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BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM NELLORE

Thursday, this the 10th day of MARCH, 2016.

PRESENT: Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.

President(FAC) and Member

Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

C.C.No.19/2014

Nalabothula Prasad,

S/o.Venkateswarlu,

Aged about 27 years,

Gundemadakala Village,

Near Infant Jesus School,

Vinjamur Mandal 524 228

SPSR Nellore District.                                                           … Complainant

Vs.

1.The Branch Manager,

State Bank of India,

Vinjamur,

SPSR Nellore District.

2.The Additional Joint Secretary,

O/o.The Director of Government Examinations,

A.P.Hyderabad.                                                              .…  Opposite parties

This matter coming on 25-02-2016 before us for final hearing in the presence

of Sri Md.Rahimkhan, Advocate for the complainant and Sri P.Gangadhara Reddy,

Advocate for the 1st opposite party and 2^nd opposite party appeared as in-person having stood over for consideration till this day, this Forum passed the following:

ORDER

(BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE

BENCH)

This complaint is filed by the complainant against the opposite parties to direct them jointly and severally liable to pay Rs.5,00,000/- towards compensation for mental agony and also loosing employment opportunity due to their sheer negligence and deficiency in service towards him; to refund of Rs.525/- (Rs.500/- plus Rs.25/-) towards D.D.charges and also to grant costs of complaint of Rs.5,000/- and pass such other relief or reliefs as the Hon’ble Consumer Forum may be pleased to deemed it fit and proper in the circumstances of the case in the interest of the justice.

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I. (a) It is the case of the complainant that he had studied D.Ed. II Year at Hussainy Memorial Educational Society, Venkatammapeta, Dutthalur (M), Sri Potti Sriramulu Nellore District. While so, he wrote D.Ed. II Year English Examination with role No.1320901170 very well, but he got less marks than

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expected, may be due to wrong counting/revaluation. So, as per rules the complainant had applied for recounting/revaluation by obtaining D.D. bearing no.583646 dated 03-01-2014 for Rs.500/- on State Bank of India (Vinjamur Branch) payable at Hyderabad. But the said D.D. was returned by the Additional Joint Secretary, O/o. The Director of Govt. Examinations A.P., Hyderabad (Opposite party No.2) by letter dated 23-01-2014 by way of letter in Rc.No.8/C3/2014 stating that D.D. is not wrong in favour of the Secretary to the Commissioner for Government Examinations, A.P.Hyderabad (Spelling mistakes in the D.D.) and further stated that there is no further correspondence will be entertained in the matter.

(b) It is also further submitted by the complainant in para-2 at page no.2 of his complaint that actually, he had applied for D.D. in favour of the Secretary to the Commissioner, for Govt. Examinations, A.P.Hyderabad and the same is also noted it clearly in the D.D. application form which was submitted to the 1^st opposite party. But the 1^st opposite party had negligently issued D.D. with several spelling mistakes i.e., Secretory, Commicinnar for Govt. Examination, Hyderabad. Even though, the complainant had requested to correct the said spelling mistakes on the date of issuance of D.D. i.e., on 03-01-2014 itself, the 1^st opposite party has stated that they are issuing several D.Ds like that and further assured that there is no need to correct the same. As no option and other go, the complainant had received the same and believing the words and assurances of the 1^st opposite party. But the said D.D. was not accepted by the Addl. Joint Secretary (OP2) and the same is returned and rejected.

( c ) It is also further submitted by the complainant in para-3 at page no.2 of his complaint that it is the legal and bounden duty of the opposite parties to issue the D.D. without any spelling mistake and in favour of the correct person in D.D. application form for having collected commission and service charges. But the 1^st opposite party had negligently issued the said D.D. with several mistakes, which resulted the return of the application form for recounting of II year D.Ed. English paper and the complainant had lost his chance to get better marks without any fault of him due to return of the application because of the negligent attitude of the opposite parties. After receipt of the returned D.D., the complainant had approached the 1^st opposite party along with the returned D.D. and questioned their negligence and deficiency in service but the 1^st opposite party gave evasive and evading reply which was caused to him severe mental agony and distress.

(d) It is also further submitted by the complainant in para-1 at page no.3 of his complaint that the acts of the opposite parties are clearly goes to show their

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sheer negligence and deficiency in service. The complainant had lost an opportunity to qualify to the D.S.C. examination and thereby get a teacher post. He belongs to SC community and hails from very poor family. He is eaking out his lively hood by driving auto in leisure times and studying D.Ed. course. If the above said D.D. is correctly issued, he will get good marks in recounting and get a good job but all his hopes are put in vain due to deficiency in service and also negligence on the part of the opposite parties. So, the opposite parties are not only liable to refund the D.D. amount of Rs.525/- besides paying for heavy compensation for mental agony and distress and loosing employment opportunity to the complainant. There are causes of action to file the complaint which are explained in para-3 at page no.3 of his complaint. Hence, the complaint.

II. DEFENCE:

The opposite parties were resisted the complaint by filing a written version/counter dt.02-04-2015 of 1^st opposite party denying the allegations of the complainant. Those allegations are false and the complaint is not maintainable either in law on facts. The 2^nd opposite party was also resisted the complaint by filing written version/reply on 20-01-2015 but not filed its written arguments of the case as the case may be.

