BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 18th March 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.414/2014
(Admitted on 30.10.2014)
Mr. Venkatesh,
Aged 39 years,
S/o Mr. Guruvappa,
Residing at Door No.1.43/1,
Alape, Near Mamatha Wood Industries,
Mangalore 575007.
….. COMPLAINANT
(Advocate for the Complainant: Sri KPAS)
VERSUS
HDFC Bank Ltd,
Ideal Towers, 1st Floor,
Opposite Sharavu Temple,
G T Road, Mangalore 575 001,
Represented by its Senior Manager
Wholesale Banking Opertations,
Mr. Prashanth. U and Manager W B O
Mr. Madhusudhan R.
…...........OPPOSITE PARTY
(Advocate for the Opposite Party: Sri MSKP)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims he had presented a cheque issued in this favour by one Mr. Sudhakar Acharay for Rs.3,00,000/ to S B Account maintained by him with opposite party towards amount due to him from Sudhakar Acharay deposited on 8.8.2014. On enquiry by complainant with opposite party he was informed that the cheque was dishonoured for insufficient fund amount on 12.08.2014. However despite request with opposite party he was informed that they sent the dishonoured cheque by registered post to the complainant did not return the cheque and instead by letter dated 27.8.2014 intimated that the cheque is lost in transit. As opposite party is liable to return the bounced cheque to complainant but failed to do the same despite promises due to negligence and carelessness of opposite party amounts to deficiency in service and failed to make payment of the cheque in spite of demand and legal notice. Hence seeks the relief claimed in the complaint.
II. Opposite party filed written version admitting the deposit of the cheque issued by Sudhakar Acharay to complainant to his S B Account in opposite party bank. The cheque was presented was dishonoured for insufficient funds of the drawees account. On 12.8.2014 the original cheque was dispatched to the address of complainant through Professional Couriers. Due to the complaint made by the complainant of non-receipt of the cheque on enquiry by opposite party with Professional Couriers it was intimated to them by a reply dated 26.8.2014 that due to negligence of their staff the consignment was misplaced. As such the missing of the consignment by the courier was beyond the control of opposite party. The courier service provider having misplaced the consignment, there is no deficiency in service on the part of opponent. The complainant without adding Professional Couriers as a necessary party is not maintainable. Contending that there is no deficiency in service on the part of the opposite party and there is no negligence on the part of opposite party seeks dismissal of the complaint.
2. In support of the above complainant Mr. Venkatesh filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C6 as detailed in the annexure here below. On behalf of the opposite parties Mr. Prashanth Ubrangala (RW1) Assistant Vice President (Operation), HDFC Bank, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R7 as detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case filed on record including evidence tendered by the parties and notes arguments of the parties. Our findings on the points are as under follows
Point No. (i): Affirmative
Point No. (ii): Affirmative
Point No. (iii): As per the final order
REASONS
IV. POINTS No. (i): The complainant being an account holder with opposite party and thereby the relationship as consumer and service provider is undisputed between the parties. Similarly the cheque in question presented by complainant with opposite party for collection issued by one Mr. Sudhakar Acharay towards amount due from him to complainant was dishonoured for insufficient funds and the dishonoured cheque was never returned to complainant is also admitted fact. The opposite party blames the carrier the professional courier is responsible for the loss of the cheque in question in transit and thereby there is no deficiency on its part. In view of this there is dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
POINTS No. (ii): As mentioned above the presentation of cheque by complainant with opposite party bank for crediting to complainants S B Account and that the cheque bounced for “insufficient funds“ and that the cheque was never returned to complainant by opposite party are as already mentioned is undisputed. The only narrow question for the consideration is opposite party allegation is that the cheque was lost in transit after it was handed over to professional courier for its delivery to complainant it was not delivered to complainant by the professional courier it is also an admitted facts.
2. Opposite party contends that as the bounced cheque was handed over to professional courier and was addressed to complainant there is no deficiency in service can be attributed to opposite party as it is not responsibility for non-delivery. It is also contended that the loss of the bounced cheque occurred due to the fault of professional courier and as such it is a necessary party and that it had intimated loss of the cheque in transit. Opposite party cannot be held responsible for deficiency in service.
3. Ex.R5 is the receipt issued by professional courier to opposite party for booking an article to complainant on 12.8. Ex.R6 is the outward register copy showing the article addressed to complainant of cheque of Rs.3,00,000/ on 12.8.14 and the reference number 65210197 mentioned at Ex.R6 in the respect of the outward register entry pertains to the entry of receipt issued by professional courier Ex.R5.
4. In this case there is no relationship between the complainant and the courier of consumer and service provider as complainant has not entrusted the cheque to the courier and not even service by the professional courier. As such a relationship is only between opposite party bank and professional courier. Hence opposite party cannot escape from liability to answer to complainants demand. In the circumstance we are of the view that it is a case of deficiency in service on the part of the opposite party for not returning the cheque to complainant for failure of opposite party to return the bounced cheque to complainant in time and even though opposite party did file complaint to the police against the loss of the consignment even after lodging a complaint for loss of the cheque. Hence it is a fit case to direct opposite party to pay the value of lost cheque amount of Rs.3,00,000/ with interest at 9% from the date of bouncing of the cheque i.e. 12.8.2014 till the date of payment. In the circumstance though complainant claimed compensation of Rs.1,00,00 in the complaint an amount of Rs.20,000/ in our view is just and proper. Advocate fee fixed at Rs.5000/. Hence we answer point No.2 in the affirmative.
POINTS No. (iii): Wherefore the following
ORDER
The complaint is allowed with cost. Opposite party is directed to pay lost cheque amount of Rs.3,00,000/ (Rupees Three lakh only) to complainant with interest at the rate of 9% per annum from the date of bouncing the cheque i.e. 12.8.2014 till the date of payment.
2. Opposite party is also directed to pay a sum of Rs.20,000/ (Rupees Twenty thousand only) as compensation to the complainant.
3. Advocate fee fixed at Rs.2,000/ (Rupees Two thousand only)
4. The above amounts shall be paid within 30 days from the date of receipt of copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 18th March 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore. Additional Bench, Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Venkatesh
Documents marked on behalf of the Complainant:
Ex.C1: Original deposit slip dated 08.08.2014 of HDFC Bank limited
Ex.C2: Xerox copy of the bank statement of the complainant issued by opposite party
Ex.C3: Letter dated 27.08.2014 issued by the opposite party
Ex.C4: office copy of the legal notice dated 16.09.2014 got Issued by the complainant
Ex.C5: Postal acknowledgment card dated 18.09.2014
Ex.C6: Reply notice dated 20.09.2014 issued by the opposite party
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Prashanth Ubrangala, Assistant Vice President (Operation), HDFC Bank,
Documents marked on behalf of the Opposite Parties:
Ex.R1: Letter dated 27.08.2014 issued by the opposite party
Ex.R2: Letter dated 26.08.2014 issued by Professional Courier
Ex.R3: Acknowledgment dated 26.08.2014 given by Mangalore Rural Police Station
Ex.R4: Complaint lodged at Mangalore Rural Police Station by Professional Couriers
Ex.R5: 12.08.2014 Original Weigh Bill
Ex.R6: Copy of Outward Register
Ex.R7: Copy of Inward Register.
Dated: 18.3.2017 PRESIDENT
