PER MR. SURESH CHANDRA, MEMBER The petitioner firm was the original complainant before the District Forum and the respondents herein were the three OPs respectively in the consumer complaint. The factual matrix of this case are that the petitioner firm which is dealing in coal and other related items has been functioning as commission agent in relation to loading of coal and in the normal course of business is required to pay freight to the railways. In the present case, the petitioner was to pay an amount of Rs.10 lakhs to the Eastern Railways towards freight for the coal rake. Therefore, the petitioner firm requested the Respondent no.3 Bank to issue a demand draft. The demand draft was accordingly issued by the Bank being No.107749 dated 20.12.1999 for a sum of Rs.10 lakhs payable at Calcutta and the commission/service charges amounting to Rs.1500/- were charged by Respondent no.3 for issuing this draft. The petitioner sent the aforesaid demand draft to Eastern Railways who presented the same to its banker for collection of the payment thereof. It is the case of the petitioner that Respondent no.2 Bank refused to honour the said demand draft and returned it vide memo dated 3.1.2000 with the remark that the drawing official of the said demand draft has not mentioned his “SS number” along with his signatures on the said draft. The non-payment of the proceeds caused loss, harassment and humiliation to the petitioner firm. The petitioner received information about the non-honoring of the demand draft from Respondent no.2. In view of the non receipt of the amount of freight because of dishonoring of the demand draft, the Eastern Railways sent a letter dated 2.2.2000 to the petitioner firm demanding surcharge/penalty @ 15% on Rs.10 lakhs amounting to Rs.1.5 lakhs. In order to avoid further damage/penalty and loss , the petitioner firm got three separate demand drafts for a total amount of Rs.11.5 lakhs including the amount of Rs.1.5 lakhs as surcharge/penalty and sent the same to the Eastern Railways along with covering letter dated 23.2.2000 requesting the railway authority to release the coal wagons. Alleging deficiency on the part of the respondent Bank, the petitioner approached them for giving compensation and having failed to get the same, a consumer complaint came to be filed with the District Forum, Bathinda for recovery of Rs.1.5 lakhs paid by the petitioner as penalty/surcharge to the railways, Rs.50,000/- as loss of interest, Rs.2.5 lakhs for damages on account of harassment, etc., Rs.1500/- paid by way of draft charges and Rs.15,000/- as cost of litigation. The respondent Bank resisted the complaint by pleading that the petitioner firm was not a consumer under the Consumer Protection Act; that there was no deficiency in service on the part of the respondent Bank; that the District Forum Bathinda did not have territorial jurisdiction to deal with the matter; that the complaint was false and filed with ulterior motive to harass and humiliate the respondent Bank; that the complaint was not filed through competent and duly authorized person and that complicated question of law and fact were involved which required to be decided by a civil court. It was also pleaded that the complaint was bad for non-joinder of necessary party because the railways were not impleaded as respondents and that the respondents were not informed if time was of essence under the contract between the petitioner firm and the railway authorities. It was also pleaded on behalf of the Bank authorities that a few days earlier, fraudulent encashment of missing/stolen counterfeiting draft forms of different series had taken place and, therefore, Respondent no.2 had become more cautious and hence as a precautionary measure, the demand draft in question was not encashed since the SS number was not mentioned by the issuing manager of the respondent Bank. On merits, the respondent Bank admitted issuance of demand draft in question and charging of the commission for preparing the draft. After considering the pleadings of the parties and the affidavits/documents placed on file by them, the District Forum accepted the complaint vide its order dated 31.12.2001 in terms of the following order:- “7. In view of the above discussion, complaint is hereby accepted with costs which are assessed as Rs.3,000/- and the opposite parties are directed to pay interest @ 12% P.A. on the amount of Rs.10.00 lacs from the date of presentation of the demand draft in question to opposite party No.2 at Calcutta till the date when opposite party No.3 made the payment to the complainant against the demand draft. The compliance of this order be made jointly and severally within two months from the date of receipt of copy of this order.” 