(Per Shri Dhanraj Khamatkar, Hon’ble Presiding Member)
(1) This appeal takes an exception to an order dated 25/05/2012 in consumer complaint No.545/2008, 1.Dr.Pushpakala R. Jimulia & anr. vs. State Bank of India, passed by Mumbai Suburban District Consumer Disputes Redressal Forum, Bandra East, Mumbai (hereinafter referred to as ‘forum below’).
(2) The facts leading to the appeal can be summarized as under:-
The appellants are original complainants. They filed the consumer complaint before Mumbai Suburban District Consumer Disputes Redressal Forum, Bandra East, Mumbai under Consumer Protection Act, 1986 alleging that they are having bank account with the opponent/respondent bank at Andheri Branch since 2005. They contended that they have been allotted right issue shares of Tata Steel Company and for allotment of the said shares they have issued a cheque of `3,54,000/- dated 17.12.2007. However, in the clearing, the said cheque was not encashed. They enquired with the opponent/respondent bank about the dishonouring of the cheque and they were told that the signature on the cheque did not tally with the specimen signature with the bank and hence the cheque was dishonoured. Resultantly, the original complainants/appellants could not get the right shares of Tata Steel Co. Ltd. Alleging this deficiency in service on the part of the original opponent/respondent bank, they filed consumer complaint praying that the opponent/respondent bank be declared as a guilty in deficiency in service, direct the opponent/respondent bank to provide 1180 shares of Tata Steel Co.Ltd. @`300/- or to direct the opponent/respondent bank to pay `7 lacs along with interest @24% p.a., to direct the opponent/respondent bank to pay bonus, dividend arose and to award the compensation of `2 lacs for the mental agony and inconvenience and `20,000/- as costs.
(3) The opponent/respondent bank contested the complaint on the ground that there is no deficiency on their part. They further contended that the complainants/appellants have attached the cheque along with an application submitted to Tata Steel Co.Ltd. and Tata Steel Co.Ltd. had deposited the cheque in HDFC Bank and HDFC Bank had forwarded the cheque to the opponent/respondent bank for clearance. At the time of clearance, the opponent/respondent bank noticed that the signature on the cheque does not tally with the specimen signature of the appellants/complainants in the bank and hence they dishonoured the cheque. They further contended that the complaints should have issued fresh cheque. Further, appellants did not issue fresh cheque and because of their negligence they did not receive right shares of Tata Steel Co.Ltd. Therefore, opponent/respondent prayed that there is no deficiency on their part and hence the complaint may please be dismissed.
(4) The District Forum after going through the complaint, written version, evidence filed by both the parties and the pleadings of their advocates, have come to the conclusion that there is deficiency in service on the part of the opponent/respondent bank. However, the learned forum observed that the complainants are not consumer as per Sec.2(1)(d) of the Consumer Protection Act, 1986 as the cheque issued was for making the profits by purchasing shares of Tata Steel Co.Ltd. Being aggrieved by the order, the original complainants have filed the present appeal challenging the order dated 25/05/2012.
(5) We heard Ms.Tanmaya Gadre-proxy advocate for M/s.Little & Co. for the appellants. Respondent bank, though served, remained absent.
(6) We have gone through the consumer complaint, written version filed by the opponent/respondent, evidence filed by both the parties on affidavits and the order passed by the forum below.
(7) Admittedly, the appellants/original complainants have savings account in the opponent/respondent bank since 2005. Admittedly, they applied for 1180 shares as right equity shares of Tata Steel Co.Ltd. along with cheque of `3,54,000/- dated 17/12/2007. The cheque came for clearance to the opponent/respondent bank and the opponent/respondent bank has dishonoured the cheque on 20/12/2007 on the ground that the signature on the cheque does not tally with the specimen signature of the complainants. It is the contention of the complainants that there is no variation between the signature on the cheque and the specimen signature. In support of their contention, they have filed a report of hand writing expert, which is at Annexure ‘A’, page No.97 of the appeal compilation, where in the hand writing expert has given opinion that the signature on the cheque issued and specimen signature tallies. The opponent/respondent bank has not challenged the hand writing expert’s opinion. In the written version, the opponent has stated that the complainant should have issued the fresh cheque. However, whether they have communicated this to the complainant is not on record. The forum below had also held that this is a deficiency in service on the part of the opponent/respondent bank.
(8) The forum below had observed that the cheque was issued by the complainants to purchase the shares and the intention of purchasing the shares was to earn profit and hence come to the conclusion that the complainants are not consumers as per the Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. While arriving at this conclusion, the forum below has relied upon the decision of the National Commission in – Dr.Goutam Das Vs. Sun Pharmaceuticals Industries Ltd., 2010 NCJ 689 (NC).
