BEFORE THE CIRCUIT BENCH A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT VISAKHAPATNAM
OF 2008 AGAINST C.C.NO.338 OF 2007 DISTRICT CONSUMER FORUM-I VISAKHAPATNAM
Between
State Bank of India
Andhra University Branch
rep. by its Chief Manager
Waltair, Visakhapatnam
Appellant/opposite party no.1
A N D
- Sri D.Subba Reddy S/o Nagi Reddy
Aged 28 years, R/o D.No.37-10-38,
P.R.Gardens, Visakhapatnam-7
Respondent/complainant
2. Officer in-Charge
SEBI, 15th Floor, Earnest House
194 Nariman Point, Mumbai
Respondent/opposite party no.2
F.A.No. 18 OF 2009 AGAINST C.C.NO.337 OF 2007
Between
State Bank of India
Andhra University Branch
rep. by its Chief Manager
Waltair, Visakhapatnam
Appellant/opposite party no.1
A N D
- Kum. Neelima Bogadhi D/o Sri Santha Rao
Aged 25 years, R/o D.No.49-19-19/1
Lalitha Nagar, Visakhapatnam
Respondent/complainant
2. Officer in-Charge
SEBI, 15th Floor, Earnest House
194 Nariman Point, Mumbai
Respondent/opposite party no.2
Counsel for the Appellant Sri Vamaraju Sri Krishnudu
Counsel for the Respondent No.1 Sri TSR Prasad
Counsel for the Respondent No.2 Served
FAIA 1704 OF 2009 IN FASR NO.3529 OF 2009 AGAINST C.C.337 OF 2007
Between
Kum. Neelima Bogadhi D/o Sri Santha Rao
Aged 24 years, R/o D.No.49-19-19/1
Lalitha Nagar, Visakhapatnam
Petitioner/Appellant/complainant
A N D
- The Branch Manager
State Bank of India
Andhra University Campus Branch
Waltair, Visakhapatnam
2. Officer in-Charge
SEBI, 15th Floor, Earnest House
194 Nariman Point, Mumbai
Respondents/Respondents/opposite parties
Counsel for the petitioner/appellant Sri TSR Prasad
Counsel for the respondent no.1 Sri Vamaraju Sri Krishnudu
Counsel for the respondent no.2 served
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
WEDNESDAY THE TWENTY EIGTH DAY OF JULY
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
The state Bank of India which is the opposite party no.1 in C.C.No.338 of 2007 and CC No.337 of 2007 is the appellant. The appeal is directed against the orders passed by the District Forum-II, Visakhapatnam.
Both the appeals have been filed assailing the orders passed in CC 338 of 2007 and CC No.337 of 2007 whereby the District Forum has passed award granting compensation of an amount of Rs.50,000/- to the complainant in CC No.338 of 2007 and Rs.10,000/- to the complainant in C.C.No.337 of 2007. The facts of both the cases being identical in nature, the two appeals have been taken up for disposal by a common order. F.A.No.1617 of 2008 is taken as the lead case. For the sake of convenience the parties are referred to as they have been arrayed in the complaint.
The factual matrix of the case is that the complainant had submitted application form along with DD bearing No.253534 dated 8.9.2005 for Rs.250/- to the opposite party no.1 for the post of Legal Trainee to the opposite party no.2. The complainant had not received the hall ticket till four days to the date of examination. The opposite party no.2 advised the candidates who did not receive call letters to come directly to the examination centre and collect the same there. The complainant was informed by the opposite party no.2 at the examination centre that his application was rejected for the reason that the demand draft enclosed to his application was not signed by the opposite party no.1. The complainant attributed negligence to the opposite party no.1 for his failure to get the hall ticket whereas the opposite party no.1 while admitting the issuance of the demand draft in favour of the opposite party no.2 denied that there was deficiency of service and that the complainant lost better opportunity to settle in life by getting a good job. The opposite party no.1 had cast duty on the complainant to verify the particulars on the demand draft including the aspect of signature. The opposite party no.1 had taken the plea that the legal notice was issued after a lapse of one year and its counsel had given a reply dated 31.8.2006 to the complainant’s counsel.
