KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NOS.251/07, 255/07 & 259/07 COMMON JUDGMENT DATED 20.7.10 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER APPEAL NO.251/07Manager, Central Bank of India, -- APPELLANT Mavelloor Branch. (By Adv.V.V.Sidharthan) Vs. 1. Sri.Selvaraj, Ayyanathu Nikarthil, CMC.11 Cherthala. 2. The Manager, Cherthala Co-operative Urban Bank Ltd., Morning & Evening -- RESPONDENTS Branch, Cherthala. 3. The Manager, Lord Krishna Bank Ltd, NNP Buildings P.B.No.19, Muttom bazaar, Cherthala. (R1 by Adv.G.S.Kalkura, R2 by Adv. R.Krishnan Nair & R3 by Adv.V.S.Bhasurendran Nair) APPEAL NO.255/07The Manager, Cherthala Co-operative Urban Bank Ltd., Morning & Evening -- APPELLANT Branch, Cherthala.P.O, Alappuzha. (By Adv. Adv. R.Krishnan Nair Vs. 1. Sri.Selvaraj, Ayyanathu Nikarthil, CMC.11 Cherthala, Alappuzha. 2. The Manager, Lord Krishna -- RESPONDENTS Bank Ltd, NNP Buildings P.B.No.19, Muttom bazaar, Cherthala, Alappuzha. 3. Manager, Central Bank of India, Mavelloor Branch. (R1 by Adv.G.S.Kalkura, R2 by Adv.V.S.Bhasurendran Nair & R3 by Adv.v.v.Sidharthan) APPEAL NO.259/07 The Manager, Lord Krishna -- APPELLANT Bank Ltd, NNP Buildings P.B.No.19, Muttom bazaar, Cherthala, Alappuzha. (By Adv. .V.S.Bhasurendran Nair) Vs. 1. Sri.Selvaraj, Ayyanathu Nikarthil, CMC.11 Cherthala, Alappuzha. 2. The Manager, -- RESPONDENTS Cherthala Co-operative Urban Bank Ltd., Morning & Evening Branch, Cherthala.P.O, Alappuzha. 3. Manager, Central Bank of India, Mavelloor Branch. (R1 by by Adv.G.S.Kalkura , R2 by Adv. R.Krishnan Nair & R3 by Adv.V.V.Sidharthan) COMMON JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above 3 appeals are preferred from the order dated 1st February 2007 passed by CDRF Alappuzha in OP.A.67/2003. The complaint therein was filed against the opposite parties 1 to 3 alleging deficiency in service on their part in handling cheque No.BC 637/102 which was presented by the complainant for encashment before the first opposite party, Cherthala Co-operative Urban Bank Ltd. The second opposite party Lord Krishna Bank Ltd; Cherthala was the collecting bank of the first opposite party bank. The aforesaid cheque was drawn by P.C.Binu as drawer and that the third opposite party, Central Bank of India, Mavelloor Branh is the drawee bank. The complainant Sri.Selvaraj did not get the said cheque encashed. He also did not get the said cheque returned. The complainant alleged negligence and deficiency in service on the part of the opposite parties 1 to 3 in handling the aforesaid cheque which was presented before the first opposite party/bank for encashment on 9.10.02. Thus, the complainant claimed a sum of Rs.50,000/- by way of compensation for the financial loss mental agony and inconvenience suffered by him. 2. The first opposite party, the Manager, Cherthala Co-operative Urban Bank Ltd, filed written version denying the alleged deficiency in service. It was contended that the cheque presented on 9.10.02 was forwarded for collection through the second opposite party, Lord Krishna Bank Ltd. and that the first opposite party was enquiring with the second opposite party bank with respect to the aforesaid cheque presented by the complainant on getting the letter dated 27.12.02 from the second opposite party/bank about the loss of the cheque in transit, the first opposite party orally informed the complainant regarding the loss of the cheque. The first opposite party had also issued letter dated 10.1.03 to the complainant with copy of letter dated 27.12.02 received from the second opposite party. It was further contended that the complainant did not suffer any financial loss or inconvenience and that the agreement dated 29.2.02 with Mr.K.P.Rajagopal, Advocate is a concocted agreement created for the purpose of claiming compensation. Thus, the first opposite party prayed for dismissal of the complaint. 3. The second opposite party/Lord Krishna Bank Ltd, Cherthala filed written version denying the alleged deficiency in service. It was contended that the complainant is not a consumer as far as the second opposite party is concerned; that there was no consumer relationship for the second opposite party with the complainant; that there was no privity of contract between the complainant and the second opposite party; that the cheque received from the 1st opposite party for collection was sent to the third opposite party for encashment and that the third opposite party received the said cheque. It was further contended that the third opposite party informed the second opposite party regarding the loss of the cheque in transit and the same was informed the first opposite party /bank. The second opposite party has also questioned the genuineness of the agreement said to have been executed by the complainant with Advocate Rajagopal. Thus, the second opposite party prayed for dismissal of the complaint with costs. 