(9) The learned counsel for the appellant vehemently argued that being an account holder of the opponent/respondent bank, the complainants are the consumers. They have issued a cheque. However, the cheque has been dishonoured by the opponent bank on the ground that the signature on the cheque differs from the specimen signature. The complainants have stated that there is no difference between the signature on the cheque and specimen signature. In support of their contention, they have adduced evidence of the hand writing expert, who endorsed the contention of appellants. The opponent/respondent has not challenged this testimony. At the time of issuing the cheque, there was a sufficient balance in the account of the complainants. So, there is a deficiency in service on the part of the opponent/respondent bank.
(10) The learned counsel for the appellants/complainants relied on the observations of the National Commission in FA No.22/1989, Synco Textiles Pvt.Ltd. Vs. Greaves Cotton & Company Ltd., decided on 06/04/1990 {reported in I (1991) CPJ 499} wherein it is observed that “the intention of Parliament must be understood to be to exclude from the scope of the expression ‘consumer’ any person who buys goods for the purpose of their being used in any activity engaged on a large scale for the purpose of making profit.” Further it is observed that “it is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. In orde that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large scale activity carried on for earning profit.”
(11) Similarly, the learned counsel for the appellants/complainants relied on the authority – Madan Kumar Singh (dead) through LR Vs. District Magistrate, Sultanpur & ors., in Civil Appeal No.5165 of 2009 with No.5166 of 2009 decided on 07/08/2009 by the Apex Court {reported in (2009) 9 Supreme Court Cases 79} wherein their Lordship observed that “the immediate purpose as distinct from the ultimate purpose of purchase, sale in the same form or after conversion and a direct nexus with profit or loss would be the determinants of the character of a transaction – whether it is for a ‘commercial purpose’ or not. Thus, buyers or goods or commodities for ‘self consumption’ in economic activities in which they are engaged would be consumers as defined in the Act.”
(12) In the present case before us the opponent/respondent bank has dishonoured the cheque on the ground that the signature on the cheque differs from specimen signatures. There is direct relationship between the complainants and opponent/respondent bank as consumer and service provider. Purchase of shares through the cheque which was dishonoured cannot be termed as a commercial activity in view of the aforesaid rulings particularly in view of the observation in order that exclusion clause should apply. It is, however, necessary that there should be a close nexus between the transaction of purchase of goods and the large scale activity carried on for earning profit. The forum below has wrongly come to the conclusion that purchasing of shares is commercial activity. The authority relied by the forum below is not relevant in the case as the facts and circumstances of the case relied are not relevant in the case. On the contrary, purchasing of the shares is an investment and not commercial activity and hence the provisions of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 will not exclude the complainants as a consumer. The complainants have prayed for compensation of `7 lacs along with interest @24% p.a. and other reliefs along with compensation suffered by the complainant due to deficiency in service on the part of the opponent. With regard to award of compensation u/s.14(1)(d) of the Consumer Protection Act, 1986, Their Lordships of the Hon’ble Supreme Court in Consumer Unity & Trust Society, Jaipur Vs. The Chairman & Managing Director, Bank of Baroda, Calcutta & Anr. ~ 1986-95-CONSUMER-1546-(NS); observed as follows :-
“Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. But the negligence for which a consumer can claim to be compensated under this sub-section must cause some loss or injury to him. Loss is a generic term. It signifies some detriment or deprivation or damage. Injury too means any damage or wrong. It means ‘invasion of any legally protected interest of another’. Thus the provisions of Section 14(1)(d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any, must flow from negligence.”
(13) Here, because of the deficiency in service or negligence on the opponent/respondent bank, the appellants could not get shares of Tatal Steel Co.ltd. and thereby legal injury is caused to the complainants and they need to be compensated. The appellants have prayed for a compensation of `7 lacs towards the direct loss suffered by the complainants due to negligence of the opponent/respondent bank along with interest @24% p.a. Under the given state of circumstances, we feel that the directing opponent/respondent bank to pay an amount of `7 lacs to the appellants will be fair, reasonable and would serve ends of the justice. As we are allowing the compensation, we do not consider other reliefs prayed by the appellants. We hold accordingly and pass the following order.
ORDER
1. The appeal is partly allowed. Impugned order dated 25/05/2012 in Consumer complaint No.545/2008 by Mumbai Suburban District Consumer Disputes Redressal Forum, Bandra East, Mumbai is quashed and set aside.
2. It is declared that the respondent/opponent bank is deficient in rendering service to the appellants/complainants and is directed to pay an amount of `7,00,000/- (` Seven Lacs only) to the appellants/complainants as compensation for mental agony and negligence on their part.
3. Rests of the prayers of the appellants are dismissed.
4. The opponent/respondent bank shall pay the amount of compensation within a period of two months from the receipt of the order, failing which the amount shall carry interest @9% p.a. till its realization.
5. Under the circumstances, parties shall bear their own costs.
Pronounced on 30th March, 2013.
