BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 73/2002 Filed on 5/2/2002 Dated: 15..05..2009 Complainant: P. Shahul Hameed, Thannippara Veedu, Pezhummoodu, Aryanadu-P.O., Thiruvananthapuram. (By Adv. K. Radhakrishnan)
Opposite parties: The Branch Manager, State Bank of Travancore, Poovachal Branch, Poovachal P.O., Thiruvananthapuram – 695 575. The State Bank of Travancore, Head Office, Poojappura, Thiruvananthapuram, represented by its General Manager. (By Adv. M. Nizamudeen) The Branch Manager, State Bank of India, Perumbalur Branch, Madurai, Tamil Nadu.
(By Adv. S. Williams)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 09..03..2005, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 11..03..2009, the Forum on 15..05..2009 delivered the following: ORDER
SMT. S.K.SREELA, MEMBER:
The facts of the complaint are as follows: The complainant presented a cheque dated 26/8/2001 for an amount of Rs.60,000/- through his account in the 1st opposite party on 3/9/2001. He was issued with an acknowledgement receipt of cheque and as directed by the 1st opposite party, complainant waited for some days to get the cheque collected from the drawer's bank. After some days when the complainant enquired about the cheque, the 1st opposite party again directed the complainant to wait for some more days. But inspite of several requests the cheque amount has not been given. The complainant sent an advocate notice demanding the return of cheque or payment of the cheque amount for which the 1st opposite party sent a reply stating that the cheque was sent for collection through a Courier on 4/9/2001 and the courier has informed that the cheque was misplaced or lost. There is gross deficiency of service and dereliction of duty on the part of the 1st opposite party. Hence this complaint for redressal of his grievances. 2. The opposite parties 1 & 2 have filed their joint version contending as follows: The cheque bearing No.240158 dated 26/8/2001 drawn on the 3rd opposite party presented by the complainant on 3/9/2001 was sent by the 1st opposite party for collection through M/s. Speed and Safe Courier, T.C.24/105, W.C. Hospital Road, Thycaud, Thiruvananthapuram to the drawee 3rd opposite party. On getting information from the 3rd opposite party that the cheque was not received by the 1st opposite party orally and through letters dated 22/10/2001 & 19/11/2001, called upon the aforesaid Couriers to advise the date of delivery of the cheque or in case the item was not delivered, to return the same. The 1st opposite party was informed by the said Courier that the cheque was misplaced or lost and so the same was not handed over to the drawee bank. Immediately on knowing about the loss of the cheque the 1st opposite party informed the complainant of the same and he was orally adivsed, to contact the drawer of the cheque and obtain another cheque for the same amount. The 1st opposite party had further informed the complainant that the 1st opposite party would arrange for executing an indemnity in case the drawer deems it necessary for issuing another cheque. All the averments to the contrary in the complaint are absolutely false. It is submitted that the 1st opposite party had entrusted the cheque in good faith to the aforesaid Courier for the benefit of the complainant. The cheque was lost due to circumstances beyond the control of the opposite parties 1 & 2 by M/s. Speed and Safe Couriers. It is further submitted that the 1st opposite party had acted only as an agent of the complainant in entrusting M/s. Speed and Safe Couriers, the cheque for sending it for collection to the drawee bank. Therefore, the complainant has no cause of action against opposite parties 1 & 2. The cause of action if any of the complainant is against the said Couriers. There is no hiring of service for considerations between the complainant and opposite parties 1 & 2. The Manager of the said Courier is a necessary party to these proceedings. As the Courier is not impleaded as a party herein the complaint is bad for non-joinder of necessary parties and liable only to be dismisssed. There is no deficiency in service or dereliction of duty on the part of the opposite parties 1 & 2. Hence prays for dismissal of the complaint with costs.
3. The 3rd opposite party has filed their version stating that the complainant is totally a stranger to this opposite party. He had neither any business nor any transaction with the 3rd opposite party. Yousuf Kunju is not an Account Holder of the 3rd opposite party. No cheque is forwarded to the 3rd opposite party by the 1st opposite party for realisation of its proceeds. The complainant's property dealings are known to him alone. The 3rd opposite party neither witnessed any such transaction nor heard about it. Neither any deficiency of service alleged nor any damage is claimed against the 3rd opposite party, and all the allegations are levelled against the 1st and 2nd opposite parties and that as such the 3rd opposite party is an unnecessary party to this proceedings. Hence prays for exonerating the 3rd opposite party from the array of opposite parties along with costs of the proceedings. 4. All the parties have filed their affidavits. Exts. P1 to P5 were marked on the part of the complainant and Exts. D1 to D5 were marked on the side of the opposite parties 1 & 2. 5. From the contentions raised, the following issues arise for consideration: Whether there is any deficiency in service on the part of the opposite parties? Whether the complainant is entitled for the reliefs claimed in the complaint?
6. Points (i) & (ii) : It is an undisputed fact that the complainant had entrusted a cheque for Rs.60,000/- with the SBT, Poovachal branch and that the cheque has not been credited so far. According to the opposite parties 1 & 2 the cheque was sent by the 1st opposite party for collection through M/s. Speed and Safe Courier to the drawee bank which is the 3rd opposite party. The opposite parties 1 & 2 have averred in their version that, on getting information from the 3rd opposite party that the cheque has not been received by them, these opposite parties 1 & 2 contacted the Courier Company and the said Courier company informed that the cheque was misplaced/lost and so the same has not been handed over to the drawee bank.
7. It is an admitted fact that the cheque has not reached the 3rd opposite party and it has been misplaced or lost by the Speed & Safe Courier Company to whom the 1st opposite party had entrusted for collection. At this juncture, the aspect to be looked into is whether for this act of the Courier Company, the opposite parties 1 & 2 are answerable to the complainant. The cheque has been entrusted by the complainant to the 1st opposite party and not to the Courier Company. The complainant's dealings are with the 1st opposite party and not with the Courier Company. Moreover, the entrustment of the cheque with the Courier Company by the 1st opposite party is the internal transaction between the bank and the Courier Company. A consumer like the complainant need not known how the cheques are sent for collection etc. The 1st opposite party was obviously aware that the cheque has been lost from the Courier Company and whether any legal action has been initiated against them hitherto has not been brought on record. When a cheque is entrusted with the opposite parties, it is incumbent on their part to have ensured that it was duly sent for collection safely and without any delay. As a bank, the duty cast upon the opposite parties are of a higher degree of care and caution which they have failed in this case. As per Sec 2(1)(g) of the Consumer Protection Act "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service". Considering this provision it is proved beyond doubt that there is fault or shortcoming in the nature and manner of performance which was undertaken to be performed by the opposite parties banks in pursuance of disbursement of cheque amount. 8. The 1st opposite party in their version has contended that they had informed the complainant that they would arrange for executing an indemnity in case the drawer deems it necessary for issuing another cheque. Besides all these, the 3rd opposite party in their written version has remotely pleaded that the drawer Yousuf Kunju is not an Account Holder of the 3rd opposite party. But at this point of time, we need not consider the same as it is not the matter in dispute before us. 9. From the above discussion we conclude that the complainant has established a case of deficiency in service on the part of the opposite parties 1 & 2 and the ends of justice would be met, if the complainant is paid an amount of Rs.5,000/- towards compensation along with a cost of Rs.1,000/- by the opposite parties 1 & 2. In the circumstances of the case, there is no order as against the 3rd opposite party. In the result, the complaint is allowed. The opposite parties 1 & 2 shall pay an amount of Rs.5,000/- (Rupees Five thousand only) along with a cost of Rs.1,000/- (Rupees One thousand only) to the complainant within a period of 2 months, failing which the above amounts shall carry interest @ 9%. The 3rd opposite party is exempted from any liability. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15th day of May, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT
BEENA KUMARI.A, MEMBER. ad.
O.P.No. 73/2002
APPENDIX
I. Complainant's witness : NIL
II. Complainant's documents: P1 : Cash receipt dt. 3.9.2001 issued by SBT Poovachal in favour of A/c No.1831. P2 : Copy of legal notice dated 31/12/2001 issued to opposite party by the complainant's counsel. P3 : Postal receipt dated 1/1/2002 P4 : Acknowledgment card dt. 2/1/2002 P5 : Reply notice dated 24/1/2002 issued by opp.party
III. Opposite parties' witness NIL
IV. Opposite parties' documents:
D1 : Copy of message dt. 13/10/2001 issued by opposite parties. D2 : Copy of letter dated 3/1/2002 issued by Poovachal ADB. D3 : Copy of letter dt. 9/10/2001 issued by opp. Party D4 : Copy of registered lr.No.AGM 11/T/246 dt. 22/10/2001 issued by opp. Party. D5 : Copy of letter dated 19/11/2001 issued by Manager, Speed and Safe Courier, Thycaud, Tvpm.
PRESIDENT
ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 73/2002 Filed on 5/2/2002 Dated: 15..05..2009 Complainant: P. Shahul Hameed, Thannippara Veedu, Pezhummoodu, Aryanadu-P.O., Thiruvananthapuram. (By Adv. K. Radhakrishnan)
Opposite parties: The Branch Manager, State Bank of Travancore, Poovachal Branch, Poovachal P.O., Thiruvananthapuram – 695 575. The State Bank of Travancore, Head Office, Poojappura, Thiruvananthapuram, represented by its General Manager. (By Adv. M. Nizamudeen) The Branch Manager, State Bank of India, Perumbalur Branch, Madurai, Tamil Nadu.
(By Adv. S. Williams)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 09..03..2005, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 11..03..2009, the Forum on 15..05..2009 delivered the following: ORDER
SMT. S.K.SREELA, MEMBER:
The facts of the complaint are as follows: The complainant presented a cheque dated 26/8/2001 for an amount of Rs.60,000/- through his account in the 1st opposite party on 3/9/2001. He was issued with an acknowledgement receipt of cheque and as directed by the 1st opposite party, complainant waited for some days to get the cheque collected from the drawer's bank. After some days when the complainant enquired about the cheque, the 1st opposite party again directed the complainant to wait for some more days. But inspite of several requests the cheque amount has not been given. The complainant sent an advocate notice demanding the return of cheque or payment of the cheque amount for which the 1st opposite party sent a reply stating that the cheque was sent for collection through a Courier on 4/9/2001 and the courier has informed that the cheque was misplaced or lost. There is gross deficiency of service and dereliction of duty on the part of the 1st opposite party. Hence this complaint for redressal of his grievances. 2. The opposite parties 1 & 2 have filed their joint version contending as follows: The cheque bearing No.240158 dated 26/8/2001 drawn on the 3rd opposite party presented by the complainant on 3/9/2001 was sent by the 1st opposite party for collection through M/s. Speed and Safe Courier, T.C.24/105, W.C. Hospital Road, Thycaud, Thiruvananthapuram to the drawee 3rd opposite party. On getting information from the 3rd opposite party that the cheque was not received by the 1st opposite party orally and through letters dated 22/10/2001 & 19/11/2001, called upon the aforesaid Couriers to advise the date of delivery of the cheque or in case the item was not delivered, to return the same. The 1st opposite party was informed by the said Courier that the cheque was misplaced or lost and so the same was not handed over to the drawee bank. Immediately on knowing about the loss of the cheque the 1st opposite party informed the complainant of the same and he was orally adivsed, to contact the drawer of the cheque and obtain another cheque for the same amount. The 1st opposite party had further informed the complainant that the 1st opposite party would arrange for executing an indemnity in case the drawer deems it necessary for issuing another cheque. All the averments to the contrary in the complaint are absolutely false. It is submitted that the 1st opposite party had entrusted the cheque in good faith to the aforesaid Courier for the benefit of the complainant. The cheque was lost due to circumstances beyond the control of the opposite parties 1 & 2 by M/s. Speed and Safe Couriers. It is further submitted that the 1st opposite party had acted only as an agent of the complainant in entrusting M/s. Speed and Safe Couriers, the cheque for sending it for collection to the drawee bank. Therefore, the complainant has no cause of action against opposite parties 1 & 2. The cause of action if any of the complainant is against the said Couriers. There is no hiring of service for considerations between the complainant and opposite parties 1 & 2. The Manager of the said Courier is a necessary party to these proceedings. As the Courier is not impleaded as a party herein the complaint is bad for non-joinder of necessary parties and liable only to be dismisssed. There is no deficiency in service or dereliction of duty on the part of the opposite parties 1 & 2. Hence prays for dismissal of the complaint with costs.
3. The 3rd opposite party has filed their version stating that the complainant is totally a stranger to this opposite party. He had neither any business nor any transaction with the 3rd opposite party. Yousuf Kunju is not an Account Holder of the 3rd opposite party. No cheque is forwarded to the 3rd opposite party by the 1st opposite party for realisation of its proceeds. The complainant's property dealings are known to him alone. The 3rd opposite party neither witnessed any such transaction nor heard about it. Neither any deficiency of service alleged nor any damage is claimed against the 3rd opposite party, and all the allegations are levelled against the 1st and 2nd opposite parties and that as such the 3rd opposite party is an unnecessary party to this proceedings. Hence prays for exonerating the 3rd opposite party from the array of opposite parties along with costs of the proceedings. 4. All the parties have filed their affidavits. Exts. P1 to P5 were marked on the part of the complainant and Exts. D1 to D5 were marked on the side of the opposite parties 1 & 2. 5. From the contentions raised, the following issues arise for consideration: Whether there is any deficiency in service on the part of the opposite parties? Whether the complainant is entitled for the reliefs claimed in the complaint?
