BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                           C.C.No.42/2013

Dated this the 31^st day of May 2016

(Date of Institution: 06.09.2013)

1. K. Rathinavelu, son of  Kathavarayan

2. R. Vasathakumar, son of K. Rathinavelu

Both are residing at No.4, Third Cross,

Avvai Nagar, Mudaliarpet Post,

Pondicherry – 605 004.

                                       ….     Complainants

vs

1. The Branch Manager

     UCO Bank,    

     AFT, Mudaliarpet,         

     Pondicherry – 605 004.

2. The Manager-cum-Authorised Signatory

     HDFC Bank,  

    No.4 and 5, Vallalar Salai, Second Floor,

    Abirami Plaza, 45 feet road,

    Vallalar Salai, Pondicherry.

                    ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A., B.L.,

MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B.,

MEMBER

FOR THE COMPLAINANT      :  Thiru N. Baptist Augustian, Advocate

FOR THE OPPOSITE PARTIES: OP1 – Ex parte.

                                                         OP2 – Thiru A.P. Rajagopal, Advocate

O R  D  E  R

(by Thiru V.V. Steephen, Member)

This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986  to direct the first opposite party to refund the amount of Rs.1192.78 for the cheque return charges along with interest which have been charged in the first complainant's account along with interest at the rate of 24% per month from 06.01.2012 to the date of payment by the first opposite party; to direct the first opposite party to pay a sum of Rs.450/- and late payment of penalty at the rte of 2% per month on the overdue installment amount for every month, for the period of 18 monthly instalments to the complainant;  to direct the second opposite party to return five cheque leaves of the complainant not utilized by the second opposite party which are still in the custody of the second opposite party and to pay a sum of Rs.1.00 lakhs as damages towards deficiency in service for mental torture and agony suffered by the complainants due to the act of the opposite parties and to pay a sum of Rs.20,000/- towards cost of this litigation.

          2. The case of the complainant is as follows:

          The complainants are father and son.  The first complainant is having a SB Account No. 19720100002204 in the first opposite party bank and he has also been issued by the opposite party a pass book and also a cheque book.  The first opposite party issued a cheque book with number starting from 431841 to 431860, totally 20 cheque leaves.  On 18.08.2011 the second complainant purchased a Bajaj Discover bike bearing No. PY 01 BL 5411 from Aakash Bajaj, Pondicherry in his name by availing finance from the second opposite party under Loan No. 19298734, for that purpose, the first complainant issued 18 cheque leaves to the second opposite party filled with an amount of Rs.1,544/- for the payment of the instalment amount.  Each time when the cheque has been presented by the second opposite party, it is returned and the complainants have been charged by the first opposite party a sum of Rs.90.78 as cheque return charges, however the instalments amount was collected by the second opposite party in person from the complainant.  While enquiring with the first opposite party by the complainants, they have been evaded from giving any reason.   The complainants further stated that the second opposite party used to issue a letter for repayment of two wheeler loan and also informed that the monthly instalment of Rs.1,544/- is overdue and the dishonour of cheque attracts a charge of Rs.450/- and late payment of penalty at the rate of 2% per month on the overdue instalment amount.  Further stated tht in the firt complainant's account, there is always sufficient balance amount for honouring the cheque and therefore, they may not be any reason for the return of cheque on the ground of insufficient funds.  Further, there was no letter either from the first opposite party or from the second opposite party for the return of the cheque.  On enquiry with the second opposite party in the month of April 2012, they came to know that the reason for the return of the cheque was "CHEQUE NOT ISSUED".  The complainants stated that there is a deficiency of service on the part of the first opposite party for not entering the cheque book with twenty leaves starting from 431841 to 431860 in their computer system and it is purely a mistake on the part of the first opposite party and the complainants are no way responsible as there is no fault on them.   On 18.04.2013 the second complainant received a letter from the second opposite party stating that entire outstanding dues amounting to Rs.9397/- has to be paid within 7 days or otherwise, they shall recover the possession of the vehicle.  Further, there was a settlement offer from the second opposite party through their letter dated 23.04.2013 wherein, they agreed for an amicable settlement of Rs.5000/- out of the outstanding amount of Rs.9397/- which has to be paid on or before 30.04.2013.  It is stated by the complainants that the said amount was paid by the second complainant in person on 25.04.2013.  Further, in the pay column of the cheque, it has been printed as 'HDFC BANK LTD A/C TW LOANS".  This aspect also not seen by the first opposite party and they have willfully and wantonly returned the cheque.  Due to return of the cheque by the first opposite party, the complainants are entitled to pay the return charge of Rs.90.78 to the first opposite party and the complainants have to pay a sum of Rs.450/- and late payment of penalty at the rate of 2% per month on the overdue instalment amount for every month to the second opposite party.  There is negligence and vicarious liability on the first opposite party and it is a dereliction of duty, therefore the first opposite party is liable to pay damages to the complainants by way of compensation for the deficiency in service, negligence and dereliction of duty.  Further, by the act of the first opposite party, the complainants suffering mental agony.  The complainants further stated that they have issued a lawyer's notice on 18.02.2013 to the opposite parties which was received by the opposite parties, but failed to give any reply.  Further, out of the 18 cheque leaves given by the first complainant, only 13 cheque leaves have been utilized by the second opposite party and the balance 5 cheque leaves are not utilized by the second opposite party which are still in the custody of the second opposite party.  Hence, this complaint.

