This CC is coming on before us for hearing, in the presence of               Sri. P.B. Sree Ramulu, Advocate for complainant; and of Sri. N. Naveen Chaitanya, Advocate for opposite party No.1; opposite parties No.2 served called absent; Upon perusing the material papers on record; upon hearing arguments, and having stood over for consideration, this Forum passed the following:-

O R D E R

(Per Sri R. Kiran Kumar, Member)

This complaint is filed under section 12-A of the Consumer Protection Act, 1986. 

2.        The averments made in the complaint are that the complainant is a resident of Khammam town, however presently resident at Hyderabad in connection with his employment as software engineer, having the savings Bank account in HDFC Bank, Hyderabad, Jublihills Branch.  The complainant submitted that the opposite party No.2 is running an auto consultancy at Rajahmundry, acts as mediator for purchasing and selling second hand cars and gave an advertisement in OLX website offering to sell Honda Civic Second hand car bearing No.AP-11-AD-5678.  The complainant intended to purchase the said car and in that connection he paid an amount of Rs.95,000/- to the opposite party No.2 as advance.  The complainant further submitted that the opposite party No.2 failed to obtain N.O.C. and arrange finance from the Bank as promised to the complainant, in that circumstances the complainant demanded to return the advance amount, for that the opposite party No.2 issued a cheque bearing No.011481 for Rs.95,000/- drawn on SBI, Rajahmundry Branch, in favour of complainant towards return of advance amount.  The complainant further submitted that he presented the said cheque with opposite party No.1 on 04-05-2015 for collection, given by the opposite party No.2.  The complainant further submitted that on 06-05-2015 the opposite party No.1 failed to debited the cheque amount as the cheque referred above was dishonoured and the opposite party No.1 did not issued the return memo nor returned the original cheque.  The complainant further submitted that he approached the opposite party No.1 demanding to return the original cheque and the memo issued by the SBI, Khammam branch, finally after two months  the opposite party bank informed the complainant that the original cheque which was dishonoured was misplaced as it was dispatched to another customer wrongly and inspite of their efforts they could not trace the original cheque, as such they obtained a duplicate memo from the SBI, Khammam and expressing their regrets, wrote a letter to complainant on 09-07-2015.   The complainant further submitted the opposite party No.2 refused to pay the cheque amount basing on the letter given by HDFC and insisting to return the original cheque for paying the cheque amount.  The complainant further submitted that due to the negligence and deficiency of services of opposite party No.1, he suffered untold mental agony and could not realize the cheque amount of Rs.95,000/-, for that he demanded the opposite party No.1 to pay the cheque amount as due to their negligence lost the amount, as the opposite parties except saying regrets, they are not come forward to pay the cheque amount as such the complainant filed this complaint.

3.      On behalf of the complainant the following documents were marked as Exhibits A-1 to A-4.

Ex.A-1:-Letter addressed by the opposite party No.1 to the complainant dated 09-07-2015.

Ex.A-2:-Duplicate copy of cheque return memo issued by SBI, Khammam Branch, dt. 06-05-2015.

Ex.A-3:-Cheque return letter written by opposite party No.1 addressed to the complainant, dt. 06-05-2015.

Ex.A-4:-Cheque return confirmation letter written by the SBI, Khammam Branch addressed to opposite party No.1.

4.      On receipt of the notice, the opposite parties No.1 appeared through their counsel and filed counter.  Opposite party No.1 in their counter they  admitted the averments made by the complainant in the complaint that “the complainant presented the cheque bearing No.011481 for Rs.95,000/- and the same was sent for collection to the SBI, Khammam which was return un paid with a memo dt.06-05-2015  funds insufficient, on that the opposite party returned the said cheque along with memo to the complainant mailing address”.  The opposite party No.1 further submitted that the complainant made complaint to the opposite party No.1 with regard to the non receipt of cheque and memo, on that the opposite party No.1 made enquiry with regard to the same and came to know that the same was dispatched to the other customer address and enquired about the wrong delivery of the said cheque unfortunately the same was misplaced by him, for which the opposite party No.1 furnished the non payment certificate and duplicate return memo obtained from SBI, Khammam.    The opposite party No.1 further submitted that they are bankers and who can only act under the guidelines of Reserve Bank of India and to render services to the customers or account holders and they advised the complainant to obtain duplicate copy of cheque in terms of Section 45-A of Negotiable Instrument Act.    The opposite party No.1 further submitted that the complainant is having sufficient knowledge about the insufficient funds in the account of opposite party No.2 and intentionally brought this bank as opposite party No.1 to extract money easily, knowingly that the opposite party No.1 is not liable to pay anything to the complainant.  And also submitted that as per Indian Banking Regulation Act and as per guidelines of Reserve Bank of India, the complainant is at liberty to obtain the cheque in duplicate to proceed further in the matter against the opposite party No.2.   the opposite party No.1 further submitted that the complainant made up his mind that he cannot recover the cheque amount from the opposite party No.2 and decided to obtain the amount by hook or crook from the opposite party no.1 bank, so that the complainant made the bank as party in this case with an ill motto.    The opposite party No.1 further submitted that as per the guidelines of Reserve Bank of India “What happens if cheque/instrument are lost in transit/in clearing process the Reserve Bank of India categorically expressed that if cheque is lost in branch or in clearing process or at the paying bank’s branch, the bank should bring to your notice so that you can inform the drawer to record stop payment and can also take care that other cheques issued by you are not dishonoured due to non-credit of the amount of the lost cheque or instrument.  The onus of such loss does not lie with the banker.  You are entitled to be reimbursed by the banks for related expenses for obtaining duplicate instruments and interest for reasonable delays in obtaining the same”.  The opposite party No.1 further submitted that it is a settled position of law laid down by the Hon’ble Apex Court “The interest is also need not be paid to the complainant and also he is not resorted either to obtain duplicate of cheque lost in transit for further proceedings nor made any attempt to obtain certificate from the banker to the effect that the cheque dishonoured for resorting to further action if any under Negotiable Instrument Act”. And also submitted that it is not the case of the complainant that the drawer had sufficient funds to honour the instrument in question, whether the cheque in question was dishonoured and the same is lost while in transit to the complainant, in view of the aforesaid facts and circumstances prayed to dismiss the complaint.  

