Karnataka

Kolar

CC/90/2018

Smt.Munirathnamma W/o Late Munikrishnappa - Complainant(s)

Versus

The Bank Manger - Opp.Party(s)

G.S.Narayanaswamy

23 May 2019

ORDER

Date of Filing: 16.11.2018

Date of Order: 23.05.2019

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 23^RD DAY OF MAY 2019

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

C.C. NO. 89 OF 2018 IS COMBINED WITH C.C.NO. 90 OF 2018

C.C.NO.89 OF 2018

Sri. Muniyappa,

Father of Late Munikrishnappa,

Aged About 65 Years, Senior Citizen,

R/at: Guttahalli, Belamaranahalli Post,

Narasapura Hobli, Kolar Taluk & District.                         ….  Complainant.

(Rep. by Sri. G.S. Narayana Swamy, Advocate)

 

C.C.NO.90 OF 2018

Smt. Munirathnamma,

W/o. Late Munikrishnappa,

Aged About 35 Years,

R/at: Guttahalli,

Belamaranahalli Post,

Narasapura Hobli,

Kolar Taluk & District.                                            ….  Complainant.

(Rep. by Sri. G.S. Narayana Swamy, Advocate)

 

- V/s -

The Bank Manager,

Pragathi Krishna Grameena Bank

(PKG Bank), Belamaranahalli Branch,

Narasapura Hobli,

Kolar Taluk & District.                                                       ….  Opposite Party.

(Rep. by Sri. B.N. Vasudeva Murthy, Advocate)

(In both the above cases OP is same)

                       

-:COMMON ORDERS:-

BY SRI. K.N. LAKSHMINARAYANA,PRESIDENT

01.   The complainant in the above said two cases filed the said complaint against the OP-Bank and prays to direct the OP-Bank to pay Rs.76,875/- towards the cheque amount along with interest @ 24% p.a. from the date of deposit till realization and Rs.25,000/- towards damages in C.C. No.89/2018 and the complainant in C.C. No.90/2018 prays to direct the OP-Bank to pay Rs.3,07,500/- towards cheque amount along with interest @ 24% p.a. from the date of deposit till realization and Rs.75,000/- towards damages and to grant such other relief as this forum.

 

 

02.   The brief facts of the above two cases are that, the complainant are having savings bank account numbers with the OP-Bank.  The complainant in C.C. No.89/2018 has presented a cheque for Rs.76,875/- bearing No.518499, dated: 03.08.2017 to his savings bank Account No.52216 on 03.08.2017.  The complainant in C.C. No.90/2018 has presented a cheque for Rs.3,07,500/- bearing No.518498, dated: 02.06.2017 to her SB account No.23123 on 03.08.2017 before the OP-Bank.  After lapse of one year they did not know about the status of the above said cheques.  The complainant made repeated requests and demands with the OP-Bank regarding status of the above said cheques, for which the OP-Bank officials have postponed the same by one reason or the other.  The complainant caused legal notice to the OP-Bank dated: 20.07.2018 through RPAD and the same was served on the OP-Bank on 24.07.2018.  The OP-Bank has given untenable reply to the said legal notice on 13.08.2018 and they produced all the relevant documents to support their cases and there is deficiency of service on the part of OP-Bank.  The above said cheques were issued by the Motor Accident Claims Tribunal, Bangalore, with regard to the compensation amount for the death of Late Munikrishnappa, who was the son of complainant in C.C. No.89/2018 and the husband of complainant in C.C. No.90/2018.  The OP-Bank has failed and neglected to follow-up the above said cheques and has given evasive reply to the complainant and the complainant filed these complaint and prays to allow the complaint in the interest of justice and equity.

 

03.   In both cases the complainants have submitted following 05 documents:-

(i) Copy of the Bank Challan – Annexure-A

(ii) Copy of the Legal Notice _Annexure-B

(iii) Copy of the postal receipt – Annexure-C

(iv) Copy of the postal acknowledgement - Annexure-D

(v) Copy of the Reply notice – Annexure-E

 

