BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.1513/2014

DATED ON THIS THE 13^th January 2017

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint is filed for a direction to the opposite party to pay Rs.1,90,000/- with interest at 18% p.a. and to award damages of Rs.1,00,000/- with other reliefs.
2.     The brief facts alleged in the complaint are that one R.J.Ramesh of T.K.Colony Village having S.B. Account with the complainant bank presented a cheque bearing No.684952 dated 21.12.2012 for Rs.1,50,000/- drawn on State Bank of Mysuru, Periyapatna Branch for collection.  The complainant handed over the said cheque with other 3 Government cheques for collection, thereby, taken the service of opposite party – professional courier agency.  The said cheque was misplaced by the opposite party and sent a letter on 15.02.2013 stating that “they are regret to inform that the consignment addressed to S.B.M., Periyapatna Branch was lost”.  The same was intimated to the account holder R.J.Ramesh.  But, the said R.J.Ramesh has filed the complaint in C.C.No.457/2013 on the file of this Forum.  Then the complainant has intimated the opposite party to indemnify the loss of the said cheque of R.J.Ramesh.  The complaint filed by R.J.Ramesh in C.C.No.457/2013 was allowed and directed this complainant Bank to pay the amount.  Hence, this complaint is filed for a direction to opposite party to pay the amount as well as damages and costs.
3.     Opposite party appeared through the advocate and filed the following objections.  This opposite party is not aware of cheque issued by one Vijay in favour of R.J.Ramesh for Rs.1,50,000/-.
4.    It is admitted that the complainant has sent a consignment receipt No.KRN 2124951 dated 22.12.2012.  Contents are not known to this opposite party.  It is admitted that 31.01.2013, a letter was received from the complainant, the same was answered on 01.02.2013.  This opposite party accepted his responsibility in respect of the works entrusted to opposite party and agreed to indemnity and keep indemnify the complainant bank for any loss or damage of instruments during transit.  It is admitted that one R.J.Ramesh has filed complaint in C.C.No.457/2013.  The liability of this opposite party is restricted to Rs.100/- as per the term shown on the receipt of the consignment.  Thereby, the opposite party has sought for dismissal of this complaint.
5.     On the above contentions, this matter is set down for evidence.  During evidence, on behalf of complainant, its Manager has filed affidavit evidence and further evidence closed.  Likewise, on behalf of opposite party, its Manager has filed the affidavit evidence and further evidence closed.  After hearing the arguments, this matter is set down for orders.
6.     The points arose for our consideration are:-

1. Whether the complainant establishes that there is deficiency in service on the part of opposite party in not delivering the consignment to SBM, Periyapatna, thereby, complainant is entitled for the reliefs claimed?
2.  What order?

7.    Our findings on the aforesaid points are as follows:

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

8. Point No.1:- To establish the transaction between the parties, the Manager of the complainant bank has filed affidavit evidence reiterating the allegations made in the complaint.  As per the evidence and pleadings, the complainant has given consignment to the opposite party Professional Courier for transportation from K.R.Nagar to Periyapatna.  The said consignment handed over to opposite party in receipt No.KRN 2124951 dated 22.12.2012 was lost during transit.  When the complainant has asked for the said consignment, opposite party has given a reply to the effect that the opposite party regret to inform that the consignment was lost in transit.  Further, it is the case of the opposite party that as per the terms on receipt, it is liable to pay a sum of Rs.100/- only and it is not liable to answer the claim made by the present complainant.
9.    From these contentions of both parties, handing over of consignment to the opposite party is not in dispute.  Even it is not in dispute that the consignment was lost.  Thereby, the cheque sent by the complainant relating to one R.J.Ramesh was lost.  Thereby, the complainant has sought for the reliefs and it is further case of the complainant that the said R.J.Ramesh filed complaint in C.C.No.457/2013 and this Forum has ordered for payment of the amount under cheque which was misplaced with other reliefs.  Thereby, so far deficiency in service is concerned, there is no dispute and it is being established by the complainant in this case.
10. Advocate appearing for opposite party relied on the judgement reported in 2011 (1) Apex Court judgement, 206 (SC) – Birla Technologies Ltd. V/s Neutral Glass and Allied Industries Ltd., and submits that complainant is not a ‘Consumer’ since the transaction in question is a commercial one. For commercial purpose, the service of opposite party was taken by the complainant.   But, the said judgement cannot be applied to the case on hand, since there is no commercial transaction between the complainant and the opposite party herein.  Thereby, the complainant has taken the services of opposite party and there is deficiency in service.  Thereby, it cannot be held as commercial transaction.  As such, the said judgement will not come to the aid of opposite party.  Hence, the opposite party is liable to answer the claim to the extent of Rs.1,90,000/- with interest and also damages of Rs.20,000/- with litigation expenses of Rs.2,000/-. Hence, point No.1 is answered partly in the affirmative.
11. Point No.2:- In view of the findings recorded on point No.1, the opposite party is liable to pay Rs.1,90,000/- to the complainant with interest at 18% p.a. from the date of complaint till payment and also opposite party is liable to pay damages of Rs.20,000/- and Rs.2,000/- towards litigation expenses to the complainant.  Hence, we pass the following order:-

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party is directed to pay Rs.1,90,000/- with interest at 18% from the date of complaint i.e. 30.09.2014 till payment to the complainant.
3. The opposite party is directed to pay damages of Rs.20,000/- and Rs.2,000/- towards litigation expenses to the complainant within 30 days from the date of this order, failing which, the said sum of Rs.22,000/- shall carry interest at 12% p.a.  from the date of this order till payment.
4. In case of default to comply this order, the opposite party shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
5. Give the copies of this order to the parties, as per Rules.

 (Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 13^th January 2017)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER