Tamil Nadu

South Chennai

CC/384/2016

P.Ramesh Rao - Complainant(s)

Versus

The Branch Manager, Indian Overseas Bank, Texco Srinagar Colony Branch - Opp.Party(s)

K.R.Ramesh Kumar

03 Dec 2018

ORDER

                                                                        Date of Filing  : 18.11.2016

                                                                          Date of Order : 03.12.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP., : MEMBER-II

 

C.C. No.384/2016

DATED THIS MONDAY THE 03^RD DAY OF DECEMBER 2018

                                 

Mr. P. Ramesh Rao,

No.9, Silver Oak Apartments,

7-A, North Avenue,

Sri Nagar Colony,

Saidapet,

Chennai – 600 015.                                                      .. Complainant.                                                    

 

      ..Versus..

 

1. The Branch Manager,

Indian Overseas Bank,

Texco Srinagar Colony Branch,

Saidapet,

Chennai- 600 015.

 

2. The Branch Manaager,

Canara Bank,

T. Nagar Branch,

Chennai – 600 017.                                                 ..  Opposite parties.

          

Counsel for complainant              :  M/s. K.R. Ramesh Kumar

Counsel for 1^st opposite party     :  M/s. K. Balajee & another

Counsel for 2^nd opposite party     :  M/s. K.P. Kiran Rao

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to pay a sum of Rs.3,00,000/- with interest at the rate of 9% p.a. from 09.06.2016 to till the date of realization and to pay a sum of Rs.2,00,000/- towards compensation for mental agony and physical strain with cost to the complainant.

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

The complainant submits that one Mrs. Vidya Raman issued 3 cheques in favour of the complainant and deposited with the 1^st opposite party bank on 09.06.2016 at about 11.45 a.m. in the drop box provided inside the 1^st opposite party premises.  The complainant submits that out of the 3 cheques, 2 cheques were cleared and credited in the account of the complainant and the cheque bearing No.329141 drawn on the 2^nd opposite party bank was not cleared till 16.06.2016.   Hence, the complainant went to the 1^st opposite party bank and enquired about the cheque.  At the same time, the complainant contacted Mrs. Vidhya Raman; who informed that the cheque No.329141 was debited in her account on 10.06.2016 itself. Immediately, the complainant contacted the 1^st opposite party Bank Manager Mr. Murali and explained about the deposit of cheque and other details regarding withdrawal of the amount.   The complainant submits that he met the 2^nd opposite party’s Branch Manager along with the Branch Manager of the 1^st opposite party on 17.06.2016 and upon investigation found that the cheque was tampered and the amount was debited from the account of  Mrs. Vidhya Raman. 

2.     The complainant submits that after due discussion with the Branch Manager of the opposite parties 1 & 2 regarding the alleged tampered cheque the 1^st opposite party assured to rectify the mistake and credit the amount in favour of the complainant. The complainant submits that on 18.06.2016, he met the 1^st opposite party’s Manager and confirmed that the surveillance camera footage in the bank premises showed dropping of the cheque in the drop box.   The complainant submits that even after the assurance of the opposite parties they have not come forward to settle the amount which was debited in the account of Mrs. Vidya Raman and taken away by the third party through the 2^nd opposite party bank after due tamper.   The complainant submits that on 22.06.2016, the complainant lodged a police complaint to investigate the matter of tampering of cheque after depositing the drop box of the 1^st opposite party.   But there is no proper response.   The complainant submits that the 2^nd opposite party also has not followed the necessary requirements as per “Know your customer norms prescribed by the Reserve Bank of India”.     Hence the complainant sent notices to both parties as well as Ombudsman.   The complainant sent letters dated:22.06.2016 & 27.06.2016 to both the opposite parties.  Thereafter, the complainant sent legal notice dated:27.07.2016 to the opposite parties.  The opposite parties sent reply notice dated:19.08.2016 & 01.09.2016 respectively but not come forward to settle the demands of the complainant.  The act of the opposite parties caused great mental agony.  Hence, the complaint is filed.

