IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 422/09 DATED 06.01.2010<br /> ORDER<br /> <br /> Complainant B.K.Ramanna, D.No.2904, II Main Road, Chamundipuram, <br /> Mysore-570004.<br /> <br /> (By Sri.M.Y.Kumar, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Branch Manager, ICICI Bank, Rama Vilas Road Branch, Mysore.<br /> <br /> (By Sri.Gerald Castelino, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 13.11.2009<br /> Date of appearance of O.P. : 01.12.2009<br /> Date of order : 06.01.2010<br /> Duration of Proceeding : 1 MONTHS 5 DAYS<br /> <br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite party, seeking a direction to pay Rs.15,000/- the amount of the cheque with interest, Rs.20,000/- towards damages for mental agony and Rs.5,500/- cost of the proceedings etc.,<br /> <br /> 2. In the complaint it is alleged that, the complainant has got joint S.B. Account bearing No.624201024447 with the opposite party Bank. The complainant on 23.07.2009 deposited a cheque No.287348 for credit into his S.B. account. As per the procedure, the opposite party did not send the said cheque for clearing to the paying Bank. The cheque was probably misplaced/lost at the end of the opposite party on account of negligence or deceit of the officers of the opposite party Bank. The complainant was in need of money for medical treatment of his ailing wife. He approached the opposite party and the branch in Kalidasa Road to know the fate of the said cheque, more than a dozen times. For that, he incurred enormous costs. The enquiries did not yield any positive response. Then, complainant gave written representation to the opposite party on 05.10.2009. Again on 20.10.2009, the complainant reminded the opposite party. There was no response from the opposite party. The complainant approached the drawer of the cheque to know the fate. The drawer of the cheque informed the opposite party orally and also by means of registered post, to immediately credit the amount into the payees account, failing which he will have to initiate action for redressal. This also did not make the opposite party to wake up. The opposite party did not initiate any steps to credit the amount in to account of the complainant of the cheque. It shows, disregard of the opposite party for customers and gross negligence. The opposite party did not send reply to the notice of the complainant. It has been revealed that said cheque has been encahsed by some imposter on 28.07.2009. This could be, as a result of negligence or complicity of the officers of the opposite party Bank. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version, denied all most all material allegations against it. However, it is stated that, the complainant had deposited the cheque on 29.07.2009, which was dated 28.07.2009 and not on 23.07.2009, as alleged. It is stated that, the opposite party initiated action to trace the loss of the cheque. It is contended that, the complainant is dreaming of making wrongful gain. It is stated that, said cheque was not crossed one. During investigation, it was found that, the cheque was withdrawn from SBM across the counter. It is impossible to withdraw amount across the counter, as such the amount is credited to the account of the person on whom such cheque is drawn. It had to be made clear, whether the complainant himself has withdrawn the amount. Finally, the investigation by the opposite party yielded result in tracing the culprits who had withdrawn the cash. Once the same was ascertained, the opposite party offered to pay the cheque amount along with the SB account interest, but the complainant refused, demanding higher interest and compensation. The opposite party also agreed to pay interest at the fixed deposit rate. It was also rejected by the complainant. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. In support of the claim made in the complaint, the complainant has filed his affidavit narrating the facts stated in the complaint and certain other facts. For the opposite party, the Assistant Manager has filed his affidavit. The complainant has filed counter affidavit. Certain documents are also produced by the complainant. For the complainant, written arguments are filed. Along with memo dated 08.12.2009 for the opposite party a cheque in favour of the complainant produced and is in record. We have heard the arguments of the learned advocates for the complainant and opposite party and so also, perused the entire records.<br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The fact that, the complainant had deposited a cheque for Rs.15,000/- with the opposite party Bank is admitted. The further claim of the complainant that, amount of the said cheque could not be credited into the SB account of the complainant is admitted. Thus, the complainant alleges deficiency in service on the part of the opposite party Bank. <br /> <br /> 8. It is true, during the course of the present proceedings, the opposite party offered to pay the cheque amount with SB account interest, for which bankers cheque in the name of the complainant has been produced in this case along with memo. The complainant was not ready to accept the said cheque demanding compensation and the interest at the fixed deposit rate.