D.O.F. 21.11.2009 D.O.O. 23.06.2012 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri. K. Gopalan : President Smt. K.P. Preethakumari : Member Smt. M.D. Jessy : Member Dated this the 23rd day of June, 2012. C.C.No.315/2009 A.P. Neetha, W/o. Udayabanu, Proprietor : Aashika Enterprises, : Complainant Thalikkavu Road, Kannur Dist. (Rep. by Adv. Ranjith Kumar T.C.) 1. The General Manager, Syndicate Bank, Head Office, Manipal, Karnataka, 2. The Manager, Syndicate Bank, : Opposite Parties Mathamangalam Branch, Kannur. (Both OP No.1 & 2 rep. by Adv. T. Ramakrishnan) 3. The Manager, Bank of Baroda, Kannur Branch, Kannur. O R D E R Smt. K.P. Preethakumari, Member. This is a complaint filed U/s 12 of Consumer Protection Act for an order directing the opposite party to pay `2,00,000 as compensation with cost. The case of the complainant is that she is the proprietor of a Pharmaceuticals by name Aashika Enterprises and having business relationship with other pharmaceuticals also. Sree Narayana Charitable Society, Mathamangalam has issued a cheque for `1240 drawn on 2nd opposite party in favour of the complainant for the goods supplied and the same was presented before 3rd opposite party on 25.03.2009 and reached 2nd opposite party the next day for collection, but it was honoured on 24.04.2009. Similarly another cheque presented on 20.04.2009 was honoured only on 22.05.2009 inspite of sufficient fund in the account of the society. Aggrieved by the act of 2nd opposite party, the complainant personally met the 2nd opposite party and lodged a complaint with respect to the unjustifiable delay in honouring the cheque. But there was no response on the part of 2nd opposite party. Further another cheque for `2706 issued by the society was presented before Bank of Baroda on 16.05.2009 and went for collection on the next day and expecting the honouring, he issued a cheque for `7415 drawn on Bank of Baroda dated 30.05.2009 in favour of Hessco pharma, and the cheque came for collection on 02.06.09, but the same was dishonoured as there was no sufficient fund in the complainant’s account. The complainant was ashamed, knowing the dishonour which will affect the faith and credibility in the business relationship and the complainant has to pay a big price for it, on enquiry it was found that the above cheque for `2706 sent for collection to 2nd opposite party was not honoured nor it was returned. There was sufficient fund in the account of the society to honour the cheque. If the cheque is honoured in time, the cheque issued to Hessco pharma would not have been dishonoured. The irresponsible and negligent act of opposite party is amount to deficiency of service which harmed the reputation of the complainant, lost faith in him and sustained loss and suffered mental agony. So the complainant issued a lawyer notice dated 26.06.2009 to 1st and 2nd opposite party, they had issued a reply stating untenable contention. Hence this complaint. In pursuance to the notice issued by the Forum all opposite parties appeared and filed their version. 1st and 2nd opposite party filed version contending that the complainant is a proprietary concern and the alleged transaction are part of the business transaction and hence the complaint is not maintainable before the Forum. Since the transactions are commercial transactions and hence if the complainant suffered any loss cannot be looked into as a grievance of a consumer and hence the complaint is not maintainable before the Forum. It is incorrect to say that cheque for `1240 was honoured on 24.04.2009. The cheque was presented before the bank of Baroda on 25.03.2009 and realized on 08.04.09 and posted on 09.04.09. It is also incorrect to say that the complainant meet the 2nd opposite party and lodged a complaint. The allegation that a cheque for `2700 presented before Bank of Baroda on 16.05.2009, went for collection on the next day before 2nd opposite party, complainant expecting the honouring of the cheque issued a cheque for `7415 drawn on Bank of Baroda dated 30.05.2009 in favour of Hessco pharma, the cheque came for collection on 02.06.2009, but the same was dishounoured as there was no sufficient fund in the complainant’s account etc are baseless and cooked up only for the purpose of the case. The allegation that another cheque dated 21.06.09 for `5,570 went for collection was honoured by 2nd opposite party on 30.06.2009 and delayed in honouring the cheque causing heavy damage to the complainant. The above said cheque was realized on 23.06.09 and posted on 24.06.2009. The allegation that yet another cheques dated 25.08.09 and 29.08.09 issued by the society was harassed much and unjustifiable delay causing irreparable loss to the complainant, the complainant on couple of occasion took back, the cheques issued to her business relationship of two valuables customers were lost as the 2nd opposite party delayed in honouring cheque and hence the complainant had suffered irreparable injury etc are baseless. The 2nd opposite party is a rural branch. Delay occurs in receiving instruments was not deliberate attempts for delay on the side of 2nd opposite party. The complaint is bad for multi-fariousness and the complaint is based on alleged delay in realizing cheques on various occasions. The complainant has no cause of action to file the complaint. So the complaint is liable to be dismissed. 