BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 1460/2007 against C.C 55/2007, Dist. Forum, Karimnagar.
Between:
The Branch Manager
Indian Bank, Asifnagar Branch
Karimnagar (Mandal & Dist) *** Appellant/
O.P. No. 2.
And
1) Kola Kondaiah, S/o. Anjaiah
Age: 55 years, Agriculture
R/o. Asampally (Village)
Gangadhara Mandal
Karimnagar Dist. *** Respondent/
Complainant.
2) Gaddam Narayana, S/o. Narsimhulu
Age: 60 years, Retd. Employee
C/o. A. P. Restaurant & Bar
Mankammathota, Karimnagar Dist.
3) The Branch Manager
State Bank of Hyderabad
Mankammathota Branch
Karimnagar Dist. *** Respondents/
Ops.
Counsel for the Appellants: Dr. P. Bhaskara Mohan
Counsel for the Resps: Mr. M. Ramgopal Reddy (R1)
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
MONDAY, THIS THE TWELFTH DAY OF APRIL TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) This is an appeal preferred by Indian Bank, opposite party No. 2 against the order of the Dist. Forum directing it to pay Rs. 1 lakh with interest @ 9% p.a., from the date of complaint together with compensation of Rs. 3,000/- and costs of Rs. 1,000/-
2) The parties are described as arrayed in the complaint for facility of expression and avoid confusion.
3) The case of the complainant in brief is that his son died of electrocution in the house of opposite party No. 1 on 4.12.2005 and there was a settlement for Rs. 1,30,000/- towards compensation, and he paid Rs. 30,000/- in cash and issued a cheque for Rs. 1 lakh on 30.9.2006 drawn on State Bank of Hyderabad, Mankammathota Branch, Karimnagar. He presented the said cheque with the appellant bank on 17.3.2007 which in turn sent for clearance to Indian Bank, Karimnagar. However, during transit the cheque was lost. When he approached the Manager of the appellant bank he issued a certificate stating that the said cheque was misplaced and informed the matter to Op3 bank to stop payment. Accordingly, the said bank had stopped payment. In spite of his repeated requests neither the cheque was returned nor amount was paid. It amounts to deficiency in service. Therefore, he prayed that an amount of Rs. 1 lakh covered under the cheque be paid together with interest, compensation and costs.
4) Opposite Party No. 1 did not choose to contest the matter and he was set-exparte.
5) The appellant bank filed counter denying its liability to pay the amount. However, it admitted that the complainant had presented a cheque for Rs. 1 lakh on 17.3.2007 drawn on State Bank of Hyderabad, Mankammathota Branch, Karimnagar. However, during transit it was misplaced. Immediately it has sent a letter to State Bank of Hyderabad, Karimnagar to stop payment, and accordingly it had stopped payment. Immediately a complaint was lodged with the police, Karimnagar Rural on 20.3.2007. It was still under investigation. It had taken all necessary precautions. No loss has been suffered by the complainant. As the certificate was issued to him it is always open to the complainant to procure another cheque from opposite party No. 1 for realising the amount. There was no cause of action for him to file the complaint. Therefore it prayed for dismissal of the complaint with costs.
6) Opposite Party No. 3 filed counter resisting the case. It alleged that when it received a request from appellant bank to stop payment on the ground that the instrument was lost in transit, immediately it had stopped payment. No one has approached the bank for payment of above cheque. It has no objection for payment of above cheque as per the directions of the drawer subject to availability of funds. There is no deficiency in service on its part. Therefore it prayed for dismissal of the complaint with costs.
7) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A4 marked, while the appellant bank filed the affidavit evidence of its Branch Manager and got Exs. B1 to B6 marked.
8) The Dist. Forum after considering the evidence placed on record opined that it is the duty of the bank to take all due care and caution. Either it has to pay the amount covered under the cheque or return the cheque. Since the appellant bank has lost the cheque opposite parties 1 & 2 viz., Gaddam Narayana the person who had issued the cheque as well as the appellant bank have to pay Rs. 1 lakh with interest @ 9% p.a. from the date of complaint till realization together with compensation and costs.