2. Not feeing satisfied with the reliefs granted by the District Forum, the complainant, petitioner herein, filed an appeal before the State Consumer Disputes Redressal Commission, Punjab (‘State Commission’ for short) on the ground that even though the railway authorities had burdened the petitioner firm with penalty and surcharge @ 15% on the amount of Rs.10 lakhs and the penalty amount of Rs.1.5 lakhs had to be paid by the petitioner firm to the railways, the District Forum had not awarded this amount to the petitioner firm and hence the State Commission was requested to allow the appeal for grant of additional compensation for the loss suffered by the petitioner firm. No appeal was filed by the respondent Bank against the order of the District Forum. After hearing the parties and taking into consideration the undisputed facts of the case, the State Commission reached the following conclusions as per its observations contained in paras 14 and 15 of the impugned order which are reproduced below:- “14. The appellants have proved the letter dated 2.2.2000 (Ex.C3) received by them from the Railways by which the Railways demanded an amount of Rs.1.5 lacs from the appellants as penalty/surcharge at the rate of 15% on the amount of Rs.10 lacs because of the non-encashment of the demand draft when it was presented in the bank. This amount was remitted by the appellants to the Railways vide their letter 23.2.2000 (Ex.C13). This clearly means, therefore, that the appellants had to pay an amount of Rs. 1.5 lacs as surcharge/penalty to the Railways only for the reason that the demand draft purchased by the appellants from respondent no.3 was dishonoured when presented and was not encashed by respondent no.2. The appellants, therefore, deserve to be compensated by the respondents as because of their deficiency in service, the appellants had suffered the loss. 15. However, the learned District Forum was justified in awarding interest on the amount of Rs.10 lacs from the date of dishonour of the demand draft by respondent no.2 at Calcutta till the date when its payment was made by the respondents to the appellants.” 3. Having made the aforesaid observations in paras 14 and 15 of the impugned order, the State Commission accepted the appeal filed by the petitioner firm in terms of the following order:- “16. The appellants would be entitled to the interest at the rate of 9% per annum on the amount of Rs.1,50,000/- with effect from 23.2.2000 till the date of payment and on the payment of Rs.10 lacs at the same rate of 9% per annum (instead of 12% per annum) from the date of dishonour of the cheque till the date of payment of the amount of this demand draft. The appellants would also be entitled to costs to the tune of Rs.3,000/- as assessed by the learned District Forum. This appeal is accordingly accepted with costs of Rs.5,000/- in the terms stated above.” 4. Aggrieved by the aforesaid order of the State Commission, the petitioner firm has filed the present revision petition challenging the same. 5. We have heard counsel for the petitioner and respondents. It has been contended by the learned counsel for the petitioners that the petitioner firm was made to pay an amount of Rs.1.5 lakhs by way of penalty/surcharge only because of the dishonouring of the demand draft by the service branch of the respondent bank at Calcutta thereby causing non-receipt of the amount of the freight which resulted in the railway authorities asking for payment of penalty/surcharge for a no fault of the petitioner firm. In spite of this undisputed factual position, when the District Forum failed to accept the plea of the petitioner firm for reimbursement of this amount of penalty along with other reliefs granted by it while accepting the complaint of the petitioner firm, the petitioner firm had to go in appeal before the State Commission. He submitted that after hearing the parties, the State Commission was convinced that the petitioner firm deserved to be compensated by the respondents in this regard as can be seen from its observation in para 14 (supra) of its order. In spite of this observation in para 14 of its order, the State Commission somehow misunderstood this aspect and omitted to include the amount of Rs.1.5 lakhs, which was paid as penalty, in the operative part of the impugned order and simply granted interest @ 9% p.a. on the amount of penalty/surcharge. Not only this, the State Commission also erred in reducing the rate of interest from 12% to 9% on the amount of demand draft of Rs.10 lakhs which resulted in overall reduction in the totality of the relief as compared to the relief granted by the District Forum to the petitioner firm by its order which was under challenge before the State Commission. Learned counsel submitted that no appeal was filed by the respondent bank and as such the respondent bank had accepted the order of the District Forum and hence the total relief granted by the District Forum to the petitioner firm could not have been reduced to the disadvantage of the petitioner firm while accepting the