ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in not returning the dis-honoured cheque along with endorsement by OP.No.1 which was sent through OP.No.2 and for the payment of Rs.5,60,000/-being the value of the cheque dishonoured along with interest at 18% p.a. and Rs.2,00,000/- as damages for deficiency in service and for mental sufferance and for other reliefs as the forum deems fit.

2.     The brief facts of the complaint are that:  complainant deposited a cheque bearing No.871495 for a sum of Rs.5,60,000/- with OP.No.1 for encashing the same.  The said cheque was dis- honoured as there was no sufficient fund in the account.  OP.NO.1 assured that the said dishonoured cheque along with bankers return memo would be sent through OP.No.2 in the month of January 2017 and the same has been sent through OP.No.2 vide POD F00300199421 to the registered address of the complainant.    In view of the assurance by OP.No.1, complainant waited to receive the dishonor cheque along with banker return memo in order to exercise his right in respect of the dishonor of cheque against the drawer of the said cheque.   He informed OP.No.1 regarding the non-receipt of the same.  He made several attempts with Op.No.1 to trace and get the dishonoured cheque along with memo.

3.     It is averred that on 14.03.2017 he received letter from OP.No.1 informing him that the OP.No.2 informed OP.No.1 that the said cheque along with bankers return memo given to it by OP.No.1 is lost in transit and cannot be retrieved and expressed its apology.  In view of the same, OP.No.1 and OP.No.2 have failed in discharging their duties and OP.No.2 failed in delivering the consignment to the complainant sent by OP.No.1.    OP.No.1 failed to maintain the effective banking system which has caused irreparable loss, injury, harassment, embarrassment and mental agony. Legal notice was also issued to both the OPs regarding the same.   Apart from suffering loss of Rs.5,60,000/-, both parties are liable jointly and severally to pay compensation of Rs.2,00,000/- . He has been deprived off taking any action under Negotiable Instruments Act regarding dishonor of cheque since he has not been given the dishonoured cheque along with the banker’s endorsement.

4.     It is contended further that, to the legal notice issued, OP.No.1 replied whereas, failed to provide satisfactory response and OP.No.2 did not give any response to the notice. OP.No.1 and 2 are highly negligent in their duty.  The cause of action for the complaint arose the day on which he deposited the cheque for encashment with O.P. No 1 and subsequently on 14.03.2017 when OP.No.1 informed regarding loss of cheques and banker’s return memo in transit and not possible to retrieve on the information of OP.No.2 and on 04.04.2017 when the complainant issued legal notice. Hence he prayed the forum to allow the complaint.

5.   Upon service of notice,OP.No.1 and 2 appeared before the forum and have separately filed their  version.

 6.    OP.No.1 in its version admitted the presentation of the cheque by the complainant  on 24.10.2016 which was drawn on SBI VimanPura Branch and the cheque was dishonoured for insufficient funds in the said account on 02.12.2016 and the same was informed to the complainant over SMS on his mobile as complainant was having internet banking.   It is also admitted that the complainant visited the bank after one month after dishonor of cheque for enquiry regarding the return of the cheque. At that time, he was informed that the cheque and the endorsement was sent to him on 03.12.2016 through their registered courier OP.No.2. 

7.     It is further contended that, as per the information received from OP.No.2 regarding non delivery of the cheque to the Complainant and they received a belated reply on 09.03.2017 by OP.No2. regarding the consignment lost in transit and apologing for the same. Hence OPNo.1 is not at all responsible for the loss of consignment in transit and OP.No.2 is fully responsible for the same.   The bank has scanned the cheque and sent it for clearing house.  Had the complainant applied for a certified copy of the cheque which was dishonoured, they would have provided the same and the complainant could have filed the criminal case for dishonour of the cheque before the concerned court. It has denied all the other allegations made in the complaint and further contended that there is no deficiency in service on its part and complainant has no right to seek the value of the cheque and hence prayed the Forum to dismiss the complaint.