04.   After service of notice, the OP appeared through their counsel in both the cases and filed similar version in the above cases.  The OP has admitted about the presentation of the above said two cheques as contended by the complainant and also admitted that the complainant made repeated request and demands about the status of the above said two cheques and denied that the OP and its officials have postponed the same on one or the other reasons and also denied deficiency of service on the part of OP-Bank and they replied the legal notice.  The OP-Bank has no knowledge about the demise of the son of the complainant in C.C. No.89/2018 and the husband of the complainant in C.C. No.90/2018.  The cheque was presented by the complainant through their SB account of the OP-Bank which was issued by Motor Accident Claims Tribunal, Bangalore, due to the demise of the deceased is not within the knowledge of this OP-Bank.  The complainant has not informed the same in spite of repeated request and there is no deficiency of service as alleged by the complainant.  The OP-Bank has specifically taken up the contention that, the alleged cheque as contended by the complainant were presented to their S.B. account of the OP for collections.  The OP-Bank has sent the cheques for collection by RPAD on 04.08.2017 and the said two cheques are not received by the OP-Bank and they issued reminder letter on 20.12.2017 and no reply was received from the said Bank.  The OP issued letter of request to post master, Belamaranahally Branch Post Office, Belamaranahally and to Narasapura Sub Office of Post on 28.12.2017 requesting them to trace the RPAD sent on 04.08.2017.  And further narrated about the action taken with respect to the above said two cheques.  The postal authorities after detailed enquiry has informed on 14.08.2018 that, the article was not traced at Narasapura Sub-Office and hence the article is treated as lost. 

 

(a)    The OP-Bank was updating the process and progress of its efforts to trace the said article and also requested the complainant that, from which authority the said cheque was issued, ask them to issue another cheque for which the OP-Bank may help them, but the complainant has not informed the same, but got issued legal notice on 20.07.2018 and the same was replied by this OP-Bank on 13.08.2018 and there is no deficiency in service and negligent on the part of this OP-Bank.  The article was lost in the transit by the postal authority and the OP shall not be penalized.  The complainant can obtain another cheque by narrating the facts before the Motor Accident Claims Tribunal, Bangalore, and the OP will help them.  The OP has not received any consideration for the service rendered to the complainant and the question of deficiency in service does not arise and there is no direct nexus between the loss sustained by complainant as the amount of complainant is at Hon’ble MACT, Bangalore, which is intact and same can be received by complainant by following procedure and the complainant may get the said cheque amount and the complaint filed by the complainant is not maintainable and it deserves to be dismissed as there is no deficiency of service on the part of OP-Bank.

(b)    The OP-Bank has submitted following list of 12 documents along with its version:-

(i) Challan copy of complainant for having presented cheque for collection dt: 02.08.2017.

(ii) Office copy of covering letter to SBM, Treasury Branch, Bangalore, for having sent two cheques for realization.

(iii) Postal receipt dt: 04.08.2017 for having sent article to the Manager, SBM, Lady Curzon Road, Bangalore by RPAD

 (iv) Office copy of letter written to SBI, Treasury Branch, Lady Curzon Road, Bangalore-1, dt: 20.12.2017.

(v) Served postal acknowledgement to SBI.

(vi) Office copy of letter given to Post Master, Belamaranahally and Sub-post Master, Narasapura, dt: 28.12.2017 with endorsement of Branch Post Office, Belamaranahalli and sub-post Master Narasapura.

(vii) Copy of complaint lodged to the Superintendent of Post Office, Kolar Division, Kolar, dt: 02.04.2018 by RPAD.

(viii) Served postal acknowledgment to Senior Superintendent of Post Office, Kolar.

(ix) Original Letter by way of reply given by the Senior Superintendent of Post Office, Kolar Division, Kolar to OP dt: 14.08.2018.

(x) Copy of letter of Superintendent of Post Office, Kolar Division, Kolar, given to complainant with the acknowledgment.

(xi) Postal receipt dated: 14.08.2018 for having sent reply to the legal notice to Sri. G.S. Narayanaswamy, Advocate, K.R.Puram, Bangalore.

(xii) Served postal acknowledgment to Sri. G.S. Narayanaswamy, Advocate, K.R.Puram, Bangalore.

 

05.   The complainant in the above said two cases have filed their respective affidavit evidence by way of examination-in-chief.  The Manager of OP-Bank has also filed affidavit evidence by way of examination-in-chief.

 

06.   On 14.05.2019 the counsel for OP-Bank has filed Memo with 01 document:-

(i) Office copy of letter sent to SBM, Treasury, Bangalore.

 

07.   Heard arguments on both sides.

 

08.   Now the common points that do arise for our consideration in the above two cases are that:-

POINT NO.1:-  Whether the complainant in

                   C.C. No.89/2018 and C.C.No.

                   90/2018 proves deficiency

                   of service on the part of the OP?

 

POINT NO.2:-   Whether the complainant in

                   C.C. No.89/2018 and C.C.No. 

                   90/2018 is entitled for the  

                             relief as prayed?

 

POINT NO.3:-  What order?

