BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY

THURSDAY, the 27^th day of April, 2017

FIRST APPPEAL No. 12/2016

The Branch Manager,

UCO Bank, A.F.T. Mudaliarpet,

Puducherry.                                               ……….                                Appellant/O.P.1

                                                                           Vs.

1. K.Rathinavelu, S/o Kathavarayan

2. R.Vasanthakumar,

    S/o K.Rathinavelu,

    Both are residing at No.4,

    Third Cross, Avvai Nagar,

    Mudaliarpet Post, Puducherry               ………..                Respondents/Complainants

3. The Manager-cum-Authorised Signatory,

    HDFC Bank, No.4 & 5, Vallalar Salai,

    Second Floor, Abhirami Plaza,

    45 Feet Road, Puducherry.                    ………..                               Respondent/O.P.2

 (On appeal against the order passed in C.C..No.42/2013, dt.31.05.2016 by District Forum, Puducherry)

C.C.No.42/2013

1. K.Rathinavelu, S/o Kathavarayan

2. R.V asanthakumar,

    S/o K.Rathinavelu,

    Both are residing at No.4,

    Third Cross, Avvai Nagar,

    Mudaliarpet Post, Puducherry               ………..                                       Complainants

                                                                           Vs.

1. The Branch Manager,

    UCO Bank, A.F.T. Mudaliarpet,

    Puducherry.

2. The Manager-cum-Authorised Signatory,

    HDFC Bank, No.4 & 5, Vallalar Salai,

    Second Floor, Abhirami Plaza,

    45 Feet Road, Puducherry.                     ……….                                       Opposite Parties

BEFORE:

HON’BLE THIRU JUSTICE K.VENKATARAMAN,

PRESIDENT

THIRU. S.TIROUGNANASSAMBANDANE,

MEMBER

FOR THE APPELLANT:

Tvl. K.Parasuraman, U.Mohan Ilayaraja,

A.K.Saravanan & T.Thamizhselvi,

Advocates, Puducherry.

FOR THE RESPONDENTS/COMPLAINANTS:

Thiru N.Baptiste Augustine,

 Advocate, Puducherry.

FOR THE RESPONDENT/O.P.2:

Tvl. T.N.Anandan, A.S.Sharmila,

Anicet Aroquiaradj & B.Kalyani,

Advocates, Puducherry.

O   R    D    E    R

(By Hon'ble Justice President)

            This appeal is directed against the order of the District Consumer Disputes Redressal Forum, Puducherry, dated 31.05.2016 made in C.C.42/2013.

            2. The first opposite party is the appellant herein, the complainants thereon are respondents 1 and 2 and the 2^nd opposite party is the 3^rd respondent.  The parties are referred in the same position as they have been referred in the District Forum.

            3. It is the case of the complainant before the District Forum that the 2^nd complainant purchased a Bajaj Discover motorbike from the 2^nd opposite party. For that, the 1^st complainant, the father of the 2^nd complainant gave 20 cheque leaves to the 2^nd opposite party, as he having account with the 1^st opposite party. When the cheques were presented by the 2^nd O.P. with O.P.No.1, it has been returned as ‘cheque not issued’ which lead to the 2^nd opposite party to collect the penalty charges of loan amount at the rate of 2% p.m. on the over due instalments  for each dishonouring of cheque. The 1^st opposite party also deducted a sum of Rs.1,192.78 towards cheque return charges from the account of the 1^st complainant.  Therefore, the complainants have preferred complaint before the District Forum seeking directions to the 1^st opposite party to refund a sum of Rs.1,192.78, being cheque return charges along with interest at 24% p.a. from 06.01.2012 till the date of payment; to direct the opposite parties to pay a sum of Rs.450/- and late payment of penalty at the rate of 2% p.m. on the overdue installment for every month for a period of 18 monthly installments to the complainant; to direct the opposite parties to return 5 cheque leaves of the complainant not utilized by the 2^nd O.P. which are in the custody of O.P.No.2; to pay a sum of Rs.1,00,000/- towards deficiency in service for mental torture and agony suffered by the complainants and to pay a sum of Rs.20,000/- towards costs.

