IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan: President
Smt.K.P.Prethakumari: Member
Smt.M.D.Jessy: Member
Dated this, the 7th day of September 2009
OP.NO.85/2005
P.M.Muhammed Kunhi,
Proprietor,
Tyre House,Chiravakkku, Complainant
Taliparamba.
Residing at Ajmas,Cheppannur Road,
7th miles, Kakkamchal,Taliparamba.
(Rep.by Adv.M.C.Ramachanran)
The Manger,
ICICI Bank, Kannur Branch, Opposite party
Kannur.
(Rep.by Adv.Vidya Sumod)
O R D E R
Smt.K.P.Preethakumari, Member
This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay an amount of Rs.52, 862/- as damage and its interest and cost.
The case of the complainant is that he is running a tyre house at Chiravakku, Taliparamba and is the dealer of J.K.Tyres, Kozhikode and he used to have his dealings through the opposite party ban k. He had deposited an amount of Rs.45, 000/- on 13.5.03 and Rs.25, 000/- on 15.5.03 in the opposite party’s bank for transmitting the amount to the complainant’s account at Kozhikode, wherein J.K.Tyres used to present cheques issued by him. On 15.5.03, the complainant issued a cheque to J.K.Tyres worth
Rs.70, 000/- for encashment and that was dishonored due to non-transmission of the amount to the complainant’s account at Kozhikode. So the complainant had sustained the losses namely, J.K.Tyres debited an amount of Rs.70/-, ICICI bank debited Rs.50/-.The complainant lost the discount as prompt payment which is 2% i.e. Rs.1400/- similarly on 14.7.03 the complainant deposited an amount of Rs.40, 000/- and on 15.7.03 another Rs.40, 000/- and issued a cheque on 17.7.03. But J.K Tyres could not encash the amount and cheuqe is dishonored and he had suffered a loss of Rs.381/- debits by J.K Tyres, Rs.200/- debits by ICICI and discount loss of Rs.761/- i.e. A total amount of Rs.1342/-. So the complainant suffered a total loss of Rs.2862/- due to the negligent act of opposite party. The above act of opposite party caused monitory loss, mental agony and tarnished the business reputation of complainant. So the complainant assess Rs.50, 000/- as compensation. The complainant issued a notice, but the opposite party has not complied it. Hence this complaint.
On receiving the notice from the Forum the opposite party has filed version through Adv.Vidya Sumod.The opposite party contended that the complainant is the owner of a commercial establishment and hence the deficiency of service is alleged as a commercial transaction. So the complaint is not maintainable as per the Act and hence this Forum has no jurisdiction to try the case. The opposite party admitted that the complainant is holding two accounts with the opposite party having No.54406 and 9962 and deposit dated 13.5.03 and 15.5.03 with the account No.54406 and the deposited date 15.7.03 with account No.9962 is admitted. But denied the deposit dt.14.7.03. According to opposite party the reason for bouncing the cheques were that there is no sufficient fund in the account, when the cheques come for encashment and hence there is no deficiency in service of opposite party and hence the complaint is liable to be dismissed.
Upon the above averment the following issues are raised for consideration
1. Whether the Forum has jurisdiction to try the case?
2. Whether there is sufficient fund at the time of presentation of cheque?
3. Whether there is any deficiency on the part of opposite party?
4. Whether the complainant is entitled to get any relief?
5. Relief and cost.
The evidence in this case consists of the oral testimony of PW1, PW2, DW1 and Exts.A1 to A13 and B1 and B2.
Issue No.1.
The opposite party contended that the complainant is admittedly the owner of a commercial establishment and admittedly made a claim with respect to alleged deficiency of service on a commercial transaction. It is true that the complainant is a dealer of J. K.Tyres and running a tyre house. The complainant has availed the service of bank for depositing money in the S.B account of him maintained with the opposite party, he has not availed any loan amount or any monetary benefit from the opposite party. So it is immaterial whether the complainant has used the money deposited with the opposite party for commercial purpose. The claim is only against the deficient service availed from the opposite party for which he had paid to the opposite party. The complainant has not claimed any other remedy except for the deficient service. If a complaint is made by the consumer as regards the deficiency in relation to any service thus in that event the complaint is maintainable. In this case the complainant has availed the service of opposite party only for money transaction through his S.B account maintained with the opposite party. It is immaterial that the money is used for commercial purpose. This view was expressed by Maharashtra State Consumer Disputes Redressal Commission in D.R Joshi Vs. Motor Industries Co. Ltd., which was reported in 1991(II) CPJ 619. Hence we held that the service availed by the complainant in this case from opposite party is a service under the act and he is a consumer and hence the complaint is maintainable before this Forum and it has ample jurisdiction to try this case. Issue No.1 is answered in favour of the complainant.
