IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 29th day of March, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No.65/08 Between: N. Vijayan, Vishnu Vihar, Edakkadu Muri, Poruvazhy Village. (By Adv. R. Gopikrishnan) ...... Complainant. And: - State Bank of Travancore,
Poruvazhy Branch, Ambalathumbhagam. P.O., Rep. by its Branch Manager. (By Adv. S. Mohankumar) - The Pathanamthitta Dist.
Service Co-op: Bank Ltd., Kadampanadu Branch, Kadampanadu.P.O., Rep. by its Branch Manager ...... Opposite parties. O R D E R Sri. N. Premkumar (Member): Complainant filed this complaint for getting a relief from the Forum. 2. Facts of the case in brief is as follows:- 1st opposite party is S.B.T, Poruvazhy Branch. 2nd opposite party is the S.B.T, Pathanamthitta Branch. 3rd opposite party is the Kadampanadu Branch of Pathanamthitta District Co-operative Bank Ltd., Later 2nd opposite party was deleted from the party array. 3. One D. Santhosh, S/o. Divakaran, Madhuvilasom, Edakkadu had issued a cheque for a legally enforceable debt to the complainant bearing No.087413 dated 12.7.07 for Rs.25,000/- drawn on 1st opposite party. Complainant presented the cheque to the 3rd opposite party’s office for collection. At that time, the 3rd opposite party assured that they would send the cheque to the drawee bank immediately for realising the cheque amount. On 24.1.08 the complainant received an intimation from the 3rd opposite party that the cheque was lost/misplaced at the 1st opposite party’s office. Another intimation dated 15.1.08 also received from the 1st opposite party with the same information. 4. After the incident, complainant approached opposite parties for getting the amount of Rs.25,000/- stating that he has no other sources to realise the above said amount from Mr. D. Santhosh who issued the cash cheque. Thereafter complainant issued legal notice to 1st and 3rd opposite parties. But they had not responded. The loss of the cheque bearing No.087413 from 1st opposite party’s office is a clear deficiency of service. Hence this complaint for getting the cheque amount of Rs.25,000/- with interest and compensation and cost for the mental agony and distress caused to the complainant. 5. First opposite party entered appearance and filed a version stating that the complaint is not maintainable either in law or on facts. The complainant has not arrayed D. Santhosh, the drawer of the cheque as a party to this proceedings. Therefore, complaint is bad for non-joinder of necessary parties. Moreover, the assurance given by the third opposite party is not binding on the first opposite party. 6. The first opposite party admitted that the cheque was lost, but is not owing to their negligence. The complainant has not availed any legal remedies provided to him under law in case of a loss of a negotiable instrument. Complaint is a collusive one with the drawer of the cheque. This is the sole reason of the exclusion of the drawer from the party array. No loss is sustained to the complainant by the loss of the cheque. The production of the original cheque is not mandatory to realise the amount covered under the cheque. Instead of exploring such legal remedies, the complainant is fighting against the opposite parties. The first opposite party deals with many transactions a day. An isolated occasion is insufficient to picturise the first opposite party as negligent. On the other hand, complainant has not suffered any mental agony, sufferings and distress by the act of the first opposite party. This complaint is launched in collusion with the said Santhosh on an experimental basis. The account pertaining to the subject cheque stands closed as early as on 24.08.2000. Santhosh, the account holder had submitted a declaration at the time of closing the account that there was no unused cheque leaves left with him and the bank would not be put to any liability. The alleged claim of Rs.25,000/- is unfounded and baseless and the complainant is not entitled to launch the claim against the first opposite party. 7. The first opposite party admitted that the complainant approached them after the loss of cheque. They offered to issue a certificate to the effect that the cheque was dishonoured for the reason of closure of the account and to the fact that the original is not traceable so as to enable him to seek his remedies against the drawer for duplicate and also for other remedies. But the complainant was not prepared to accept the same. The first opposite party is not liable to pay the amount covered under the cheque and the interest claimed. The law permits the complainant to obtain a duplicate or even triplicate from the drawer of the cheque by making compelling situation. The complainant has not opted for such remedies, which would disentitle him to sue against the first opposite party. The complainant is not entitled to any of the relief sought for in the complaint. Hence first opposite party canvassed for the dismissal of the complaint with cost. 8. The third opposite party has not appeared. Hence they were declared as exparte. 9. From the above pleadings, following points are raised for consideration: (1) Whether the complaint is maintainable before this Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Reliefs and Cost? 10. Evidence of the complainant consist of the proof affidavit filed by the complainant who has been examined as PW1 and the documents produced by him has been marked as Exts.A1 to A8. Evidence of the first opposite party consists of the proof affidavit of the first opposite party and the documents produced by him. First opposite party has been examined as DW1 and the documents produced were marked as Exts,B1 to B3. After closure of the evidence, complainant and the first opposite party were heard. 