there is contractual obligation of payment of such amount by collecting the same from drawee bank. <br /> 11. In view of the above decisions, we have no hesitation to come to conclusion that the complainant has established deficiency in service on the part of the O.P.<br /> 12. R.W.1 M.M.Mahendra who is present Manager of HDFC Bank states in his evidence that unless the customer gives a letter, he can not obtain duplicate cheque from the LIC Hyderabad. But, during cross-examination, he admits that he has not requested the complainant in writing, to give such letter or letter of authority in his letter dated 4-5-05 and 16-6-05. We have perused both letters, which merely states that complainant was requested to visit bank and contact the Manager. Such casual letter does not disclose the mind of the O.P. to the complainant. Hence, we come to conclusion that the defence set up by the O.P to cover of it’s negligence is not acceptable.<br /> 13. As we are fixing the liability to pay the amount with interest and damages on the O.P, it is just and proper to direct the complainant to give a letter of authority in writing to the O.P. Bank, authorizing them to collect duplicate cheque from the LIC, Hyderabad, and appropriate the same for and on behalf of the complainant. Hence, we proceed to pass following order:-<br /> ORDER<br /> <br /> Complaint is allowed as under:-<br /> 1. O.P. bank has directed to pay an amount of Rs.7500 to the complainant, with damages of Rs.1500 and cost of Rs.500, within a period of one month from the date of this receipt of this order. <br /> 2. O.P. bank shall deposit the entire amount of Rs.9500, in this Forum, by D.D. or Bankers Cheque in name of complainant, along with a draft of the letter, which is required from the complainant, addressed to the LIC, Hyderabad, for obtaining a duplicate cheque.<br /> 3. The complainant shall be entitled to receive the D.D. or cheque only after executing such letter in favour of the O.P.<br /> 4. The O.P. is entitled to appropriate the amount under duplicate cheque, which would be issued by LIC. <br /> 5. If O.P. bank fails to deposit the amount as mentioned above, within a period of one month, the entire amount of Rs.9000 shall carry future interest at the rate of 18% p.a. from such date, till the date of payment, and the bank would be entitled to recover this amount, personally from the Manager.<br /> 6. Send a copy of this order to O.P. by R.P.A.D. and to the complainant under C.O.P.<br /> Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open court on this day the 26th Oct. 2005.<br /> <br /> <br /> (Ashok Kumar J.Dhole)<br /> President<br /> <br /> <br /> (M.Mahadevi)<br /> Member<br /> <br /> <br /> (G.V.Balasubramanya)<br /> Member<br />