6. Points (i) & (ii) : It is an undisputed fact that the complainant had entrusted a cheque for Rs.60,000/- with the SBT, Poovachal branch and that the cheque has not been credited so far. According to the opposite parties 1 & 2 the cheque was sent by the 1st opposite party for collection through M/s. Speed and Safe Courier to the drawee bank which is the 3rd opposite party. The opposite parties 1 & 2 have averred in their version that, on getting information from the 3rd opposite party that the cheque has not been received by them, these opposite parties 1 & 2 contacted the Courier Company and the said Courier company informed that the cheque was misplaced/lost and so the same has not been handed over to the drawee bank.
7. It is an admitted fact that the cheque has not reached the 3rd opposite party and it has been misplaced or lost by the Speed & Safe Courier Company to whom the 1st opposite party had entrusted for collection. At this juncture, the aspect to be looked into is whether for this act of the Courier Company, the opposite parties 1 & 2 are answerable to the complainant. The cheque has been entrusted by the complainant to the 1st opposite party and not to the Courier Company. The complainant's dealings are with the 1st opposite party and not with the Courier Company. Moreover, the entrustment of the cheque with the Courier Company by the 1st opposite party is the internal transaction between the bank and the Courier Company. A consumer like the complainant need not known how the cheques are sent for collection etc. The 1st opposite party was obviously aware that the cheque has been lost from the Courier Company and whether any legal action has been initiated against them hitherto has not been brought on record. When a cheque is entrusted with the opposite parties, it is incumbent on their part to have ensured that it was duly sent for collection safely and without any delay. As a bank, the duty cast upon the opposite parties are of a higher degree of care and caution which they have failed in this case. As per Sec 2(1)(g) of the Consumer Protection Act "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service". Considering this provision it is proved beyond doubt that there is fault or shortcoming in the nature and manner of performance which was undertaken to be performed by the opposite parties banks in pursuance of disbursement of cheque amount. 8. The 1st opposite party in their version has contended that they had informed the complainant that they would arrange for executing an indemnity in case the drawer deems it necessary for issuing another cheque. Besides all these, the 3rd opposite party in their written version has remotely pleaded that the drawer Yousuf Kunju is not an Account Holder of the 3rd opposite party. But at this point of time, we need not consider the same as it is not the matter in dispute before us. 9. From the above discussion we conclude that the complainant has established a case of deficiency in service on the part of the opposite parties 1 & 2 and the ends of justice would be met, if the complainant is paid an amount of Rs.5,000/- towards compensation along with a cost of Rs.1,000/- by the opposite parties 1 & 2. In the circumstances of the case, there is no order as against the 3rd opposite party. In the result, the complaint is allowed. The opposite parties 1 & 2 shall pay an amount of Rs.5,000/- (Rupees Five thousand only) along with a cost of Rs.1,000/- (Rupees One thousand only) to the complainant within a period of 2 months, failing which the above amounts shall carry interest @ 9%. The 3rd opposite party is exempted from any liability. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15th day of May, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT
BEENA KUMARI.A, MEMBER. ad.
O.P.No. 73/2002
APPENDIX
I. Complainant's witness : NIL
II. Complainant's documents: P1 : Cash receipt dt. 3.9.2001 issued by SBT Poovachal in favour of A/c No.1831. P2 : Copy of legal notice dated 31/12/2001 issued to opposite party by the complainant's counsel. P3 : Postal receipt dated 1/1/2002 P4 : Acknowledgment card dt. 2/1/2002 P5 : Reply notice dated 24/1/2002 issued by opp.party
III. Opposite parties' witness NIL
IV. Opposite parties' documents:
D1 : Copy of message dt. 13/10/2001 issued by opposite parties. D2 : Copy of letter dated 3/1/2002 issued by Poovachal ADB. D3 : Copy of letter dt. 9/10/2001 issued by opp. Party D4 : Copy of registered lr.No.AGM 11/T/246 dt. 22/10/2001 issued by opp. Party. D5 : Copy of letter dated 19/11/2001 issued by Manager, Speed and Safe Courier, Thycaud, Tvpm.
