MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The present Appeal u/s 15 of the Consumer Protection Act, 1986 is directed by the OPs challenging the impugned judgment and order dated 16.1.2015 passed ex parte by the Ld. District Consumer Disputes Redressal Forum, Hooghly in Complaint Case No. 148 of 2014, directing the OPs to pay to the Complainant Rs. 1,50,000/- with interest @ 9% per annum from 12.12.2012, Rs. 5,000/- as compensation and also Rs. 5,000/- as cost within 30 days from the date of the order.
After filing the instant Appeal, the Respondent/Complainant has filed a Misc. Application bearing No. MA/583/2016 praying for direction upon the Appellant No. 2/OP No. 2 to send by 20.6.2016 to the Respondent/ Complainant the report of Central Forensic Laboratory to enable him to produce the same before this Commission on the date of hearing of the instant Appeal. The hearing of the said Misc. Application is being taken up along with the instant Appeal.
Facts of the case, leading to the present controversy, are, in short, that the Respondent/Complainant on 26.11.2012 met one Mrs. Jonaki Chatterjee, ‘Medi Assist’ of TPA of National Insurance Company for furnishing a cancelled cheque as required for on-line credit of the settled claim of medical expenses, and accordingly, handed over a cancelled cheque bearing No. 090510 pertaining to Savings Bank A/C No. 21340646143 with Allahabad Bank, Begampur Branch, Hooghly. After such handing over the said cancelled cheque, the Respondent/ Complainant got out of the room of Mrs. Jonaki Chatterjee for the purpose of photocopying some documents as requisitioned by Mrs. Chatterjee, leaving his chequebook and passbook before Mrs. Chatterjee on good faith as averred in the Petition of Complaint. Thereafter, on 12.12.2012 when the Respondent/ Complainant got his passbook updated, the Respondent/Complainant found that Rs. 1,50,000/- were withdrawn from his said Savings Bank Account unauthorisedly by one Manik Mishra by Cheque No. 090510, although the Respondent/ Complainant did not issue such cheque to anybody else as averred in the Petition of Complaint. After such detection, the Respondent/Complainant collected the true copy of the said disputed cheque from the Appellant No. 1/OP No. 1 and found that the said cheque was honoured by the Appellant No. 1/OP No. 1 inspite of the signature of the Respondent/Complainant thereon being not in agreement with the specimen signature of the Respondent/Complainant as tendered to the Appellant No. 1/OP No. 1 as revealed from the Petition of Complaint.
After such event, the Respondent/Complainant moved the Appellants/OPs for redressal, but without any success. Then the Respondent/Complainant lodged an FIR bearing No. 589/12 dated 24.12.2012 u/s 420/120(B) of the I.P.C. with Baranagore Police Station and approached the Federation of Consumer Association, West Bengal, seeking redressal of the same, but without any success.
Meanwhile, the Appellant No. 2/OP No. 2 by a letter No. ZO/CNS/ P&D/14/749 dated 2.1.2014 informed the Respondent/Complainant that the report of the Central Forensic Science Laboratory, which took six months to send the report, has been forwarded to their head-office for further guidance in the matter of redressal of the Respondent/Complainant.
With this factual background, the Respondent/Complainant moved the Complaint concerned before the Ld. District Forum which passed the impugned judgment and order in the aforesaid manner. Aggrieved by such order the OPs have preferred the present Appeal.
The Ld. Advocate for the Appellants/OPs submits that the Ld. District Forum committed gross error in passing the impugned judgment and order ex parte without giving effective opportunity to the Appellants/OPs for filing the written version on their behalf and also to the Respondent/Complainant for filing evidence on his behalf as required u/s 13(4) of the Consumer Protection Act, 1986.
The Ld. Advocate further submits that the Ld. District Forum committed further error in entertaining the Complaint which revolves round the allegation of ‘fraud and forgery’ and thus went beyond the jurisdiction of the Consumer Fora.
The Ld. Advocate also submits that the Respondent/Complainant himself committed error in putting his signature on a cancelled cheque and leaving his chequebook voluntarily before a third party.
The Ld. Advocate continues that the Appellants/OPs being not the handwriting expert, should not be held responsible for difference in signatures, if any, on the cheque in question.
The Ld. Advocate also submits that adducing of additional evidence of Central Forensic Science Laboratory, which was not made available before the Ld. District Forum, cannot be made at the appellate stage as is well-settled.
The Ld. Advocate finally submits that in view of the aforesaid submission, the instant Appeal should be allowed and the impugned judgment and order be set aside, the same being illegal and improper.
On the other hand, the Ld. Authorised Representative for the Respondent/ Complainant, filing BNA, submits that the Appellants/OPs despite having developed some kind of expertise in detecting dissimilar signatures because of comparing a large number of signatures of the account-holders for a long time, which a layman does not possess, allowed the cheque in question, the signature of which was not similar with the specimen signature lying with the Appellants/OPs, and thus the Appellants/OPs were deficient and negligent in service.
The Ld. Representative further submits that for such negligence and deficiency on the part of the Apepllants/OPs in allowing the cheque, the signature of which was not similar with that of the account-holder, the Respondent/ Complainant is entitled to compensation for the financial loss and mental agony involved. In this connection, the Ld. Representative refers to a decision of the Hon’ble National Commission in Chandrabhan Mishra & Others Vs. Central Bank of India, reported in 2015 (4) CPR 610 (NC).
The Ld. Representative finally submits that in view of the submission aforesaid, the Appeal should be dismissed and the impugned judgment be affirmed.
We have heard both the sides, considered the submission of the either side and perused the materials on record.
It is well-settled that no fresh evidence, as is the report of the handwriting expert in the present case, can be produced at the appellate stage.
Order No. 3 dated 20.1.2014, Order No. 4 dated 5.11.2014 and Order No. 5 26.11.2014, as available on records, clearly exhibit that the Appellants/OPs were given opportunity for filing written version before the Ld. District Forum, but the OPs could not file their written version and hence, the Appellants/OPs did not get effective opportunity for filing the written version.
Materials on records also reveal that the Respondent/Complainant was also not allowed opportunity of filing evidence before the Ld. District Forum.
The above facts, evidence on records and the submissions indicate that the Ld. District Forum passed the impugned judgment and order without allowing any opportunity to the Respondent/Complainant to file his evidence as required not only u/s 13(2)(d)(i) of the Consumer Protection Act, 1986 but also for dispensation of justice. The Ld. District Forum being not an handwriting expert also appears to have presumed the signature on the cheque in dispute as ingenuine by assuming the role of an handwriting expert which is against the settled principle of law.
In view of the aforesaid discussion we are of the view that the case should be remanded to the Ld. District Forum for adjudication afresh on the basis of the evidence to be adduced by the parties and of their cross-examination through interrogatories and replies.
Accordingly, we allow the Appeal in part. The impugned judgment and order is set aside and the case is remanded to the Ld. District Forum for adjudication afresh as per law.
The Misc. Application bearing No. MA/583/2016 is thus disposed of along with this Appeal.
