COMPLAINT FILED ON: 05.08.2011

DISPOSED ON: 12.09.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

^{12th SEPTEMBER - 2011}

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                   

                     SRI.M.MUNIYAPPA                          MEMBER

       COMPLAINT NO. 378/2011

O R D E R

SMT. M. YASHODHAMMA, MEMBER

          This is a Complaint filed by the Complainant  U/S. 12 of Consumer Protection Act of 1986, by the respective  complainant, seeking direction to the Opposite party (herein after called as O.P) to pay Rs.2 lakhs towards the value of the cheque lost by OP with interest at 18% p.a. from the date of deposit of cheque till the date of payment on the allegations of deficiency in service.

The brief averments made in the complaint are as follows:

2.      Complainant is having savings bank account bearing No.0439101016185 with O.P.1 bank since 20 years.  On 25/2/2010 complainant deposited a cheque bearing No.934498 dated 5/2/2010 issued by one Mr.R.Narayana Swamy drawn on O.P.3 for a sum of Rs.2 lakhs in the above said savings bank account of the complainant.  O.P.1  received the said cheque for clearance and assured.  Complainant that the said cheque will be cleared with in a week.  On the assurance made by O.P.1, Complainant approached O.P.1 Bank in the first week of March 2010 and enquired about the clearance of the said cheque.  O.P.1 evaded to give any information.  Complainant repeatedly requested about the status of the cheque with O.P.1 for a week.  O.P.1 neither give any information nor returned the cheque to the complainant.   Hence complainant approached O.P.2, i.e. local processing cell of O.P.1, O.P.2 advised the complainant to approach O.P.1 in writing.  Hence on 11/3/2010 complainant issued a letter requesting O.P.1 to give the status of the deposited cheque.  To the surprise of the complainant O.P.1 replied that, the said cheque lost in transit vide its letter dated 13/3/2010.  O.Ps. being a custodian of the said cheque failed to take proper care and caution in keeping the deposited cheque and acted negligently in discharging, the duties towards the customer resulting in loss of the cheque.  Hence on 7/6/2010 complainant got issued legal notice calling upon OP to pay the cheque amount and compensation.  O.P.1 gave untenable reply.  O.P.2 & 3 failed to give any reply on 14/6/2010.  Complainant got issued notice to drawn of the cheque Mr.R.Narayana Swamy requesting him to issue duplicate cheque or another cheque in lieu of the cheque lost by O.P.1.  There was no response.  Hence complainant felt deficiency in service against O.P.  Under the circumstances she is advised to file this complaint against OP for the necessary reliefs.

3.      On appearance OP 1 to 3 filed the version.  It is admitted by O.P.1 and 2 that complainant is maintaining S.B.A/c No.043910106185 with O.P.1, O.P.1 & 2 admits that a cheque bearing No.934498 dated:5-2-2010 issued by R.Narayana Swamy drawn on O.P.3 for clearance for clearance on 25/2/2010 in S.B.A/c of the complainant maintained with O.P.1.  OP 1 sent the said cheque to O.P.2, local processing cell of O.P.1 through courier on 26/2/2010.  The acknowledgement given by Incity courier dated 26/2/2010 for having sent the cheque LPC section O.P.2 is produced.  When O.P.1 came to know the fact that the said cheque lost in transit; immediately O.P.1 requested O.P.3 to “Stop payment” of the said cheque and also obtained  confirmation from O.P.1 about the fact of not debiting the cheque amount to the drawer’s account.

3.      On appearance OP filed the version mainly contending that complainant not paid any consideration he is not a consumer.  Complainant was initially a member under CCI master card membership scheme, having satisfied with the service he upgraded his membership to BLMPL scheme in the year 2004.  OP admits payment of Rs.99,000/-.  OP has already issued allotment letter infavour of complainant allotting complimentary plot No.139. and another plot No. 140 under MGM scheme at phase B project II, vedic spa. Since complainant failed to deposit Rs.15,000/- and Rs.20,000/-  towards registration and maintenance  charges, OP  could not register the allotted sites in favour of the complainant. Allotment of plot is subject to Government approvals and sanctions and also availability of the same.  OP is ready to register a complimentary plot at project I, phase 7 extension, situated at vedic spa pandiparthi village, in Sy.No.355/2.  Hindupur Road, Penugonda.  Plans and conversion have been obtained by O.P.  (Though it is contended by OP that conversion order sanction plan and MOU are produced as annexure in fact OP has not produced any documents.)  The membership fee paid is non refundable, same is utilized for development, maintenance of clubs and resorts across the country.  There is no deficiency in service on the part of O.P.  Hence it is prayed to dismiss the complaint.