4. The third opposite party filed written version contending as follows:- There was no deficiency in service on the part of the third opposite party; that the complainant is not a consumer as defined in the Consumer Protection Act; that the third opposite party has not received the alleged cheque; that the third opposite party has not informed the complainant that the alleged cheque was lost in transit. The third opposite party also disputed the genuineness and correctness of the agreement said to have been executed between the complainant and Adv.Rajagopal. Thus, the third opposite party also prayed for dismissal of the complaint with costs. 5. Before the Forum below, the complainant was examined as PW1 and Exts. A1 to A5 documents were marked on his side. The first opposite party, the Manager, Cherthala Co-operative Urban Bank Ltd. was examined as RW1. The second opposite party, the Manager, Lord Krishna Bank Ltd., Muttam Bazar, Cherthala was examined as RW2, and the third opposite party, the Manager, Central Bank of India, Mavelloor Branch was examined as RW3. A witness on the side of the second opposite party was examined as RW4. Ext.X1 document was marked through RW4. Exts.B1 to B16 documents were also marked on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order directing the opposite parties 1 to 3 to pay compensation of Rs.35,000/- to the complainant with interest at the rate of 10% per annum from 26.3.03 (date of the complaint in OP.A.67/03). The complainant was also allowed cost of Rs.500/-. The opposite parties were made jointly and severally liable to pay the aforesaid compensation with interest and costs. Hence the present appeals. A.251/07 is preferred by the third opposite party (the Manager, Central Bank of India, Mavelloor Branch). A.255/07 is preferred by the first opposite party (The Manager, Cherthala Co-operative Urban Bank Ltd. Cherthala) and A.259/07 is filed by the second opposite party (The Manager, Lord Krishna Bank Muttom Bazar, Cherthala). 6. These 3 appeals are preferred from one and the same order passed by CDRF, Alappuzha in OP.A.67/03. The points for consideration are also inter-connected and inter-related and the evidence for appreciation is also one and the same. Hence this Commission is pleased to hear and dispose of these appeals by this common Judgment. 7. We heard all the parties to these appeals. All the parties are represented by the counsel of their choice. The learned counsel for the appellants in these 3 appeals submitted on the strength of the grounds urged in the respective memorandum of the appeal. The learned counsel for the appellants argued for the position that the first respondent/complainant Sri. Selvaraj has not suffered any financial loss or inconvenience and that A4 agreement for purchase of vehicle is a concocted document created for the purpose of claiming compensation from the appellants. The appellant/first opposite party submitted that there was no deficiency in service on the part of the first opposite party/bank and that the bank promptly forwarded the cheque for collection through the collecting bank namely; Lord Krishna Bank, Cherthala and that the complainant was informed promptly about the fate of the said cheque. The counsel for the appellant/first opposite party also pointed out the fact that the complainant presented the cheque for collection after 3 months of issuance of the said cheque. Thus, the appellant/first opposite party prayed for setting aside the impugned order passed against the first opposite party. 8. The learned counsel for the appellant/second opposite party submitted argument note in support of his oral submissions. He much relied on the oral testimony of the complainant as PW1 and pointed out the admission made by the complainant that Advocate Rajagopal was not the registered owner of the vehicle referred to in A4 agreement. He also argued for the position that there was no deficiency in service on the part of the second opposite party, Lord Krishna Bank and that the cheque was lost from the possession of the third opposite party/ Central Bank of India, Mavalloor Branch. He also relied on the testimony of RW4, the delivery messenger of the courier service who delivered the cheque for collection to the third opposite party drawee Bank. Thus, the appellant/second opposite party prayed for setting aside the impugned order passed by the Forum below. 9. The learned counsel for the appellant/third opposite party argued for the position that there is no reliable and acceptable evidence to substantiate the case of the second opposite party that the cheque was delivered to the third opposite party bank for encashment. He also challenged the correctness of the testimony of RW4 and Ext.X1 document produced by RW4. It is also submitted that the complainant has not suffered any financial loss or inconvenience on account of the cheque which was lost. Thus, the appellant/third opposite party prayed for setting side the impugned order passed by the Forum below. 