8.     OP.No.2 in its version contended that, the complaint is not maintainable either on law or on facts and it is frivolous, vexatious and illegal. There is no deficiency on its part. Complainant is not a consumer and there is no privity of contract between OP.No.2 and the complainant and there is no transaction between them. The present complaint is flagrant abuse of law to harass and it is bad for misjoinder and non-joinder of parties.

9.     It is contended that, as per the terms and conditions of the agreement entered into between OP.No.1 and 2, OP.No.2 is not responsible for any loss or any damage of any consignment caused due to act of god such as accident, natural calamity, commotion, strike or any other cause beyond the control of the company.     NO claim for loss or damage will be entertained by the company with such an event. OP do not accept any barer Negotiable instrument including draft and cheque. The consigner shall endorse, cross, draft or cheque as account payee before they are booked and the consigner shall be solely responsible for all losses or damages due to consigners failure to do so.

10.   It has admitted that, OP.No.1 handed over one consignment during December 2016 addressed to the complainant.   At the time of booking of the consignment, it was mentioned as parcel. The consigner ought to have declared the contents of the consignment and its value.  OP.No.1 has declared the content of the consignment as a parcel and has not declared its value. After receiving the same, the same was handed over to its staff for delivery.  Its staff lost the courier bag containing the above parcel. Though they tried to trace the same, they could not trace it and same was intimated to OP.No1. as per mutual agreement. Hence there is no deficiency in service in that respect.

11.     It is further contended that, it is not within knowledge as to whether the complainant has deposited the cheque for encashment with OP.No.1 and denied all the allegation against it and hence prayed the forum to dismiss the complaint.
 

12.   In order to prove the case, both Complainant and OPs filed affidavit evidence and produced documents. Arguments heard. The following points arise for our consideration:-

1. Whether there is relationship of consumer and service provider in respect of the complainant and OP.No.2?
2. Whether the complainant has proved

     deficiency in service on the part of 

                      Opposite Party No.1?

3)  Whether the complainant is entitled to

                      the relief prayed for in the complaint?

13.   Our answers to the above points are:-

POINT NO.1:    In the Negative

Point No.2 :    In the affirmative

Point No.3:     Partly in the affirmative

                                For the following.

REASONS

POINT No.1:-

14.   It is admitted that the complainant presented the cheque to OP.No.1 and the same was dishonoured for want of sufficient funds in the account of the drawer.  Hence the said cheque was dishonoured. It is the bounden duty of the O.P.No.1 to send the bounced cheque along with its endorsement with the reason for dishonor to the person who presented the cheque for encashment. 

15.   In this case, OP.No.1 has admitted that, the cheque was dishonoured and it handed over the dishonoured cheque along with its endorsement to OP.No.2 to be delivered to the complainant. 

16.   Complainant on his own has not engaged services of OP.No.2,. Hence there is no relationship between consumer and service provider with them and the complaint against OP.No.2 is not maintainable as there is no privity of contract and no relationship of consumer and service provider. Hence, we answer POINT NO.1 IN THE NEGATIVE.

POINT NO.2:

17.   It is an admitted fact that the cheque was bounced  for want of sufficient funds and  the same was handed over by OP.No.1 to be delivered to complainant through OP.No.2 who is the official courier agency.   The terms and conditions of the agreement  entered into between OP.No.1 and 2 is produced. The receipt of the letter by  complainant written by OP No.1 informing the loss of cheque and endorsement in transit on the information of OP.No.2 is admitted.   Issuing of legal notice and its reply by OP.No.1 is also admitted.  It is the bounden duty of  OP.1 to hand over the bounced cheque and the endorsement to the complainant,  So that the complainant could take legal action regarding the dishonor of the cheque either in Civil Court or in a criminal court against the drawer of the cheque. Though the deficiency is attributable to OP.No.2, in not delivering the cheque since OP.No.1 has handed over the dishonoured cheque along with endorsement with reasons of dishonour, the entire responsibility is on OP.No.1 in seeing that the document is delivered to the presenter  of the cheque. In view of this, we hold that there is deficiency in service on the part of OP.No.1. Hence we answer POINT NO.2 IN THE AFFIRMATIVE.