4.      In order to substantiate the complaint averments Complainant filed his affidavit evidence and produced receipts issued by OP, correspondences, request letters for refund, copy of the legal notice and postal acknowledgements.  On behalf of OP Venkateshverma C., Asst. Administration Manager filed affidavit in support of the defence version.  O.P. has not produced any documents.  Heard arguments from complainant side and taken as heard from O.P. side.

5.      In view of the above said facts, the points now that arises for our consideration in these complaint is as under:

       Point No.1:- Whether the complainant have proved           

                           the deficiency in service on the part of

 the OP?

Point No.2:- If so, whether the complainant is

                   entitled for the reliefs now claimed?

      Point No.3:- To what Order?

6.      Our findings on the above points are: 

Point No.1:- In Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

7.      At the out set it is not in dispute that the complainant attracted by the various offers made by the executive of O.P.  became the member of O.P. club.  Complainant paid Rs.10,000/- on 19/11/2003, Rs.1,100/- on 25/6/2004, Rs.5000/- on 11/8/2004, Rs.8000/- on 17/12/2005, Rs.20,000/- on 24/12/2005, Rs.5000/- on 25/1/2006, Rs.20,000/- on 25/1/2006, Rs.3000/- on 25/1/2006, Rs.17,500 on 21/2/2006, Rs.10,500/- on 26/09/2006 Totally complainant paid Rs.1,00,100/- to O.P. O.P. has admitted receipt of Rs.99,000/- only.  Complainant produced the receipt for Rs.1,100/- dated 25/6/2004 issued by O.P.  O.P. has omitted to consider the same.  We have perused the receipts produced by the complainant.  Now the grievance of complainant is O.P. having accepted Rs.1,00,100/- in the year 2003 to 2006 itself failed to allot and register the complimentary plot, infavour of the complainant.  Inspite of repeated requests and service of legal notice there is no response from O.P.  Hence complainant approached this Forum for the necessary relief.

8.      As against the case of the complainant; the defence of the OP that the Complainant is not a Consumer and membership paid is non refundable has no basis.  OP has contended that it has already issued an allotment letter in favour of complainant allotting complimentary plot No.139 and 140, situated at phase ‘B’, project-II, vedic spa but in support of its defence OP has not produced any supporting evidence such as copy of the allotment letter, postal receipts for having sent the allotment letter etc.  In the absence of any materials the defence of the OP that it has already sent allotment letter cannot be accepted.  Further the defence of the O.P. is that it would register a complimentary plot at project I, phase 7 extension, vedic spa pandiparthi village, Sy.No.355/2, Mandal, Hindupur Road, Penugonda and OP has obtained conversion order, sanction plan.  OP has sworn to the fact  in  para-9  of  its  affidavit that conversion order and sanction

plan are produced as annexure B.  But in fact OP has not produced any single document in support of it’s defence.  Hence in the absence of any supporting evidence we are unable to accept the defence of the OP that OP is ready to register the complimentary plot at project-I, phase-7, vedic spa Hindupur.  If OP is aware of the fact that it cannot allot and register the complimentary plot, it could have fairly refunded the amount to the complainant.  The act of O.P. in not allotting any plot and registering the same. Retention of amount for more than 5 years amounts to deficiency in service on the part of O.P.  Hence we are of the considered view that complainant is entitled for refund of amount paid along with interest at the rate of 12% p.a. as a compensation and litigation cost of Rs.2000/-.  Accordingly we proceed to pass the following

                                                          O R D E R

The complaint is allowed in part.

OP is directed to refund Rs.1,00,100/- to the complainant along with interest at 12% p.a. from  the date of respective payments till realization and pay litigation cost of Rs.2,000/- to the complainant.

This order is to be complied within four weeks from the date communication of this order.

Send the copy of this order both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 06^th day of September 2011.)

MEMBER            MEMBER                PRESIDENT

Rk.

rk.     