10. For the sake of convenience, the parties to these 3 appeals can be referred to according to their rank and status before the Forum below in OP.No.A.67/03. 11. The complainant was an account holder of the first opposite party, Cherthala Co-operative Urban Bank Ltd. It is admitted by the first opposite party that the complainant presented the cheque bearing No. BC 637/102 for Rs.75,000/- drawn on Central Bank of India , Mavelloor Branch. The drawer of the said cheque is Mr.P.C.Binu. The aforesaid cheque for Rs.75,000/- was presented for collection and encashment on 9.10.02. The complainant as PW1 has also admitted the fact that the aforesaid cheque was in his possession few months prior to the presentation of the cheque on 9.10.02. A4 is the agreement dated 20.9.02. PW1 categorically admitted the fact that he was having the said cheque 4-5 months prior to A4 agreement. No explanation is forthcoming from the side of the complainant for the delay in presenting the cheque for encashment. Anyhow, it is an admitted fact that the said cheque was presented for encashment on 9.10.02 and that the first opposite party forwarded the same for collection to the third opposite party drawee bank. 12. RW1, the Manager of 1st opposite party has also deposed that second opposite party, Lord Krishna Bank is the collecting bank and that the aforesaid cheque which was presented by the complainant was forwarded to the third opposite party for collection through collecting bank, the second opposite party, Lord Krishna Bank, Ltd, Cherthala. RW2, the Manager, Lord Krishna Bank Ltd., Cherthala has admitted the fact that the aforesaid cheque was forwarded by the first opposite party for its encashment through the second opposite party, colleting bank. RW2 further deposed that they used to collect commission from the first opposite party bank for forwarding the cheque for collection and encashment. Thus, it can be seen that the second opposite party was acting as collecting bank by receiving commission from the first opposite party. It is an admitted fact that the first opposite party, Cherthala Co-operative Urban Bank Ltd. had no authority or sanction to forward the cheque for collection directly to the drawee bank. Thus, the first opposite party bank was depending upon the second opposite party bank for getting the cheques collected and encashed. So, the service rendered by the second opposite party, bank can be considered as service availed by the first opposite party bank on consideration. 13. The complainant was an account holder of the first opposite party/bank. There can be no doubt that the first opposite party bank used to collect collection charge for getting the cheque collected through the collecting bank. The definition under Section 2 (1) (0) of the Consumer Protection Act would make it clear that banking service would come under the purview of the term ‘service’. Thus, the complainant who availed the service of the first opposite party/ bank on consideration can be considered as a consumer. The second opposite party also rendered service to the first opposite party/bank on consideration. The aforesaid service was rendered by the second opposite party on behalf of or for the benefit of the complainant who was the Account holder of the first opposite party/bank. At any rate, it can very safely be concluded that the complainant was beneficiary of the service availed by the first opposite party/bank from the second opposite party/bank. Thus, in all respects, the complainant can be considered a consumer as far as the opposite parties 1 and 2 are concerned. 14. Admittedly, the third opposite party/Central Bank of India was the drawee bank. The aforesaid cheque was drawn on third opposite party/bank. The drawer of the said cheque, P.C.Binu was the Account holder of third opposite party/Central Bank of India, Mavalloor Branch. The third opposite party/Bank being the drawee bank is legally bound to honor the cheque drawn by the account holder provided the account is in operation and sufficient fund is available in the account. The third opposite party/Bank was also duty bound to return the cheque in the event of dishonor stating the reason for dishonoring the cheque. Thus, the third opposite party/bank can also be treated as a service provider and that the complainant is a beneficiary of the aforesaid service. The complainant can be treated as a beneficiary of the service which ought to have been rendered by the third opposite party/bank in favour of its account holder, the drawer of the cheque. Thus, it can very safely be concluded that the complainant is a consumer as defined under the Consumer Protection Act, 1986 and the opposite parties 1 to 3 are service providers. There was consumer-service provider relationship between the complainant and the opposite parties 1 to 3. If that be so, the Forum below is perfectly justified in entertaining the complaint preferred by the complainant in OP.A.67/03. 