It was contended by the opposite party no.1 that the opposite party no.2 could have returned the demand draft had it been that on account of the absence of signature in the demand draft the complainant’s application was not found in order and the complaint could have been asked to resubmit the application after due rectification and there was no evidence to the effect that the demand draft was presented by the second opposite party to State Bank of India, Mumbai Branch for payment. As per the bank’s instructions, SBI Mumbai Branch or any other branch at which demand draft is payable would scrutinize the demand draft and pays the amount if it were prima facie in order and later get the confirmation from issuing branch. The opposite party no.2 had submitted that the dispute is essentially between the complainant and the opposite party no.1 and it is no way related thereto. It is stated that the opposite party no.2 was impleaded unnecessarily as also that the complainant is not a consumer within the meaning Sec.2(1)(d) of C.P. Act insofar as the claim against the opposite party no.2 is concerned.
The complainant has filed his affidavit and got marked Exs.A1 to A8. The Branch Manager of opposite party no.1 and office-in-charge of opposite party no.2 have filed their affidavits. Exs.B1 to B3 have been marked on behalf of the opposite parties.
The point for consideration is whether the order of the District Forum is vitiated by the misappreciation of fact or law?
The complainant has obtained demand draft bearing No.2543534 dated 8.9.2005 for Rs.250/- from the opposite party no.1 payable at State Bank of India Mumbai Branch and he had sent his application with the demand draft enclosed thereto for the post of legal trainee to the opposite party no.2. Copy of demand draft issued on 15.12.2005 evidences payment of the amount Rs.250/- by the complainant. A perusal of the copy of the demand draft the original of which is Ex.B3 shows that the signature of the opposite party no.1 therein is conspicuously absent. The complainant has got issued notice on 18.8.2006 to the opposite party no.1 claiming compensation of Rs.50,000/- attributing the negligence to the opposite party no.1 that the demand draft issued by the opposite party no.1 was not valid without the signature of the opposite party no.1 and as such he could not get the hall ticket for appearing at the examination.
The opposite party no.1 refutes the charge of negligence contending that the complainant could have been vigilant to scrutinize the demand draft immediately it was issued to him and in the equal tone the oppose party no.1 contends that even if there was no signature of the oppose party no.1 in the demand draft, it could have been encashed by the payee bank with due consultation of the opposite partyno.1. The demand draft was not returned by the opposite party no.2 to the complainant nor was submitted to the payee bank. The opposite party no.1 thus has, by the theory of equal magnitude of negligence on the part of the complainant and the opposite party no.2 as well, successfully minimized the effect of issuing the demand draft without there being the signature of its branch manager.
The opposite party no.1 has contended that, as aforesaid even in the absence of the signature of the opposite party no.1 yet the demand draft is payable by the payee bank of course, subject to consultation and confirmation of the drawee bank. The opposite party no.1 has relied upon the memo dated 11.9.2007 issued by the State Bank of India, Puri Branch wherein it is clearly stated that they have paid the demand draft bearing No.959995 dated 30.8.2007 for Rs.750/- even though the draft was not containing the signature of the manager of the drawee bank. The State Bank of India, Puri Branch sought for confirmation of issuance of draft by fax message. By this memo it is evident that the demand draft that does not contain the signature of the branch manager of the drawee bank is not invalid and can be encashed at the payee bank which would ask for confirmation from the drawee bank.
The opposite party no.2 except stating that the complainant had enclosed a demand draft without signature of the opposite party no.1 to his application whereby his application was rejected, has not adduced any evidence to the effect that a demand draft that sans the signature of the branch manager of the issuing bank is not payable. The opposite party no.2 had not sent the demand draft submitted by the complainant to the SBI Mumbai Branch and bluntly contended that it is not at fault and the dispute necessarily is in between the complainant and the opposite party no.1, oblivious of the fact that it is the oppose party no.2 by whose negligence neither the complainant was informed about the lack of signature of the branch manager in the demand draft nor the demand draft was sent to the payee bank in Mumbai.