COMPLAINT FILED ON: 05.08.2011

DISPOSED ON: 09.09.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

^{09th SEPTEMBER - 2011}

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                    

                     SRI.M.MUNIYAPPA                          MEMBER

       COMPLAINT NO. 1840/2010

O R D E R

SMT. M. YASHODHAMMA, MEMBER

          This is a Complaint filed by the Complainant  U/S. 12 of Consumer Protection Act of 1986, by the respective  complainant, seeking direction to the Opposite party (herein after called as O.P) to pay Rs.2 lakhs towards the value of the cheque lost by OP with interest at 18% p.a. from the date of deposit of cheque till the date of payment on the allegations of deficiency in service.

The brief averments made in the complaint are as follows:

2.      Complainant is having savings bank account bearing No.0439101016185 with O.P.1 bank since 20 years.  On 25/2/2010 complainant deposited a cheque bearing No.934498 dated 5/2/2010 issued by one Mr.R.Narayana Swamy drawn on O.P.3 for a sum of Rs.2 lakhs in the above said savings bank account of the complainant.  O.P.1  received the said cheque for clearance and assured.  Complainant that the said cheque will be cleared with in a week.  On the assurance made by O.P.1, Complainant approached O.P.1 Bank in the first week of March 2010 and enquired about the clearance of the said cheque.  O.P.1 evaded to give any information.  Complainant repeatedly requested about the status of the cheque with O.P.1 for a week.  O.P.1 neither give any information nor returned the cheque to the complainant.   Hence complainant approached O.P.2, i.e. local processing cell of O.P.1, O.P.2 advised the complainant to approach O.P.1 in writing.  Hence on 11/3/2010 complainant issued a letter requesting O.P.1 to give the status of the deposited cheque.  To the surprise of the complainant O.P.1 replied that, the said cheque lost in transit vide its letter dated 13/3/2010.  O.Ps. being a custodian of the said cheque failed to take proper care and caution in keeping the deposited cheque and acted negligently in discharging, the duties towards the customer resulting in loss of the cheque.  Hence on 7/6/2010 complainant got issued legal notice calling upon OP to pay the cheque amount and compensation.  O.P.1 gave untenable reply.  O.P.2 & 3 failed to give any reply on 14/6/2010.  Complainant got issued notice to drawn of the cheque Mr.R.Narayana Swamy requesting him to issue duplicate cheque or another cheque in lieu of the cheque lost by O.P.1.  There was no response.  Hence complainant felt deficiency in service against O.P.  Under the circumstances she is advised to file this complaint against OP for the necessary reliefs.

3.      On appearance OP 1 to 3 filed the version.  It is admitted by O.P.1 and 2 that complainant is maintaining S.B.A/c No.043910106185 with O.P.1, O.P.1 & 2 admits that a cheque bearing No.934498 dated:5-2-2010 issued by R.Narayana Swamy drawn on O.P.3 for clearance for clearance on 25/2/2010 in S.B.A/c of the complainant maintained with O.P.1.  OP 1 sent the said cheque to O.P.2, local processing cell of O.P.1 through courier on 26/2/2010.  The acknowledgement given by Incity courier dated 26/2/2010 for having sent the cheque LPC section O.P.2 is produced.  When O.P.1 came to know the fact that the said cheque lost in transit; immediately O.P.1 requested O.P.3 to “Stop payment” of the said cheque and also obtained  confirmation from O.P.1 about the fact of not debiting the cheque amount to the drawer’s account.

3.      On appearance OP filed the version mainly contending that complainant not paid any consideration he is not a consumer.  Complainant was initially a member under CCI master card membership scheme, having satisfied with the service he upgraded his membership to BLMPL scheme in the year 2004.  OP admits payment of Rs.99,000/-.  OP has already issued allotment letter infavour of complainant allotting complimentary plot No.139. and another plot No. 140 under MGM scheme at phase B project II, vedic spa. Since complainant failed to deposit Rs.15,000/- and Rs.20,000/-  towards registration and maintenance  charges, OP  could not register the allotted sites in favour of the complainant. Allotment of plot is subject to Government approvals and sanctions and also availability of the same.  OP is ready to register a complimentary plot at project I, phase 7 extension, situated at vedic spa pandiparthi village, in Sy.No.355/2.  Hindupur Road, Penugonda.  Plans and conversion have been obtained by O.P.  (Though it is contended by OP that conversion order sanction plan and MOU are produced as annexure in fact OP has not produced any documents.)  The membership fee paid is non refundable, same is utilized for development, maintenance of clubs and resorts across the country.  There is no deficiency in service on the part of O.P.  Hence it is prayed to dismiss the complaint.