5.      Counsel for complainant filed citation of the Hon’ble A.P. State Consumer Disputes Redressal Commission, Hyderabad in FA.No.130/2013 against CC.No.11/2012 on the file of District Consumer Forum, Nalgonda to support their case.

6.      Upon perusing the material papers available on record, now the points that arose for consideration are,

1) Whether the complainant is entitled for the claim?

2) To what relief?

Point No. 1:-

In this case the complainant is having the savings Bank account in opposite party No.1 Bank, Hyderabad, Jublihills Branch and the opposite party No.2 is running an auto consultancy at Rajahmundry, acts as mediator for purchasing and selling second hand cars and gave an advertisement in OLX website offering to sell Honda Civic Second hand car bearing No.AP-11-AD-5678.  According to the complainant, he intended to purchase the said car and in that connection he paid an amount of Rs.95,000/- to the opposite party No.2 as advance but the opposite party No.2 failed to obtain N.O.C. and arrange finance from the Bank as promised to the complainant, in that circumstances the complainant demanded to return the advance amount, for that the opposite party No.2 issued a cheque bearing No.011481 for Rs.95,000/- drawn on SBI, Rajahmundry Branch, in favour of complainant towards return of advance amount.  The complainant presented the said cheque with opposite party No.1 on 04-05-2015 for collection, on 06-05-2015 the opposite party No.1 failed to debited the cheque amount as the cheque referred above was dishonoured and the opposite party No.1 failed to issue the return memo and also not returned the original cheque.  For that he approached the opposite party No.1 demanding to return the original cheque and the memo issued by the SBI, Khammam branch, finally the opposite party bank informed the complainant that the original cheque which was dishonoured was misplaced as it was dispatched to another customer wrongly and inspite of their efforts they could not trace the original cheque, as such they obtained a duplicate memo from the SBI, Khammam and expressing their regrets wrote a letter to complainant on 09-07-2015.   According to the complainant the opposite party No.2 refused to pay the cheque amount basing on the letter given by opposite party No.1 Bank and insisting to return the original cheque for payment.  As the opposite party No.1 failed to return the original cheque, due to the negligence and deficiency of services of opposite party No.1, the complainant suffered untold mental agony and could not realize the cheque amount of Rs.95,000/-, for that he approached the Forum for redressal.

From the material available on record, we observed that the complainant, intended to purchase Honda City Car from the opposite party No.2 and in that connection he paid an amount of Rs.95,000/- to the opposite party No.2 as advance.  As the opposite party No.2 failed to obtain NOC and arrange finance from the bank as promised, as per the demand made by the complainant the opposite party No.2 issued cheque bearing No.011481 for Rs.95,000/- drawn on SBI Rajahmundry Branch, in favour of complainant and the same was presented by the complainant with opposite party No.1 branch  for collection on 04-05-2015.  But the opposite party No.1 failed to issue the return memo and also not returned the original cheque, for that the complainant approached the opposite party No.1 several times demanding to return the original cheque.  As per the written version submitted by the opposite party No.1, on the complaint made by the complainant with regard to the non receipt of the cheque and memo they made enquiry and came to know that the same was dispatched to the other customer address and enquired about the wrong delivery of the said cheque, unfortunately the same was misplaced by him for that the opposite party No.1 furnished the non-payment certificate and duplicate return memo obtained from SBI, Khammam.  From the above it is a clear case that the opposite party No.1 Bank dispatched to the other customer address which delivered wrongly and misplaced.  In view of specific admission of opposite party No.1 bank that there was a bonafides mistake, complainant deserves to be compensated. 

The Hon’ble National Commission in State Bank of Patiala Vs. Rajender Lal and Anr. IV 2006 CPJ 53 (NC), in Canara Bank Vs. Sudhir Ahuja, I (2007) CPJ 1 (NC) and in Shri A.P. Bopanna Vs. Kodagu District Central Bank, RP No.5/2005 decided on 17-02-2008 held that “a Bank on ground of deficiency in service can be burdened with some compensation only but it cannot be made to pay the entire cheque amount”.  As the material available on record it is clear that the complainant had suffered mentally and monitory loss, keeping in view of the aforementioned judgments of the National Commission, a lump sum compensation of Rs.10,000/- is considered just and reasonable to meet the ends of justice.  

Point No.2 :-

7.      In the result complaint is allowed in part, directing the opposite party No.1 to pay an amount of Rs.10,000/- towards compensation and also awarded Rs.5,000/- towards costs of the complaint.  These amounts are directed to be paid within a month from the date of receipt of this order, failing which the amount would attract interest @9% per annum from the date of filing of the complaint till the date of realization.  Complaint against opposite party No.2 is dismissed.

Typed to dictation, corrected and pronounced by us in the open Forum, on this the 5^th day of October, 2017.

Member                   Member               President

                                                          District Consumer Forum,

Khammam.

 APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

For Complainant:-                                                 For Opposite party:-   

       -None-                                                                       -None-

DOCUMENTS MARKED:-

For Complainant:-                                                           For Opposite party:-   

Member                    Member              President

                                                          District Consumer Forum,

 Khammam.