appeal filed by it. It was, therefore, pleaded that the impugned order requires modification by including the amount of Rs.1.5 lakhs which the petitioner firm was made to pay to the railway authorities solely because of the deficiency in service on the part of the respondent bank. Per contra, learned counsel for the respondent bank denied that there was any reduction in relief at the appellate stage through the impugned order inasmuch as the State Commission had allowed interest @ 9% p.a. on the amount of Rs.1.5 lakhs which the petitioner firm had to pay as penalty while maintaining the reliefs already granted by the District Forum except reducing the rate of interest from 12% to 9% on the amount of Rs.10 lakhs which was reasonable. Learned counsel further submitted that the compensation to be granted by the consumer fora cannot be the entire amount of loss but only a reasonable amount which the fora considers as due compensation for the deficiency in service in a particular case. In this context, he relied on the judgement of the Apex Court in a group of civil appeals no. 2971, 2972 & 2973 of 2008 in the case of Citibank N.A. Vs. Geekay Agropack Pvt. Ltd. & Anr. [(2008) 15 SCC 102] where the order of the National Commission awarding compensation only for deficiency in service under the Consumer Protection Act, 1986 was upheld and it was also held that appeal filed by the appellant for not getting the adequate compensation for the total amount of loss incurred by it is misconceived. He, therefore, pleaded that the State Commission has already taken note of the deficiency on the part of the respondent bank and hence awarded interest @ 9% p.a. on the amount of penalty also over and above the relief granted by the District Forum and hence there is no case for awarding compensation for total loss suffered. The revision petition, therefore, deserves to be dismissed. 6. We have carefully considered the rival contentions raised before us by learned counsel for the parties. The basic facts of the case are not under dispute. Based on them, two aspects emerge from the facts of this case. Firstly, there is no doubt about the deficiency on the part of the respondent bank which resulted in the railway authorities levying penalty/surcharge of Rs.1.5 lakhs on the petitioner firm. It is also established that even though the State Commission did take due notice of this deficiency in para 14 (supra) of the impugned order, it did not include the amount of penalty in the operative part of its order and awarded only 9% interest on this amount. As regards the total impact in financial terms of the relief granted by the State Commission, both the petitioner firm and the respondent bank have given different versions which do not clarify the position so as to get a clear picture and hence we neither accept nor reject the plea taken by the petitioner’s counsel in this regard. However, we are convinced and it is established beyond doubts that the surcharge/penalty in this case was solely attributable to the deficiency in service on the part of the respondent bank but for which there was no reason why the petitioner firm should have been asked to pay it. The petitioner firm rightly took a decision to settle the matter early by keeping the amount of penalty to the minimum because any further delay would have resulted in further surcharge. In this view of the matter, there is no reason why the respondent bank should not compensate the petitioner firm in this regard. It would not be correct to assume that the amount of Rs.1.5 lakhs constituted the total loss which the petitioner firm suffered on account of the deficiency on the part of the respondent bank because the delay in the release of the wagons would have its some other implications as well in respect of the business operations of the petitioner firm. In view of this, the ratio laid down by the Apex Court (supra) will not get attracted to the facts and circumstances of the present case since what is being asked for by the petitioner firm is only compensation for the penalty/surcharge solely attributable to the deficiency in service and not the total loss which the petitioner firm would have suffered in its business operations on account of delay in the release of the coal wagons by the railways. Under the circumstances, we consider it appropriate to direct the respondent bank to reimburse the amount of Rs.1.5 lakhs which the petitioner firm had to pay to the railways by way of surcharge/penalty. This reimbursement shall be over and above and in addition to the reliefs already granted by the State Commission in the impugned order. Interest on this amount is already covered by the impugned order and hence no order is passed in this regard on this additional amount of relief. The impugned order stands modified to this extent and the revision petition is accepted and disposed of in terms of these directions. |