3.      The brief averments in the written version filed by the  1^st opposite party is as follows:

The 1^st opposite party specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.   The 1^st opposite party denies the averments that the complainant dropped 3 cheques on 09.06.2016 in the drop box of the 1^st opposite party.  The 1^st opposite party states that they collected only two cheques dropped by the complainant on that day and credited the same in the complainant’s SB Account.  The 1^st opposite party states that the cheque bearing No.329141 was not deposited with the 1^st opposite party bank.  The 1^st opposite party states that the Manager of the 1^st opposite party accompanied the complainant  and met the 2^nd opposite party bank Manager is only to render customer service and to know the factual position of the cheque.  The 1^st opposite party submits that during the discussion, the 2^nd opposite party Bank, Branch Manager informed that the said cheque was paid over the counter to a third party.  The 1^st opposite party never assured the complainant to credit the cheque bearing No.329141, since the 1^st opposite party is no way connected to the payment of the said cheque.   The 1^st opposite party states that 1^st opposite party is not responsible for the payment made by the 2^nd opposite party and not liable to reimburse the cheque amount.   Therefore, there is no deficiency in service on the part of the 1^st opposite party and the complaint is liable to be dismissed.

4.      The brief averments in the written version filed by the  2^nd  opposite party is as follows:

The 2^nd opposite party specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.   The 2^nd opposite party states that this complaint is solely based on the fraudulent act committed by a person who received the complainant’s cheque from the drop box of the complainant’s banker, the 1^st opposite party which requires an elaborate detailed enquiry, investigation and evidence and such cases shall not be tried in this Forum by way of summary procedure.   The 2^nd opposite party states that the email lodged by the complainant before the banking Ombudsman is also a full proof that the complainant deposited the cheques in the designated drop box of the 1^st opposite party which shall be operated only by the 1^st opposite party for which, the 2^nd opposite party shall not be held responsible in any way.   The 2^nd opposite party states that the alleged cheque was an open and bearer cheque and the bank cannot refuse to make payment in case of an open and bearer cheque as once a bearer always a bearer.   Hence, the 2^nd opposite party has acted as per normal banking practice in good faith and without negligence in the normal course during the normal banking hours and has not committed any deficiency in service.   As per law, the paying banker has to verify the signature of the drawer of the cheque with the specimen signature and get the signature of the bearer at the back of the cheque and pay the amount if otherwise in order.  Since the alleged cheque was an open and bearer cheque after verifying the specimen signature since there was no doubt or any suspicion about any forgery, fraud or tampering in the alleged cheque, the amount was paid to the bearer as per normal banking practice.  This cannot be termed as deficiency in service on the part of the 2^nd opposite party by any stretch of imagination.  The 2^nd opposite party is that a bearer cheque has been produced before the counter of the 2^nd opposite party was duly cleared as per RBI guidelines for which, the 2^nd opposite party shall not be held liable.  Therefore, there is no deficiency in service on the part of the 2^nd opposite party and the complaint is liable to be dismissed.

5.    To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A7 are marked.  Proof affidavit of the 1^st opposite party is filed and no document is marked on the side of the 1^st opposite party.  Proof affidavit of the 2^nd opposite party is filed and documents Ex.B1 to Ex.B3 are marked on the side of the 2^nd opposite party. 

6.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.3,00,000/- with interest at the rate of 9% p.a. as prayed for?

2. Whether the complainant is entitled to a sum of Rs.2,00,000/- towards compensation for mental agony and physical strain with cost as prayed for?

7.      On point:-

Both parties filed their respective written arguments.  Heard the Counsels also.   Perused the records namely the complaint, written versions, proof affidavits, documents etc.  The complainant pleaded and contended that one Mrs. Vidya Raman issued 3 cheques in favour of the complainant and deposited with the 1^st opposite party bank on 09.06.2016 at about 11.45 a.m. in the drop box provided inside the 1^st opposite party premises.  Further the complainant contented that out of the 3 cheques, 2 cheques were cleared and credited in the account of the complainant and the cheque bearing No.329141 drawn on the 2^nd opposite party bank was not cleared till 16.06.2016.   Hence, the complainant went to the 1^st opposite party bank and enquired about the cheque.  At the same time, the complainant contacted Mrs. Vidhya Raman; who informed that the cheque No.329141 was debited in her account on 10.06.2016 itself. Immediately, the complainant contacted the 1^st opposite party Bank Manager Mr. Murali and explained about the deposit of cheque and other details regarding withdrawal of the amount.  

