Date of filing:28.6.2013
Date of Disposal:2.7.2014
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II::
VIJAYAWADA, KRISHNA DISTRICT.
Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT
SMT N. TRIPURA SUNDARI, B. COM., B. L., MEMBER
WEDNESDAY, THE 2nd DAY OF JULY, 2014.
C.C.No.125 OF 2013
Between :
Rizwan Sait, S/o Haji Abdulla Sait, 32 years, Prop.of Royal Agencies, Gopalareddy Road, Governorpet, Vijayawada – 2.
….. Complainant.
And
1. The Branch Head, I.D.B.I Bank Ltd., Ring Road Branch, B.S.R.Plaza, Opp.Stella College, Benz Circle, Vijayawada – 520010.
2. The Branch Head, I.D.B.I. Bank Ltd., Anand Arcade, M.I.D-II, V.M.Double Road, Saraswathipuram, Kuvempunagar, Mysore, State of Karnataka – 570 009.
3. The General Manager, I.D.B.I. Bank Ltd., I.D.B.I. Towers, W.T.C. Complex, Coffee Parade, Coloha, Mumbai – 400 005.
4. The Branch Manager, On Dot Courier & Cargo Services, Door No.26-10-1, Gallavari Street, Gandhinagar, Vijayawada – 3.
5. The Regional Manager, On-Dot Couriers & Cargo Services, Plot No.9, B.H.E.L.Colony, Secunderabad – 500 003.
…..Opposite Parties.
This complaint is coming before us for final hearing on 16.6.2014 in the presence of Sri Abdul Mateen, Advocate for complainant and Sri M.S.Khalid, Advocate for opposite party No.1 and 2 and opposite party No.3 remained absent and Sri M.D.Prabhakar, Advocate for opposite party No.4 and 5 and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Smt N. Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act,1986.
The averments of the complaint are in brief:
1. The complainant is doing business in air conditioning machines at Vijayawada, for which he opened a current account with the 1st opposite party and operating the same since last ten years. While so, the complainant sent a cheque bearing No.963156 dated 6.3.2013 for Rs.2,19,557/- drawn on the 1st opposite party in favour of his material supplier i.e., M/s Usha Electric Corporation, Secunderabad through the 4th opposite party on payment of necessary charges. Subsequently the complainant came to know through online statement that the above said cheque was encashed at the 2nd opposite party branch by unknown person on 8.3.2013. The complainant was shock and surprise as to how an account payee cheque drawn in favour of another firm was reached and encashed by some unknown person at Mysore and how the 2nd opposite party passed the cheque materially altered. Therefore the 2nd opposite party committed gross negligence in clearing the cheque without going through the RBI guidelines. Immediately the complainant sent a letter to the 1st opposite party on 18.3.2013 and to the 2nd opposite party on 20.3.2013 about losing the cheque but there was no proper response from them. Opposite parties 4 and 5 also committed deficiency in service in wrong delivery or misplacing the cover entrusted to them for delivery of the same at Secunderabad. Therefore, the complainant got issued a legal notice demanding the opposite parties to pay Rs.2,19,557/-. The opposite parties 1 to 3 got issued a reply notice with all false allegations. Opposite parties 4 and 5 not gave any reply. Hence the complainant is constrained to filed this complaint against the opposite parties praying the Forum to direct the opposite parties to pay an amount of Rs.2,19,557/- together with existing rate of interest from 6.3.2013 till realization to pay Rs.50,000/- towards compensation for deficiency in service to pay Rs.25,000/- towards damages and to pay Rs.25,000/- towards costs.
2. The 1st opposite party filed its version and the opposite parties 2 and 3 adopted the same.
The version of the opposite parties 1 to 3 is in brief:
The opposite parties denied all the allegations of the complaint and submitted that the complainant is maintaining a current account bearing No.08910000010039 with IDBI Bank Limited, ring Road Branch, Vijayawada with the 1st opposite party under the name and style of Royal Agencies Proprietary concern Rep., by its Proprietor Mr.Rizwan Sait. The complainant issued a cheque bearing No.963156 dated 6.3.2013 for an amount of Rs.2,19,557/- in favour of M/s Usha Electric Corporation, Secunderabad but later the complainant striked off the name of M/s Usha Electric Corporation, Secunderabad and issued the said cheque in favour of one V.Mohan and the said correction was authenticated by affixing signature of the complainant and on perusal of both the signatures which are one and the same the said cheque was encashed at IDBI Bank Ltd., at Mysore Branch maintained by one Mr.V.Mohn who is having SB account bearing No. 0281104000162111. The said Mr.V.Mohan account was opened with Mysore Branch on 8.12.2012. On perusal of the cheque with naked eyes, the fact remains that the complainant has issued a cheque for Rs.2,19,557/- in favour of Mr.V.Mohan which was passed by the collecting and paying bank after verifying the signatures and genuinity of the cheque was cleared by transferring the amount to the account of Mr.V.Mohan. The complainant send the cheque through a courier on 6.3.2013 to M/s Usha Electric Corporation Secunderabad but did not mention the said fact in the letter dated 18.3.2013 to the bank and the action initiated against the courier agency who has prima facie seems to have delivered the cheque into the hands of a wrongful person which has caused such encashment of cheque. The 1st opposite party also advised the complainant to lodge a police complaint against the courier agency as to how the cheque travelling to Mysore instead to Secunderabad if really the cheque was sent to Secunderabad address as to enable the police to nab the real culprits. The complainant himself was negligent in forwarding high value cheque through a courier instead of transferring the said amount to RTGS/NEFT facilities provided by the bank to its customer at free of cost. The complainant has approached the Banking Ombudsman on the same facts, in case No.201213009003659. There is no negligence on the part of opposite parties 1 to 3 and opposite parties prayed to dismiss the complaint with costs.
