Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he has been maintaining the saving bank account bearing No.9511124571 with Opposite Party No.1 bank. One Sanjeev Kumar had legal liability of complainant and to discharge his legal liability, said Sanjeev Kumar issued a cheque No. 019453 dated 08.11.2013 for Rs.5 lakhs drawn on ICICI Bank Limited, Ludhiana in favour of complainant and accordingly, the complainant presented the said cheque for encashment with Opposite Party No.1, but however, said cheque was dishonoured vide memo dated 06.1.2014 with the memo ‘funds insufficient’. As per the usual practice of the Opposite Party No.1 bank, the original dishonoured cheque alongwith memo was sent to the account holder through courier i.e. Opposite Party No.2, but said parcel containing the original cheque alongwith memo was misplaced by Opposite Party No.2 and in this regard, the courier man also executed an affidavit dated 17.02.2014 duly attested by Notary Public and duly certified by the bank. As such, in view of the above said facts, the Opposite Parties have committed great deficiency in service due to the loss of the cheque and the complainant has suffered a huge loss, physical, as well as mental pain and stress. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to make the payment of the cheque amount of Rs.5 lakhs to the complainant and also to compensate the complainant to the tune of Rs.1 lakh for physical as well as mental pain and unfair trade practice besides Rs.21,000/- as litigation expenses and any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed. Admittedly, the complainant has deposited the cheque in question with answering Opposite Party and Opposite Party No.1 as per the process of the bank has sent the same in clearing to the IKCICI Bank, however the said cheque was dishonoured vide memo dated 06.01.2014 containing remarks funds insufficient and returned to the Opposite Party No.1. Thereafter, as per the policy of the bank and with the consent of the complainant after dishonouring of the cheque in question by ICICI Bank sent the cheque alongwith memo to the complainant through Opposite Party No.2 but the Opposite Party No.2 misplaced the said courier and as such, Opposite Party No.1 is not responsible for misplacing of the courier by Opposite Party No.2. Moreover, there is no pecuniary loss caused t o the complainant due to the misplacement of the courier as it is evident from the complaint filed by the complainant against Sanjiv Kumar. On merits, Opposite Party No.1 took up almost the same and similar pleas as taken up by them in the preliminary objections and as such, there is no deficiency in service on the part of Opposite Party No.1 and the complaint may be dismissed with costs.
4. None has come present on behalf of Opposite Party No.2 and hence, Opposite Party No.2 was proceeded against exparte.
5. In order to prove his case, the complainant has tendered into evidence affidavits Ex.CA alongwith copies of documents Ex.C1 to Ex.12 and closed the evidence on behalf of the complainant.
6. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 also tendered into evidence the affidavit of Ex.RA alongwith copy of document Ex.R1 and closed the evidence on behalf of Opposite Party No.1.
7. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
8. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that he has been maintaining the saving bank account bearing No.9511124571 with Opposite Party No.1 bank. One Sanjeev Kumar had legal liability of complainant and to discharge his legal liability, said Sanjeev Kumar issued a cheque No. 019453 dated 08.11.2013 for Rs.5 lakhs drawn on ICICI Bank Limited, Ludhiana in favour of complainant and accordingly, the complainant presented the said cheque for encashment with Opposite Party No.1, but however, said cheque was dishonoured vide memo dated 06.1.2014 with the memo ‘funds insufficient’. As per the usual practice of the Opposite Party No.1 bank, the original dishonoured cheque alongwith memo was sent to the account holder through courier i.e. Opposite Party No.2, but said parcel containing the original cheque alongwith memo was misplaced by Opposite Party No.2 and in this regard, the courier man also executed an affidavit dated 17.02.2014 duly attested by Notary Public and duly certified by the bank. As such, in view of the above said facts, the Opposite Parties have committed great deficiency in service.
9. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainant has deposited the cheque in question with answering Opposite Party and Opposite Party No.1 as per the process of the bank has sent the same in clearing to the IKCICI Bank, however the said cheque was dishonoured vide memo dated 06.01.2014 containing remarks funds insufficient and returned to the Opposite Party No.1. Thereafter, as per the policy of the bank and with the consent of the complainant after dishonouring of the cheque in question by ICICI Bank sent the cheque alongwith memo to the complainant through Opposite Party No.2 but the Opposite Party No.2 misplaced the said courier and as such, Opposite Party No.1 is not responsible for misplacing of the courier by Opposite Party No.2. Moreover, there is no pecuniary loss caused to the complainant due to the misplacement of the courier as it is evident from the complaint filed by the complainant against Sanjiv Kumar.
10. It is not denied by the parties that the cheque in question was lost in transit due to the lapse on the part of the Opposite Party No.2 and its employees. In this regard, the complainant has placed on record the copy of duly attested copy furnished by Keshar Singh son of Pyara Singh employee of Opposite Party No.1 Ex.C7, in which he has specifically deposed that he has lost a parcel bearing No.Z-13383691 dated 10.01.2014 which was taken for DTDC Preet Palace Ludhiana and he tried his best, but could not succeed. As such, there is certainly a lapse on the part of employee of Opposite Party No.2 Courier Company. Further, regarding dishonouring the said cheque, the complainant has also filed a complaint under section 138 of under section 138 of Negotiable Instrument Act read with section 420 IPC against Sanjeev Kumar in the court of Illaqa Judicial Magistrate, Ludhiana, copy of the said complaint is Ex.C1, copy of statement of Tushar Verma is placed on record as Ex.C2, copy of cheque is Ex.C3, copy of legal notice Ex.C4 alongwith its acknowledgement Ex.C5 and Ex.C6, copy of letter written by ICICI Bank Ex.C9. In her complaint, the complainant has prayed for the directions to the Opposite Parties to make the payment of the cheque amount of Rs.5 lakhs to the complainant and also to compensate the complainant to the tune of Rs.1 lakh for physical as well as mental pain and unfair trade practice besides Rs.21,000/- as litigation expenses and any other relief to which this District Consumer Commission may deem fit. In this regard, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Canara Bank Vs. Sudhir Ahuja in Revision Petition No. 3363 of 2004, decided on 04.12.2006 has held that for the recovery of amount of a cheque, a complaint would not lie under the Consumer Protection Act. Therefore, on ground of deficiency in service Opposite Party No.2 courier on whose lapse, admittedly the cheque in question lost in transit, however Opposite Party No.2 courier company can be ordered to pay the compensation and not the entire amount of the cheque. To the same effect is the ratio of the decision in case State Bank of Patiala Vs. Rajender Lal and Another, IV (2003) CPJ 53, (NC) that on the ground of deficiency in service, the courier company can be burdened with some compensation, but it can not be made to pay the entire amount of cheque. The further question whether the Opposite Party No.2 courier company is responsible for the lapse on the part of its employee Tushar Verma, who has admittedly lost the parcel containing the cheque in quest ion alongwith its memo. In this context reference may be made to the judgment of the Hon’ble Madras High Court reported as “National Insurance Company Limited v. M. Mandan” 2005(4) R.C.R. (Civil) 181 in which it was held by the Hon’ble Madras High Court that where the agent of the Insurance Company was negligent, the principal, namely, the Insurance Company was liable to pay the amount of compensation. Not only this, Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in First Appeal No.1353 of 2006, decided on 01 .6.2011 in case titled as S. Jagdish Singh Versus ICICI Lombard General Insurance Co. Ltd also held so. In the facts and circumstance of case, we allow the complaint against Opposite Party No.2-Courier company and quantify the amount of compensation payable to the complainant at Rs. 20,000/- and we award the same accordingly.
11. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant against Opposite Party No.2-Courier Company and Opposite Party No.2- Courier Company is directed to pay the lump sum compensation of Rs.20,000/- (Rupees twenty thousands only) to the complainant alongwith interest @ 8% per annum from the date of filing the complaint i.e. 27.11.2017 till its actual realization. However, the complainant is at liberty to adopt the legal procedure to recover the cheque amount from the concerned party. Compliance of this order be made by Opposite Party No.2 within 45 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
12. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint today i.e.23.05.2022 at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