8.     Further the complainant contended that he met the 2^nd opposite party’s  Branch Manager and along with the Branch Manager of the 1^st opposite party on 17.06.2016 and upon investigation found that the cheque was tampered and the amount was debited from the account of the Mrs. Vidhya Raman.  Ex.B3 is the copy of cheque.  Further the contention of the complainant is that after due discussion with the Branch Manager of the opposite parties 1 & 2 regarding the alleged tampered cheque the 1^st opposite party assured to rectify the mistake and credit the amount in favour of the complainant.   Further the contention of the complainant is that on 18.06.2016, he met the 1^st opposite party’s Manager and confirmed that the surveillance camera footage in the bank premises showed dropping of the cheque in the drop box.   But the camera does not revealed further details about how the cheque has been taken out and tampered.   The 1^st opposite party neither in the written version nor in the proof affidavit or even at the time of argument has not denied the confirmation regarding the dropping of the cheque by the complainant recorded in the surveillance camera footage proves that the impugned cheque No.329141 was deposited in the drop box of the 1^st opposite party by the complainant. 

9.     Further the contention of the complainant is that even after the assurance of the opposite parties they have not come forward to settle the amount which was debited in the account of Mrs. Vidya Raman and taken away by the third party through the 2^nd opposite party bank after due tamper.   Further the contention of the complainant is that on 22.06.2016, the complainant lodged a police complaint to investigate the matter of tampering of cheque after depositing into the drop box of the 1^st opposite party.   But there is no proper response.   Further the contention of the complainant is that the 2^nd opposite party also has not followed the necessary requirements as per “Know your customer norms prescribed by the Reserve Bank of India”.   The Counsel for the complainant submitted that the 2^nd opposite party is liable for clearance since the 2^nd opposite party even without noticing the mobile No.984185737 which is only having 9 digits and the signature cleared the amount to the third party who is an unknown person which is very clear in Ex.B3.  Hence the complainant sent notices to both parties as well as Ombudsman.  Ex.A1 & Ex.A2 are the letters, Ex.A4 is the legal notice Ex.A5 & Ex.A6 are the reply notices of the opposite parties.  The Ombudsman after receiving the email of the complainants has not sent any reply.  Further the Counsel for the complainant submitted that throughout the case, the complainant specifically pleaded the depositing of the cheque in the drop box of the 1^st opposite party which was also recorded in the surveillance camera as per Ex.B1 was not denied by the 1^st opposite party proves the negligence and deficiency in service of the 1^st opposite party. 

10.    The Counsel for the complainant cited the decision reported in:-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

FIRST APPEAL NO.252 OF 2014

Between

Kotak Mahindra Bank Ltd. & another

-Versus-

P.R. Govindan Kutty Menon & another

Held that

          “It is clearly established that there is deficiency in service on the part of both the opposite parties.  The 1^st opposite party did not follow the procedure prescribed by the Reserve Bank of India, because of which, the SB account could be fraudulently opened by a person with the intention of committing fraud and to withdraw the amount by committing theft of a cheque from the drop box of the 2^nd opposite party and depositing the cheque in his account and by committing fraud he withdrew the amount from the account”.

11.    The contention of the 1^st opposite party is that the allegation of depositing cheque No.329141 in the drop box is totally denied.   But the 1^st opposite party has not denied the surveillance camera footage regarding the depositing of cheque in the drop box by the complainant muchless, Ex.B1 email to the Ombudsman.   Further the contention of the 1^st opposite party is that the Manager of the 1^st opposite party accompanied the complainant  and met the 2^nd opposite party bank is only to render customer service and to know the factual position of the cheque. That the impugned cheque was duly honoured by the 2^nd opposite party wherein wrong mobile number is given which is alleged to be deposited in drop box of the 1^st opposite party as per Ex.B1 letter addressed to the Ombudsman.   Further the contention of the 1^st opposite party is that 1^st opposite party is not responsible for the payment made by the 2^nd opposite party and not liable to reimburse the cheque amount.   But on a careful perusal of records, it is seen that the complainant deposited the cheque in the drop box of the 1^st opposite party was recorded in the surveillance camera footage is not denied by the 1^st opposite party and has not taken any steps to produce the surveillance camera footage in this Forum to prove how it reached the third party and has not been explained proves the deficiency in service of the 1^st opposite party.