15. The complainant presented the cheque for collection on 9.10.02. The cheque was forwarded by the first opposite party/bank to the third opposite party drawee bank through the collecting bank, the second opposite party/Lord Krishna Bank. Admittedly, the first opposite party/bank could not pay the amount covered by the said cheque to the complainant. The first opposite party also failed to return the cheque. If the cheque was dishonored by the drawee bank, the same should be returned to complainant. The definite case of the complainant was that he was repeatedly enquiring with the first opposite party/bank about the said cheque presented for collection on 9.10.02. But, the first opposite party could give a definite answer only by the letter dated 10.1.03. Thus, there was delay of more than 3 months in giving reply to the complainant about the cheque which was presented on 9.10.02 for collection. The case of the first opposite party that he had informed the complainant orally cannot be accepted. It was the duty of the first opposite party to give a written reply about the cheque which was presented for collection. So, the aforesaid attitude on the part of the first opposite party would show that he was deficient in rendering proper service to the complainant being the account holder. There can be no doubt about the fact that the said cheque presented for collection on 9.10.02 had been lost irrecoverably. It is true that along with A5 letter dated 10.1.2003 the first opposite party had also given copy of the letter dated 27.12.02 (A5 (a) issued by the second opposite party to the first opposite party. It was stated that the said cheque was lost in transit. So, the first opposite party was not in a position to return the cheque which was presented for collection. The first opposite party/bank is answerable for the cheque which was presented by the complainant for collection. There can be no doubt that there was deficiency in service on the part of the first opposite party/bank. 16. The second opposite party has got a case that he forwarded the cheque for collection and encashment to the third opposite party, the drawee bank. On the other hand, the third opposite party, drawee bank would contend that no such cheque was received by the third opposite party/bank. The second opposite party has also relied on some documents to substantiate its case that cheque was delivered to the third opposite party. But, the third opposite party, (RW3) has deposed that no such cheque was received by the third opposite party/bank. The second opposite party as RW2 has taken the stand that the cheque was forwarded to the third opposite party, (drawee bank) through courier service. The delivery messenger of the courier service was examined as RW4. Ext.X1 delivery run sheet was also marked through RW4. But the evidence of RW4 and X1 delivery run sheet are disputed by the third opposite party. The evidence of RW2, the second opposite party and that of RW3, the third opposite party would make it clear that the opposite parties 2 and 3 were adopting hide and seek policy. The complainant/consumer was compelled to run pillar to post. The complainant did not get a definite answer from the opposite parties. In fact, the very conduct and approach of the opposite parties 1 to 3 would make it clear that they were irresponsible in providing proper service to the complainant/consumer. Even if, there was any dispute among the opposite parties 1 to 3 it is for them to settle their disputes among themselves. It is not just or fair on the part of the opposite parties to drag the complainant/consumer to the dispute existing among the opposite parties. So, the Forum below is perfectly justified in making all the opposite parties (opposite parties 1 to 3) deficient in rendering service in the matter of presentation and encashment of the cheque which was presented by the complainant for collection on 9.10.2002. So, the opposite parties 1 to 3 are liable to compensate the complainant for the deficiency in service. 