KERALA STATE CONSUMER DIPSUTES REDRESSAL COMMISSION VAZHUTHACAD, THIURVANANTHAPURAM FIRST APPEAL 05/2008 JUDGMENT DATED: 6.3.2010 PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The Senior Branch Manager, : APPELLANT Kollam District Co-operative Bank, Chathanoor, Kollam. (By Adv.R.Lakshmana Iyer) Vs. 1. Rajendran, : RESPONDENTS S/o Gangadharan Pillai, Ragi Bhavan, Nadakkal, Kalluvathukkal, Kollam. 2. The Secretary, Nadakkal Service Co-operative Bank Ltd.No.1874, Kalluvathukkal, Kollam. 3. M/s Speed & Safe Courier Service (p) Ltd., Administrative Office, XL/5424 Rama Paid Road, TD North End, Kochi – 682 055. 4. M/s Speed & Safe Courier Service(P) Ltd., Branch Office, Kottayam, PIN – 691 571. JUDGMENT SMT.VALSALA SARANGADHARAN : MEMBER The above appeal is preferred from the order dated 10.10.07 passed by CDRF, Kollam in OP.323/04. The complaint was filed by the 1st respondent herein against the appellant, respondents 2,3& 4, whereby the Forum directed the 2nd opposite party to pay Rs.10,000/- as compensation along with Rs.5000/- as costs. Aggrieved by the said directions the 2nd opposite party preferred the present appeal. 2. The case of the complainant is that he is an account holder of the 1st opposite party bank and on 12.2.2004 he had presented a cheque for Rs.50,000/-drawn on Pandalam branch of the Pathanamthitta District co-operative bank for collection through 1st opposite party but he was informed that the cheque entrusted by the 1st opposite party to the 2nd opposite party for collection was not returned and requested to wait for some time. On 25.6.04 the complainant approached the 1st opposite party for getting the money covered by the cheque. But he was informed by the 1st opposite party that the above cheque sent for collection through the 2nd opposite party was lost in transit and payment can be effected only when the 2nd opposite party gives the cheque amount. According to the complainant he had sustained a loss of Rs.50,000/- due to the act of the opposite parties. Hence alleging deficiency in service on the part of opposite parties he filed the complaint before the Forum below. 3. The 1st opposite party filed version and admitted that the complainant had presented the cheque for collection, which was sent for collection through 2nd opposite party. The 1st opposite party had not clearing service of its own and so the cheque was sent for collection through the 2nd opposite party. According to the 1st opposite party the complainant is a customer of the 2nd opposite party and 1st opposite party is only a collecting agent between the complainant and the 2nd opposite party, and after the cheque has been handed over to the 2nd opposite party it is their duty to take safety precaution of the cheque and they are responsible for the loss if any sustained by the complainant. Hence there is no deficiency on their part. 4. The 2nd opposite party filed version and contended that the 1st opposite party had lodged a cheque for Rs.50,000/- drawn on the Pandalam branch of Pathanamthitta District Co-operative Society on 12.2.04 and it was sent for collection on 16.2.04 through the Speed and Safe Courier Service, Kottiyam but it was not delivered to the addressee. So they sent a letter to the courier service on 8.4.04 and they gave a reply which was not acceptable. Thereafter another letter was issued to the courier service requesting to settle the matter for which no reply was issued. So they informed the matter to the head office. They contended that the cheque was missed in transit by the speed and safe courier and so they are liable to compensate the complainant. Contending that there was no laches on their part, the 2nd opposite party prayed for dismissal of the complaint. 5. The 3rd and 4th opposite parties filed joint version. They contended that they are unnecessary parties. They submitted that after the receipt of advocate notice they verified records and found that no consignment was booked by the Kollam District Co-operative bank on 12.2.04 and it has booked a cover on 16.2.04. The consignment note does not contain any declaration regarding the contents and if any valuable documents like the cheque is contained, the consignee would have declared its value or have to insure the same and the said opposite parties have not offered any service to the complainant for consideration and so there was no privity of contract between them and thus they prayed for dismissal of the complaint. 