<br /> <br /> 9. Considering the facts noted above, now main question would arise as to whether only because the opposite party came forward to pay certain amount as noted above, absolve it from the other liability. In this regard, at the outset, we would like to note that, according to the complainant, the cheque was deposited with the opposite party Bank on 23.07.2009 and the complainant alleges that more than a dozen times he approached the officers of the opposite party Bank to enquire regarding the fate of the said cheque, but it did not yield any positive response. Thereafter, complainant made written representations on 05.10.2009 and 20.10.2009. Same did no elicit any response from the opposite party. Thereafter issuing notice, on 13.11.2009 present complaint has been filed. Considering these aspects, we are of the opinion that, merely because, the opposite party Bank has come forward to pay certain amount, will not absolve it from other liability if established. It was different matter, if the opposite party Bank had responded to the complainant well in time, when the complainant approached it.<br /> <br /> 10. Now to consider the merits of the case, the complainant claims that the cheque was deposited with the opposite party Bank on 23.07.2009. Specifically that has been denied by the opposite party contending that, in fact the cheque was dated 28.07.2009 and it was deposited on 29.07.2009. Of course, the said cheque is not before the Court. The complainant alleges tampering of the date or dates on the said cheque. Complainant had filed an application to summon the said cheque, which was objected by the opposite party Bank and considering various aspects, the application came to be dismissed. At this stage, it is suffice to note, whether really as claimed by the complainant, cheque was deposited with the opposite party Bank on 23.07.2009 or as contended by the opposite party, it was on 29.07.2009. To prove that, as contended by the opposite party, cheque was deposited on 29.07.2009, for the opposite party no documentary evidence is placed on record. Of course, Assistant Manager of the opposite party Bank has stated in his affidavit that, the cheque was deposited on 29.03.2009. On the other hand, the complainant has stated in his affidavit that, the cheque was deposited on 23.07.2009. To substantiate the fact that, the cheque presented on 23.07.2009, the complainant has produced the Xerox copy of the pay in slip of the opposite party Bank. In this pay in slip, the date of deposit of the cheque is mentioned as 23.07.2009, not only that said date is written in ink, there is seal of the opposite party containing the date as 23rd July 2009. Hence, safely we can conclude that the opposite party has falsely contended that the cheque was deposited on 29.07.2009, though it has received on 23.07.2009, for which it has put the seal. The Assistant Manager witness of the opposite party despite the said documentary evidence has falsely stated in the affidavit that the cheque was deposited on 29.07.2009. When said witness has given such false statement in the affidavit, the entire contention of the opposite party Bank shall have to be scrutinized carefully and cautiously. <br /> <br /> 11. The Assistant Manager witness for the opposite party in the affidavit has stated that, the opposite party would have credited the cheque amount to the account of the complainant immediately subject to the pending investigation, but for the fact that the said cheque was uncrossed etc., Considering the said fact amongst other material on record, contention of the opposite party is that, since the cheque that was deposited with the opposite party bank was uncrossed, there is fault on the part of the complainant and hence, immediately the cheque amount was not credited into the account of the complainant. It is true, the cheque was uncrossed. But, it is relevant to note the contention of the complainant that as per the procedure, if the cheque is deposited with a bank for clearance, clearance seal or seal of the collecting bank on the cheque shall have to be put. This fact stated by the complainant in his affidavit is not denied by the opposite party. Hence, even though the cheque was not crossed one, if the opposite party had put the seal regarding clearance, then there was no scope at all to misuse the said cheque. Hence, because the cheque was uncrossed, the opposite party cannot escape from the liability blaming the complainant. Moreover, for various reasons drawer of the cheque can draw the cheque, which may be crossed or bearer.