12.    The contention of the 2^nd opposite party is that this complaint is solely based on the fraudulent act committed by a person who received the complainant’s cheque from the drop box of the complainant’s banker, the 1^st opposite party which requires an elaborate detailed enquiry, investigation and evidence and such cases shall not be tried in this Forum by way of summary procedure.   But on a careful perusal of records, it is apparently clear that the complainant deposited the cheques in the drop box of the 1^st opposite party which was recorded in the surveillance camera footage of the 1^st opposite party which is not denied by the 1^st opposite party and the 1^st opposite party who is the custodian of the surveillance camera footage has not taken any steps to produce the record of the surveillance camera footage establishes the negligence and deficiency in service.   Further the contention of the 2^nd opposite party is that the email lodged by the complainant before the banking Ombudsman as per Ex.B1 is also a full proof that the complainant deposited the cheques in the designated drop box of the 1^st opposite party which shall be operated only by the 1^st opposite party for which, the 2^nd opposite party shall not held responsible in any way.   Further the contention of the 2^nd opposite party is that a bearer cheque has been produced before the counter of the 2^nd opposite party was duly cleared as per RBI guidelines for which, the 2^nd opposite party shall not be held liable.

13.    The Counsel for the 2^nd opposite party cited the decision reported in:-

II (2013) CPJ 661 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

K.V. Sheeba

-Versus-

Canara Bank & Ors.

Held that

          “Banking and Financial Institutions Services – Cheques – Genuineness of presentation – Encashed by person other than bearer – Monetary loss – Alleged deficiency in service – District Forum allowed complaint – State Commission allowed appeal – Hence revision – Cheque in question was drawn in favour of “Petitioner or Bearer” – Since bearer of cheque has presented the same for encashment, there was no need for further verifying the antecedents of bearer -  Deficiency in service not proved”.

According to Negotiable Instruments Act, 1881 the definition of bearer cheque reads as follows:

“Where a cheque is originally expressed to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof, notwithstanding any endorsement whether in full or in blank appearing thereon, and notwithstanding that any such endorsement purports to restrict or exclude further negotiation”.

Considering the facts and circumstances of the case this Forum is of the considered view that the 1^st opposite party committed deficiency in service and hence the 1^st opposite party shall pay a sum of Rs.3,00,000/- towards the value of the cheque along with interest at the rate of 9% p.a. from the date of complaint (i.e.)18.11.2016 to till the date of this order and to pay a sum of Rs.30,000/- towards compensation for mental agony with cost of Rs.5,000/-.  The complaint as against the 2^nd opposite party shall be dismissed.

  In the result, this complaint is allowed in part.   The 1^st opposite party is directed to pay a sum of Rs.3,00,000/- (Rupees Three lakhs only) being value of cheque along with interest at the rate of 9% p.a. from the date of complaint (i.e.) 18.11.2016 to till the date of this order and to pay a sum of Rs.30,000/- (Rupees Thirty thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant. The complaint as against the 2^nd opposite party is hereby dismissed.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 03^rd December 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

		Copy of letter from the complainant to the 1st opposite party
		Copy of letter from the complainant to the 2nd opposite party
		Copy of receipt issued by the Police Department for the complaint lodged by the complainant
		Copy of legal notice issued to the opposite parties along with the postal receipt and acknowledgement
		Copy of reply notice issued by the 1st opposite party Bank
		Copy of reply notice issued by the 2nd opposite party Bank
		Circular from the Indian Bank, Banking Operations Department

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS:  NIL

2^ND OPPOSITE  PARTY SIDE DOCUMENTS: 

Ex.B1	18.07.2016	Copy of E-mail from the complainant’s son to the Banking Ombudsman
Ex.B2	19.12.2016	Copy of letter from the 2nd opposite party to the Ombudsman
Ex.B3	08.06.2016	Copy of cheque issued by Vidya Raman

 

 

                                                                              

MEMBER-I                           MEMBER-I I                     PRESIDENT