BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 1281/2006 against C.D 39/2006, Dist. Forum, Tirupathi
Between:
M/s. Varma Industries
Rep. by its Proprietor
CPS Bhupala Varma
S/o. C. P. Lakshmipathi Raju
D.No. 544, Reddy & Reddy Colony
Tirupathi, Chitoor Dist. *** Appellant/
Complainant
And
1. ICICI Bank Ltd.,
Rep. by its Branch Manager
R/o. R. V. Towers
Tilak Road, Tirupathi.
2. ICICI Bank Ltd.,
Regional Processing Centre
Vijayawada
Rep. by its Authorised Person
D.No. 40-1-67, K.K. Towers
M.G. Road, Vijayawada. *** Respondents/
Ops.
Counsel for the Appellant: M/s. K. Maheswara Rao
Counsel for the Resps: Served.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SRI SYED ABDULLAH, MEMBER
MONDAY, THIS THE TWENTY THIRD DAY OF MARCH TWO THOUSAND NINE
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) This is an appeal preferred by the complainant against the order of the Dist. Forum not awarding the amount covered under the cheque which was lost in transit.
2) The case of the complainant in brief is that he is a businessman and during their business transactions M/s. Abraham Distributors, Pudukottai, Tamil Nadu issued a cheque for Rs. 20,000/- drawn on Indian Bank, Rajagopalapuram branch, Pudokottai in his favour towards the amount due. He presented the cheque in R1 bank on 26.12.2005 for collection. In spite of repeated approaches the bank did not inform as to the
clearance of the cheque. On his notice the bank sent a letter Dt. 10.2.2006 stating that the cheque was dishonoured for insufficient funds and that the cheque was lost during transit. In view of deficiency of service on the part of the bank, he could not take action against M/s. Abraham Distributors under Negotiable Instruments Act as well as civil action for recovery of the amount. Therefore, he claimed an amount of Rs. 20,000/- covered under the said cheque besides Rs. 20,000/- towards compensation and costs.
3) The respondent bank resisted the case. While admitting that the cheque was deposited for collection, it stated that when it was sent to the drawee bank at Pudokottai the same was returned on the ground of insufficient funds and the said cheque was lost during transit. The said fact was informed to the complainant immediately and also by a letter. Though it requested the complainant to take duplicate copy of the returned memo from the drawee bank, he refused to receive the same. He could have taken action against drawer of the cheque on the duplicate endorsement given by the drawee bank without instrument also. Instead of doing so, he filed this frivolous complaint, and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A6 marked, while the respondent bank filed Ex. B1 duplicate copy of return memo issued by the Indian Bank at Rajagopalapuram, Tamil Nadu together with letter stating that the returned cheque was lost during transit.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant could have taken action on the duplicate cheque return memo for realization from the person, who issued the cheque basing on the endorsement given. However holding that there was deficiency in service for not taking action with the postal authorities, awarded a compensation of Rs. 4,000/- together with costs of Rs. 500/-.
6) Aggrieved by the said decision, the complainant preferred this appeal contending that the Dist. Forum ought to have granted the amount covered under the cheque as he could not lay action for non-availability of cheque that was lost during transit.
7) The point that arises for consideration is whether the complainant is entitled to the amount covered under the cheque?
8) It is an undisputed fact that the complainant deposited a cheque for an amount of Rs. 20,000/- with the respondent bank to collect the amount issued by M/s. Abraham Distributors from its banker Indian Bank, Rajagopalapuram, Tamil Nadu. It is also not in dispute that respondent sent the cheque for collection to the Indian Bank branch at Rajagopalapuram. The bank in its turn returned the cheque on the ground of ‘insufficient funds’ vide duplicate copy of returned memo. The said cheque was returned to the bank at Tirupathi. When it was forwarded to Vijaywada branch in order to send it to the complainant the same was lost in transit. For the notice issued on 1.2.2006 under Ex. A2 the bank gave reply immediately on 13.2.2006 stating that the cheque was returned for the reason ‘insufficient funds’ and the same was lost during transit.
9) Now the complainant complains that without returning the cheque he could not have taken any action under the Negotiable Instruments Act or civil action against M/s. Abraham Distributors. Curiously the complainant despite communicating that the cheque was lost in transit and duplicate return memo was available with the respondent bank, he refused to collect it . He could have issued notice to M/s. Abraham Distributors mentioning these facts contending that it was liable to pay the amount. Instead he intends to recover the amount from the bank.
10) In UCO Bank, Mangalore Vs. Sri Manoj Shetty reported in 1997 (1) CPR 593 it was held that “ The opposite party when it did not receive any amount of cheque from the bank on which it was drawn it could not credit the said amount to the account of the complainant, it could not be said that the opposite party committed deficiency in service. The opposite party the only mistake committed by it was that it did not return the dishonoured cheque to the complainant but for which the bank had given explanation that the said dishonoured cheque was lost in transit and regarding which the opposite party immediately intimated the complainant of this fact. Having regard to these facts and in the circumstances of the case we are unable to find any deficiency in service on the part of the bank.”
11) Coming to the facts the complainant did not issue even a notice to M/s. Abraham Distributors which had to pay the amount covered under the cheque, and despite knowledge it was returned for want of insufficient funds could have issued notice. Undoubtedly, secondary evidence could be let in to prove these facts in order to initiate action against M/s. Abraham Distributors for recovery of the amount. It is not the case where the amount was in any way appropriated by the bank or credited to a wrong account so that the complainant was not having any recourse. The complainant cannot recover from the bank solely on the ground that the cheque was lost in transit. The only deficiency that could be attributed that it did not pursue the matter with the postal authorities for the lose of cheque. Equally, one can blame the complainant. He could have initiated action or issued notice to the postal authorities basing on the letter issued by the bank. The complainant is not entitled to the amount covered under the policy. We do not see any mis-appreciation of facts by the Dist. Forum in this regard. We do not see any merits in the appeal.
12) In the result the appeal is dismissed, however, no costs.
PRESIDENT MALE MEMBER
Dt. 23. 03. 2009.
*pnr
“UP LOAD – O.K.”
