BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 268/2007 against C.C. 237/2005, Dist. Forum, Karimnagar.
Between:
M/s. Apna Bazar,
Sai Matangi Complex
Godavarikhani
Rep. by its Managing Partner
N. Ranga Rao, S/o. Ramgopal Rao
R/o. Godavarikhani,
Ramagundam (Mandal)
Karimnagar Dist. *** Appellant/
Complainant.
And
1. State Bank of Hyderabad
Area Hospital Branch
Godavarikhani
Rep. by its Branch Manager
2. Andhra Bank,
Markapuram Branch
Prakasham Dist.
Rep. by its Branch Manager. *** Respondents/
Ops 1 & 2.
Counsel for the Appellant: M/s. Kotagiri Sreedhar.
Counsel for the Respondent: M/s. K. Keshavardhan Reddy (R1)
M/s. S. Udayachal Rao (R2)
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SMT.M.SHREESHA, LADY MEMBER.
THURSDAY, THIS THE TWENTY NINETH DAY OF APRIL TWO THOUSAND TEN
ORAL ORDER: (Per Hon’ble Sri Justice D.Appa Rao, President.)
***
1) This is an appeal preferred by the complainant, against non-awarding of the amount covered under the cheques besides granting inadequate compensation.
2) The case of the complainant in brief is that it is a partnership concern holding current account with R1 State Bank of Hyderabad. It had presented a cheque Dt. 15.9.2004 issued by Sri Guru Krupa Traders drawn on R2 Andhra Bank for Rs. 71.948/- for collection. When the said cheque was neither returned nor the amount was credited, it had repeatedly made correspondence, followed by legal notice on 4.5.2005. R1 informed that it had sent the cheque to R2 on the very same day for collection.. R2 in turn gave response stating it returned the cheque for insufficient funds. However, the said cheque as well as memo was mis-placed. Since neither R1 nor R2 did not take proper action nor returned the cheque and alleging that the very mis-placement of cheque constitutes deficiency in service claimed the amount covered under the cheque together with interest @ 9% p.a., Rs. 50,000/- towards compensation and Rs. 5,000/- towards costs.
3) R1 State Bank of Hyderabad resisted the case. While admitting that the cheque was presented to it and immediately on 23.9.2004 it had sent it for collection to R2 Andhra Bank through Professional Couriers. It was received by the Manager of R2 - Andhra Bank. When it did not receive the proceeds of the cheque nor cheque was returned it had addressed letters informing that in case of delay it would not be held responsible. Finally on 16.8.2005 it has received a letter from R2 mentioning that the cheque was misplaced at their end. However the cheque was returned due to insufficient funds. In the course of dispatch of the instrument owing to clerical error, it was misplaced at their end. Therefore it addressed a letter to R2 to get a duplicate cheque from the drawer and remit the proceeds or return the cheque for insufficient funds. There was no deficiency in service on its part, and therefore prayed for dismissal of the complaint with costs.
4) R2 Andhra Bank equally resisted the case. It alleged that the complaint was bad for non-joinder of Gurukrupa Traders, Markapur which had issued the cheque. When it has received the cheque from R1 bearing No. 519084 Dt. 15.9.2004 for Rs. 71,948/- it had verified the account and found that there were insufficient funds. Accordingly it had prepared cheque return memo along with original cheque and entrusted to Speed and Safe couriers, Makapur. It had acknowledged in the courier book at S.No. 8 on 7.10.2004. It was under bonafide impression that the cover was delivered to R1. After coming to know that it was not received, it had given a reply. In fact it had approached M/s. Gurukrupa Traders, Markapur and requested to issue duplicate cheuqe for onward transmission. However, it could not get any response. The original cheque was misplaced by the courier. There was no willful negligence on its part. They have lodged a complaint to the police. It was ready to extend all possible co-operation to the complainant in the event of initiation civil and criminal proceedings against M/s. Gurukrupa Traders, Markapur for recovery of the amount. The complainant was not entitled to any of the amounts. Therefore it prayed for dismissal of the complaint with costs.
5) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A14 marked, while the respondents filed Exs. B1 to B4.