11. Point Nos. 1 to 3: In order to prove the complainant’s case, the complainant filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A8. Ext.A1 is the letter-dated 15.01.2008 from the first opposite party. Ext.A2 is the letter-dated 24.01.2008 issued by the third opposite party. Ext.A3 is the office copy of Advocate Notice sent to third opposite party. Ext.A4 is the copy of Advocate Notice dated 01.04.2008 sent to first opposite party. Ext.A5 and A6 are the postal receipts of Exts.A3 and A4. Exts.A7 and A8 are the acknowledgment cards of Exts.A3 and A4. 12. In order to prove the first opposite party’s contention, they filed proof affidavit along with certain documents. First opposite party was examined as DW1 and the documents produced were marked as Exts.B1 to B3. Ext.B1 is the certified copy of the extract of the ledger folio pertaining to the account of Santhosh. Ext.B2 is the certified copy of the application dated nil produced by Santhosh seeking closure of the account. Ext.B3 is the certified copy of withdrawal form dated 24.08.2000. 13. On the basis of the averments and contentions of the parties, we have perused the entire materials on record. There is no dispute regarding the cheque in question, which was presented by the complainant with the third opposite party who sent it for collection to first opposite party. Exts.A1 and A2 shows that cheque was lost from the first opposite party’s bank. 14. Though the cheque was not returned to the complainant, first opposite party’s contention is that the cheque was dishonoured for the reason of closure of account as per Exts.B1 and B2. They also asked the complainant to seek remedy from the drawer of the cheque D. Santhosh by obtaining a duplicate or triplicate. The production of original cheque is not mandatory for realising the amount covered under the cheque. But according to the complainant, he had no other sources to realise the cheque amount from D. Santhosh who issued the cash cheque. 15. On going through the materials on record, first opposite party’s contention based on Exts.B1, B2 and B3 is illegal, irrational and cannot be justified for their negligence. It is the boundan duty of first opposite party to return the cheque with memo whether there is an operating account or not. Then only, the complainant has the legal right to proceed the matter. The first opposite party had not taken proper care as was expected from them. Instead of disclosing the real fact, they are hiding their inaction and negligence. The non-return of the cheque by first opposite party is a clear deficiency of service. But there is no contract for any service between the complainant and first opposite party and the contract for the service is with the third opposite party and the complainant. So the complainant is not directly entitled to get any relief against the first opposite party and the complainant is entitled to get the relief from the third opposite party. But the third opposite party is exparte. Moreover, it is seen that the third opposite party has not made any effort to settle the grievance of the complainant though they had a contractual obligation to the complainant. Hence third opposite party is liable to the complainant to that extent. In the circumstance, we find that the third opposite party is liable to the complainant at first for the negligence of first opposite party. But this does not mean that first opposite party is not liable for their negligence and they are liable to the third opposite party for their negligence. 16. However, in this case, the complainant is not entitled to get the cheque amount. But he is entitled to get compensation and cost. 17. In the result, this complaint is allowed as follows: (1) The third opposite party is directed to pay Rs.10,000/- (Rupees Ten thousand only) as compensation and Rs.2,500/- (Rupees Two thousand five hundred only) as cost to the complainant. (2) The third opposite party is at liberty to realise the amount of compensation alone from the first opposite party after effecting the payments to the complainant. (3) This order should be complied by the third opposite party within 30 days from the date of receipt of this order, failing which complainant is allowed to realise the aforesaid amounts from the third opposite party with 9% interest per annum from today till the realisation of the whole amount. Pronounced in the Open Forum on this the 29th day of March, 2010. (Sd/-) N. Premkumar, (Member) Sri. Jacob Stephen (President) : (Sd/-) Smt. C. Lathika Bhai (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Vijayan. Exhibits marked on the side of the complainant: A1 : Letter dated 15.01.2008 issued by the first opposite party to the third opposite party. A2 : Letter dated 24.01.2008 issued by the third opposite party to the complainant. A3 : Photocopy of the Advocate Notice dated 21.02.2008 issued by the complainant to the third opposite party. A4 : Photocopy of the Advocate Notice dated 01.04.2008 issued by the complainant to the first opposite party. A5 : Postal receipt of Ext. A3. A6 : Postal receipt of Ext. A4. A7 : Acknowledgment card of Ext. A3 A8 : Acknowledgment card of Ext. A4. Witness examined on the side of the opposite parties: DW1 : Rema Devi. P.R. Exhibits marked on the side of the opposite parties: B1 : Certified copy of the Ledger Folio of S/B No.V36 B2 : Certified copy of application for cancellation of account. B3 : Certified copy of withdrawal slip. (By Order) Senior Superintendent. Copy to:- (1) N. Vijayan, Vishnu Vihar, Edakkadu Muri, Poruvazhy Village. (2) The Branch Manager, State Bank of Travancore, Poruvazhy Branch, Ambalathumbhagam. P.O. (3) The Branch Manager, Pathanamthitta Dist. Service Co-op: Bank Ltd., Kadampanadu Branch, Kadampanadu. P.O. (4) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
