Date of Filling:      17.10.2017

                                                                                                                       Date of Disposal:  14.08.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:    R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CC No.50/2016

TUESDAY, THE 14 DAY OF AUGUST 2018

V.R.Kothandaraman,

S/o.V.Rangasamy,

No.31, Second Cross Street,

Murugesan Nager,

Tirunindravur - 602 024.                                             ……Complainant.

                                                 //Vs//

The Branch Manager,

Indian Bank.

Tirunindravour Branch.                                         …..Opposite party.

The complaint is coming upon before us finally on 06.08.2018 in the presence of Thiru.A.R.Poovannan, counsel for the complainant and M/s.K.V.Srinivasan, counsel for the opposite party and upon hearing arguments, having perused the documents and evidences this Forum delivered the following.

ORDER

PRONOUNCED BY  THIRU.R.BASKAR KUMARAVEL, MEMBER.

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite party for seeking direction to refund the debit amount of Rs.115/- from the complainant account and a sum of Rs.1,00,000/-towards compensation due to the deficiency of service on the part of the opposite party for the mental agony and hardship caused to the complainant and with cost.

2.The brief averments of the complaint are as follows:-

The Complainant is having a Saving Banking Account in Indian Bank, Thirunindravur Branch, Thiruvallur Disrtict and he availed cheque facility on his account in A/c No.455708118.  The complainant towards his personal transaction on 02.05.2016 issued a cheque bearing No.866563 for a sum of Rs.5,000/- to favour of one Mr.S.T.Sivakumar.

3.  The said S.T.Sivakumar Presented the above cheque for realization at City Union Bank limited, where he possess his account.  The said S.T.Sivakumar during the first week of May 2016 contacted the complainant and informed that the cheque issued by the complainant was not honoured and was returned.  When the complainant approached the opposite party office about the reason for the return there was no proper explanation, but it was found that a sum of Rs.115/- was debited from the complainants account as cheque dishonor charge.  Thereafter, the said Mr.S.T.Sivakumar then showed the cheque return memo to the complainant and the complainant was shocked to see the return endorsement, that Withdrawal stopped owing to death of the account holder.  The complainant does not really understand as to how the bank can make such a reason when the complainant is still alive.  That apart from such a hasty and reckless return, the attitude of the opposite party employees made the complainant to suffer a lot and was put to great mental agony and hardship.  The opposite partys action amounts to gross deficiency in service.  The complainant was put to great mental agony and hardship.

4. Therefore, on 16.02.2016 issued a legal notice to the opposite party to accept the mistake crept by the opposite party and seek apology.  On receipt of the same the opposite party sends a reply letter on 04.07.2016 to complainant counsel the cheque was not presented to the branch and every think was processed at service branch of the concerned bank and due to technical or system problem the wrong reason might have been picked from drop down box.

5. That though it is well known the opposite party and for the reason best known to them, they wantonly furnished the same and not verified before dishonor the cheque to the customer account and it was not right and it amounts to deficiency in service and put to loss, great mental agony, hardship and strain.  Hence therefore the complainant is obliged to file this complaint for damage and compensation.

6. The contention of written version of the opposite party is briefly as follows:-

 The complaint is not maintainable in law and on facts.  It is malicious, frivolous and vexatious.  The allegations mentioned in the complaint are denied except which are expressly admitted herein.  Infact the opposite party explained apologies to the complainant and intimated the complainant,that the dishonor was not done by opposite party branch.  The cheque was sent to service branch at Chennai, and due to cheque truncation system, it was learnt an error has occurred.  Though there was no fault on our side, the opposite has sought for an apology.  There is no negligence on the part of the opposite party.  The cheque was not presented in the opposite party branch for collection.  This branch has not returned the cheque, with an endorsement Withdrawal stopped owing to death of the account Holder.  There is no negligence on the part of the opposite party.

7. There was no legal notice sent on 16.02.2016.  There was a notice sent by the complainant on 16.06.2016 demanding the opposite party to accept the mistake sought an apology.  On 04.07.2016 the opposite party sent a notice to the complainant’s counsel and expressed apology for the incident.  Having received an apology which was demanded by the complainant in his legal notice dated 16.06.2016, no further action maintainable.  There is no cause of action on 16.02.2016.  The opposite party is not liable to pay any compensation as alleged by the complainant.  There is no deficiency of service by the opposite party.  Hence, the complaint may be dismissed.

8. In order to prove the case, on the side of the complainant, the proof affidavit submitted with evidence and Ex.A1to ExA5 were marked.  While so, on the side of the opposite party, the proof affidavit is filed and Ex.B1 is marked on their side.

9. At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

10. Written arguments filed and oral arguments also heard on both sides.

 Point no:1:-

11. The complainant is an SB Account holder of Indian Bank, Thirunindarvur Branch, Thiruvallur District issued a cheque bearing No.866563 for a sum of Rs.5,000/- (Five thousand only) in favour of one Mr.S.T.Sivakumar for his personal transaction on 02.05.2016.  The said S.T. Sivakumar presented a cheque for realization at City Union Bank where he holds his SB account.  Thereafter the said Siva kumar in the first week of May 2016 contacted the complainant and informed that the cheque was dishonour and returned.  He showed the return memo to the complainant reason mentioned for dishonour as withdrawal stopped owing to death of the account holder after seeing this complainant was shocked and immediately the complainant approached his Bank the opposite party and enquired about the reason mentioned of cheque for dishonour there was no proper explanation from the opposite party. At the same time the complainant found in his SB account statement a sum of Rs 115/- debited from the complainant accounts as charge for cheque dishonour.  The conduct the   opposite party towards the complainant reveals deficiency of service of the opposite party which caused and hardship to the complainant.

