Punjab

StateCommission

FA/135/2014

BANK OF BARODA - Complainant(s)

Versus

M/S ARORA MEDICOS - Opp.Party(s)

ASHOK KUMAR/VARUN VERMA

19 Jan 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No.135 of 2014

                                                                                             Date of institution: 17.2.2014  

                             Date of Decision:  19.1.2015

 

Bank of Baroda, a body corporate, constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Head Office at Mandavi. One of its regional office at Jalandhar and one of its branches at Chhoti Baradari, Patiala, through its Constituted Attorney Sh. Sukhjit Singh, Senior Manager, Bank of Baroda, Patiala and whose is also the Principal Officer and Constituted Attorney of the Appellant Bank.

…..Appellant/Ops

 

                                      Versus

 

M/s Arora Medicos through its Sole Prop. Sh. Raman Arora s/o Sh. Om Parkash Arora, Nattan Wali Gali, Sheran Wala Gate, Patiala.

…..Respondent/Complainant

 

First Appeal against the order dated 6.1.2014 passed by the District Consumer Disputes Redressal Forum, Patiala.

 

Quorum:-

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

          For the appellant             :         Sh. Ashok Kumar, Advocate

          For the respondent :         Sh. Ashish Gupta, Advocate

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/OPs(hereinafter referred as “the OP”) has filed the present appeal against the order dated 6.1.2014 passed by the District Consumer Disputes Redressal Forum, Patiala(hereinafter referred as “the District Forum”) in consumer complaint No.270        dated 6.8.2013 vide which the complaint so filed by the respondent/complainant(hereinafter referred as ‘the complainant’) was allowed with a direction to the respondent/OP No. 1(hereinafter referred as ‘OP No.1’) to make a payment of Rs. 50,000/- by way of compensation and litigation expenses of Rs. 5,000/-.

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the Ops on the allegations that the complainant is dealing in the business of Medicines on wholesale basis and had CC Limit with OP No. 1. He got issued a demand draft No. 147745 dated 31.1.2013 for a sum of Rs. 70,000/- in the name of Win Medicare Pvt. Ltd., payable at Chandigarh. Upon presentation of the said DD by the party in whose favour it was issued, OP No. 1 refused to make the payment on the grounds “reported lost” vide memo dated 7.2.2013. The said refusal of the DD was informed to the complainant by the holder of the DD. The complainant immediately approached Op No. 1, who admitted their complaint and told the complainant to make the opposite party to present the said DD again and promised that this time the DD will be encashed. However, again OP No. 1 refused to encash DD No. 147745 dated 31.1.2013 of Rs. 70,000/- on the ground “reported lost”. Complainant again approached Op No. 1, who on each visit pretended to be unusually busy and did not attend the complainant. However, on 19.2.2013, he narrated the entire problem faced by the complainant whereas officials of OP stated that DD was never reported as “reported lost” in the system whereas memo dated 7.2.2013 and again on the memo on which the date was deliberately left unattended, the reason to deny the DD was “reported lost”. When he lodged a written complaint on 23.3.2013 with Op No. 1, the complainant was directed by OP No. 1 to get a new DD issued. Complainant had to make the payment in cash to his supplier to get the clearance of his goods. It was further stated that OP No. 1 had again refused the payment of DD No. 147765 dated 27.2.2013 for a sum of Rs. 50,000/- vide memo dated 4.3.2013 on the ground of “reported lost”. Due to delayed payment, the complainant got discredit for the discount of Rs. 1,115/- and had also paid Rs. 600/- as bouncing charges and Rs. 932/- as interest to Win Medicare Pvt. Ltd., which amounts to deficiency in services on the part of the OP. Hence, the complaint with a direction to the OP to pay a sum of Rs. 4 lacs alongwith interest @ 18% p.a. and also pay the litigation expenses.

3.                The Ops contested the complaint, filed reply taking the plea that the complainant does not fall within the definition of the ‘consumer’. They did not have the knowledge that the complainant was running his business for the last 15 years. The CC limit was being used for commercial purposes. The complainant had not informed about the non-payment of the draft to the opposite party rather presented the DD again for its payment, which could not be encashed due to technical snag in the system. It was denied that the complainant had approached the officials of OP No. 1. However, it was admitted that the employees of the complainant had came to their branch on 19.2.2013 and after checking the system, it was told to the complainant’s employees that there was no loss to the instrument and was offered to get a new draft prepared without any charges. It was further mentioned that some instruments were lost in the ordinary course of bank’s business and their numbers were entered in the Software to avoid any fraudulent payment and number of draft in question was incorporated in the system inadvertently due to which the same could not be encashed. Had the complainant informed the bank about the reason of non-payment immediately then the situation could have been avoided and after the complainant’s employees approached to the OP they were told to send the money through NEFT (RTGS), which he did on 6.3.2013 and 29.3.2013. The opposite party never directed the complainant to get the new draft issued rather he requested to get the new draft. Therefore, it was submitted that there was no deficiency in services on the part of the Ops. Complaint was without merit and it be dismissed.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence affidavit of Raman Arora Ex. C-A, draft copy Ex. C-1, reason for the return form Exs. C-2 & 3, letter dt. 19.2.13 Ex. C-4, letter dt. 23.2.2013 Ex. C-5, copy of draft Ex. C-6, reason for return slip Ex. C-7, Misc Debit Note Exs. C-8&9, mail Ex. C-10, legal notice Ex. C-11. On the other hand, the opposite party had tendered into evidence affidavit of P.K. Vashisht, Chief Manager Ex. OP-A, statement Ex. Op-1, reply to legal notice Ex. OP-2.

6.                After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the learned District Forum allowed the complaint as referred above stating the deficiency in services on the part of the Op No.1.

7.                In the grounds of appeal, the order passed by the learned District Forum has been challenged that is liable to be set-aside on the grounds that the learned District Forum failed to consider the documents placed on the record. The District Forum has wrongly come to the conclusion that the appellant Bank had not credited the amount of two draft Nos. 147745 dated 31.1.2013 for Rs. 70,000/- and DD No. 147765 dated 27.2.2013 for Rs. 50,000/-. However, when this fact came to the notice of the Ops they issued a fresh DD in favour of the beneficiary and same was encashed. Therefore, in fact there was no monetary loss to the complainant and the compensation allowed to the complainant is excessive in nature.

8.                It is made out from the pleadings of the parties that the complainant had CC Account with OP No. 1. He got issued two demand drafts in the sum of Rs. 70,000/- dated 31.1.2013 and dated 27.2.2013 for Rs. 50,000/-. When the beneficiary of the DD presented the same before the OP Bank, the DD of Rs. 70,000/- Ex. C-1, it was returned with the endorsement “reported lost” Ex. C-2. It was again presented with the bank as per the directions given by OP No. 1 but it is astonishing that it was not cleared and it was returned with “reported lost”. On 19.2.2013, the complainant filed a written complaint with the OP Bank. Another complaint dated 23.2.2013 is Ex. C-5. The draft of RS. 50,000/- dated 27.2.2013 is Ex. C-6 and it was also not honoured and it was returned with the “reported lost” (Ex. C-7). Bank charges of Rs. 200/- were deducted from the account of the complainant. He also lost cash discount of Rs. 1,115/-, Rs. 200/- for each draft and he had also paid interest to the tune of Rs. 932/-. Whereas the plea has been taken by the Ops in their written statement that cheques could not be cleared due to snag in the system. But there is no such report on the record whereas their reports are “reported lost”, therefore, they have taken the plea against their own documents. Therefore, the deficiency in services is proved against the Ops. So far as the preposition that the complainant is not a ‘consumer’ as he has availed the CC limit. In this case he has availed the services of demand draft for which payment was deducted from his account. The complainant was not to generate any income by making the payment but is beneficiary through demand draft, therefore, by no means these services can be termed as ‘commercial’ in nature. With regard to the amount of compensation imposed upon of the opposite party, it is correct that loss to the complainant is not to that extent. A sum of Rs. 50,000/- is quite high amount. The compensation be allowed to the party keeping in view the nature of the deficiency in services. Therefore, the amount of compensation is so ordered to be decreased from Rs. 50,000/- to Rs. 40,000/-.

9.                In view of the above discussion, the appeal is partly accepted. Instead of RS. 50,000/- the complainant will be entitled to Rs. 40,000/- apart from the cost of Rs. 5,000/- allowed by the learned District Forum.

10.              The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

11.              Remaining amount shall be paid by the appellant to the respondent within 30 days from the receipt of the copy of the order.

12.              The arguments in this appeal were heard on 15.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

13.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

January 19, 2015.                                                                                                                                                 (Jasbir Singh Gill)

as                                                                                                                                                                                      Member