BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.436-2013

DATED ON THIS THE 24^th June 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri Devakumar.M.C.

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act 1986, against the opposite parties, seeking a direction to return the cheque along with endorsement or to take necessary action for clearance and to pay `1,50,000/- towards damages along with interest at 18% p.a. from the date of deposit of the cheque and to pay the cost with such other reliefs.
2.     The complainant got deposited the cheque through his account on 10.04.2013, after duly affixing the seal and signature of the opposite party on counter foil.  As there was dishonour of the cheque, the opposite party No.1 failed to return the cheque with endorsement.  The legal notice dated 29.09.2013 issued to the opposite parties also not replied.  Aggrieved complainant filed the complaint alleging the deficiency in service by opposite parties, seeking reliefs.
3.     The opposite party No.1 submit its version stating that it is a service provider and has extended free service to the complainant, as such prays for dismissal of the complaint as not maintainable.  The opposite party admits the complainant as its account holder and it has affixed seal and signature on the customer copy of the challen on deposit of the cheque by the complainant.  It has received the cheque and forwarded to Vijaya Bank for realization but has not received any intimation till 19.08.2013.  The Vijaya Bank has intimated on 27.02.2012, it has returned the cheque for the reason “funds insufficient” and forwarded the same through courier on 17.04.2013.  Due to non-receipt of the dishonoured cheque, the opposite party got issued a legal notice to the courier calling upon to deliver the parcel to forward the same to the complainant on 07.02.2014.  Thereby the opposite party submits, the necessary parties have not been impleaded as such the complaint against it, is not maintainable and hence, prays for dismissal of the complaint.
4.     To prove the facts, the complainant filed his affidavit and relied on several documents.  The opposite party also filed its affidavit.  Both parties filed written arguments.  On hearing oral submissions and on perusing the documents on record, matter posted for orders.
5.     The points arose for our consideration are:-

1. Whether the complaint is maintainable?
2. Whether the complainant established the deficiency in service on the part of opposite parties in not returning the dishonoured cheque with endorsement and thereby he is entitled for the reliefs?
3. What order?

6.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the affirmative.

Point No.2 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

7.    Point No.1:- The complainant is an account holder at opposite party No.1 Bank since 2011.  The complainant deposited the cheque with opposite party No.1 for realization of the amount drawn.  Thereby, opposite party No.1 being the service provider to the complainant, the complaint is maintainable and the complainant comes under the purview of the definition of “Consumer” under section 2(1)(d) of the C.P.Act.  As such, the present complaint is maintainable. Accoridngly, the point No.1 is answered in the affirmative.
8.    Point No.2:- The complainant had deposited the cheque for a sum of `65,000/- for realization, duly obtaining the seal and signature of the opposite party No.1 Bank officials on 10.04.2013.  As there was no communication about the realization of the cheque amount, the complainant started demanding the opposite party No.1 Bank to issue an endorsement.  But, opposite party No.1 failed.  The legal notices got issued by the complainant also not replied by opposite party No.1.  Thereby the complainant alleged the deficiency in service on the part of opposite party No.1 and sought for the reliefs.
9.    The opposite party contended that it had provided services to the complainant free of cost, as such, the complainant does not fall under the purview of the “Consumer” under section 2(1)(d) of the C.P.Act.  As such, the complaint is liable to be dismissed.  Further, the opposite party had forwarded the said cheque to the drawer’s Bank for realization of the amount i.e. Vijaya Bank, H.D.Kote Branch.  The said Bank vide their letter dated 19.08.2013 had intimated, the said cheque had been returned with the endorsement “funds insufficient”, through professional couriers on 17.04.2013.  The facts were intimated to the complainant.  The opposite party Bank Manager had caused a notice on 07.02.2014 to the Vijaya Bank and also to the professional couriers, calling upon to trace and deliver the cheque.  But, they failed to deliver the cheque.  Hence, the opposite party contended that, the complainant ought to have impleaded the Vijaya Bank and professional couriers as necessary parties to decide the complaint.  As such, there is no deficiency in service on its part and hence prayed for dismissal of the complaint.
10. On perusal of the documents on record, the complainant established that, he had deposited the cheque for realization of the amount with opposite party No.1 Bank.  The opposite party No.1 Bank also admitted the receipt of the cheque and forwarding of the same for realization from drawer’s Bank, i.e. Vijaya Bank, H.D.Kote Branch.  The admission made by the opposite party No.1 Bank based on the letter dated 17.04.2013, that the Vijaya Bank had sent the cheque with endorsement on 17.04.2013 confirms that the cheque had not been received by the opposite party No.1 Bank.  The callous attitude of opposite party No.1 confirms that it had acted negligently in tracing the cheque from the Vijaya Bank.  Thereby the opposite party No.1 had failed to take any initiative to locate the cheque either from the Vijaya Bank or from the professional courier.  The defence of the opposite party No.1, that the Vijaya Bank and professional courier had to be impleaded as necessary parties to the complaint is not justifiable.  Therefore, certainly there is deficiency in service on the part of opposite party Nos.1 and 2 Bank and they are liable to pay compensation to the complainant with interest and compensation for the mental agony hardship caused to the complainant.  Accordingly, Point No.2 answered partly in the affirmative.
11. Point No.3:- In view of the above observations, we proceed to pass the following

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party Nos.1 and 2 are jointly and severally hereby directed to pay the cheque amount (i.e. `65,000/-) with interest at 10% p.a. on the said sum from the date of its presentation for realization (i.e. 10.04.2013) till payment to the complainant within 45 days of this order.  On failure to comply the order, the opposite party Nos.1 and 2 Bank shall pay penalty of `100/- to the complainant, until compliance.
3. The opposite party Nos.1 and 2 Bank jointly and severally shall pay `3,000/- towards the compensation for the mental agony, hardship caused and `2,000/- towards cost of the proceedings, to the complainant within 45 days of this order.  In default to comply, the opposite party Nos.1 and 2 shall jointly and severally shall pay interest at 18% p.a. on `5,000/- from the date of this order, until payment made.
4. In case of default to comply this order, the opposite party shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
5. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 24^th June 2016)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER