This is a complaint filed under Section 12 of the Consumer Protection Act for an order directing the opposite party to pay a sum of Rs 5000/- to the complainant towards damages and to pay the cost.<br /> <br /> The complainant approached the opposite party for encashment of a Pay Order for Rs 30000/- issued by Emirates Bank International , Dubai payable at Vijaya Bank,Tellicherry. When the pay order was tendered the concerned clerk of the opposite party requested the complainant to show any identity to enable the bank to pay the amount. The complainant produced passport and driving licence as his identity. But the clerk was not ready to verify the identity and to arrange the payment. He then issued a memo to the complainant directing him to present the pay order through account, knowing fully well that complainant has no account in the bank. The complainant was in urgent need of money on the very same day to make use of the same for the employment of his son who was scheduled to go to Gulf. The complainant met lot of inconvenience due to the non payment of the pay order. The opposite party did not mention the reason for non payment since the instrument was a pay order. The complainant constrained to arrange loan from the private party and he suffered damages to the tune of Rs 5000/- by way of mental agony, inconveniences and flat interest on the amount. Hence the complainant issued pre-litigation notice to the opposite party to which they opted not to reply. The opposite party did not show courtesy to send a reply shows irresponsibility of opposite party. Hence this complaint.<br /> <br /> After receiving notice from the Forum, the opposite party entered appearance and filed version. The opposite party contended that the complainant is not a consumer . Hence the complaint is not maintainable. The complainant never hired any service from the opposite party and no negligence was caused by the act of opposite party. The opposite party further contended that since the amount involved in the pay order is more than Rs 20,000/- the opposite party was not able to pay the cash and the pay order directly to the complainant. Any amount over and above Rs 20,000/- payable should be routed through the payees account. The complainant was not having any account with the opposite party and the opposite party cannot effect the entire cash payment directly , the opposite party refused to accept the pay order and issued memo directing the complainant to present the pay order through the payees account. The complainant has not sustained any damages. <br /> On the above pleadings, the following issues were raised for consideration.<br /> 1. Whether the complainant is a consumer and the complaint is maintainable?<br /> 2. Whether there is any deficiency in service on the part of the opposite party?<br /> 3. Whether the complainant is entitled for compensation as prayed?<br /> 4. Relief and cost.<br /> <br /> The evidence consists of oral testimony of PW1 and DW1 and also documentary evidence Ext.A1 toA4 on the part of the complainant. No documents produced by the opposite party.<br /> <br /> ISSUE No.1.<br /> The person who takes the draft is called the purchaser of the draft. He either pays the amount to the bank in cash or gets the amount debited to his own account. He also pays the necessary charges. On getting the money the bank issues an order on itself or on one of its own branches for the payment of the amount to the person named as the payee or his order. An order to pay m oney drawn by one office of a bank upon an office of different bank would also pay a draft although it is realy a cheque as explained in the matter of “Palai Central Bank reported in 1962 Kerala 210”. The opposite party contended that the complainant is not a consumer and complaint is not maintainable. The complainant is the person on whose name the pay order has been issued. The person who takes the draft is called purchaser of the draft. He either pays the amount to the bank in cash or gets the amount debited to his own account. He also pays the necessary charges . On getting the money the bank issues an order on itself or on one of its own branches for the payment of the amount to the person named as the payee or his order. The purchaser will certainly be a consumer under the Act. An order to pay money drawn by one office of a bank upon an office of a different bank would also pay a draft although it is really a cheque as explained in the matter of “Palai Central Bank Ltd” . Complainant herein is the person on whose name the pay order has been issued. He is the actual user of the pay order and a real beneficiary who enjoys its fruit in person by way of buying goods for consideration, which includes any user of such goods either than the person who buys such goods or hires or avails of any service, for consideration, which includes any beneficiary of such services either than the person who hires or avails the service is a consumer . Here the complainan t is the real user and beneficiary of the pay order . The definition brings within its scope not only the person who has the privity of contract with the person hiring out the services but also subsequent beneficiaries thereof , even though the later may not be a party to the original contract or have a direct nexus therein. So that the contention of the bank that complainant is not a consumer and thereby the complaint is not maintainable has no sustainability. Once the opposite party charges commission and undertakes to render service , the complainant including beneficiary is a consumer. Thus the complaint herein is a consumer and entitled to maintain the complaint. This issue is answered favourably to the complainant.<br /> <br /> ISSUE Nos. 2 to 4:<br /> It is an admitted case that the pay order was denied to be encahsed. According to the complainant he was first asked to produce identity. Complainant’s case brought in the evidence is “<br /> <br /> <br /> <br /> <br /> <br /> <br /> In the cross examination of DW1 answered “ <br /> <br /> <br /> <br /> <br /> <br /> <br /> DW1 is Manager of the Bank and he is not definite of what exactly happened while dealing this issue on the particular day in his bank. Thus it can be believed that the complainant is true to say that he had been asked to produce identity and when identity produced denied to encash the pay order. The concerned clerk issued Ext. A2 memo but it did not contain the reason for rejection of pay order. The complainant sent a notice Ext. A3 for which the opposite party reluctant to reply. This behaviour of the clerk , non disclosure of reasons for rejection of pay order to encash the amount in the memo and non answering of the notice by the opposite party etc are contributing deficiency in service, Even if the case of the opposite party that the amount over and above Rs 20000/- had to be routed through account has been taken for granted. However the arguments of the counsel of the complainant that Section 269 .T Income Tax Act is not applicable to the banking company cannot be accepted. The opposite party could have produced the circulars especially Circular No.556 dated 23.2.1990 for the better clarification of the meaning of the term “deposit” In the light of the second proviso to section 269 T Income Tax Act that “ nothing in this Section shall apply to repayment of any loan or deposit taken or accepted from (1) Government (2) any banking company, post office savings bank or co-operative bank” the non production of Circular leads to adverse inference. Anyhow the close analysis of the evidence available before the Forum reveals the deficiency on the part of the opposite party on various other grounds like behaviour of the concerned clerk, non disclosure of reasons of rejection of pay order from encashment in the memo, keeping silence on receiving lawyer notice etc and thus we are of opinion that complainant is entitled for compensation. But it is difficult to assess the actual damage without knowing whether the pay order is already encashed or not. If it is encashed it is necessary to know how, when and where to decide the quantum. The complainant has not taken interest to bring those facts before the Forum. Hence with regard to the quantum of compensation keeping in view the totality of facts and circumstances , we are of the opinion that a compensation of Rs 2000/- would meet the ends of justice. The complainant is also entitled to get a sum of Rs 500/- as the cost of this proceedings. These issues are answered partly in favour of the complainant.<br /> <br /> In the result, the complaint is allowed partly directing the opposite party to pay the complainant a sum of Rs 2000/- as compensation and a further sum of Rs 500/- as cost of this complaint within one month from the receipt of the copy of this order, failing which the complainant is allowed to execute the order against the opposite party in accordance with the provisions of Consumer Protection Act.<br /> <br /> <br /> Sd/-MEMBER Sd/-MEMBER Sd/-PRESIDENT<br /> <br /> <br /> Appendix <br /> Exhibits for the complainant<br /> A1. Photo copy of the pay order issued by Emirates Bank International, Debai <br /> Dt. 10.2.2004.<br /> A2. Memorandum issued by the opposite party dt. 14.2.2004<br /> A3. Copy of the lawyer notice sent to the opposite party on 24.3.2004<br /> A4. Acknowledgement card signed by the opposite party dt. 25.3.2004<br /> Exhibits for the opposite party – Nil<br /> Witness examined for the complainant<br /> PW1. Complainant.<br /> Witness examined for the opposite party<br /> DW1. Ajith Sankar <br /> <br /> Forwarded/ by order <br /> <br /> Senior Superintendent<br /> <br /> <br /> <br /> <br />