12. While so, it is learnt from the written version filed by the opposite party, pleads that the cheque was sent to service Branch at Chennai and due to cheque truncation system, it was learnt an error has occurred. It is an admitted fact that the opposite party has sought for apology with the complainant for the wrongful act of service branch though there is no fault on their side.  The opposite party in his written version pleaded that there is no negligence on the part of the opposite party and pleads that the cheque was not presented in the opposite party bank for collection.  Further denies the entire allegation mentioned in para 6 and 7 are not true.  There was no legal notice sent on 16.02.2016.  The notice was sent by the complainant on 16.06.2016 demanding the opposite party to accept the mistake and to seek an apology.  On 04.07.2016 the opposite party sent a reply notice through their counsel and expressed apology for the incident.  The notice dated 04.07.2016 may be read part and parcel of the written version.

13. The opposite party denies the allegation mentioned in the para 8 is false and there is no cause of action arose on 16.02.2016 and the claim of the complainant is false before this Forum and the opposite party is not liable to pay compensation as alleged in the complaint that too Rs.1,00,000/- as relief sought  by the complainant is unsustainable when there is no deficiency of service caused by the opposite party.  Hence the complainant may be dismissed.

14. At this juncture, on careful perusal of the evidence adduced on both sides by way of proof Affidavit, it is crystal clear that it is an admitted fact the complainant has issued a cheque for his personal transaction to one Mr.S.T.Sivakumar on 02.05.2016 and the same was accepted and presented by Mr.S.T. Sivakumar at City Union Bank where he maintained his Savings Bank account.  It is further learnt from the evidence that after presenting the cheque, the cheque was dishonour by the service Branch with an endorsement made in the return memo as withdrawal stopped owing to death of the account holder and the same was intimated to the complainant by  Mr.S.T. Sivakumar who is the holder in due course of the instrument.

15. While being so, on careful perusal of the documentary evidence adduced by the complainant, the pass book is marked as Ex.A1 to prove that the complainant is having Saving Bank account in the Indian Bank.  The cheque issued by the complainant to Mr.S.T.Sivakumar is marked as Ex.A2 and written memo filed on the side of the complainant is marked as Ex.A3 and the legal notice sent by the complainant to the opposite party is marked as Ex.A4 and the reply notice sent by the opposite party to the complainant is marked as Ex.A5.  Similarly, on the side of the opposite party filed only one documentary evidence that the statement of account filed by the opposite party is marked as Ex.B1.

16. In furtherance, with going through the evidence of the complainant, it is found that as per Ex.A3 the opposite party committed a mistake of dishonouring the cheque with wrongful endorsement in the written memo. When the complainant is enquired with the opposite party for such wrongful endorsement no proper reply said by the opposite party.  In spite of that they have charged for dishonour of cheque a sum of Rs.115/- from the account of the complainant which is clearly evidence through the document Ex.B1 filed on the side of the opposite party itself.

17.  Through the above documentary evidences it is proved the default and deficiency of service committed on the side of the opposite party towards the complainant. Then the complainant sent legal notice to the opposite party Ex.A4 seeking apology from the opposite party for the deficiency of service committed by the opposite party.  After receiving the legal notice the opposite party sent reply notice to the complainant Ex.A5 reveals that the opposite party admits the demand of the complainant through his reply notice profusely applozized to the complainant for the deficiency committed by them.  It is clearly proves that opposite party committed deficiency of service to the complainant. So, as per the rule of law it is an admitted fact on the part of the opposite party the complainant need not be proved his case with any more evidence and also the opposite party credited the wrongfully debited amount of service charge back to the complainant account.  This is done by the opposite party after filing of this complaint before this Forum.  Hence, the act of the opposite party further proves that the opposite party committed a deficiency of service against the complainant.

18. In the light of above facts and circumstances and evidence, adduced by the complainant it is proved that the deficiency of service on the part opposite party as alleged in the complaint without any reasonable doubt and hesitation this Forum has come to the conclusion that there is deficiency of service on the part of the opposite party. Thus the point no 1 is answered accordingly.

POINT:2:-

19. In view of the conclusion arrived in point no 1, the complainant is entitled for the following relief. Thus the point no 2 is answered accordingly.

Since, the complainant at the time of issuing the legal notice to the opposite party the complainant is not demanded specifically any amount of compensation in his legal notice in spite of that he has demanded with opposite party to apology for the wrongful act of service branch for wrongful dishonour of the cheque.  But later on, at the time of filing complaint only the complainant has been claimed damage against the opposite party as Rs.1,00,000/- it is afterthought of filing complaint and moreover, the opposite party admits the deficiency of service committed towards the complainant and sought apology with the complainant through his reply notice. Considering the above facts, the compensation is restricted for causing mental agony and hardship and financial loss to the complainant by the opposite party.

In the result, this complaint is allowed in part.  Accordingly, the opposite party is directed to pay a sum of Rs.5,000/-(Rupees Five thousand only) to the complainant towards compensation for causing mental agony and hardship due to the deficiency of service on the part of the opposite party and with cost of Rs.3,000/- (Rupees Three thousand only).  Regarding other reliefs this complaint is dismissed.

            The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum on this 14^th August 2018.

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MEMBER                                                                         PRESIDENT

List of document of the complainant:-

List of document of the opposite party:-

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         MEMBER                                                                                 PRESIDENT