Chandigarh

StateCommission

A/98/2023

YES BANK LTD - Complainant(s)

Versus

SHASHI KUMAR - Opp.Party(s)

DEEPAK JAIN ADV.

15 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

[ADDL. BENCH]

 

 

Appeal No.	:	98 of 2023
Date of Institution	:	02.05.2023
Date of Decision	:	15.02.2024

 

 

[1]      Yes Bank Limited, Ground Floor, SCO 818, NAC Manimajra, U.T. Chandigarh, through authorized signatory Ms.Tanu Sareen, Manager, Yes Bank Limited.

[2]      Yes Bank Limited, 5^th Floor, IFC, Yes Bank Tower Elphinstone (W) Mumbai – 400013, through authorized signatory Ms.Tanu Sareen, Manager, Yes Bank Limited, SCO 808, NAC Manimajra, U.T. Chandigarh – 160101.

…. Appellants

Versus

[1]      Shashi Kumar son of Sh. Gopal Ji Saw, Resident of 304, H-Block, Rail Vihar, MDC-4, Panchkula, Haryana – 134114.  

[2]      M/s Track On Courier Pvt. Limited, Plot No. 112, Aadarsh Colony, Ground Floor, Balongi, Mohali, Punjab.

….Respondents

 

BEFORE:

MRS. PADMA PANDEY, PRESIDING MEMBER PREETINDER SINGH, MEMBER

 

ARGUED BY:    Sh. Deepak Jain, Advocate for Appellants.

Sh. Devinder Kumar, Advocate for Respondent No.1.

Sh. Hoshiar Singh, Advocate for Respondent No.2.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

1]                This appeal is directed against the order dated 15.03.2023, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the Consumer Complaint bearing no.CC/598/2019, in the following terms: -

“8.       Taking into consideration the above discussion & findings as well as settled position of law, we are of the opinion that the deficiency in service has been proved on the part of OP Bank i.e. OPs No.1 & 2. Therefore, the complaint stands allowed against the Opposite Parties No.1 & 2 with direction to pay an amount of Rs.25,000/- to the complainant along with interest @10% p.a. from the date of loss i.e. 7.1.2019 (Ann.OP-4) till its realization.  The OPs No.1 & 2 are also directed to pay complainant compensation amount of Rs.10,000/- along with litigation cost of Rs.7,000/-. 

This order shall be complied with by the Opposite Parties No.1 & 2 within a period of 30 days from the date of receipt of its certified copy, failing which they shall be liable to pay additional compensatory cost of Rs.5000/- apart from above relief.

9.       The complaint qua OP No.3 stands dismissed.”   

 

2]             For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. Lower Commission.

 

3]                Before the Ld. Lower Commission, it was the case of the Complainant/Respondent No.1 that he deposited a cheque of ₹25,000/- with Opposite Party No.1 - Bank on 10.10.2018, which got bounced due to insufficient balance. He went to the Bank to collect cheque, but was informed that the cheque was sent to his address by courier. However, on checking with courier, it was informed that the same was returned to the Bank. On approaching, Opposite Party No.1 - Bank it was informed that they have not received back the said cheque. The complainant accordingly, registered a complaint through customer care against Opposite Party No.1, but received a message regarding closure of the complaint.  Eventually, the Complainant sent an e-mail dated 20.11.2018 to the Bank as well as to Head Grievance of Opposite Parties and exchanged numerous emails, but to no effect.  It was submitted that the complainant took loan from Yes Bank and HDFC Bank for personal purpose, but due to aforesaid this, he was unable to pay the EMI and they charged penalty for late payment every month. Hence, the aforesaid Consumer Complaint was filed before the District Commission, alleging deficiency in service and unfair trade practice on the part of Opposite Parties.

 

4]                In the reply filed before the Ld.Lower Commission, while admitting the factual matrix of the case, Opposite Parties No.1 & 2 pleaded that the reasons why cheque could not be delivered or why it was lost were in the domain of Courier Company, who is solely responsible for the same.  It was stated that the complainant has not stated that the cheque in question was not sent by OPs at the correct address.  It was submitted that when certificate of courier was issued to him and copy of cheque and return memo was also with him then what prevented him to file complaint under Section 138 of the Negotiable Instructions Act as evidence of the Opposite Parties could have been led to prove the matter. However, the complainant concealed the fact from this Commission that on 26.10.2018, he moved written application for change of address with the Opposite Parties (Bank). Moreover, the cheque in question was returned dis-honoured vide return memo dated 16.10.2018 and dispatched through courier on 17.10.2018 (Ann.OP-2 to OP-3). Denying all other allegations and pleading no deficiency in service, the Opposite Party No.1 prayed for dismissal of the Complaint.

