BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986) MEDAK AT SANGAREDDY
Present : Smt Meena Ramanathan, B.Com.,Senior Member/Lady Member
Sri G.Sreenivas Rao, M.Sc.,B.Ed.,LL.B., PGADR (NALSAR) Male Member
Wednesday, the 18th day of January 2012
C.C. No. 45 of 2011
Between:
P. Raghuveer S/o Sailoo,
Aged 32 years, Occ: Business,
R/o H.No. 1-87/1, Moosapet (V) & (P),
Mandal Narsapur, Medak District – 502 3136. …..Complainant
And
ICICI Bank Limited, Survey No. L 13-A,
Opposite Integrated Collectorate,
Main Road, Sangareddy – 502 295. ….Opposite party
This case came up for final hearing before us on 05.01.2012 in the presence of complainant in person and Sri Anantha Rao Kulkarni, Advocate for opposite party, on perusing the record and having stood over for consideration till this day, this Forum delivered the following:
O R D E R
(Per Smt Meena Ramanathan)
1. This complaint is filed under section 12 of C.P. Act, 1986 by Complainant alleging that he is a businessman by profession and holds a savings bank account bearing No.131201000046 with opposite party and on 8-10-2010 he deposited the cheque bearing No.014822 for Rs.43,264/- for collection with the opposite party bank which is stated to have been issued by one T.Saidulu in respect of transaction between them. But for reasons best known, the opposite party failed to credit the proceeds of above cheque into his account nor returned the said cheque.
It is further alleged that many a time, he enquired with the OP as regards to status of cheque, but opposite party failed to give proper explanation and used lame excuses stating that it was sent through courier and it may take time. After considerable period, complainant made written representations on 19-4-2011 and 12-5-2011 to the opposite party, to which, the opposite party replied on 16-5-2011 stating that the cheque deposited by complainant was returned on 9-10-2010 by the concerned on account of insufficient funds and that the said cheque is lost in transit and accordingly requested the complainant to obtain another cheque.
The complainant further alleged that the act of opposite party personnel in misplacing the cheque amounts to sheer negligence and had the opposite party lost the cheque in transit, it could have informed him long back and hence, suspects foul play on the part of opposite party. And that the person who issued cheque to complainant is refusing from issuing another cheque and asking the complainant to return the earlier cheque. That, due to the sheer negligent act of opposite party bank personnel, complainant lost the opportunity of invoking the provisions of Negotiable Instruments Act. The opposite party also failed to furnish the cheque return memo with the reason that is assigned by the bank, which is nothing but lame excuses of the opposite party bank personnel with T.Saidulu. Hence filed the present complaint with a prayer to direct the opposite party to pay Rs.43,264/- covered by the lost cheque, together with interest and further to pay Rs.30,000/- as damages and also costs of the complaint.
2. Opposite party filed counter admitting the deposit of cheque on 8-10-2010 with it and stated that the same was returned on 9-10-2010 due to insufficient funds and the complainant has not approached them for a long time and for the first time issued a written complaint on 19-4-2011 and 12-5-2011, after a lapse of 6 months, to which, it gave reply on 16-5-2011 and stated that the so-called T.Sailudu and complainant colluded with each other to harass the opposite party to take advantage of missing cheque. If the complainant truly was interested to know the fate of cheque, he could not have waited upto six months and would have filed a case under N.I. Act within one month from the date of its dishonour. There is no deficiency on the part of opposite party bank and it is not liable to pay any damages and complainant is not entitled to any damages and the case of complainant is false and frivolous.
3. Complainant let evidence in the form of his affidavit reiterating the facts stated in his complaint and exhibited Exs.A1 to A7 documents. Whereas the Opposite party filed the affidavit of one Sd.Bajishahad and no single document is filed on its behalf. Complainant filed the written arguments while the counsel for opposite party filed memo requesting to treat the version of its counter as written arguments.
4. The point for consideration is 1) whether the Complainant is entitled for the reliefs as prayed for? 2) Whether there is any deficiency of service on the part of the opposite party? And if so to what relief the complainant is entitled to?