6. The evidence adduced consisted of the oral deposition of PW1, the complainant and Exts.P1 to P4 from the side of the complainant. DW1 to DW3 were examined from the side of the opposite parties and Exts.D1 to D21 were marked 7. Heard the learned counsel for the appellants and 3rd and 4th respondents. There was no representation for the first and second respondents. The learned counsel for the appellants argued before us that the order of the Forum below in fastening the liability of payment of compensation and cost solely on the 2nd opposite party/appellant is per se legal and unsustainable. He argued before us that the Forum ought to have rejected the complaint at the 1st instance itself and if atall any amount was to be paid it ought to have been directed to be paid by all the opposite parties. He canvassed for the position that the 1st opposite party was instrumental for accepting the cheque from the complainant and in such a situation Forum’s direction exonerating the 1st opposite party cannot be justified. He further submitted that the Forum below had erroneously found that the 3rd and 4th respondents/opposite parties could not be fastened with any liability. The learned counsel invited our attention to the contention that the 2nd opposite party had entrusted the cheque received by them to the 3rd and 4th opposite parties for onward transmission to the collecting bank and that the cheque was lost at the hands of 3rd and 4th respondents. Thus the learned counsel canvassed for the position that Forum below ought to have fastened the liability of payment of compensation and cost on the 3rd and 4th respondents only instead of fastening the same on the appellant. The learned counsel also argued that the compensation and cost are on the higher side considering the fact that the complainant had not adduced any evidence to show that he had suffered any loss consequent to the missing of the cheque at the hands of the opposite parties. 8. On the other hand the learned counsel for the 3rd and 4th respondents supported the findings and conclusions of the Forum below and prayed for dismissal of the appeal. He argued before us that if the cheque had been entrusted with them as alleged they would have issued a receipt like Ext.B18 for having received the item and in this case no satisfactory explanation is forthcoming from the side of the appellant for the failure of producing a receipt like Ext.B18. It is also his case that the entry in D4 and D5 are not conclusive proof for the entrustment of the cheque in question to the 3rd and 4th respondents. Thus he submitted before us that there was no deficiency in service on the part of 3rd and 4th respondents and the Forum below has rightly held that they are not responsible for the loss of the cheque and consequential loss if any caused to the complainant. 9. On hearing the learned counsel for the appellant and 3rd and 4th respondents and also on going through the records we find that it is the admitted case of the complainant 1st and 2nd opposite parties that the cheque was entrusted to the 1st opposite party which was subsequently forwarded to the 2nd opposite party for collection for the cheque amount of Rs.50000/-It is also found that nobody has the case that the complainant had received the money in lieu of the cheque. It is found that the 1st opposite party vide his letter dated 25.6.04 informed the complainant that the cheque was lost in transit. On a perusal of Ext.P1 it is found that they are unable to disburse the amount and that only if the 2nd opposite party makes an arrangement for the payment of the amount that they could give the money to the complainant. Anyhow it is the admitted fact that the complainant is not in receipt of the cheque amount so far. The learned counsel for the appellant would argue that if the complainant had obtained a duplicate cheque from the drawee and produced the same, the appellant could have made arrangements for disbursement of the amount. The Forum below has found that it is the appellant who is responsible for the loss of the cheque even assuming that the cheque was lost at the hands of respondents 3 and 4. We also find that the appellant is the party who is responsible for the safe processing of the cheque as and when it was entrusted with them. We also find no error in the order of the Forum below in awarding compensation of Rs.10,000/- to be paid by the appellant to the complainant as in a case of loss of cheque, the cheque amount cannot be ordered to be paid as compensation. 10. The Forum below has also ordered cost of Rs.5000/- to be paid by the 2nd opposite party/appellant. The learned counsel for the appellant argued before us that the same is on the higher side and the Forum below can not be justified in awarding more amount than that is demanded by the complainant. We find force in the said argument of the learned counsel as it is found that the complainant has prayed for Rs.1500/- only towards cost of the proceedings. In the said circumstance we are inclined to reduce the amount to Rs.1500/- towards costs. In the result the appeal is allowed in part with the above modification, thereby the appellant is liable to pay Rs.10,000/- as compensation along with Rs.1500/- as cost to the complainant. As far as the present appeal is concerned there shall be no order as to costs. SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER ps | 