PRESIDENT
ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 73/2002 Filed on 5/2/2002 Dated: 15..05..2009 Complainant: P. Shahul Hameed, Thannippara Veedu, Pezhummoodu, Aryanadu-P.O., Thiruvananthapuram. (By Adv. K. Radhakrishnan)
Opposite parties: The Branch Manager, State Bank of Travancore, Poovachal Branch, Poovachal P.O., Thiruvananthapuram – 695 575. The State Bank of Travancore, Head Office, Poojappura, Thiruvananthapuram, represented by its General Manager. (By Adv. M. Nizamudeen) The Branch Manager, State Bank of India, Perumbalur Branch, Madurai, Tamil Nadu.
(By Adv. S. Williams)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 09..03..2005, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 11..03..2009, the Forum on 15..05..2009 delivered the following: ORDER
SMT. S.K.SREELA, MEMBER:
The facts of the complaint are as follows: The complainant presented a cheque dated 26/8/2001 for an amount of Rs.60,000/- through his account in the 1st opposite party on 3/9/2001. He was issued with an acknowledgement receipt of cheque and as directed by the 1st opposite party, complainant waited for some days to get the cheque collected from the drawer's bank. After some days when the complainant enquired about the cheque, the 1st opposite party again directed the complainant to wait for some more days. But inspite of several requests the cheque amount has not been given. The complainant sent an advocate notice demanding the return of cheque or payment of the cheque amount for which the 1st opposite party sent a reply stating that the cheque was sent for collection through a Courier on 4/9/2001 and the courier has informed that the cheque was misplaced or lost. There is gross deficiency of service and dereliction of duty on the part of the 1st opposite party. Hence this complaint for redressal of his grievances. 2. The opposite parties 1 & 2 have filed their joint version contending as follows: The cheque bearing No.240158 dated 26/8/2001 drawn on the 3rd opposite party presented by the complainant on 3/9/2001 was sent by the 1st opposite party for collection through M/s. Speed and Safe Courier, T.C.24/105, W.C. Hospital Road, Thycaud, Thiruvananthapuram to the drawee 3rd opposite party. On getting information from the 3rd opposite party that the cheque was not received by the 1st opposite party orally and through letters dated 22/10/2001 & 19/11/2001, called upon the aforesaid Couriers to advise the date of delivery of the cheque or in case the item was not delivered, to return the same. The 1st opposite party was informed by the said Courier that the cheque was misplaced or lost and so the same was not handed over to the drawee bank. Immediately on knowing about the loss of the cheque the 1st opposite party informed the complainant of the same and he was orally adivsed, to contact the drawer of the cheque and obtain another cheque for the same amount. The 1st opposite party had further informed the complainant that the 1st opposite party would arrange for executing an indemnity in case the drawer deems it necessary for issuing another cheque. All the averments to the contrary in the complaint are absolutely false. It is submitted that the 1st opposite party had entrusted the cheque in good faith to the aforesaid Courier for the benefit of the complainant. The cheque was lost due to circumstances beyond the control of the opposite parties 1 & 2 by M/s. Speed and Safe Couriers. It is further submitted that the 1st opposite party had acted only as an agent of the complainant in entrusting M/s. Speed and Safe Couriers, the cheque for sending it for collection to the drawee bank. Therefore, the complainant has no cause of action against opposite parties 1 & 2. The cause of action if any of the complainant is against the said Couriers. There is no hiring of service for considerations between the complainant and opposite parties 1 & 2. The Manager of the said Courier is a necessary party to these proceedings. As the Courier is not impleaded as a party herein the complaint is bad for non-joinder of necessary parties and liable only to be dismisssed. There is no deficiency in service or dereliction of duty on the part of the opposite parties 1 & 2. Hence prays for dismissal of the complaint with costs.
3. The 3rd opposite party has filed their version stating that the complainant is totally a stranger to this opposite party. He had neither any business nor any transaction with the 3rd opposite party. Yousuf Kunju is not an Account Holder of the 3rd opposite party. No cheque is forwarded to the 3rd opposite party by the 1st opposite party for realisation of its proceeds. The complainant's property dealings are known to him alone. The 3rd opposite party neither witnessed any such transaction nor heard about it. Neither any deficiency of service alleged nor any damage is claimed against the 3rd opposite party, and all the allegations are levelled against the 1st and 2nd opposite parties and that as such the 3rd opposite party is an unnecessary party to this proceedings. Hence prays for exonerating the 3rd opposite party from the array of opposite parties along with costs of the proceedings. 4. All the parties have filed their affidavits. Exts. P1 to P5 were marked on the part of the complainant and Exts. D1 to D5 were marked on the side of the opposite parties 1 & 2. 5. From the contentions raised, the following issues arise for consideration: Whether there is any deficiency in service on the part of the opposite parties? Whether the complainant is entitled for the reliefs claimed in the complaint?