POINT NO.3:

18.   The complainant has sought for the payment the value of the cheque i.e. Rs.5,60,000/- from OPs.  It is his specific contention that in view of the non-delivery of the dishonoured cheque along with endorsement with reason for dishonour of the cheque, he is not able to move the criminal or civil court to take action against the drawer of the said cheque to recover his money and hence he is at loss and the loss has to be compensated by the OPs.

19.   On the other hand, OP.No.1 has vehemently contended that the complainant could have obtained the certified copy of the cheque and the banker’s endorsement regarding dishonour and could have utilized the same for filing criminal or civil case against the drawer of the cheque to recover the said amount. In this context, we rely on the decision of:-

Hon’ble National Consumer Disputes Redressal Commission, New Delhi in “ICICI Bank Ltd Vs Sonne Gowda & Other” in Revision Petition No.649/2012 reported in CPJ 370 (NC) 2(2012) has held In a similar and identical case “that in the absence of original cheque the complainant has been deprived off getting his money from the person who has issued the cheque in his favour.”.

In “Senior Branch Manager Vijaya Bank, Vivekanand Marg, Balasur, Orissa Vs Dwarakanath Muskara” in Revision Petition No.767/2012 dated 29.03.2012 decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi it is held that “in the absence the original cheque it is difficult to prove the signature of the person who issued the cheque in favour of the complainant, so complainant was deprived off getting his money from the person who issued the cheque in his favour sending a duplicate cheque, return memo is no way helpful to complainant to get the money.

20.   In view of this, we are of the opinion that OP.No.1 is bound to pay to the complainant Rs.5,60,000/- along with interest at 12% p.a from the date of dishonour i.e. 02.12.2016 till the payment of the entire amount. It is made clear that subject to the terms and conditions of the agreement with OP.No.2, OP.No.1 is at liberty to penalize OP.No.2 and recover the amount paid by it to the complainant through this order for its careless, callous, negligent, irresponsible act in loosing the parcel while in transit and not delivering the same to the complainant within a reasonable time. 

21.   Complainant has sought Rs.2,00,000/- as damages for the mental sufferance. He has not placed any proof to quantify the same for having suffered the damage. Inspite of it, considering the amount involved in the cheque we are of the opinion that, the complainant was put to lot of inconvenience and mental tension and harassment. We quantify the same at Rs.50,000/- and direct OP.No.1 to pay the same in the interest of justice.  Further the act of OP.No.1 made the complainant to approach this Forum by spending his time and energy by engaging advocate paying his professional fee and spending money to attend the hearings. In view of this, we are of the opinion that if a sum of Rs.10,000/- is ordered to be paid by OP.No.1 towards litigation expenses to the complainant would meet the ends of justice. Hence we answer POINT NO.3 PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1. The Complaint is allowed in part with cost.
2. The OP.No.1 i.e. IDBI Bank Limited represented by the Authorized Signatory hereby directed to pay   Rs.5,60,000/- along with interest at 12% Per annum from the date of dishonor of cheque i.e. 02.12.2016 till the payment of the entire amount.
3. Further OP No.1 is hereby directed to pay a sum of Rs.50,000/- towards damages and Rs.10,000/- towards cost of the litigation expenses.
4. Complaint against OP.No.2 is hereby dismissed.
5. The O.P.No.1 is hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
6. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 24^th APRIL 2019)

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1: Copy of the Bank Challan,

Doc.No.2: Copy of the letter dated 14.03.2017 issued by OP.No.1.

DocNo.3: Copy of the letter dated 09.03.2017 issued by OP.No.2.

Doc.No.4: Copy of the Legal Notice dated 04.04.2017.

Doc.No.5: Copy of the Reply notice dated 19.04.2017.

Doc.No.6: Copies of the postal receipts and acknowledgments.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: David Kingsley Branch head of OP.No.1.

RW-2: Sri Santosh Kumar, Assistant Manager of OP.No.2.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Scanned copy of cheque.

Ex R2: Copy of the outward cheque returned list.

Ex. R3: Copy of the Consignment note dated 03.12.2016.

Ex. R4: Copy of the reply notice dated 19.04.2017.

MEMBER                        PRESIDENT

A*