IssueNos. 2 to 5
The case of the complainant is that he had deposited Rs.45, 000/- on 13.5.03 and Rs.25, 000/- on 15.5.03 for transmitting the amount to the complainant’s account at Kozhikode and on 15.5.03 he had issued a cheque worth Rs.70, 000/- to the J.K.Tyres on 15.5.03 and the same was dishonored due to insufficient fund and hence he had incurred a loss of Rs.1520/-. Exts.A3, 6,7,10 and 11 are the documents issued by the bank with respect to the above transaction. Ext.A10 is a pay-in-slip shows that on 13.5.03 he had deposited Rs.45, 000/- and A11 is another pay-in-slip which shows that the complainant had deposited Rs.25, 000/- on 15.5.03 with the opposite party. Ext.B1 is the statement of transaction with respect to the savings account of the complainant which also shows that there is cash deposit of Rs.45, 000/- on 13.5.03 and Rs.25, 000/- on 15.5.03. Ext.A3,A6 and A7 are return memo dt.15.5.03,returned instrument advice dt.15.5.03 and debit note dt.17.5.03 with respect to the cheque bearing No.969093 for an amount of Rs.70,000/-. From the perusal of the above stated documents it is very clear that on 15.5.03 an amount of Rs.70, 000/- was deposited by the complainant and the cheque issued by the complainant to J.K.Tyres was dishonouared at the same day itself. But the defense put forwarded by the opposite party is that at the time of presentation of the cheque, there is no sufficient fund in the account and the money was deposited only after coming the cheque for collection. But the opposite party miserably failed to prove this contention. Because even though the both transaction are taken place on the same day, opposite party has not produced any document to prove that the money was deposited after the presentation of cheque. On the other hand complainant had produced Ext.A7 debit note for Rs.700/- which is dt.17.5.03 i.e. after two days from the alleged transaction. Thus it shows the deficiency of service of the opposite party. So it is undoubtedly clear that the opposite party has shown deficiency by dishonouring the cheque, even though there is sufficient fund in the account to honor the cheque bearing No.969093.
Regarding the other transactions complainant’s case is that on 14.7.03 he had deposited an amount of Rs.40,000/- and on 5.7.03, another Rs.40,000/- in his S.B account with opposite party’s bank and the cheque issued by the complainant with No.918059 dt.17.7.03 was dishonored due to insufficient fund and had incurred a loss of Rs.1342/-. To prove this the complainant had produced Exts.A1, A2, A4, A5, A12 and A13. A1 is the cheque dt.16.7.03 bearingNo.918059, A2 the return memo dt.17.7.03, A4 is the returned instrument advice dt.17.7.03, A5 is debit note dt.22.7.03, A12 is pay slip for Rs.40, 000/- and A13 is another pay slip for Rs.40, 000/- dt.15.7.03. With respect to Ext.A12 receipt the opposite party had disputed the date as 19.7.03 and complainant contended that it is 14.7.03.If the opposite party has any doubt regarding the date shown in the slip, he could have produce the paying slip which was kept in the bank. He deposed that “pay-in-slip t\m¡n-bm date Dff seal Dv.-AXp _m¦nÂ- D-m-IpT AXp- lm-P-cm-¡m-Xn-cn-¡m³ {]-tX-y-I- Im-c-W-anÓ. So if the opposite party had a genuine case that the slip is dt.19.7.03, he will definitely produce the pay-in-slip” So from the non-production of pay-in-slip it can be inferred that the date shown is 14.7.09 and on perusal of Ext.A12 also it is seen as 14.7.03. But Ext.B2document which was maintained by opposite party himself shows that the amount was deposited on 19.7.03. But considering the evidentiary value which was maintained and countersigned by opposite party himself, cannot give much weight upon it. So we are of opinion that even though the complainant had deposited Rs.40, 000/- on 14.7.03, itself it was accounted only on 19.7.03, which is a deficient service on the part of the opposite party and the complainant contended that he had suffered a loss of Rs.1, 342/- to that account.
The opposite party has not disputed the above said loss of Rs.2, 862/- incurred to the complainant. It is true that due to dishonor of the cheque, the complainant has suffered some mental agony and loss to his business reputation for this we assess Rs.5, 000/- as compensation and Rs.1000/- as cost of this proceedings and the complainant is entitled to receive the same. Hence issue No.2 to 5 is found in favour of complainant and order passed accordingly.
In the result, the complaint is allowed directing the opposite party to pay Rs.7862/-(Rupees Seven thousand Eight hundred and sixty two only) towards the loss and compensation and Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order. Otherwise the complainant is at liberty to execute the order under the provisions of consumer protection Act with an interest of 6% for the above amount of Rs.7862/- from the date of order till realisation.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the complainant
A1.Cheque dt.16.7.03 of OP
A2 & A3.Returned cheque (letters)
A4.Returned instrument advice
A5.Miscellaneous debit note issued from JK tyres Ltd.
A6.FCS returned instrument advice issued from Corporation Bank
A7.Miscellaneous debit note issued from JK tyres Ltd.
A8 & 9.Copy of the lawyer notice and postal AD
A10 to A13 Cash receipts issued by OP
Exhibits for the opposite party
B1.Statement of accounts for the period from 1.4.03 to30.6.03
B2. Account statement 1.7.03 to 30.9.03
Witness examined for the Complainant
PW1.Sasidharan.CF.
PW2.Complainant
Witness examined for the opposite party
DW1.Yespal.M.N
/forwarded by order/
Senior Superintendent
Consumer Disputes Redressal Forum, Kannur