17. The complainant claimed a sum of Rs.50,000/- by way of compensation for deficiency in service on the part of the opposite parties 1 to 3. It is the case of the complainant that he suffered financial loss of Rs.25,000/- because of the lapse on the part of the opposite parties in encashing the said cheque which was presented before the first opposite party for collection on 9.10.02. It is the case of the complainant that he entered into an agreement with Advocate Rajagopal for purchase of a vehicle. Ext.A4 is the agreement entered into between the complainant and Advocate K.P.Rajagopal. The complainant as PW1 has admitted the fact that Advocate K.P.Rajagopal was not the registered owner of the vehicle referred to in Ext.A4 agreement. It is also admitted by PW1 that one M.V Mercy is the registered owner of the vehicle bearing Reg.No.KL-01/F 6444. There is also nothing on record to show that as to how Advocate Rajagopal purchased that vehicle referred to in A4 agreement. How he happened to be the owner in possession of the said vehicle. No document is also forthcoming to show the ownership of Advocate K.P.Rajagopal over the said vehicle referred to in A4 agreement. This circumstance would strengthen the case of opposite parties that A4 agreement is a concocted document which was created for claiming compensation from the opposite parties. 18. It is also come out in evidence that Advocate K.P.Rajagopal referred to in A4 agreement is the junior advocate of K.Radhakrishnan and that the scribe of A4 document is the Advocate clerk of Advocate Mr.K.Radhakrishnan. It is also come out in evidence that A4 agreement was written at the office of Advocate Radhakrishnan. It is an admitted fact that Advocate K.Radhakrishnan had issued lawyer notice on behalf of the complainant to the opposite parties. All these circumstances would strengthen the case of opposite parties that A4 agreement was created for the purpose of claiming compensation from opposite parties. It would in turn show that no such financial loss of Rs.25,000/- was suffered by the complainant. 19. The evidence of the complainant as PW1 would also show that he un-necessarily caused delay in presenting the cheque. The evidence of PW1 would show that the aforesaid cheque was in his possession for 4 – 5 months prior to A4 agreement. No reasonable explanation is forthcoming from the side of the complainant for causing such delay in presenting the cheque. This would also create some doubt about the case of the complainant that he suffered financial loss and inconvenience on account of the loss of the cheque. 20. The Forum below failed to appreciate the facts, circumstance and evidence on record in its correct perspective especially, in the matter of assessing the financial loss said to have been suffered by the complainant. PW1 has categorically admitted that he has not taken any steps to get the amount covered by the said cheque realized from the drawer of the cheque. It is admitted by PW1 that he never approached the drawer of the cheque for getting another cheque for the very same amount. He has not initiated any legal step to get the amount covered by the said cheque from the drawer Mr.P.C.Binu. There is nothing on record to show that the amount covered by the lost cheque was collected by some body else. There is also no case for the complainant that the drawer P.C.Binu denied payment of the cheque amount. It can very safely be concluded that in fact the complainant has not suffered the financial loss or mental agony or inconvenience as alleged. There can be no doubt about the fact that the complainant has to take necessary steps against the drawer of that cheque to get the amount covered by the lost cheque. He has to incur some expenses for taking steps against the drawer of the cheque to collect the amount covered by the lost cheque. Considering all these aspects, the complainant is to be compensated in a just and reasonable manner. The Forum below cannot be justified in awarding compensation of Rs.35,000/-. The finding of the Forum below that the complainant suffered loss of Rs.25,000/- because of the non performance of A4 agreement cannot be accepted. This Commission is of the view that the complainant is to be compensated by awarding a compensation of Rs.10,000/- and that the opposite parties 1 to 3 are to be made jointly and severally liable to pay the aforesaid compensation of Rs.10,000/- to the complainant. The Forum below is justified in awarding cost of Rs.500/- to the complainant. The compensation of Rs.10,000/- will carry interest at the rate of 10% per annum from the date of the impugned order passed by the Forum below. Thus, the impugned order passed by the Forum below is modified accordingly. In the result the above appeals are allowed partly. The impugned order dated 1/2/07 passed by CDRF, Alappuzha in OP. A.67/03 is modified and thereby the appellants/opposite parties are directed to pay compensation of Rs.10,000/- to the first respondent/complainant with interest at the rate of 10% per annum from the date of the impugned order passed by the Forum below with cost of Rs.500/-. The appellants/opposite parties 1 to 3 are jointly and severally liable to pay the aforesaid compensation of Rs.10,000/- with interest and costs to the complainant. As far as the present appeals are concerned, the parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER VALSALA SARANGADHARAN -- MEMBER M.K.ABDULLA SONA -- MEMBER s/L | 
