<br /> IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.Ashok Kumar J.Dhole<br /> B.A(Hons), LL.B - President<br /> <br /> 2. Smt.M.Mahadevi<br /> M.Sc., M.Ed., -Member<br /> <br /> 3. G.V.Balasubramanya<br /> B.E., LL.M - Member<br /> <br /> CC 32/06 DATED 17-08-2006<br /> <br /> Complainant B.L.Prakash, S/o P.V.Laxman Rao, No.170/2, Oil Mill Street, K.R.Mohalla, Mysore.<br /> (By Sri.K.V.Naik, Advocate)<br /> <br /> Vs. <br /> <br /> Opposite Party Manager, The Peerless General Finance and Investment Co.Ltd., Mysore Branch, Maharaja Shopping Complex, Opp. to KSRTC Bus Stand, B.N.Road, Mysore-570001.<br /> (By Sri.S.Vishwaradhya., Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 08-02-2006<br /> Date of appearance of O.P. : 07-03-2006<br /> Date of order : 17-08-2006<br /> Duration of Proceeding : 5 MONTHS 1 WEEK<br /> <br /> <br /> PRESIDENT<br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> Sri. Ashok Kumar J.Dhole<br /> President,<br /> <br /> 1. Opposite Party-The Peerless General Finance & Investment Company Ltd., is a Non-Banking Financial Institution carrying on it’s business having a Branch at Mysore. It is the simple case of the Complainant that he invested an amount of Rs.2,000/- in Certificate No.E-2935852 and he was entitled to receive maturity value of Rs.4,150/- as on 15.01.2004. The Complainant received a letter from the Opposite Party bearing No.MT/936/1/3/4/03731 dated 15.01.2004 requesting him to surrender the original certificate and comply with certain formalities. Accordingly, the Complainant surrendered the original certificate and completed the formalities. Thereafter, he never refund the cheque or amount of Rs.4,150/-. On several occasions Complainant approached Opposite Party and came to know that a cheque was prepared and handed over to the Agent of named D.Chaluvakrishna Murthy. He also came to know that one person named T.Pushpa Kumar who was organizer of Opposite Party, and acting as Sub-Agent of D.Chaluvakrishna Murthy as misused such cheque and committed various offences like misappropriation of funds, Criminal breach of trust etc. Inspite of several requests, Opposite Party has failed to pay the amount to the Complainant. Hence, he claimed above mentioned amount with interest at the rate of 18% p.a. from 15.01.2004 till the date of payment with damages of Rs.1,00,000/- for mental agony and cost of Rs.1,000/-.<br /> 2. Notice was duly served. Opposite Party appeared and filed his objection admitting the transaction and the amount which was payable to the Complainant on 15.01.2004. It is also admitted that T.Pushpa Kumar and D.Chaluvakrishna Murthy were working as Agents of the Opposite Party-Company in the month of January 2004. They were not employees but engaged as Agents on commission basis. It is further contended that Opposite Party is a reputed concern serving the customers since 1932. The Complainant gave a letter of authority and accordingly, an Account Payee Cheque was issued in the name Company and handed over to the Agent named D.Chaluvakirishna Murthy. From the Ledger and Account maintained by the Opposite Party-Bank, it is seen that this cheque was encashed, and an amount of Rs.4,150/- was debited to the account of Opposite Party. Hence, there was no deficiency in service and there was proper discharge. It is also contended that the Complainant is not entitled for damages of Rs.1,00,000/- for mental agony. There was no regular payment under a particular scheme hence an amount of Rs.4,150/- was paid to the Complainant, who has invested small amount. For the above reasons, Opposite Party has prayed for dismissing the Complaint with cost. <br /> 3. After hearing the learned counsels for both sides, both parties were given opportunity adduced oral and documentary evidence as per Order dated 16.05.2006. Thereafter, Complainant has examined as CW-1 and the Manager of the Opposite Party-Bank was examined as RW-1. On the basis of evidence given by both parties, summons was issued to the Manager of ICICI Bank, Branch Mysore to produce a original cheque with endorsement thereon. But the Manager of ICICI Bank failed to produce the same. Ultimately, opportunity was given to the Opposite Party who is customer of the ICICI Bank to obtained a certified copy of the cheque, and the same was produced. On perusal of the said document it was seen that the cheque was presented and encashed through M & CDCC Bank, Mysore. The Forum sent a summons to the Manager of this Bank calling for the following information.<br /> a. Who has presented the cheque for encashment?<br /> b. The Account number under which the cheque was presented for encashment?<br /> c. The proceeds received from ICICI Bank i.e., Rs.4,150/- on 17.03.2004 was credited in whose account?<br /> d. The details of such account holder.<br /> e. The original slip (Pay-in Slip) which was enclosed to this cheque be produced.<br /> 4. Inspite of service summons as well as reminders, the Manager of M & CDCC Bank, Branch Mysore remained absent. He has not cared even to reply to this letter. Heard the learned counsels for both sides.<br /> 5. Points for our consideration are as under:-<br /> 1. Whether the Opposite Party has proved that an amount of Rs.4,150/- was paid to the Complainant under cheque No.0518773 dated 12.03.2004?<br /> 2. Whether the Complainant proves that he has not received the maturity amount of Rs.4,150/- and such non-payment amounts to deficiency in service?<br /> 3. What order?<br /> 6. Our findings are as under:-<br /> a. Point No.1 : Negative.<br /> b. Point No.2 : Affirmative.<br /> c. Point No.3 : As per final Order.<br /> <br /> REASONS<br /> <br /> 7. POINTS NO.1 & 2:- The admitted facts can be briefly reproduced for clinching the point in dispute.<br /> a. There is no dispute that the Complainant invested an amount of Rs.2,000/- under a deposit scheme and he was entitled to receive maturity value of Rs.4,150/- as on 15.01.2004. The certificate number is E-2935852 (original is produced by the Opposite Party).<br /> b. There is also no dispute that the Opposite Party issued a letter dated 15.01.2004 requesting the Complainant to comply with certain requirements like giving a discharge receipt and also to produce the original certificate. There is also no dispute that the Complainant surrendered original certificate along with discharge receipt (both produced by the Opposite Party).<br /> c. There is also no dispute that the Manager of Opposite Party prepared an “Account Payee Cheque” bearing No.0518773 dated 12.03.2004 for Rs.4,150/- in the name of Complainant and handed over the same to it’s own agent named D.Chaluvakrishna Murthy.<br /> d. The Opposite Party has produced it’s own Statement of Accounts and also the Statement of Account given by the ICICI Bank, who is a Banker for the Opposite Party to show that this cheque was sent through clearance on 17.03.2004 and the amount of Rs.4,150/- was debited to the account of Opposite Party maintained by ICICI Bank.<br /> 8. It is the simple case of the Complainant that he is not having any account in the “Mysore and Chamrajanagar District Cooperative Bank” having it’s Branch Office at Mysore. It is further case of the Complainant that he never received the above mentioned cheque from D.Chaluvakrishna Murthy, never presented the same for encashment and never received the amount under the said cheque.<br /> 9. To prove the above facts, the Complainant has not only filed his affidavit but also deposed before the Forum. He has also produced a letter given by the Mysore and Chamarajanagar District Co-operative Bank dated 08.08.2006 stating that the Complainant named P.L.Prakash S/o P.V.Laxman Rao was not having any account in it’s Branch. Under such circumstanced, there is conclusive evidence to show that the Complainant has not received cheque bearing No.0518773 from the Agent of the Opposite Party named D.Chaluvakrishna Murthy. As Complainant was not having any account in M & CDCC Bank, there is no question of presentation of such cheque for encashment in his account. There is no evidence to show that the Complainant has received the proceeds under the said cheque.<br /> 10. In view of the above facts, the burden is on the Opposite Party to prove that there was a proper discharge and the Complainant has received the consideration amount of Rs.4,150/-. Merely because cheque was issued and handed over to the Agent of the Opposite Party, cannot be treated as sufficient evidence of payment to the Complainant. At the most, it may be sufficient to show the bonafides of the Opposite Party.<br /> 11. The Opposite Party has also relied mainly on two documents that is the certified copy of the cheque and letter of authority given by the Complainant. These two documents are examined briefly in the following paras:-<br /> a. On perusal of the letter of authority given by the Complainant, it is seen that initially the name of Complainant was written in the place where the name of authorised person was required to be mentioned. It is further seen that his name was erased by applying the “whitener”, and there was overwriting the name of D.Chaluvakrishna Murthy. We do not find any signature or initial of the Complainant for such overwriting. The Opposite Party being a Non-Banking organization should have been more careful in handing over or the cheque to Cheluvakrishna Murthy whose name was not properly subscribed in this letter of authority.<br /> b. Even assuming for arguments sake that D.Chaluvakrishna Murthy has received cheque for an amount of Rs.4,150/-, it cannot be treated as payment to the Complainant, because admittedly D.Chaluvakrishna Murthy was working as Agent of the Opposite Party during relevant period. Such payment to complainant is required to be proved.<br /> c. Opposite Party has not taken any efforts to examine D.Chaluvakrishna Murthy as a witness. Hhis affidavit is not filed to show that the cheque was delivered to the Complainant. Under such circumstances, we have no hesitation to come to conclusion that the cheque has been misused either by D.Chaluvakrishna Murthy or his Sub-agent T.Pushpa Kumar (Organizer) without the knowledge of the Complainant.<br /> d. After the non-payment was brought to the notice of Opposite Party, it was their duty to investigate into the matter and find out about the actual payment of the amount. But, the Opposite Party has chosen to keep quiet only on the ground that an amount of Rs.4,150/- is debited in their account with ICICI Bank. Such approach on the part of the Opposite Party clearly amounts to deficiency in service.<br /> e. On perusal of the certified copy of the cheque, we do not find any signature of the Complainant either for having presented the cheque or for encashment or for having received the consideration under the cheque.<br /> f. The endorsement on the cheque is sufficient to prove that an amount of Rs.4,150/- was debited to the account of Opposite Party in ICICI Bank on 17.03.2004 and credited to the M & CDCC Bank, Branch Mysore. There is a letter given by this Bank that the Complainant was not having any account in it’s Branch at Mysore. <br /> g. It is important to note the collouse attitude of Opposite Party and the silence of the Manager of M & CDCC Bank Mysore to produce the required information. Both of them are trying to shield the real culprit in the matter.<br /> h. Cheque handed over to D.Cheluvakrishna Murthy was “Account payee” cheque. Such cheque can be presented to Bank having account of named person. In this case cheque amount was paid to some other person as complainant had no account in Bank.<br /> 12. For the foregoing reasons, we come to conclusion that the Opposite Party has miserably failed to prove that the amount of Rs.4,150/- was received by the Complainant towards discharge of the certificates surrendered by him. The Complainant is entitled to receive this amount. It is a fit case to award special damages because of the collouse attitude of the Opposite Party. It is not a fit case to award nominal interest in favour of the Complainant. Having regard to the facts and circumstances of the case, we feel that it is just and proper to award damages of Rs.4,150/- which is equal to the amount, payable to the Complainant. The Complainant is also entitled for cost of Rs.500/-.<br /> 13. Anyhow, this Order will not prevent the Opposite Party to recover such amount either from it’s employee or from it’s agents like D.Chaluvakrishna Murthy or T.Pushpa Kumar, or M & CDCC Bank by proceeding against them either in Civil Court, or by filing a Criminal Complaint according to law. So, points no.1 and 2 answered accordingly and we proceed to pass following order:-<br /> <br /> <br /> <br /> <br /> ORDER<br /> <br /> <br /> 1. Complaint is allowed.<br /> 2. Opposite Party is directed to pay an amount of Rs.4,150/- with damages of Rs.4,150/- (total amount of Rs.8,300/-) to the complainant within a period of 2 months from the date of receipt of this order, with cost of Rs.500/-.<br /> 3. If Opposite Party fails to pay the above mentioned amount within stipulated period, this amount of Rs.8,300/- shall carry future interest at the rate of 12% p.a. from such date till the date of payment.<br /> 4. Give a copy of this order to both parties according to Rules.<br /> <br /> Dictated to the Stenographer, transcribed by her/him, transcript revised by us and then pronounced in the open court on this the day 17th August 2006.<br /> <br /> <br /> (Ashok Kumar J.Dhole)<br /> President<br /> <br /> <br /> (M.Mahadevi)<br /> Member<br /> <br /> <br /> (G.V.Balasubramanya)<br /> Member<br /> <br /> <br /> <br /> <br /> <br />