The complainant is educated and not an un-employee. He had contended that he had lost the opportunity to settle in life and that he could not appear for the examination conducted by the opposite party no.2 due to the demand draft that was issued in the present form by the opposite party no.1. Immediately after receipt of the demand draft a purchaser of the draft is supposed to check the contents thereof and the complainant being an educated as also a practicing lawyer has the responsibility of going through the contents of the demand draft after obtaining the same from the opposite party no.1. It is interesting to see that the complainant who claims himself to be a candidate for appearing at the examination conducted by the opposite party no.2, neglected to go through the contents of the demand draft that was enclosed to his application.
The complainant being himself negligent in perusing the demand draft which is the basis for his application form, attributes negligence to the opposite party no.1. The opposite party no.1, in turn, attributes negligence to the complainant and the opposite party no.2. The opposite party no.1 was negligent in issuing the demand draft without his signature. The opposite party no.2 is equally negligent and on par with the complainant. The opposite party no.1 as well as the opposite party no.2 was not careful enough or exercised due diligence in giving prior intimation to the complainant and sending the demand draft for encashment to the State Bank of India, Mumbai Branch. It is not a case where the application without any demand draft was received by the opposite party no.2. Compared to the negligence of the oppose party no.1, the deficiency in service on the part of the opposite party no.2 has been the cause for the complainant to have not been able to appear at the exam. The complainant could have made enquiry about the status of his application as he was not issued hall ticket. In this manner the negligence has been manifest at each stage and by the act of each of the parties i.e., complainant, the opposite party no.1 and the opposite party no.2.
The District Forum has ignored the negligence of the complainant and the opposite party no.2 and paid its attention only to the aspect of the absence of the signature of the opposite party no.1 in the demand draft. The complainant has not adduced any evidence in support of his contention that he had undergone training for the purpose of appearing at the examination. It cannot be said the complainant was certain or was there any scope to expect him get selected for the post applied even if it is presumed that the complainant has got through the examination, still the examination cannot be considered as the final stage of the selection process. He has to compete with the other candidates at the oral test. The complainant has not led any evidence that he is an extra ordinary candidate and compared to the other candidates has got 100% chance to get through the examination. Taking into consideration of all these aspects we are of the considered opinion that the complainant is entitled to the amount of Rs.7,000/- which is payable jointly and severally by the opposite parties no.1 and 2.
In the appeal FA 18 of 2009, the facts of the case are very similar in nature as those discussed hereinabove, the complainant was awarded an amount an amount of Rs.10,000/-. The discussion in the above paragraph would answer the claim of the appellant/opposite party no.1.
The complainant in C.C.No.337 of 2007 has filed FASR No.3529 of 2009 with an application for condonation of delay and seeking enhancement of compensation to Rs.50,000/- from Rs.10,000/- as was awarded by the District Forum. As aforesaid, the facts and circumstances of the appeals FA 1617 of 2008 and F.A.No.18 of 2009 filed by the opposite party no.1 are same and the F.A.No.18 of 2009 was filed against the order in C.C.No.337 of 2007, no further discussion is required on this aspect. Insofar as the delay of 218 days sought to be condoned on the ground that her counsel advised her to file the appeal along with an application for condonation of delay. There is no cause much less sufficient cause mentioned in the application. As such the application is liable to be dismissed and also in view of the finding recorded in FA 18 of 2009. Consequently, the appeal is rejected.
In the result F.A.No.1617 of 2008 is allowed modifying the order dated 7.11.2008 in C.C.No.338 of 2007. The opposite parties no.1 and 2 jointly and severally directed to pay an amount of Rs.7,000/- to the complainant. No costs. Time for compliance four weeks.
In the result F.A.No.18 of 2009 is allowed modifying the order dated 7.11.2008 in C.C.No.337 of 2007. The opposite parties no.1 and 2 jointly and severally directed to pay an amount of Rs.7,000/- to the complainant. No costs. Time for compliance four weeks.
In the result F.A.I.A.No.1704 of 2009 is dismissed. Consequently FASR No.3529 of 2009 is rejected.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.28.07.2010
KMK*