          3. The first opposite parte remained absent and set ex parte.

          4. The reply version filed by the second opposite party briefly discloses the following:

The Complaint filed by the complainants is not maintainable either in law or on facts.  The Complainants have no right to file the above case against the second opposite party since there is no deficiency in service by the second opposite party.  The complainants themselves admitted that the return of cheque was due to the reason that "CHEQUE NOT ISSUED" since the cheque book containing twenty leaves starting from 431841 to 431860  in the computer of first opposite party and it is a mistake of first opposite party.  Hence, the addition of second opposite party in the above said complainant is mere mis-joinder of party and there is no cause of action arose or any deficiency of service arose as per complaint in the part of second opposite party.   The unused five cheque leaves were already returned to the complainant as the complainant came forward to settle the matter out of court.  Hence, prayed for dismissal of the complaint with cost.

5. The first complainant was examined as CW1 and Exs.C1 to C31 were marked through him.  The first opposite party was set ex parte.  The second opposite party has filed reply version, but not chosen to adduce any oral evidence and no documents were marked on their side. 

6.       Points for determination are :

          1. Whether the complainants are consumers?

2. Whether there is  any  deficiency of service attributed by the Opposite parties?

3. Whether the complainants are entitled for any relief?

            7. Point No.1:

           The first complainant is an Savings Bank Account Holder (Ex.C2) of the first Opposite Party and hence, the first complainant is a Consumer as against the first Opposite Party within the ambit of Sec. 2 (1) (d) (ii) of Consumer Protection Act and as against the second Opposite Party, the first complainant has no privity of contract or any existence of banking transaction / relationship except for the issuance of the cheque leaves of the first Opposite Party to the second Opposite Party as repayment security on behalf of the second complainant for the vehicle loan availed from the second Opposite Party and hence, the first Complainant is not a Consumer as against the second Opposite Party.

           8. The second complainant has availed a vehicle loan (Ex.C28) from the second Opposite Party bank and hence, the second complainant is a Consumer as against the second Opposite Party as per Sec. 2 (1) (d) (ii) of the Consumer Protection Act and with regard to the first Opposite Party, any sort of relationship existed  between the first Opposite Party and the second complainant and hence, the second complainant is not a Consumer as against the first Opposite Party.  This point is answered accordingly.

           9. Point No.2:

           It is submitted by the complainant that the second complainant has availed a vehicle loan from the second Opposite Party for which, the first complainant being the father of the second complainant gave 18 filled in cheque leaves of the first Opposite Party bank for an amount of Rs.1,544/- each to the second Opposite Party towards the repayment of monthly instalments of the vehicle loan of the second complainant.  But, all the cheques issued towards the repayment of the instalment of vehicle loan was returned by the first Opposite Party for the reason that "cheque not issued" by the first Opposite Party (Ex.C7 and Ex.C8) which led the second Opposite Party to collect a penalty charge of Rs.450/- and penalty for the late payment of the instalment at the rate of 2% per month on the overdue instalment amount for each dishonouring of the cheque from the second complainant as per the terms agreed upon in the loan agreement between the second complainant and the second Opposite Party and further the first Opposite Party debited a sum of Rs.91.77 as cheque return charges for each cheque leaves and in total, debited a sum of Rs.1,192.78 (Ex.C22) towards the cheque return charges from the account of the first complainant maintained with the first Opposite Party for no fault of the first complainant.  It is further submitted by the second complainant that on negotiation with second Opposite Party the penalty charges for the dishonour of cheque was amicably settled and reduced to an amount of Rs.5000/- (Ex.C21) and paid by the second complainant.   

           10. It is submitted by the complainants that even a single payment of monthly instalment was honoured for cheques of first Opposite Party presented by second Opposite Party towards the repayment of the vehicle loan of the second complainant and all the monthly instalments were paid in cash separately by the second complainant to the collecting agency of the second Opposite Party.  Hence, for no fault, the complainants were made to face hardship, mental agony and hence, this complaint. 

           11. The first Opposite Party has not filed any reply and was set ex parte. 

           The second Opposite Party submitted that it is the first Opposite Party who has returned the cheques for the reason that "CHEQUE NOT ISSUED" and the second Opposite Party has acted only upon the terms of the loan agreement and there is no deficiency in service of the second Opposite Party.

