Date: 27-05-2015

Sri Debasis Bhattacharya

This appeal arises out of Order dated 15-02-2012, passed by the Ld. District Forum, Circuit Bench, Alipurduar, Jalpaiguri in C.C. no. 04/2010, by which the complaint case has been allowed.  Being aggrieved by and dissatisfied with the said order, OP Nos. 1 and 2 thereof have preferred this appeal.

Case of the Complainant, in brief, is that she paid a sum of Rs. 1,00,000/- to the OP Insurance Company by means of a D.D. towards second renewal premium in respect of policy no. U04161958.  However, the OP No. 2 vide its letter dated 16-09-2009 informed that the said D.D. has been lost during transit and as such, she was required to deposit another cheque/D.D. of equivalent amount and further stated that concerned premium certificate for the year 2008-2009 stood null and void.  The Complainant has lost her faith upon the OPs due to their misdeed and mala fide intention and accordingly, issued legal notice asking for refund /return of the total deposited amount of Rs. 2,00,000/- along with interest and share benefit of the scheme and also compensation, but in vain.  So, the case.

Case of the OP Nos. 1 to 3, on the other hand, is that after receiving the Demand Draft from the Complainant, they sent it to Deutsche Bank for clearance.  The said Banker, however, negligently or inadvertently, lost the said instrument.  They duly informed the Complainant about the matter and requested her to issue a fresh draft or cheque in place of the same, but the Complainant has not complied with their direction and as such, the concerned policy is in lapsed condition at present. 

The Ld. District Forum, after hearing both sides, adjudicated the case in favour of the Complainant directing the OP No. 2 to pay the entire paid amount of Rs. 2,00,000/- along with interest, compensation and litigation cost.

The point for consideration in this appeal is, in the facts and circumstances of the instant case, whether the impugned order is a justified one, or not.

Decision with reasons

Ld. Advocate for the Appellants has submitted that in the matter of misplacement of the concerned D.D., they had no deficiency whatsoever because after receiving the same from the Complainant, they submitted the same to their banker to facilitate clearance of the same.  However, the said banker later on informed them by a letter that the said draft somehow got misplaced during transit.  Therefore, if at all any deficiency in service occurred in this regard, the onus lies with their banker and not them. However, the Ld. District Forum directed them to refund the entire deposited amount, including the disputed amount which has even not been received by them.  The Ld. District Forum erred in holding that the Appellants could not insist upon the Complainant/Respondent No. 1 for depositing a fresh cheque/D.D..  While the Appellants have not received the entire money of Rs. 2,00,000/- from the Complainant/Respondent No. 1, the Ld. District Forum should not have asked them to refund the same to her.  As such, the impugned order be set aside.

Ld. Advocate for the Respondent No. 1 has submitted that she has been most diligent in the matter of payment of timely premiums to the Appellants.  After receiving premium, it is highly unethical on the part of the Appellants to pass the buck entirely upon a fragile customer to bear the brunt of negligence of others with whom she has no connection in any manner.  The banker of the Appellants being solely responsible for the present crisis, the Appellants should have taken up the matter firmly with them.  Such apathetic attitude towards the sufferings of others has shaken her confidence in the sincerity of purpose of the Appellants.  So, out of sheer frustration, she has asked for refund of the entire deposited money from the Appellants.  The Ld. District Forum has rightly observed that a D.D. is issued subject to payment of entire money in cash by the customer and when in this case the D.D. of Rs. 1,00,000/- has been received by the Insurance Company from her, for loss of said D.D. by the banker of the Appellants, no liability occurred on her part.    The impugned order is a fully justified one and as such, the same be upheld for ends of justice.

Ld. Advocate for the Respondent No. 2 has contended that there is no deficiency in service on their part which can also be evident from the fact that the Respondent No. 1 has not sought for any relief against them.  He prayed for upholding the impugned order.

Admittedly, the Respondent No. 1 deposited the concerned Demand Draft to the office of the Appellant Insurance Company, who in turn, presented it before their banker for clearance of the same.  There is also no dispute as to the fact that the concerned D.D. got lost in transit.  Further undisputed is the fact the proceeds of said D.D. has not been credited to the account of the Appellants insofar as the same got misplaced before encashment of the same.

The pivot of instant appeal surrounds over the fact as to whether or not the Appellants are liable to pay the value of Demand Draft which has not been received by them over misplacement of the same by their banker.

It is important to keep in mind that the receipt issued by any recipient as a token of acknowledgement of Cheque/Demand Draft is always subject to realization of the proceeds thereof by it.  Therefore, mere issuance of money receipt does not construe as a reorganization of payment by the recipient.  No wonder, therefore, that the Appellants have clearly mentioned at the bottom of their Life Insurance Premium Certificate that, ‘Please note that we do not recognize as payment, whether received in cash or cheque or other forms, if it is not honoured or cleared by a bank or not acceptable to the company’.

In the instant case, there is no dispute as to the fact that after receiving the Demand Draft from the Respondent No. 1, the Appellants presented it before their banker, i.e., Respondent No. 3 for clearance of the same.  Once an instrument like Demand Draft is deposited with the banker, the entire responsibility of facilitating clearance of the same and crediting the proceeds thereof, upon successful clearance of the same to the account of the concerned beneficiary, lies with the bank concerned and no one else.  So, holding the Appellants responsible for compensating the Respondent No. 1, despite non-receipt of proceeds of the misplaced Demand Draft and more so, when there is nothing to show that the said Demand Draft has been misused or encashed by any unauthorized person, is akin to ‘one doth the scratch and another hath the scorn’, which being violative of the principles of natural justice, is not acceptable.   In the facts and circumstances of the case, the Appellants can at best be directed to refund the initial deposited amount of Rs. 1,00,000/- to the Respondent No. 1, and nothing else.

The Respondent No. 1, in normal circumstances, could have gone to the issuer of the concerned Demand Draft, i.e., the Respondent No. 2 for issuing another Demand Draft in lieu of the lost Demand Draft and then staked a claim with the Appellants for reimbursement of the incidental charges thereof for the deficiency in service on the part of their banker. In any case, insofar as the amount still lies with the Respondent No. 2, they should refund the same to the Respondent No. 1.

Admittedly, the Demand Draft has been misplaced by the Respondent No. 3.  We are of view that if it is found that the D.D. sent for encashment is misplaced during transit, but the same has not been misused or encashed by any unauthorized person, it does not confer any liability upon the banker to pay the value of concerned D.D. to the concerned beneficiary.   Having said that, we must make it clear that in such circumstances although the Respondent No. 3 could not be held liable to pay the D.D. amount, but they are certainly deficient in service to some extent for which they cannot be absolved of the liability to pay reasonable compensation to the Respondent No. 1, which we assess at Rs. 5,000/-.

In fine, the appeal succeeds in part.

Hence,

ORDERED

That the appeal be and the same is allowed in part on contest against the Respondent Nos. 1&2 and ex parte against the Respondent Nos. 3 and dismissed ex parte against the Respondent No. 4 .  The impugned order is modified as under:-

Appellants and the Respondent No. 2 are hereby directed to pay Rs. 1,00,000/- each to the Respondent No. 1 within 40 days from the date of this order.  Respondent No. 3 is directed to pay Rs. 5,000/- as compensation to the Respondent No. 1 within 40 days from the date of this order. In case of default, the concerned defaulter(s) shall have to pay interest @ 10% p.a. over the awarded amount from this date till full and final payment.