6. Points (i) & (ii) : It is an undisputed fact that the complainant had entrusted a cheque for Rs.60,000/- with the SBT, Poovachal branch and that the cheque has not been credited so far. According to the opposite parties 1 & 2 the cheque was sent by the 1st opposite party for collection through M/s. Speed and Safe Courier to the drawee bank which is the 3rd opposite party. The opposite parties 1 & 2 have averred in their version that, on getting information from the 3rd opposite party that the cheque has not been received by them, these opposite parties 1 & 2 contacted the Courier Company and the said Courier company informed that the cheque was misplaced/lost and so the same has not been handed over to the drawee bank.
7. It is an admitted fact that the cheque has not reached the 3rd opposite party and it has been misplaced or lost by the Speed & Safe Courier Company to whom the 1st opposite party had entrusted for collection. At this juncture, the aspect to be looked into is whether for this act of the Courier Company, the opposite parties 1 & 2 are answerable to the complainant. The cheque has been entrusted by the complainant to the 1st opposite party and not to the Courier Company. The complainant's dealings are with the 1st opposite party and not with the Courier Company. Moreover, the entrustment of the cheque with the Courier Company by the 1st opposite party is the internal transaction between the bank and the Courier Company. A consumer like the complainant need not known how the cheques are sent for collection etc. The 1st opposite party was obviously aware that the cheque has been lost from the Courier Company and whether any legal action has been initiated against them hitherto has not been brought on record. When a cheque is entrusted with the opposite parties, it is incumbent on their part to have ensured that it was duly sent for collection safely and without any delay. As a bank, the duty cast upon the opposite parties are of a higher degree of care and caution which they have failed in this case. As per Sec 2(1)(g) of the Consumer Protection Act "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service". Considering this provision it is proved beyond doubt that there is fault or shortcoming in the nature and manner of performance which was undertaken to be performed by the opposite parties banks in pursuance of disbursement of cheque amount. 8. The 1st opposite party in their version has contended that they had informed the complainant that they would arrange for executing an indemnity in case the drawer deems it necessary for issuing another cheque. Besides all these, the 3rd opposite party in their written version has remotely pleaded that the drawer Yousuf Kunju is not an Account Holder of the 3rd opposite party. But at this point of time, we need not consider the same as it is not the matter in dispute before us. 9. From the above discussion we conclude that the complainant has established a case of deficiency in service on the part of the opposite parties 1 & 2 and the ends of justice would be met, if the complainant is paid an amount of Rs.5,000/- towards compensation along with a cost of Rs.1,000/- by the opposite parties 1 & 2. In the circumstances of the case, there is no order as against the 3rd opposite party. In the result, the complaint is allowed. The opposite parties 1 & 2 shall pay an amount of Rs.5,000/- (Rupees Five thousand only) along with a cost of Rs.1,000/- (Rupees One thousand only) to the complainant within a period of 2 months, failing which the above amounts shall carry interest @ 9%. The 3rd opposite party is exempted from any liability. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15th day of May, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT
BEENA KUMARI.A, MEMBER. ad.
O.P.No. 73/2002
APPENDIX
I. Complainant's witness : NIL
II. Complainant's documents: P1 : Cash receipt dt. 3.9.2001 issued by SBT Poovachal in favour of A/c No.1831. P2 : Copy of legal notice dated 31/12/2001 issued to opposite party by the complainant's counsel. P3 : Postal receipt dated 1/1/2002 P4 : Acknowledgment card dt. 2/1/2002 P5 : Reply notice dated 24/1/2002 issued by opp.party
III. Opposite parties' witness NIL
IV. Opposite parties' documents:
D1 : Copy of message dt. 13/10/2001 issued by opposite parties. D2 : Copy of letter dated 3/1/2002 issued by Poovachal ADB. D3 : Copy of letter dt. 9/10/2001 issued by opp. Party D4 : Copy of registered lr.No.AGM 11/T/246 dt. 22/10/2001 issued by opp. Party. D5 : Copy of letter dated 19/11/2001 issued by Manager, Speed and Safe Courier, Thycaud, Tvpm.
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