3rd opposite party also filed version admitting that the complainant is a current account holder with opposite party as the proprietrix of Aashika Enterprises. The 3rd opposite party admits that the complainant has deposited the cheques mentioned in the complaint drawn on Syndicate Bank, Mathamangalam Branch for collection of cheques. 3rd opposite party has promptly sent those cheques for collection to 2nd opposite party in time without any delay and the 3rd opposite party has credited the amounts as soon as the opposite party received the proceeds without any delay. The complainant has no case that there was any delay in sending the cheque deposited by her for collection to 2nd opposite party by 3rd opposite party. The complainant is not entitled to claim any amount from opposite party. The 3rd opposite party has not received any lawyer notice dated 26.06.2009. This opposite party is an unnecessary party and hence the complaint is liable to be dismissed. Upon the above contention the following issues have been raised for consideration. 1. Whether the complainant is a consumer? 2. Whether there is any deficiency of service on the part of 3rd opposite party? 3. Whether the complainant is entitled to any relief as prayed? 4. Relief and cost. The evidence in the above case consists of the Exts. A1 to A8 and X1 to X3 and B1 to B3. Issue No.1 : The 1st and 2nd opposite party in the above case contended that the complainant is not a consumer since the complainant is a proprietrix of a business establishment and hence the transaction are the business transactions and hence not maintainable. The Hon’ble National Commission in Anilkumar Gupta Vs Managing Director, Turning point computer education centre (P) Ltd held that commercial purpose is a specific term which is being used for the business and earning profits on large scale which was reported in 2003(2)CPJ 128(N.C.) From the facts and circumstances of the case it is seen that the complainant is doing pharmaceutical business on smaller scale for earning her livelihood. Opposite party has no case that the complainant has other jobs for her livelihood. So we are of the opinion that complainant is doing this business for her livelihood and hence we hold the view that the complainant is doing business for her livelihood. The further case of the complainant is that 1st and 2nd opposite parties used to honour the cheques of the complainant’s clients issued in favour of the complainant and hence the complainant has caused much mental and financial agony. The 1st and 2nd opposite party contended that complainant is not an account holder of opposite party and has not received any consideration from the complainant for the work done. According to opposite party the cheques deposited by the complainant in her account with 3rd opposite party is transmitted to 2nd opposite party for collection. M/s. Sree Narayana Charitable Society, Mathamangalam holds current account with 2nd opposite party. On debiting the cheque amount from the current account of M/s. Sree Narayana Charitable Society, 2nd opposite party transmits proceeds of the cheque to 3rd opposite party for crediting in the current account with 3rd opposite party and hence complainant did not pay any consideration to 2nd opposite party and hence there is no privity of contract between the complainant and 1st and 2nd opposite party. But while going through Ext.X2 ie “register of Bills, cheques and drafts received for collection” it is seen that the 1st and 2nd opposite parties had collected `50 from each cheque under the head of “collected from sender”. Similarly Ext.X3 shows that the 1st and 2nd opposite party had issued the collection amount to the 3rd opposite party by deducting `50 from each cheque amount. This is very clearly shows that the 1st and 2nd opposite parties had collected fees from the complainant. Moreover admittedly the customer of the complainant is an account holder of the 1st and 2nd opposite parties and having transaction with 1st and 2nd opposite parties. The complainant has issued such customer’s cheque for collection through 3rd opposite party before 1st and 2nd opposite party. As per the Consumer Protection Act, a beneficiary is also a consumer and as far as the complainant is concerned she is a beneficiary and hence we hold the view that the 1st and 2nd opposite parties had collected charges from complainant for their service and complainant is a beneficiary of the alleged account holder of 1st and 2nd opposite parties. So we are of the opinion that the complainant is a consumer and hence issue No.1 is found in favour of the complainant. In order to prove her case complainant produced documents such as true copy of statement of account from 24.04.09 to 18.07.09, statement of account from 31.07.09 to 19.09.2009, copy of lawyer notice, postal acknowledgments, reply notice, notice issued by the complainant to the General Manager, Syndicate Bank and postal acknowledgment. In order to