5. Ex.A1 is original postal receipt dated 12-5-2011. Ex.A2 is original pay-in-slip showing deposit of cheque in question. Ex.A3 is original postal acknowledgement dated 26-4-2011 acknowledged by the opposite party bank. Ex.A4 is the representation dated 12-5-2011. Ex.A5 is the reply dated 16-5-2011 of opposite party to complainant. Ex.A6 is copy of Agreement stated to have entered in between complainant and Peeshonu Marketing Pvt., Ltd., and Ex.A7 is the registration form.
6. It is not in dispute that the Complainant deposited the cheque bearing No.014822 for Rs.43,264/- with the opposite party bank on 8-10-2010 and it is also not in dispute that the same is returned for want of sufficient funds. The only dispute is that the above returned cheque was not taken back by complainant for months together and when he turned up, it was misplaced at the hands of the opposite party. Ex.A2 proves the deposit of cheque in question by complainant with the opposite party and Ex.A3 and A4 shows that the complainant made representations to the opposite party, which is also not disputed by the opposite party. A reading of Ex.A4 shows that the complainant on numerous times had been to the opposite party and they assured to send the cheque through post. A perusal of Ex.A5 shows that the cheque in question was lost in transit by the opposite party. Whereas in the counter it is vehemently stated by the Opposite party that the complainant did not turn up for months together and for the first time approached them through representations dated 19-4-2011 and 12-5-2011. There is no whisper in the counter of the Opposite party as to what happened to the cheque in question. Whether it is misplaced in transit or whether it is misplaced in the bank. Vaguely it is stated in the counter that the complainant has not visited the bank after depositing the cheque and he came only after lapse of 6 months. But it is not mentioned whether the cheque in question is misplaced or lying at their hands or is it misplaced in transit. Except stating that the complainant in collusion with T.Saidulu filed the present complaint just to harass, no material is placed on record.
7. Not even at single place it is mentioned that the cheque is misplaced either in transit or at their hands. If really the cheque was returned on
9-10-2010 itself, what made the opposite party not inform the complainant about the same is not known. A perusal of Ex.A5 shows that the cheque in question was lost in transit. Two different versions are made by the Opposite party. If Ex.A5 is believed to be true, whether the cheque in question was lost in transit while it is sent for collection or whether the same is lost in transit while it was being returned is not understandable. It is for the opposite party to clarify the same, but it did not take pains to clarify the same. The version in their counter is different to that of Ex.A5 reply. A reading of the counter explains that the cheque in question is returned on 9-10-2010 itself and what happened to the same is not mentioned. There was no occasion for the complainant to make written representations to the Opposite party if really the opposite party officials had informed him as to the return of the cheque.
8. The evidence let in by complainant and the evidence on hand shows that the cheque is misplaced by the Opposite party bank and for the reasons best known, it is not explained at whose hands it was misplaced. The reason assigned for return of cheque is that there are insufficient funds in the account of the issuer of the cheque. Even if it is not the version of the complainant that there were sufficient funds in the account of the issuer of cheque and due to the laches on the part of the opposite party, he could not encash the money.
9. From the above facts, deficiency of service and negligence can be attributed against the opposite party. But for misplacing the cheque, opposite party is not bound to pay the amount covered by the cheque. Admittedly there are in sufficient funds in the account of the person who issued the cheque, thereby it was not honoured. At any costs, opposite party is not liable to pay the cheque amount but is liable to pay the compensation/damages for the deficiency service rendred and acting negligently. We feel justified to grant a compensation of Rs.5,000/- towards misplacing the cheque by opposite party.
10. In the result, we allow the complaint of the complainant in part and direct the opposite party to pay rs.5,000/- (Five thousand only) as compensation for misplacing the cheque and further to pay costs of Rs.1,000/- One month time is granted for compliance.
Typed to dictation, corrected and pronounced by us in the open forum this 18th day of January 2012.
Sd/- Sd/-
Senior Member/Lady Member Male Member
