B GOPA KUMAR filed a consumer case on 29 Apr 2008 against SECRETORY in the Kottayam Consumer Court. The case no is cc/19/2006 and the judgment uploaded on 30 Nov -0001.
O R D E R Sri. Santhosh Kesavanath P., President. The case of the petitioner's is as follows: Petitioner is an account holder of the 3rd opposite party Co-Op. Bank. The petitioner presented a cheque, drawn on the 3rd opposite party bank, for an amount of Rs. 35,000/-, dtd: 30..10..2004, bearing No. 984, to the first opposite party. The first opposite party sent the said a cheque for collection through the second opposite party. The second opposite party is the collection bank of the first opposite party. Since the cheque was not returned on '10..10..2005' the petitioner enquired about the matter to the 1st opposite party, -2- but their was no proper reply. The petitioner requested for a written reply with regard to the non receipt of the negotiable instrument presented by the petitioner to the first opposite party. The first opposite party had given a reply along with a photo copy of the replies given by the second and 3rd opposite party. From the reply given by the 2nd and 3rd opposite parties the petitioner came to know that said instrument was returned unpaid with a memo dt: 3..1..2005 Stating reason insufficient fund. According to the petitioner act of the opposite parties is a clear deficiency of service so, he claims an amount of Rs. 35,000/-, the amount covered under the cheque, for the deficiency in service on the part of the opposite party and also he claims Rs. 5000/- as compensation and cost of proceedings. First opposite party filed version contenting that petition is not maintainable. According to them the said instrument was duly entrested by the first opposite party with the second opposite party for collection further more. When neither the cheque returned nor the amount was received on 29..4..2005 first opposite party issued a letter to the second opposite party. The second opposite party in reply to the said letter intimated to the first opposite party that the said instrument was sent in ordinary post to the second opposite party so, according to the first opposite party there was no deficiency in service on their part. The cheque was lost only due to the deficiency in service on the part of the second and third opposite party. Second opposite party filed version contending that on receipt of the instrument they entrusted the cheque to the 3rd opposite party. The 3rd opposite party received the cheque on 31..12..2004. Since the 3rd opposite party has not encashed the cheque in time second opposite party enquired the matter with the 3rd opposite party. On 8..2..2005 -3- enquiring the said fact the second opposite party sent a reminder letter to 3rd opposite partybut the 3rd opposite party has not replied so far. Further on 3..3..2005 the second opposite party sent a telegram to the 3rd opposite party. The 3rd opposite party sent a reply to the second opposite party that the cheque was dishonoured and it was returned to 2nd opposite party by ordinary post on 3..1..2005. But the returned cheque is not delivered to the second opposite party so far. The third opposite party further contended that the postal department is also a necessary party to the proceedings. According to them there was no deficiency in service on their part. The third opposite party filed version contended that the cheque which was received on 31..12..2004 nd was sent back to the second opposite party on 3..1..2005 under certificate of posting. According to them there was no deficiency in service on their part. So the petition is to be dimissed with their costs. Petitioner's evidence in this case consists of his affidavit and Ext. A1 to A4 documents. 1st opposite party evidence consists of their affidavit and B3 to B11 documents.2nd opposite party evidence consists of their affidavit and 3rd opposite party evidence c onsists of their affidavit and B1 & B2 documents. Points for ditermination are: i) Whether there is deficiency in service on the part of the opposite party? ii) Reliefs and costs. Point No. 1 According to the 3rd opposite party on 31..12..2004. Cheque No. 984 ,issued to the petitioner by the drawee, drawn on the 3rd opposite party bank was received from the -4- 2nd opposite party for collection and due to in sufficiency of fund in the account of the drawer the said cheque was returned to the 2nd opposite party under certificate of posting on 3..1..2005. So no deficiency in service can be attributed against them. In order to prove that the dishonoured cheque was sent Under certificate of posting on 3..1..2005 the 3rd opposite party produced a copy of certificate of posting the said document is marked as Ext. B1, The petitioner produced a copy of letter received to him dated 3..3..2005 issued by the 3rd opposite party to the 2nd opposite party, the said document is marked as Ext. A2. In Ext. A2 it is stated that the instrument was sent by ordinary post. Even if the instrument was sent under undercertificate of posting definitely the 3rd opposite party shall mention the said fact in Ext. A2.. All communication between opposite parties reveals that the instrument was sent by ordinary post. Even assuming that the instrument was sent by under certificate of posting, as alleged by the 3rd opposite party in its version, it has a little asssistance to the 3rd opposite party to prove that they had given due and proper care to give the returned instrument to 2nd opposite party. In a decission reported in 2006 AIR SCW 162 the Honble Supreme Court has observed that evidenciary value of issuance of a communication under certificate of posting of is little assistance. We are of the opinion that while dealing with a negotiable instrument the 3rd opposite party has a bounden duty to send the instrument in registered post. A certificate of posting obtained by a sender is not comparable to a receipt for sending an instrument by registered post. When a letter is sent by registered post a receipt with serial number is issued and a record is maintained by the post office. But when mere certificate of posting is sought, no record is maintained by the post office either about the receipt of the article or the article -5- issued. The case with which such certificate can be produced by affixing ante dated seal with the connivance of any employee of the post office is a matter of concern so, in the absence of such a record, a certificate of posting is of little assistance to the 3rd opposite party to prove that the instrument was sent to the 2nd opposite party. So, the act of the 3rd opposite party sending a negotiable instrument in ordinary post is callous negligence and is a clear deficiency in service. Due to the negligence on the side of the opposite party the petitioner claims Rs. 35,000/- the amount covered by the instrument, for the deficiency in service on the side of the opposite party. In a decision reported in 2007 C.T.J page 37 the Honble National Commission observed that if the account holders cheque deposited for collection is lost or misplaced by the bank he can only claim compensation based on deficiency in service arising out of the loss of the cheque and not for the entire cheque amount So, point No. 1 is found accordingly. Point No. II In view of the findings in point No. 1, petition is to be allowed and the petitioner is entitled to get the reliefs sought for. In the result the following order is passed. The 3rd opposite party is directed to give Rs. 15,000/- to the petitioner for the deficiency in service on their part. Since there is no evidence with regard to suffering and injury no compensation is ordered. The opposite parties are also directed to pay Rs. 1000/- as cost of the proceedings. The opposite parties are ordered to comply the order with within 30 days of receipt of this -6- order. If the opposite parties are not complying the order within time the said amounts will carry 12% interest. Dictated by me transcribed by the Confidential Assistant, corrected by me and pronounced in the Open Forum on this the 29th day of April, 2008.
......................Bindhu M Thomas ......................Santhosh Kesava Nath P
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