3. The version of the opposite parties 4 and 5 is in brief:
Opposite parties 4 and 5 denied all the allegations of the complaint and submitted that on 6.3.2013 the complainant booked a consignment No.58264553 with the 4th opposite party to deliver M/s Usha Electrical Corporation at Secunderabad. At the time of consignment the complainant did not mention or disclose the items and its worth. As per the terms and conditions of this opposite party for any loss or damage for Rs.200/- - Rs.100/- for each parcel item. After courier the consignment was sent to the 5th opposite party for delivery of the consignment to M/s Usha Electrical Corporation, Secunderabad and on 7th March, 2013 the delivery boy has taken consignment for delivery by bicycle and in front of hardly complex, main road, he kept his bicycle and went for delivery inside and after delivery he came back to his bicycle and found consignment bag was missing and he intimated the same to the 5th opposite party and he also intimated the same to the main branch through mail and on instructions of his higher branch he lodged the police complaint before Ramgopalpet, P.S. Secunderabad for the loss of the above consignment along with other 14 consignments. The complainant filed the Photostat copy of alleged cheque along with the complaint. The Photostat copy of cheque was materially altered by striking the firm name and inserting individual person name by forgering the signature on the same cheque in cashing the same at the 2nd opposite party. It clearly shows that the complainant is having Photostat copy of cheque before encashment taking advantage of misplacing the consignment he created the false story and filed the complaint only for wrongful gain and cause loss to the opposite parties . There is no deficiency in service on the part of the opposite parties 4 and 5 and prayed to dismiss the complaint with costs.
4. On behalf of the complainant he gave his affidavit and got marked Ex.A.1 to Ex.A.12 and on behalf of the 1st opposite party Mr.Prathap Kumar.Y Manager of the 1st opposite party gave his affidavit. On behalf of the opposite parties 4 and 5 Sri S.V.Subba Rao Manager of the 4th opposite party gave his affidavit and got marked Ex.B.1 to Ex.B.3.
5. Heard and perused.
6. Now the points that arise for consideration in this complaint are:
1. Whether there is any deficiency in service on the part of the opposite parties
towards the complainant in losing the cheque by opposite parties 4 and 5 and
got encashed the same by opposite parties 1 to 3 issued by the complainant?
2. If so is the complainant entitled for any relief?
3. To what relief the complainant is entitled?
POINTS 1 AND 2:-
7. On perusing the material on hand the complainant is doing business in air conditioning machines at Vijayawada and he opened a current account with the 1st opposite party in the name of Royal Agency represented by its Proprietor i.e., the complainant. The complainant took Ex.A.2 cheque bearing No.963156 dated 6.3.2013 for an amount of Rs.2,19,557/- drawn on the 1st opposite party in favour of the M/s Usha Electric Corporation, Secunderabad and he sent the same through the courier opposite party 4 under Ex.A.1 on payment of necessary charges to the courier. The complainant came to know that the above said cheque was encashed at the 2nd opposite party Branch at Mysore by unknown person on 8.3.2013. Immediately the complainant sent a letter under Ex.A.6 to the 1st opposite party on 18.3.2013 and to the 2nd opposite party on 20.3.2013 about the losing of the cheque. The complainant got issued a legal notice Ex.A.10 to the opposite parties 4 and 5 dated 29.4.2013 demanding to arrange amount of Rs.2,19,557/- to the complainant while the cheque was misplaced by opposite parties 4 and 5 and it was encashed by opposite parties 1 to 3. The 2nd opposite party received the said notice and sent reply legal notice under Ex.A.11 dated 15.5.2013 stating that the complainant has issued a cheque No.963156 dated 6.3.2013 for Rs.2,19,557/- drawn on 1st opposite party in favour of M/s Usha Electric Corporation payable at Secunderabad is not known to the 2nd opposite party. But the same cheque was drawn on Mr.V.Mohan for encashment. The said cheque was thoroughly examined and after verifying the alteration counter signed by the complainant and verifying the accuracy of the signature the 2nd opposite party transferred the amount to the account of Mr.V.Mohan. It may be the negligence on the part of the courier service to deliberate the parcel to Mysore instead of Secunderabad. There may be collusion between Mr.V.Mohan and the courier. After receiving the complaint from the complainant the 2nd opposite party filed a complaint before Saraswathipuram P.S. Mysore about the fraudulent act of Mr.V.Mohan and the same is pending for investigation. The 1st opposite party says that the complainant issued a cheque No.963156 dated 6.3.2013 for an amount of Rs.2,19,557/- in favour of M/s Usha Electric Corporation Secunderabad but later the complainant striked off the name of Usha Electric Corporation Secunderabad and issued the said cheque in favour of one V.Mohan and the said correction was authenticated by fixing signature of the complainant on perusing both the signature which are one and the same. The said cheque was encashed at the 2nd opposite party branch at Mysore maintained by one Mr.V.Mohan. The complainant sent the cheque through a courier on 6.3.2013 and the said courier seems to have delivered cheque into the hands of a wrongful person who encashed the cheque. On the advice of the 1st opposite party the complainant lodged a police complaint Ex.A.4 dated 16.3.30213 against the courier agency before Circle Inspector of Police III Town Circle, Governorpet, Vijayawada and a complaint Ex.A.5 dated 16.3.2013 before the P.S. of Ramgopalpet police station, M.G.Road, Secunderabad requesting to pursue the matter as the complainant suspected the courier people because without their cooperation his cheque may not reach Mysore on the next day. The complainant also approached the Banking Ombudsman under Ex.A.9 and Nodal Officer under Ex.A.8 on the same fact requesting to look into the matter. We observed the documents filed by the opposite parties 4 and 5 that the 5th opposite party filed a complaint before the Ramgopalpet, P.S. under Ex.B.1 dated 19.4.2013 stating that he had taken consignments for delivery and he kept his bicycle at Hardly complex, M.G.Road and after delivery he found that 14 consignments are missing. Hence he requested to take necessary action to trace out his consignments. Ex.B.2 shows the number of consignments are missing along with the complainant consignment. Opposite parties 4 and 5 say that at the time of signing, the complainant did not mention or disclose the items and its worth. The documents filed by opposite parties 4 and 5 shows the same. As per Ex.B.3 the terms of the opposite parties for any loss or damage of parcel or losing of parcel their liability is only Rs.100/-. Therefore we the Forum came to conclusion that the matter is involved so many issues including an issue relating to genuineness of the signature at the alterations made on the cheque. This Forum cannot decide such intricate and complicated questions which require a thorough trial. Hence the complainant will have to approach proper Forum to get relief for his grievance.
POINT No.3:-
8. In the result, the complaint is dismissed without costs.
Dictated to the Stenographer, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 2nd day of July, 2014.
PRESIDENT MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite parties:-
P.W.1 Rizwan Sait, D.W.1 Prathap Kumar.Y
Complainant Manager
(by affidavit) of the 1st opposite party
(by affidavit)
D.W.2 S.V.Subba Rao, Manager,
of the 4th opposite party
(by affidavit)
DOCUMENTS MARKED
On behalf of the Complainant:
Ex.A.1 . . Courier receipt.
Ex.A.2 06.03.2013 Photocopy of cheque of IDBI.
Ex.A.3 06.03.2013 Photocopy of letter from the complainant to the Usha Electric Corporation, Secunderabad.
Ex.A.4 1603.2013 Letter from the complainant to the CI of Police, III Town Circle, Governorpet, Vijayawada.
Ex.A.5 16.03.2013 Letter from the complainant to the SI of Police, Ramgopalpet Police Station, M.G.Road, Vijayawada.
Ex.A.6 18.03.2013 Letter from the complainant to the 1st opposite party.
Ex.A.7 20.03.2013 Photocopy of letter from the 1st opposite party to the complainant.
Ex.A.8 17.04.2013 Photocopy of letter from the complainant to the Nodal Officer of the IDBI Bank, Mahaveer House, Basheerbagh Square,
Hyderabad.
Ex.A.9 17.04.2013 Photocopy of letter from the complainant to the Ombudsman, RBI, Secretariat Road, Saifabad, Hyderabad.
Ex.A.10 29.04.2013 Office copy of legal notice.
Ex.A.11 15.05.2013 Reply notice from the 2nd opposite party.
Ex.A.12 . . Postal acknowledgement.
For the opposite parties:-
Ex.B.1 19.04.2013 Photocopy of Certificate issued by the Police Department.
Ex.B.2 07.03.2013 Photocopy of Delivery run sheet.
Ex.B.3 . . Photocopy of specimen copy of courier receipt.
PRESIDENT