<br /> <br /> 12. The fact that, the complainant had deposited the cheque in question with the opposite party bank, is admitted. The opposite party contend that, in transit the cheque was lost. According to the opposite party payment of the amount of said cheque was made across the counter of S.B.M. When the cheque was deposited by the complainant with the opposite party bank, it was the duty of the opposite party bank to take all necessary care of the safety and custody of the said cheque. Having not taken the care in the matter, negligence on the part of the opposite party is established. It is stated in the affidavit of the witness for opposite party that, the culprit who has withdrawn the amount across the count of SBM has been nailed. Who is that person, is not disclosed by the opposite party. No reasons are assigned. Nothing is disclosed what action against the said person is taken by the opposite party bank. It is relevant to note that all along the complainant has alleged that all happened as a result of negligence or complicity of officers of the opposite party Bank. That fact is stated by the complainant in his affidavit also. When there is specific allegation of the complainant against the opposite party that there is complicity of officers of the opposite party bank , in view of the fact that the opposite party bank though nailed the culprit who has withdrawn the amount of the cheque in question across the counter of the SBM, non-disclosure of name of said culprist and taking of any action against the said person, the allegation of the complainant regarding complicity of the officer of the opposite party Bank, cannot be brushed aside.<br /> <br /> 13. In the version, opposite party has alleged in 10th paragraph that, the complainant is dreaming of making wrongful gain by not appreciating the good gesture shown by the opposite party. It is the case of the complainant that, his wife was ailing and was under treatment for which he was in need of money and accordingly his friend lent the amount through the cheque in question. To show that, his wife was under treatment, the complainant has produced certain documents. The witness for the opposite party in the affidavit has stated, after investigation was completed and culprist was nailed, the opposite party offered to settle the matter by offering to credit the cheque amount. But, however, the complainant was adamant and insisted for huge amount as compensation, which was not only unlawful and unreasonable. As considered here before, the offer made by the opposite party to settle the matter was only after lodging the present complaint that too on the second date of adjournment. At the cost of repetition, the complainant has alleged that more than a dozen times, he approached the officers of the opposite party to look into the fate of the cheque and even he wrote a letter and remainder, but there was no response. Taking into consider ion of these aspects, the statement made by the witness for the opposite party in the affidavit on oath, cannot be appreciated. The further statement that the complainant was adamant and insisted for huge amount, which is unlawful and unreasonable also cannot be appreciated. As noted above, the wife of the complainant was under treatment for which he borrowed loan from his friend through the cheque in question. The claim made by the complainant towards mental agony is Rs.20,000/-. Considering the circumstances under which the complainant was in need of money and borrowed the same from his friend through the cheque, which is the subject matter of the present complaint particularly that the amount was needed by the complainant for treatment, we are of the opinion that, said claim cannot be termed as “Unlawful or unreasonable”. The complainant further has claimed the cheque amount with F.D. rate interest. That also cannot be termed as “Unlawful or unreasonable”. A sum of Rs.500/- the claim towards visiting the opposite party bank by the complainant. Specifically it is claimed by the complainant that, he visited the opposite party bank more than a dozen times. Then towards legal and other expenses Rs.5,000/- is claimed. Even though, there is no material on record what fees the complainant has paid to his counsel, one has to infer the fees that the advocates nowadays, are collecting. Hence, the claim of the complainant has contended by the opposite party, cannot be branded as “Unlawful and unreasonable”. However, we take liberal view and would like to reduce the said claim to certain extent.<br /> 14. Accordingly we answer the point partly in affirmative.<br /> 15. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to pay Rs.15,000/- the cheque amount to the complainant with interest at the rate of 9% p.a. from 25.07.2009 within a month from the date of this order.<br /> 3. Further, the opposite party shall pay compensation of Rs.5,000/- to the complainant towards mental agony and other inconvenience caused, within a month from the date of this order, failing which the amount shall carry interest at the rate of 9% p.a.<br /> 4. Also, the opposite party shall pay a sum of Rs.2,500/- towards the cost of the proceedings.<br /> 5. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 6th January 2010)<br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />