Haryana

Ambala

CC/40/2017

Parveen Kumar - Complainant(s)

Versus

PNB - Opp.Party(s)

C.K.Singhal

11 May 2018

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                           Complaint No. 40 of 2017.

   Date of Institution: 31.01.2017.

   Date of final order: 11.05.2018.

 

Parveen Kumar son of Sh.Om Parkash aged 35 years resident of H.No.2798, Hashim Mohalla, Ambala City.

                                                                        ….Complainant.

                                       Versus

1. Punjab National Bank Court Road Branch, Ambala City Pin Code 134003.
2. M/s Alka Enterprises, Shop No.25, Ist Floor, Shri Ganesh Cloth Market, School No.7 Wali Gali, Dev Samaj College Road, Ambala City Pin Code 134003.

…..Opposite parties.

                          Complaint under section 12 of

 

Before:     Sh. Dina Nath Arora, President

        Sh. Pushpender Kumar, Member                                                        Ms. Anamika Gupta, Member      

 

Present:    Sh. C.K.Singhal, Adv. for complainant.

                Sh. R.L.Mundan, Adv. for OP No.1.                                                          Sh. Keshav Sharma, Adv. for OP No.2.     

                             

ORDER:

 

             The brief facts of the complaint are that the complainant is having bank account with Op No.1. One Kamaljeet Singh had issued a cheque bearing No.001293 dated 16.05.2016 for Rs.50,000/- from his account at ICICI Bank, Ambala Cantt. to pay the debt of personal loan. The complainant had presented the said cheque for collection before Op No.1 but said cheque was dishonoured due to insufficient funds as per memorandum dated 17.05.2016. The Op No.1 had sent the original cheque with original memo in favour of complainant through courier to Op No.2 vide courier register No.171 dated 19.05.2016 which was neither delivered to OP No.2 nor returned bank to the Op No.1. Since then the complainant has been wandering here and there to the OPs but till today neither the original cheque nor the courier envelop has been delivered to the complainant. The complainant sent legal notice to the OPs but despite to no avail.  Due to this deficiency in service and unfair trade practice the complainant could not take any action against said Kamaljeet Singh under Section 138 of NI Act. In evidence, the complainant has tendered affidavit Annexure CA and documents Annexure C1 to Annexure C6.

2.                     On notice Ops appeared and filed their separate replies. Op No.1 in its reply has taken many preliminary objections such cause cause of action, estoppal and suppression of material facts etc.  The cheque bearing No.001293 dated 16.05.2016 drawn on ICICI Bank Ltd. Ambala Cantt. as received with memo dated 17.05.2016 with the remarks Insufficient funds and the original cheque and memo were sent to complainant vide courier register No.171 dated 19.05.2016 through OP No.2 but the same were got lost somewhere from OP No.2 while in transit and this was beyond the control of OP No.1. The complainant brought the fact about not receiving of cheque and memo in the notice of Op No.1 then immediately it wrote a letter to Op No.2 and requested to deliver the said cheque and memo to the bank if not delivered to the complainant by treating the matter most urgent but to no avail.  The Op No.1 called upon ICICI Bank to supply second copy of memo dated 17.05.2016 on 28.06.2016 and also intimated about legal notice sent by the complainant. There is no deficiency in service on the part of OP No.1 as it had sent the original cheque and receipt immediately after receiving the same from ICICI Bank to Op No.2. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

                        Op No.2 in its reply has taken preliminary objections such as maintainability and concealment of material facts etc. The OP No.1 had given the envelop to it without any declaration containing the goods nor the same was insured hence no liability can be fastened upon Op No.2 as per terms and conditions of the courier receipt and so much so Alka Enterprises is no concern since it is dolphin courier service situated Ganesh Market, Ambala City and as per terms and conditions if no complaint is received within 15 days either from the complainant what to talk of PNB because the maximum liability is Rs.15/- only if the article is lost and if not insured. There is no deficiency in service on the part of Op No.2 and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA, Annexure RB and documents Annexure R1 to Annexure R6.           

3.             We have heard Ld. counsel of both the parties and also perused the record placed on file.

4.             After hearing Ld. counsel of both the parties, we have gone through the record placed on file. There is no dispute that complainant had presented the cheque No.001293 for Rs.50000/- of ICICI Bank payable at Ambala Cantt. to PNB/OP No.1 being its banker on 16.05.2016.  It is proved on the file that the cheque in question has not been received by the complainant after dishonouring the same by the concerned bank. The Op No.1 in its reply has mentioned that dishonoured cheque and memorandum were sent to the complainant through Op No.2 but when it were not received by the complainant then it has taken every steps and measurement to locate the same and even wrote a letter to the Op No.2 on 31.05.2016 because the Op No.1 is not fault and the cheque and memorandum in question were lost during transit and the same have not been returned to the Op No.1.

5.             In view of the above version of OP No.1, it is clear that the cheque in question has either been lost in the office of OP No.1 or lost in transit. When there is no dispute that cheque in question was sent by OP No.1 to the concerned bank for clearance and the same was dishonoured due to “Insufficient funds” then it was the duty of the Op No.1/bank to ensure the receiving the later process but in the present case it appears that the Op No.1 had not taken sufficient measures to safeguard the interest of the consumer/complainant.  In the present complaint the complainant has prayed for paying the cheque amount of Rs.50,000/- alongwith compensation. From the above said facts it is clear that the complainant was well aware that cheque has been lost and as per the law the limitation for filing of suit is three years and there was sufficient time for the complainant to approach civil court by way of suit for recovery.

                Hon’ble National Commission in case law titled as State Bank of India Vs. Untha Lakshmi Kumari (2009) CPJ 198 (NC) has held that cheque misused/encashed, not moved-Bank not liable to pay cheque amount-order of State Commission set de- Compensation for deficiency in vice on part of bank awarded. The other case titled as Canara Bank Vs. Sudhir Ahuja 1 (2007) CPJ 1 (NC) in which it was held that neither amount credited nor cheque returned-Deficiency in service proved-Bank liable to pay some amount of compensation and not entire amount of cheque-order of State Commission directing OP to pay entire cheque amount not legally sustainable-OP liable to pay Rs.5,000/- compensation.

6.                     In view of the above said discussion, it is proved that the official of the OP No.1 are negligent in performing their duty and great deficiency in service on the part of the OP No.1 is proved. In view of the law discussed above (Supra), the complainant is only entitled for compensation. The complaint is partly allowed with costs which is assessed at Rs.3,000/- and the compensation is assessed at Rs.15,000/- against OP No.1 only. Since the complainant has not the consumer of the Op No.2, therefore, complaint against it stands dismissed. The opposite party No.1 is directed as under:-

1. To pay a sum of Rs.15,000/-(Rs.Fifteen thousand only) as compensation to the complainant within 30 days  after receiving the certified copy of this order failing which the amount would carry interest @ 9 % per annum till realization of the amount.  However, OP No.1 is at liberty to initiate proceedings as per law for the recovery of the said amount from OP No.2.
2. To pay the cost of proceedings Rs.3000/- as assessed above.

 

Copy of order be supplied to the parties under the rule. File be consigned to the record-room after due compliance.

 

Announced on: 11.05.2018

 

 

 

                                                                (D.N.Arora)

(Anamika Gupta)   (Pushpender Kumar)     President,

Member         Member                   District Consumer Disputes                                                               Redressal Forum, Ambala