4.      In order to substantiate the complaint averments Complainant filed his affidavit evidence and produced receipts issued by OP, correspondences, request letters for refund, copy of the legal notice and postal acknowledgements.  On behalf of OP Venkateshverma C., Asst. Administration Manager filed affidavit in support of the defence version.  O.P. has not produced any documents.  Heard arguments from complainant side and taken as heard from O.P. side.

5.      In view of the above said facts, the points now that arises for our consideration in these complaint is as under:

       Point No.1:- Whether the complainant have proved           

                           the deficiency in service on the part of

 the OP?

Point No.2:- If so, whether the complainant is

                   entitled for the reliefs now claimed?

      Point No.3:- To what Order?

6.      Our findings on the above points are: 

Point No.1:- In Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

7.      At the out set it is not in dispute that the complainant attracted by the various offers made by the executive of O.P.  became the member of O.P. club.  Complainant paid Rs.10,000/- on 19/11/2003, Rs.1,100/- on 25/6/2004, Rs.5000/- on 11/8/2004, Rs.8000/- on 17/12/2005, Rs.20,000/- on 24/12/2005, Rs.5000/- on 25/1/2006, Rs.20,000/- on 25/1/2006, Rs.3000/- on 25/1/2006, Rs.17,500 on 21/2/2006, Rs.10,500/- on 26/09/2006 Totally complainant paid Rs.1,00,100/- to O.P. O.P. has admitted receipt of Rs.99,000/- only.  Complainant produced the receipt for Rs.1,100/- dated 25/6/2004 issued by O.P.  O.P. has omitted to consider the same.  We have perused the receipts produced by the complainant.  Now the grievance of complainant is O.P. having accepted Rs.1,00,100/- in the year 2003 to 2006 itself failed to allot and register the complimentary plot, infavour of the complainant.  Inspite of repeated requests and service of legal notice there is no response from O.P.  Hence complainant approached this Forum for the necessary relief.

8.      As against the case of the complainant; the defence of the OP that the Complainant is not a Consumer and membership paid is non refundable has no basis.  OP has contended that it has already issued an allotment letter in favour of complainant allotting complimentary plot No.139 and 140, situated at phase ‘B’, project-II, vedic spa but in support of its defence OP has not produced any supporting evidence such as copy of the allotment letter, postal receipts for having sent the allotment letter etc.  In the absence of any materials the defence of the OP that it has already sent allotment letter cannot be accepted.  Further the defence of the O.P. is that it would register a complimentary plot at project I, phase 7 extension, vedic spa pandiparthi village, Sy.No.355/2, Mandal, Hindupur Road, Penugonda and OP has obtained conversion order, sanction plan.  OP has sworn to the fact  in  para-9  of  its  affidavit that conversion order and sanction

plan are produced as annexure B.  But in fact OP has not produced any single document in support of it’s defence.  Hence in the absence of any supporting evidence we are unable to accept the defence of the OP that OP is ready to register the complimentary plot at project-I, phase-7, vedic spa Hindupur.  If OP is aware of the fact that it cannot allot and register the complimentary plot, it could have fairly refunded the amount to the complainant.  The act of O.P. in not allotting any plot and registering the same. Retention of amount for more than 5 years amounts to deficiency in service on the part of O.P.  Hence we are of the considered view that complainant is entitled for refund of amount paid along with interest at the rate of 12% p.a. as a compensation and litigation cost of Rs.2000/-.  Accordingly we proceed to pass the following

                                                          O R D E R

The complaint is allowed in part.

OP is directed to refund Rs.1,00,100/- to the complainant along with interest at 12% p.a. from  the date of respective payments till realization and pay litigation cost of Rs.2,000/- to the complainant.

This order is to be complied within four weeks from the date communication of this order.

Send the copy of this order both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 06^th day of September 2011.)

MEMBER            MEMBER                PRESIDENT

Rk.

rk.