The contents of written version/counter filed by the 1^st opposite party:

(a) It is submitted by the 1^st opposite party in para-4 at page no.1 of its written version/counter that the Hon’ble Forum has no jurisdiction to entertain the complaint. The complainant is not a consumer under the purview of C.P.Act, 1986 the complainant had got filed this complaint against the 1^st opposite party suppressing true and correct facts with an intension to get wrongful gain and cause inconvenience to them. The 1^st opposite party is not liable to pay any amount to the complainant as alleged by him in his complaint. The other allegations in paras 5 to 8 of written version/counter are denied by the 1^st opposite party.

(b) It is also further submitted by the 1^st opposite party in para-10 and page no.3 of its written version/counter that the complainant herein applied for the D.D. in Telugu and there is no any facility for printing for the names in Telugu in the 1^st opposite party bank and the said D.D. was issued in English in suitably transliterate form. The 1^st opposite party issued the D.D. as per the requirement of the complainant but it appears that the additional joint secretary as returned the D.D. with objections that the D.D. is not drawn in favour of Secretary to the Commissioner for Govt. Examinations, A.P., Hyderabad even without presenting to our payee branch for payment.

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There is no negligence for the latches on the part of the opposite party as alleged by the complainant in issuance of the D.D. The documents filed by the complainant itself really shows that as per his requirement as stated in his voucher. This opposite party had issued D.D. and payee is Govt. Department and its branches will generally honour the D.D.s/cheques even though some minor spelling mistakes are there on either part.

( c ) It is also further submitted by the 1^st opposite party in para-11 at page no.4 of its written version/counter that the 1^st opposite party had acted in accordance with the requirement and its attitude is purely to follow the norms prescribed by the bank authorities and as such this complaint is a false, vague and fancy litigation to harass this opposite party to get wrongful gain even though there is no the latches or negligence on its part towards the complainant. The complainant had unnecessarily dragged the 1^st opposite party into litigation with an intention to get wrongful gain and cause inconvenience and loss to them. The complainant is not entitled any relief sought for in the complaint. So, it is prayed that in view of the facts and circumstances of the case, the Hon’ble Consumer Forum may please to dismiss the complaint with exemplary costs.

The contents of written version/reply filed by the 2nd opposite party:

It is submitted by the 2^nd opposite party in paras-1 and 2 at page nos.1 and 2 of its written version/reply that the DD bearing No.583646 dated 03-01-2014 for Rs.500/-(Rupees five hundred only) has been received favouring SECRETORY COMMICINNAR FOR GOVT EXAMINATION HYDERABAD whereas it has been clearly notified as Secretary to the Commissioner for Government Exams AP Hyderabad. It has been returned under objection vide letter Rc.No.08/C3/2014 dt.23-01-2014 and it was not rejected. The required date for the recounting of the application is 06-01-2014 whereas the application of petitioner was received in the office on 09-1-2014. However, that no further correspondence will be entertained as it is used because the entire process of recounting gets delayed until the application of the petitioner is received. It will be used to ensure only to quicken response and not to accept if it is submitted after duly correcting it. Had the petitioner submitted the application it might have been entertained. The petitioner did not make any enquiry even regarding resubmission. The intention of the department is only to quicken the process and not to make the candidates to lose the opportunity.

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Hence, it is prayed that the Hon’ble Consumer Forum may be pleased to dispose off the complaint.

III. The chief-affidavit of the complainant as PW1 is filed on 4-8-2015 and the documents which are marked as Exs.A1 to A3; whereas the 1^st opposite party has also filed its chief-affidavit as RW1 through the chief-manager of bank, SBI, Vinjamur. The written arguments of the complainant has been filed on 20-08-2015 by his counsel whereas the 1^st opposite party has also been filed its written arguments through its counsel on 01-10-2015 in support of their case.

IV. Basing on the material available on the record, the points that arise for our consideration are namely:-

(a)Is there any deficiency in service on the part of the opposite parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as prayed for, if it is so, to what extent?

3. To what relief?

V. POINTS 1 AND 2 :

In view of these two points are inter-related and depends on each other,

they have been taken up together for discussion and determination of the case. The complainant has once again reiterated the facts of the case, basing on the complaint, his chief affidavit, documents and written arguments filed herein. It is nothing but repetition of them once again in his complaint.

Oral Submissions by the learned counsel for the complainant:

Sri Md.Rahimkhan, the learned counsel for the complainant has vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments. He has further stressed much about Ex.A1 is the counter foil of D.D. particulars in Telugu and also Ex.A2 is a Demand Draft for Rs.500/- dated 03-01-2014 which contained the mistakes in it. He has also further argued that Ex.A3; is a letter dated 23-01-2014 which was issued by Addl. Joint Secretary, o/o the Director of Govt. Examinations, A.P. Hyderabad to the complainant and wherein it is stated that The Demand Draft is not drawn in favour of Secretary to the Commissioner for Government Examinations, A.P. Hyderabad from SBI or SBH

and no further correspondence will be entertained in the matter.