6) The Dist. Forum after considering the evidence placed on record opined that R1 & R2 were negligent in pursuing the matter to see that the cheque was returned and constitutes deficiency in service. Therefore it directed them to pay an amount of Rs. 5,000/- towards compensation with interest @ 9% p.a., from the date of complaint till the date of payment together with costs of Rs. 500/-.
7) Aggrieved by the said order, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. When R1 & R2 due to their negligence misplaced the cheque they were liable to pay double the cheque amount along with interest together with compensation and costs.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) It is an undisputed fact that the complainant received a cheque Dt. 15.9.2004 for Rs. 71,948/- from M/s. Gurukrupa Traders, Markapur towards the amount payable by it to the complainant. The complainant presented the cheque with R1 his banker, which in turn sent it to R2 for collection as M/s. Gurukrupa Traders, Markapur, was having account with R2. It is positive case of R2 when it has verified the account of M/s. Gurukrupa Traders it had found that there were insufficient funds and therefore they returned the cheque along with a memo through courier. The courier had misplaced the cheque. Therefore R2 in its counter requested the complainant to co-operate with it stating that “ O.P. No. 2 is ready to extend all possible co-operation with the complainant, in the event of initiating civil and criminal proceedings against M/s. Gurukrupa Traders, Makapur for recovery of the amount covered under the cheque and also for prosecution against the said firm.”
10) Despite the fact that R2 had categorically stated that M/s. Gurukrupa Traders was not having sufficient funds and the cheque was bounced, the complainant did not issue any notice to M/s. Gurukrupa Traders alleging that the cheque was issued without sufficient funds. It did not even implead M/s. Gurukrupa Traders as a party in order to verify the truth or otherwise of the averment made by R2. Evidently no deficiency in service can be attributed against R1, as it had promptly sent the cheque that was presented to R2 for collection. Equally R2, after verifying the account of M/s. Gurukrupa Traders returned the cheque along with a memo through regular courier to R1. Unfortunately in transit the courier had misplaced the cheque. In the circumstances R1 & R2 requested the complainant to join either for recovery of the amount from M/s. Gurukrupa Traders or for taking legal action against M/s. Gurukrupa Traders. The complainant did not choose to take either of the course solely on the ground that the cheque that was presented was misplaced he intends to recover the amount from the bank. We reiterate that there was no deficiency in service either on the part of R1 or R2 in this regard. The complainant obviously, as he was aware that he could not collect the amount from M/s. Gurukrupa Traders as it was not having sufficient funds, instead of taking action against M/s. Gurukrupa Traders it intended to easily recover the amount from the banks. Obviously an unjustified claim by the complainant for the amount payable by its debtor M/s. Gurukrupa Traders. In fact the banks did not prefer any appeal when a compensation of Rs. 5,000/- was awarded against them.
11) The learned counsel for the appellant relied a decision in Mohd Ayub Vs. Manager, Central Bank of India reported in 2006 CTJ 429 (CP) (NCDRC) for claiming amount from the bank. That was a case where the bank was entitled to collect the amount by way of indemnity though the cheque was lost. In that context it was held that there was lapse on the part of the bank and opined that it constitutes negligence and therefore directed to pay the amount covered under the cheque.
12) The other decision that was relied was pertaining to the housing activity by the statutory body. In Lucknow Development Authority Vs. M. K. Gupta reported in III (1993) CPJ 7 (SC) it was held that the building activity carried by the statutory body would be a service amenable to the Consumer Protection Act. We do not see how the said decision could be applied to the facts of the instant case.
13) To sum up, the complainant did not choose to take action against M/s. Gurukrupa Traders despite the fact that R2 informed that the cheque was returned for insufficient funds and the cheque was lost in transit after it was entrusted to courier. R1 & R2 could prove that cheque was not lost, when it was in their possession. The cheque was lost in transit while it was sent through courier. The complainant ought to have impleaded M/s. Gurukrupa Traders for realizing the amount. Importantly it is not its case that somebody had encashed the cheque.
14) In the light of above facts, we are of the opinion that there was no deficiency in service on the part of respondents and that the complainant was not entitled to the amount covered under the cheque. We do not see any merits in the appeal.
15) In the result the appeal is dismissed. No costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 29. 04. 2010.
*pnr
“UP LOAD – O.K.”