 

09.   The findings on the above points are that:-

POINT NO.1:- In the Affirmative

POINT NO.1:- Partly in the Affirmative

POINT NO.3:- As per final order for the

following:-

 

REASONS

10.   POINT NOS.1 & 2:-  These points are taken up together for discussion to avoid repetition of facts and reasonings.  We have perused the complaint, version, affidavit evidence of both the parties and the documents produced by the parties.  It is an admitted fact that, the complainant in the above said two cases presented cheque for Rs.76,875/- bearing No.518499, dated: 03.08.2017 and cheque for Rs.3,07,500/- bearing No.518498, dated: 02.06.2017 respectively to their respective SB accounts by the respective complainant.  To support the complainant case the complainant in the above case produced the counterfoil to that effect as per Annexure-A dated: 03.08.2017 and so also the same is elicited by the document produced by OP-Bank.  The OP-Bank has also produced number of documents for making correspondence with the Postal Authorities dated: 04.08.2017, 20.12.2017, 28.12.2013, 02.04.2018 and the reply given by the Senior Superintendent of Post Office dated: 14.08.2018.  On perusal of the above said documents produced by the OP-Bank it clearly elicited that, appropriate and immediate action is not taken at appropriate time and the said letter correspondence reveals about gap of four months between each other and immediate step is not taken at appropriate time and delay the matter for about one year and thereby it amounts to deficiency of service on the part of OP and it caused harassment and mental agony to the complainant of both cases.

 

11.   It is a fact that, the above alleged two cheques are lost during transit and the Bank is liable to pay the compensation for harassment and mental agony to the complainant in the above said two cases.  The contention of OP-Bank that, the article was lost by the Postal Authorities and the Bank should not be penalized.  The said contention of the OP-Bank is not sustainable as we discussed above, but the Bank is not liable to pay the cheque amount as contended by the complainant.  In this case the complainant has not proved that, the above said cheques are misused or the cheque amount was encashed, hence the complainant may approach the issuing authority to get another cheque by showing the reasons before the concerned Motor Accident Claims Tribunal, Bangalore, but the complainant has not at all made any efforts in this regard due to their negligence.

 

12.   In this regard we relay citation reported in 2016(III) CPJ 386 (NC), wherein their lordship has relied the citation reported in 2009(I) CPJ 198 (NC) between the State Bank Of India –V/s- Muntha Lakshmi Kumari, that, cheque lost in transit, deficiency in service alleged, payment of cheque amount directed and Appeal filed, the complainant failed to get duplicate cheque, in spite of being asked to do so, cheque misused/encashed, not proved, the Bank is not liable to pay cheque amount, compensation for deficiency in service on the part of Bank is awarded.  Their lordship has also relayed another citation reported in 2009 (III) CPJ 333 between S.Ashok Kumar –V/s- Andhra Bank & Another, that, cheque lost in transit, no steps taken under Section 45A of Negotiable Act, or approach proper Forum for recovery of amount, complaint filed against Bank, no deficiency in service could be attributed to Bank for loss of cheque by courier service, cheque amount cannot be recovered from Bank, compensation and cost awarded.  In 2010(II) CPJ Page 75 of Hon’ble Rajasthan State Commission has also held that, in the case of loss of cheque in transit the Bank concerned would be liable to pay compensation.   The principles of the above said citations are attracted to the facts and circumstances of the case on hand and the complainant in the above case are not entitled for the cheque amount and are entitled only for compensation.  Hence as discussed we answer point No.1 is in the affirmative and point No.2 is in partly affirmative.

POINT (3):-

13.   In view of our findings on Point Nos. (1) & (2) and the discussions made thereon, we proceed to pass the following:-

 

ORDER

01.   The complaint filed by the complainant in C.C. No.89/2018 and in C.C. No.90/2018 are partly allowed.

 

02.   The OP-Bank is directed to issue non-drawal certificate to the complainant in the above said two cases with respect to the Cheque No.518499, dated: 03.08.2017 in C.C. No.89/2018 and Cheque No.518498, dated: 02.06.2017 issued by Motor Accident Claims Tribunal, Bangalore, within two weeks from the date of the order.

03.   The OP-Bank is also directed to pay compensation of Rs.3,000/- and litigation expenses of Rs.2,000/- each in the above said two cases.  The OP-Bank shall pay the said amount within 30 days from the date of receipt of this order.

 

04.   The original of this order shall be kept in C.C. No.89/2018 and a copy thereof in C.C. No.90/2018.

 

05.   Send a copy of this order to both parties free of costs.

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 23^rd DAY OF MAY 2019)

 

 

   LADY MEMBER                         PRESIDENT