            4. Before the District Forum, the appellant/O.P.No.1 remained exparte and only 2^nd O.P. filed the reply version.

            5. On behalf of the complainants, 1^st complainant was examined as CW1 and Exs.C1 to C31 were filed and marked.  On behalf of the opposite parties, none examined and no documents have been filed.

            6. After considering the entire records, the District Forum framed the following points, namely,

1. Whether the complainants are consumers?

2. Whether there is any deficiency of service attributed by the O.P.s?

3. Whether the complainants are entitled for any relief?

            7.  As regards point No.1, it has been found by the District Forum that the 1^st complainant is a consumer against 1^st opposite party and the 1^st complainant is not a consumer against the 2^nd opposite party. As far as the second complainant is concerned, it has been held by the District Forum that he is a consumer as against O.P.No.2 alone and not against O.P.No.1.

            8. Regarding point No.2, it has been found that there is deficiency in service and the same is proved only against 1^st opposite party. On the 3^rd point, the District Forum found that 1^st opposite party has to be directed to refund Rs.1,192.78 to the complainant, which was collected towards cheque return charges; Rs.20,000/- towards damages towards deficiency of service to the 1^st complainant and also the District Forum directed the 1^st O.P. to pay a sum of Rs.5,000/- towards costs.

            9. As already stated, the present appeal is directed against the said order.

            10. We have gone through the entire records and also heard the respective counsels.

            11.  It has to be noted that the 1^st opposite party filed this appeal as it has remained exparte before the District Forumeven though notice have been served on it.  In the grounds of appeal, it has not been stated that the reasons for not appearing before the District Forum.  Though 7 grounds were raised in the appeal, in none of the grounds the appellant has come forward with the plea why it has remained exparte. A person who has been served with notice, remained exparte before the District Forum, should substantiate by way of an explanation why it could not be  present before the District Forum.  Unfortunately, no grounds have been set out in this regard in the memorandum of grounds.

            12. Secondly, it has to be seen that the 1^st complainant admittedly having account with the 1^st opposite party and was having sufficient funds in the said account. He has issued 20 cheque leaves to the 2^nd opposite party for payment towards purchase of motorbike by his son, the 2^nd complainant.  Admittedly, when the 2^nd opposite party presented the cheuque with the 1^st opposite party, it has not been honoured by 1^st opposite party saying that the ‘cheque not issued’. In the grounds of appeal, it has been pleaded by the 1^st opposite party that though the 1^st complainant is having savings bank account, in the system the account number was wrongly entered and it is only a typographical error and that is the reason why the cheques have been returned as ‘cheque not issued’ According the 1^st opposite party it is only an error and there is no wanton negligence on the part of 1^st opposite party.  We are unable to accept the contention that the act of the 1^st opposite party not caused any sufferings to the complainants. The 1^st opposite party cannot simply say that the error committed by them is not a wanton negligence. The negligence that has been committed by 1^st opposite party made the complainants to suffer at the hands of the 2^nd opposite party and they were made to pay more amount. That apart mental agony has been causedto the complainant.  Therefore, the District Forum has rightly taken a decision  that the 1^st opposite party is liable to pay compensation to the 1^st complainant.

            13. As regards 2^nd Opposite Party is concerned, admittedly, there is no deficiency in service. Further more, when the complaint was dismissed against 2^nd O.P., the complainant has not chosen to file the appeal challenging the said order.  Therefore, the finding of the District Forum that there is no privity of contract between the 1^st complainant and O.P.No.2 has become final.

            14. Considering the overall circumstances coupled with the pleadings and documents, we are of the considered view that the District Forum has rightly allowed the complaint and awarded compensation to the complainants as stated above. Therefore, we are of the view that absolutely there is nothing to interfere with the said order.

            15. In fine, the appeal stands dismissed. However, there is no order as to costs. The order of the District Forum, dated 31.05.2016 made in C.C.No.42/2013 is confirmed.

Dated this the 27^th day of April, 2017

(Justice. K.VENKATARAMAN)

                                                                                           PRESIDENT

(S.TIROUGNANASSAMBANDANE)

                                                                                              MEMBER