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The said learned counsel for the complainant has further contended that there is no dispute about the material facts of the case, but the whole problem is with the contents of the D.D. with full of mistakes committed by the 1^st opposite party for the reasons best known to it. He has also further urged that Ex.A1 to A3 are clearly established by the complainant and proved the same beyond the reasonable doubt. The complainant has lost his opportunities and all his hopes are in vain due to deficiency and negligence of the opposite parties. The opposite parties are not only liable to refund the DD amount of Rs.525/- to the complainant besides paying heavy compensation for his mental agony, distress and loosing one employment opportunity. Finally, the said learned counsel for the complainant has prayed that the Hon’ble Consumer Forum may pleased to allow the complaint as prayed for.

Oral Submissions by the learned counsel for the 1^st opposite party:

On the other hand, the learned counsel of the 1^st opposite party

Sri P.Gangadhara Reddy, has also vehemently argued that the complaint, affidavit and written arguments of the case of the 1^st opposite party may be read as part and parcel of his oral arguments. He has also further contended that the 1^st opposite party had issued D.D. purely as per the requirement of the complainant it appears that Addl. Joint Secretary has returned the draft with objections. As usual, like the written version/counter, chief affidavit and written arguments of the case as mentioned as sum and substance of them, are narrated by the learned counsel for the 1^st opposite party and further urged that the complainant unnecessary dragged the 1^st opposite party into litigation with an intention to get wrongful gain and cause inconvenience and loss to them. So, the complainant is not entitled for any relief sought for in the complaint. Finally, he has prayed that the Hon’ble Consumer Forum may pleased to dismiss the complaint against the 1^st opposite party with exemplary costs.

Forum’s Findings and observations

Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of affidavits and produced documentary evidence by the complainant alone in support of his case. The respective counsels for their parties have submitted their oral arguments of their case. The Consumer Case is lingering on the file since 2 years for some reason or other. Each case has to be judged on its own facts.

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It is a simple consumer case which revolving around the documentation and its contents in the demand draft (Ex.A2) and whether it is properly drafted or not, is the point for our consideration. Ex.A2 is a demand draft which clearly and with a naked eye, appears that the language employed therein, is absolutely wrong and with the spelling mistakes. It will not be called as demand draft and that’s why the 2^nd opposite party had returned it. The complainant had lost his opportunity for employment and suffered mentally and put to irreparable loss and it cannot be measured in terms of money. There is a lot of deficiency in service on the part of the 1^st opposite party and it is purely negligence of the staff of the bank i.e., the 1^st opposite party.

In view of the existing facts and circumstances of the case, it can be said that the concerned staff who drafted in such a manner the said demand draft on that specific day, he must be taken into task by applying the principle laid down in the case of Lucknow Development Authority Vs. M.K.Gupta, (1994) I, SCC 243 by the Hon’ble Supreme Court of India. The management of the 1^st opposite party shall initiate the departmental enquiry and the concerned person who is responsible for the negligent behavior and the amount charged as compensation payable to the complainant, must be recovered from his salary. The service provider must be vigilant while discharging its duties. The 1^st opposite party has carelessly and negligently drafted demand draft in such a manner of English and thereby it is a root cause for return of it. Who is to blame for this negligent act? The window culture of the 1^st opposite party should be developed and thereby justice will be done to the customers.

After scanning the entire material on record, we are of the clear opinion that there is a lot of deficiency in service and negligence of the 1^st opposite party in handling with the customer/complainant. The 2^nd opposite party is no way responsible for the action of 1^st opposite party and is exempted from liability. The complaint against the 2^nd opposite party is herewith dismissed without costs. There is a force in the contentions of the learned counsel for the complainant to convince us. The counsel for the 1^st opposite party has miserably failed in his attempt to convince us. Adequate compensation must be awarded to the complainant in view of the facts and circumstances of the case, basing on the principles of justice, equity and good conscious. The Consumer Forum, being a judicial body to exercise its discretion while discharging its functions. These two points are held in favour of the complainant and against the 1^st opposite party, accordingly.

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POINT NO.3: In the result, the complaint is allowed ordering the 1^st opposite party to pay Rs.20,000/- (Rupees twenty thousand only) to the complainant towards compensation for his mental agony, distress and also for his lost employment opportunity due to sheer negligence and deficiency in service; to refund Rs.525/- (Rupees five hundred and twenty five only) demand draft plus charges and also to pay him costs of Rs.2,000/- (Rupees two thousand only) towards the complaint within one month from the date of receipt of the order. The complaint against the 2^nd opposite party is dismissed without costs.

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 10th day of MARCH, 2016.

EXHIBITS MARKED FOR OPPOSITE PARTIES:

N I L

Id/-

PRESIDENT(FAC)

Copies to:

1)   Sri Md.Rahimkhan and Sk Abdul Samad, Advocates, Nellore.

2. Sri P.Gangadhara Reddy, Advocate, 23/826/1, Ramesh Reddy Nagar, Nellore-524003.

3. The Additional Joint Secretary, O/o.The Director of Government Examinations, A.P.Hyderabad.