9) Aggrieved by the said decision, opposite party No. 2 bank preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It ought to have seen that the bag containing the bank keys, dresses, cell charger, some more cheques, LIC premium receipts etc were all lost and on report of the Manager the police registered a case. At any rate, the cheque was not encashed and the complainant can as well seek another cheque from opposite party No. 1. At any rate, there was no sufficient amount in the account of the drawer of the cheque, in order to fasten liability against it. Even if the cheque was presented in time, it could have been returned for insufficient funds. Therefore it prayed for dismissal of the complaint with costs.
10) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
11) It is an undisputed fact that opposite party No. 1. Gaddam Narayana issued a cheque for Rs. 1 lakh on 30.9.2006 drawn on opposite party No. 3. The complainant had presented the cheque on 17.3.2007 fourteen days short of six months in the appellant bank. When it has sent the cheque for collection to the opposite party No. 3 through the Manager of the bank who was taking the cheque from Asifnagar Branch to Karimnagar along with keys, and some other cheques on 20.3.2007 it was lost. He gave promptly a report to the police evidenced under receipt Ex. B1 issued by Police Station, Karimnagar Rural. Immediately the Branch Manager addressed a letter to opposite party No. 3 to stop payment vide Ex. B2 on the ground that the instrument was lost in transit. Accordingly opposite party No. 3 promptly reacted, took all precautions to see that the cheque was not encashed. A certificate to that effect was given to the complainant evidenced under Ex. B4 Dt. 24.3.2007. Despite the fact that the appellant bank has informed that the cheque was not encashed, he did not seek fresh cheque for the said amount from opposite party No. 1 Gaddam Narayana who issued the cheque Dt. 30.9.2006 that was lost. Even he did not issue any notice informing the above facts nor directed him to issue another cheque or pay the amount covered under the cheque. State Bank of Hyderabad, Opposite party No. 3 wherein Gaddam Narayana who issued the cheque had a saving bank account with it filed Ex. B6 to show that he was not having an amount of Rs. 1 lakh in his account. The contention is even if the cheque was presented it could not be encahsed as he was not having more than Rs. 20,000/- towards credit balance. This can be seen from bank statement from 15.12.2005 to 31.7.2007.
12) In fact, opposite party No. 3 in its counter categorically stated that it had stopped payment. It further mentioned that “no one has approached for payment of above cheque. We have no objection in payment of the above cheque as per direction of the drawer subject to availability of the balance in the account.” At the cost of repetition, we may state that the complainant did not ask opposite party No. 1 Gaddam Narayana to issue another cheque on the ground that the cheque was lost. He did not even issue notice. Since opposite party No. 1 is primarily liable to pay the amount and though he was impleaded as party he did not choose to contest. Therefore his liability is undisputed. Coming to the liability of the appellant, in the facts of the case it is very difficult to lay the claim against the appellant bank. It is not as though its complainant’s allegation that somebody had encashed the cheque. It had promptly reported to the police, the moment it had known that the cheque was lost. The complainant did not issue any notice to opposite party No. 1 to issue fresh cheque in view of the fact that the cheque was lost. Instead of collecting the amount from him, he intended to collect the amount from the banks solely on the ground that the cheque was lost. May be misplacement or losing of a cheque could be termed as a sort of negligence though it cannot be termed as deficiency in service. Whatever be the precautions taken, still there was a possibility for occurrence of such an incident. The Manager was not at fault. It cannot be said that there was deficiency in service on the part of appellant bank. By no stretch of imagination it can be ordered to be paid solely on the ground that the cheque was lost. Had there been evidence that the cheque was encashed then the liability could have been fixed on it. Therefore, we are of the opinion that the order of the Dist. Forum directing the appellant bank to pay the amount is unjust. However, liability of opposite party No. 1 is confirmed.
13) In the result the appeal is allowed and the order of the Dist. Forum directing the appellant bank to pay the amount is set-aside. The order directing opposite party No. 1 Gaddam Narayana to pay the amount is confirmed. However, no costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 12. 04. 2010.
*pnr
“UP LOAD – O.K.”
