Heard learned counsel for the appellant. None appears for the respondent.

2.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.

3.                   The case     of the complainant,in nutshell  is that Baranagar Jute Mill Pvt.,Kolkata issued a cheque  dtd.01.05.2007  for Rs.12,500/- in favour of the complainant who submitted it in the OP No.1-Bank on 04.05.2007 for realization of that amount from the account of the Baranagar Jute Mill Pvt.. It is alleged inter-alia that the complainant waited for about one month for collection of  the cheque amount  but the amount  was not collected. The complainant also informed the OP No.1  several times  to ascertain about the collection of the money but   it was in vain. Thereafter the complainant also informed the higher authorities but it was not collected so far. Therefore, the complaint  was filed showing deficiency in service on the part of the OP.

4.            The  OP  No.1 & 3    filed written version stating that  the cheque  in question  was sent  by registered post    on dtd.08.05.2007 to the SBI,Sealdah branch  for collection  from the account of OP No.2 but said cheque has been lost in transit. Therefore, they have no deficiency in service on the part of the OP No.1 & 3.

5.                 OP No.2 filed separate written version stating that cheque in question has not been received by the SBI,Pattamundai branch. So,  there is no deficiency in service on the part of the OP No.2.  

6.                       After hearing both the parties, learned District Forum   passed the following order:-

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                              “That, the complaint petition is allowed on contest against the OP No.1 and dismissed on contest against OP No.3. Since, OP No.2  has no role to play in the matter of collection of the amount and deposit of the same in the S.B. Account of the complainant the complaint is also dismissed  on contest against OP No.2. The OP No.1 is hereby directed  to pay the cheque amount of Rs.12,500/- to the complainant immediately with interest  @ 5 % per annum from the date of  deposit  the cheque i.e. from dtd.1.5.07 till the date of payment. Since, the complainant has unnecessarily harassed with so much of mental agony, a compensation of Rs.2000/- is hereby directed to be paid by OP No.1 to the complainant. Cost of litigation is assessed at Rs.500/- to be paid by OP No.1 to the complainant over and above  the cheque amount and compensation. This order is to be complied within one month from the date of this judgment,failing which  higher interest @ 10 per cent shall be paid on the cheque amount to the complainant.”

7.               Learned counsel for the appellant submitted that  learned  District Forum has committed error in law by not passing the correct impugned order whereunder  the OP was asked to pay the cheque amount  but the cheque amount can not be ordered when it is lost in transit. According to him, since missing of cheque in transit  is not under the control of OP No.1 & 3, the direction for payment of the cheque amount is incorrect. Therefore,  he submitted to set-aside the impugned order by allowing the appeal. He also cited a decision of Hon’ble National Commission  of 2009 CPJ 44 Azhar Mohammed  & Others-Vrs- Punjab National Bank  in support of his submission.

8.                      Considered the submission  of learned counsel for the appellant, perused the DFR and impugned order.       

9.                 It is admitted fact that the Baranagar Jute Mill Pvt.,Kolkata  had issued a cheque in favour of the complainant of Rs.12,500/-. It is also not in dispute that the said cheque was deposited by the complainant and the OP No.1 –Bank to realize same from OP No.1 who is the banker of the Baranagar Jute Mill Pvt.,Kolkata. It is also not in dispute that the said cheque  was not realized from the OP No.3 for its credit to the account of the complainant. Now question arises whether the complainant has proved deficiency in service on the part of the OP. The OP has admitted  that  the cheque amount of Rs.12,500/- has been lost in transit. When it is lost in transit then it can be taken as negligence   by the issuing branch or negligence by the carrier of the cheque. The carrier of the cheque also may be a bank employee or may be  courier employee. But the fact remains that the cheque has not been realized from the OP No.2-Branch. Thus, there is deficiency in service on the part of the OP No.1 & 3  clearly established by the complainant. 

10.             Now the question arises  whether the complainant is entitled  as to the compensation  or the cost of the cheque or  both. Now the decision cited by the learned counsel for the appellant is  produced. We have gone through the decision and we find that they have  citied earlier decision of this Commission   as to  why the missing of the cheque will not be payable  to the complainant. However, there is decision of Hon’ble Supreme Court that in the event of missing of cheque in transit,  the cheque amount is not payable but compensation by OP is payable  for negligent.  We therefore of the view that Rs.12,500/-  by complainant is  payable by the OP No.1 to the complainant within a period of 45 days. If it is not payable the same will carry interest @ 9 %  per annum  from the date of impugned order. The cost be payable by the OP to the complainant. Rest  part of the order is set-aside.

                    Appeal is disposed of accordingly.

                   Free copy of the order be supplied to the respective parties or they may download same from the confonet  or webtsite of this  Commission to treat same as copy of order received from this Commission.   

                     DFR be sent back forthwith.