           12. On perusal of records and evidence, it is observed by the Forum as follows:

           The second complainant has availed the vehicle loan from the second Opposite Party for which the first complainant being the father of second complainant had given the duly filled in 18 cheque leaves each for an amount of Rs.1,544/- of the first Opposite Party to the second Opposite Party towards the repayment of the vehicle loan obtained by the second complainant from the second Opposite Party.  It is observed that all the 18 cheques given to the second Opposite Party towards the repayment of monthly instalments was returned by the first Opposite Party for the reason "cheque not issued" (Ex.C7 and Ex.C8) inspite of the cheques been issued by the same first Opposite Party bank and further more, an amount of rs.91.77 was debited from the account of the first complainant by the first Opposite Party bank towards the return charges and in total, for 18 cheques a sum of Rs.1192.78 was debited from the account of the first complainant by the first Opposite Party towards the cheque return charges which is evident from the perusal of the passbook and statement of accounts (Exs.22 and 31) of the first complainant pertaining to the first Opposite Party bank.  This act clearly establish the sheer negligence of the firt Opposite Party.  The Complainant's Counsel has submitted three authorities in support of their contentions.

           i) In  ICICI Bank Limited, through Branch Manager Vs. Sh. Rajendra Kumar Agarwal, 2014 (2) CPR 185 (NC), the Hon'ble National Commission has held that

"Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Banking – Dishonour of cheque despite necessary fund in the account constitutes gross deficiency in service".

           ii) In State Bank of Mysore VS. Mr. Amitchandra and others 2014 (2) CPR 748 (NC), the Hon'ble National Commission has held that

    "Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Banking – Deficiency in Service – There is no justification for petitioner's  (State Bank of Mysore) case that customers should be made to pay for negligent, careless and casual manner in which the Bank has functioned in the instant case."

           iii) In Canara Bank Vs. Seth Prakash Chandra Jain and another 2013 (4) CPR 830 (NC), the Hon'ble National Commission has held that

           "Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Banking – Complainant cannot made to suffer for lapses on the part of the bank".

Even though the facts of the case in the citation produced by the complainant's counsel differ from the present case, it explains the callous attitude of the bank in different context and the facts in this  case is also of such a  callous attitude of the Opposite Party in another context which amounts to the case of negligence and deficiency of service.

           13. With regard to the second Opposite Party concerned there is no specific allegation of negligent act and moreover on the perusal of the complaint and records, no act of deficiency is made out as against the second Opposite Party.   Further observed that the act of collecting penalty charges by the second Opposite Party from the second complainant towards the dishonouring of cheques and for over due instalments is only as per the terms of the loan agreement agreed upon by the second complainant and second Opposite Party.  Moreover, the payment made by the second complainant towards penalty charges was reduced on amicable settlement (Ex.C20) arrived between the second complainant and the second Opposite Party being so, the second complainant, is not entitled for any relief as against the second Opposite Party and the first complainant having been decided in the previous point that the first complainant is not a consumer as against the second Opposite Party, the first complainant is also not entitled for any relief as against the second Opposite Party.   Further, on the perusal of the post dated cheques cancellation letter (Ex.C27) and the statement of accounts (Ex.C28) of the second complainant issued by the second Opposite Party, it is observed by the Forum that all the 18 cheques of the first complainant were presented and bounced by the first Opposite Party and the contents of the documents mentioning that post dated  cheques (PDC) will be defaced as cancelled and be marked for destruction and the first complainant further having agreed to the contents of the cancellation letter  (Ex.C27)  during cross-examination, the relief of return of cheque leaves is not maintainable.  This point is answered accordingly.

           14. Point No.3:

In view of the discussions made in paras supra, it is held by the Forum that the complaint of the first complainant is allowed as against the Opposite Party No.1 and dismissed as against Opposite Party No.2 and the second complainant is not entitled for any relief as against the opposite parties and in the result,

1. The first Opposite Party  is directed to refund the amount of Rs.1192.78 to the first complainant which was collected towards the cheque return charges by the first Opposite Party .

2. The first Opposite Party  is directed to pay a sum of Rs. 20,000/- as damages towards the deficiency of service to the first complainant.

3.  The first Opposite Party  is directed to pay a sum of Rs. 5000/- towards the cost of this litigation to the first complainant.

Dated this the 31^st  day of May 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

    MEMBER

(V.V. STEEPHEN)

    MEMBER

COMPLAINANTS' WITNESS:

CW1           27.11.2014           K. Rathinavelu    

OPPOSITE PARTIES WITNESS:  NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   NIL

LIST OF MATERIAL OBJECTS:      NIL

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

    MEMBER

(V.V. STEEPHEN)

    MEMBER