Tamil Nadu

North Chennai

197/2013

Mr.V.Suresh Kumar - Complainant(s)

Versus

The branch manager,ICICI Bank,Nungambakkam branch, - Opp.Party(s)

L.Prabahar

19 Jan 2017

ORDER

                                                            Complaint presented on:  18.10.2013

                                                                Order pronounced on:  19.01.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

THURSDAY THE 19^th  DAY OF JANUARY 2017

 

C.C.NO.197/2013

 

 

Mr.V.Suresh Kumar,

No.38, Barracks Road,

Periamet, Chennai.

                                                                                    ….. Complainant

 

..Vs..

1.The Branch Manager,

ICICI Bank,

Nungambakkam Branch,

110, Prakash Presidium,

Nungambakkam High Road,

Nungambakkam, Chennai – 600 034.

 

2. The Manager,

AXIS Bank, CMS Service Cell,

192, Karumuthunilayam Building,

Anna Salai, Chennai – 600 002.

.....Opposite Parties

Date of complaint                                 : 22.10.2013

Counsel for Complainant                      : L.Prabahar

Counsel for   1^st Opposite Party               : M/s.K.Kumaran

 

Counsel for   2^nd Opposite Party               : M/s. Shivakumar & Suresh

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant is a customer of the 1^st Opposite Party under account No.000901027354 and he had availed housing loan from LICHFL. He has paid installment amount of Rs.1,00,000/- to LICHFL by way of cheque drawn on the 1^st Opposite Party in the above referred account dated 15.10.2012 bearing No.932401. To his shock and surprise he received a letter from LICHFL disclosing that the cheque given by Complainant was dishonoured due to insufficient funds. The LICHFL has cancelled the facility of payment of installment by way of cheque to the Complainant due to the said reasons. Without seeing the balance the 1^st Opposite Party has dishonoured the cheque stating funds insufficient. By which act the 1^st Opposite Party has committed deficiency in service. Due to this the Complainant has suffered loss of reputation, lot of mental agony apart from physical and financial strain. He has caused a notice through his counsel to the 1^st Opposite Party dated 30.11.2012. The 1^st Opposite Party has sent a reply to the Complainant dated 03.01.2013 stating that the said cheque was dishonoured due to the difference in the Complainant signature. The same was communicated to the 2^nd Opposite Party being the banker of the beneficiary of the cheque namely LICHFL. However the 2^nd Opposite Party has wrongly intimated as the cheque was dishonoured due to INSUFFICIENT FUNDS to LICHFL, in whose favour the cheque was drawn. The Complainant caused a notice through his counsel on 22.01.2013 to the 2^nd Opposite Party for its mistake. The 2^nd Opposite Party being a banker is duty bound to serve as per norms of banking practice. The Complainant further states that the Opposite Parties have committed deficiency in service and the Complainant has suffered loss of reputation, mental agony apart from physical and financial strain. His creditor LICHFL has charged cheque returned charges and directed the Complainant to pay the future installments by cash or D.D. The Complainant has to suffer physical strain till the discharge of loan due to LICHFL since; LICHFL has directed the Complainant to make payment not by cheque but by Demand Draft or cash. Hence the Complainant filed this Complaint praying compensation for deficiency in service and mental agony with cost of the Complaint.

2. WRITTEN VERSION OF THE 1^st  OPPOSITE PARTY IN BRIEF:

          The 1^st Opposite Party admits that the Complainant is an account holder of the 1^st Opposite Party under a savings bank account No.000901027354 and he had availed a loan from LIC Housing Finance Limited and towards repayment of the loan dues, it seems that the Complainant apart from other cheques has also issued a cheque bearing No.932401 drawn on the 1^st Opposite Party in favour of the LIC Housing Finance Limited dated 15.10.2012 for a sum of Rs.1,00,000/- . The LICHFL has presented the same for encashment through their banker the 2^nd Opposite Party herein. On presentation to them, the 1^st Opposite Party has verified the signature available in the cheque with the specimen signature available in their records and found that the signatures does not match and the signature in the cheque differs from the signature of the Complainant which is available in their bank records. Hence the 1^st Opposite Party has correctly returned the said cheque to the 2^nd Opposite Party for the reason “Drawer’s signature differs” as the signature on the cheque was not matching with their records. However, the 2^nd Opposite Party while returning the cheque had wrongly quoted the return reason as “Insufficient funds”, instead of the reason of “Drawer’s signature differs” given by the 1^st Opposite Party. It is very clear that the 1^st Opposite Party has not committed any deficiency in service and it is only the 2^nd Opposite Party who has given the reason for the dishonor wrongly as “Funds Insufficient”. Further, the said wrong committed by the 2^nd Opposite Party has been admitted by him. If at all the Complainant has suffered any hardship due to the return of the cheque  by the 2^nd Opposite Party, then this  Opposite Party is not at all liable for the same. The Complainant had sent a legal notice dated 30.11.2012 to this Opposite Party. Hence by reply letter dated 03.01.2013, the 1^st Opposite Party has clarified to the Complainant about the above said facts. Further the Complainant has not produced any documents to show that the LICHFL has discontinued the facility of making payments to them through cheque for the Complainant due to the above said dishonor. There is no deficiency in service on the part of this Opposite Party and hence prays to dismiss the Complaint with cost.