disprove the case opposite party also produced documents such as statement of accounts from 01.03.09 to 31.12.09, Register of Bills, cheques and drafts and postal outward register etc, election identity card of K. Gopalan, Manager of Syndicate Bank and Certificate issued from head office of Syndicate bank. The first allegation is with respect to the cheque amounting to `1240. According to the complainant it was presented on 25.03.2009 and collection honoured on 24.04.2009. As per Ext.X2 register of bills, cheques and drafts received for collection it is seen that the above cheque was received by 2nd opposite party on 8th April, 2009. As per Ext.X3 register it was seen that the above cheque amount of `1240 after deducting `50 ie an amount of `1190 was issued to 3rd opposite party on 09.04.09. But as per Ext.A1 account statement it is seen that it was accounted only on 24.04.09. It is seen that some delay was caused for reaching the proceeds to 3rd opposite party. But it was clear that the delay was caused not because of any fault on the part of 2nd opposite party, so in these dealings we can not find any deficiency on the part of 1st and 2nd opposite party. The complainant has no allegation that delay was caused due to the fault of 3rd opposite party. The other allegation is with respect to a cheque for an amount of `2706. According to the complainant she had presented the cheque on 16.05.2009. But as per Ext.X2, it is seen that 2nd opposite party has received the cheque on 21.05.2009 and the collection proceeds was sent to 3rd opposite party on 04.06.09. It is seen that there is inordinate delay on the part of 2nd opposite party with respect to honouring of the above cheque. So there is deficiency on the part of 2nd opposite party in honouring the cheque. Ext.A1 statement of account for the period from 24.04.09 to 18.07.09, shows that a cheque for an amount `7415 was returned on 02.06.09. But it is not clear that what is the balance amount in the account of the complainant at the time of presenting the above cheque. So we are not in a position to say that the above said cheque was dishonoured solely on the reason of delay caused on the part of 2nd opposite party in honouring the cheque amounting to `2706. With respect to cheque having amount of `5570. it was seen that 2nd opposite party received the above cheque on 23.06.2009 as per X2 and it was sent to 3rd opposite party on 24.06.09 as per X3. So there is no delay was caused in honouring the above cheque. Similarly cheque for `3642 was seen received by 2nd opposite party on 03.09.09 and it was send to 3rd opposite party on 09.09.09 and a delay of 5 days were caused in honouring the same. Cheque having an amount of `9494 was seen received by 2nd opposite party on 05.10.09 and was honoured and issued its proceeds to 3rd opposite party on 07.10.09 and the same was seen issued without delay. So from the above discussion it is seen that there is deficiency of service on the part of 1st and 2nd opposite party in honouring the cheques having amount of `2,706 and `3,642. There caused inordinate delay in honouring the cheque having an amount of `2706. So the 1st and 2nd opposite party is liable to compensate the complainant for their deficient service. The complainant has not produced any evidence to show the problem suffered by him both mentally, physically and financially. Anyway it is true that the complainant had suffered same inconvenience for which we assess `2000 as compensation and `1000 as cost of the proceedings which will meet the ends of justice and the complainant is entitled to receive the above said amount from 1st and 2nd opposite party and passed orders accordingly. 3rd opposite party is exonerated from liability since there is no evidence to show that there is deficient service on 3rd opposite party’s part. In the result the complaint is allowed directing the opposite party to pay `2000 (Rupees Two Thousand only) as compensation and `1000 (Rupees One Thousand only) as cost of the proceedings within 30 days from the date of receipt of this order, failing which complainant can execute the order as per the provisions of Consumer Protection Act. Dated this the 23rd day of June, 2012. Sd/- Sd/- President Member APPENDIX Exhibits for the Complainant A1. Copy of Statement of Account issued by Bank of Baroda dated 18.07.09. A2. Copy of Statement of Account issued by Bank of Baroda dated 19.09.09. A3. Copy of the lawyer notice issued by the complainant to OP. A4. Acknowledgment card. A5. Acknowledgment card. A6. Reply notice issued by 2nd OP. A7. Notice issued to 1st OP dated 26.08.09. A8. Acknowledgment card. Exhibits for the opposite parties B1.Copy of Statement of Account issued by Bank of Baroda dated 27.07.2010. B1(a), (b), (c) : Statement of Accounts. B2. Copy of identity card. B3. Copy of certificate dated 20.04.2012. Exhibits for the Court X1. Statement of Account. X2. Copy of pages in Register of Bills, Cheques and drafts received for Collection of 2nd OP. X3. Copy of pages in Postal outward register of 2nd OP. Witness examined for the complainant Nil Witness examined for opposite party Nil /forwarded by order/ SENIOR SUPERINTENDENT | 