 

5]                Opposite Party No.3 contested the claim of the Complainant by filing its separate written reply, inter alia, pleading that there is no privity of contract between it and the complainant. The Complainant has not placed on record the courier receipt.  It was asserted that it was not possible to locate the record of more than three years back, especially when almost three lacs packets are carried every day and that is why there is stipulation in the courier receipt that no claim was to be entertained beyond 30 days and even online data gets erased after 75 days. It has been stated that in the absence of any pre-declared consignment, they are at best liable to pay 4 times, the courier charges as per the norms of courier industry or Rs.100/- in case of packet of documents or Rs.2000/- in case of parcels. The cause of action set up by the complainant was denied and a prayer for dismissal of the complaint was made.

 

6]                After hearing the counsel for the parties and going through the record, the Ld. Lower Commission allowed the complaint, in the manner, as stated above.

 

7]                Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellants/ Opposite Parties No. 1 & 2.

 

8]                We have heard Learned Counsel for the contesting parties and have also gone through the evidence and record of the case, with utmost care and circumspection.

 

9]                The core question that falls for consideration before us is as to whether the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

10]              After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.

 

11]              It is the case of the Appellants that the Ld. Lower Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding.

 

12]              The factum of the cheque in question deposited by the complainant with Appellants, dishonouring and return of the same along with memo and its dispatch by the Appellants through Opposite Party No.3 (Trackon Couriers Pvt. Ltd.) to be delivered to the complainant is not disputed at all.  Also, loss of the aforesaid cheque by the Courier Company is not in dispute. Rather, there remains not even an iota of doubt that the Respondent No.1/ Complainant did not get the original dishonoured cheque from Appellants.  Learned Counsel for the Appellants argued that the Ld. Lower Commission erred in observing that in absence of original cheque and return memo the Complainant could not file case under Section 138 of Negotiable Instrument Act. We find due merit in this argument as no finding has been given by the Ld. Lower Commission as to how the Complainant was prevented from filing the Complaint on the basis of copies of cheque and return memo provided by the bank. Mere loss of cheque does not bar the remedy of the Complaint under Section 138 of Negotiable Instrument Act. Once the Complainant has received the copy of certificate from courier and return memo then by invoking the provisions of Section 65-B of the Evidence Act, Complainant could have filed Complaint against drawer of the cheque in case he wanted to proceed against him.  Notwithstanding this, loss of the subject cheque cannot be ignored. The Appellant thus cannot be absolved for their act of rendering deficient services to the Respondent No.1 as the services of the courier agency i.e. OP No.3 has been hired by them and not by the complainant. In this view of the matter, it was the sole prerogative of the Appellants to deal the matter with their courier agency and not for the Respondent No.1/ Complainant. Therefore, while placing apt reliance on the decision dated 19.07.2019 rendered by the Hon’ble National Commission in  Revision Petition No. 2028 of 2016 – “Manager, Bank of Baroda & Anr. Vs. Chitrodiya Babuji Divanji”, the Ld. Lower Commission has rightly held the Appellants guilty of deficiency in service, which which certainly caused loss and harassment to the complainant. No case is made for any interference in the well reasoned findings recorded by the Ld. Lower Commission.

 

13]              No other point was urged, by the Learned Counsel for the parties.

 

14]              It is demonstrable from a reading of the impugned Order of the Ld. Lower Commission that it is certainly not an order passed without reasons or without applying the judicious mind. The facts and circumstances of the case have been gone into, weighed and considered, and due analysis of the same has been made. It also does not appear to be an order passed without taking into account the available evidence.

 

15]              In the wake of the position, as sketched out above, we are dissuaded to interfere with the impugned order rendered by the Ld. Lower Commission. The appeal being bereft of merit is accordingly dismissed and the order of the Ld. Lower Commission is upheld.

 

16]              The pending application(s), if any, stand disposed off in terms of the aforesaid order.

 

17]              Certified copies of this order be sent to the parties free of charge.

 

18]              The file be consigned to Record Room, after completion.

 

Pronounced

15.02.2024.

                                                                                                  Sd/-

[PADMA PANDEY]

PRESIDING MEMBER

 

 

Sd/-

 (PREETINDER SINGH)

MEMBER

“Dutt”