3. WRITTEN VERSION OF THE 2^nd  OPPOSITE PARTY IN BRIEF

          The 1^st Opposite Party returned the cheque with a memo giving reason “Reason Code 12” (i.e.Drawer Signature Differs”). Such being the fact, the mere narration of reason as “Insufficient Funds” will not change the fact and mentioning wrong reason inadvertently cannot change the factual position and hence there is no deficiency in service vis-à-vis by this Opposite Party.  More over the 2^nd Opposite Party has not given any service to the Complainant and hence he cannot be considered as a consumer and the question of deficiency in service does not arise against this Opposite Party does not arise on this ground alone. It is most humbly submitted that the Complaint suffers from non-joinder of necessary party’s i.e LIC Housing Finance Ltd., who has directed the Complainant to make payment only by cheque.  The service being provided by this Opposite Party is only to LICHFL and this Opposite Party has no operational dealing with the Complainant and in view of the same there is no deficiency in service as alleged by the Complainant. Therefore, this Opposite Party has not committed any deficiency and prays to dismiss the Complaint with cost.

4. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

5. POINT NO :1 

          The Complainant is  the customer of the 1^st Opposite Party/Bank and he is having account No.000901027354 with that bank and he issued cheques to LICHFL for repayment of  installment  amount of Rs.1,00,000/- by way of cheque drawn on 1^st Opposite Party in the above said account dated 15.10.2012  bearing cheque No.932401 and to his  shock and surprise, he received a letter from LICHFL that his cheque was dishonoured for insufficient funds  and in fact the Complainant was having sufficient fund to honour the cheque and   therefore this Opposite Parties have committed deficiency in service by returning his cheque.

          6. The 1^st Opposite Party contended that he had returned the cheque of the Complainant for the reason “Drawer’s signature differs” as the signature on the cheque was not matching with their records and therefore he had not committed any deficiency in service and it is the 2^nd Opposite Party only returned the cheque wrongly quoted the reason as “insufficient funds”, instead of the reason drawer’s signature differs.

          7. The 2^nd Opposite Party contended that the Complainant is not a customer of this Opposite Party/bank and this Opposite Party has not provided any service to the Complainant  and hence the Complainant cannot be regarded as a Consumer  and  further the Complaint is suffers for  non-joinder of the   necessary parties i.e LICHFL and further this Opposite Party inadvertently  issued return memo stating that funds insufficient instead of drawers signature differs  and  therefore no deficiency committed by this Opposite Party.

          8. It is not in dispute that the Complainant issued a cheque for an installments of Rs.1,00,000/- to LICHFL drawn on 1^st Opposite Party/bank  bearing no.932401 dated 15.10.2012.  The LICHFL presented the cheque for encashment with their banker the 2^nd Opposite Party. The 2nd Opposite Party forwarded the cheque to the 1^st Opposite Party for passing the cheque. The 1^st Opposite Party returned the cheque for the reason drawers signature differs.  The Complainant is the customer of the 1^st Opposite Party. However, the 2^nd Opposite Party returned the cheque with different reason that “funds insufficient”. Admittedly sufficient funds were available in the Complainant account.  The 2^nd Opposite Party returned the cheque with different endorsement than that of the endorsement made by the 1^st Opposite Party is deficient, on the part of the 2^nd Opposite Party.

          9. However, the 2^nd Opposite Party would contend that the Complainant is not his customer and therefore as far as, he is concerned the Complainant is not a Consumer and the Complaint is liable to be dismissed. The Complainant is the customer of the 1^st Opposite Party. The 1^st Opposite Party received Complainant cheque from the 2^nd Opposite Party. Therefore, the 2^nd Opposite Party is indirectly doing service to the Complainant also while handling his cheque. Therefore, the Complainant is also a Consumer in respect of the 2^nd Opposite Party.

          10. Therefore, from the forgoing discussions we hold that the 2^nd Opposite Party has committed deficiency in service and however the 1^st Opposite Party has not committed any deficiency in service.

11. POINT NO:2

          The Complainant is paying the installments to the LICHFL through cheques. Even though the Complainant is having sufficient funds in his account, the 2^nd Opposite Party wrongly returned the cheque for funds insufficient caused pain, sufferings and mental agony to the Complainant is accepted. Therefore, for the deficiency in service and mental agony it would be appropriate to order that the 2^nd Opposite Party should pay sum of Rs.10,000/- to the Complainant and also to pay a sum of Rs.5,000/- towards litigation expenses. The Complaint in respect of the 1^st Opposite Party is liable to be dismissed.

          In the result the complaint is partly allowed. The 2^nd Opposite Party is ordered to pay a sum of Rs.10,000/- (Rupees ten thousand only) to the Complainant towards compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. The complaint in respect  of the 1^st opposite party is dismissed.

          The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 19^th  day of January 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 30.11.2012                   Notice by Complainant

Ex.A2 dated 03.01.2013                   Reply by 1^st Opposite Party

Ex.A3 dated 22.01.2013                   Notice to 2^nd Opposite Party

Ex.A4 dated  05.02.2013                  Reply by 2^nd Opposite Party

 

LIST OF DOCUMENTS FILED BY THE  1^st  OPPOSITE PARTY :

 

                                      ……. NIL ……

 

LIST OF DOCUMENTS FILED BY THE  2^nd  OPPOSITE PARTY :

 

Ex.B1 dated 03.01.2013                   Mail sent by the Opposite Party to the LICHFL

Ex.B2 dated 20.05.2014                   Letter from the LICHFL

 

 

 

MEMBER – II                                                               PRESIDENT