O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The complainant has come up with this complaint against the Ops with the allegations of deficiency in their service, claiming that he had issued a cheque dated 28/06/2008 for Rs.3,23,708/- drawn on ING Vysya Bank in favour of M/s. Gulshan Polyois Limited payable at par at all branches in India. The said cheque was sent through First Flight Courier i.e Op No.2 to the drawee. That drawee complained him about non-receipt of the cheque, then immediately he sent an e-mail to the Op No.1 to know about the cheque and he was informed that cheque was realized on 07/07/2008 by one N. Padmanabha Reddy. Then he again contacted Hyderabad Branch of Op No.1 who told him that name of the drawee was changed and that change was attested by the drawer. The complainant has contended that drawee name was not changed by him and cheque had been forged and that Op No.1 and 3 particularly Op No.3 by not verifying the forged signatures has honoured the cheque and paid the cheque amount and thus the complainant attributing deficiency to Op No.1 and 3 in honouring the forged cheque and also attributing deficiency against Op No.2 in not delivering the cheque entrusted to them to the addressee, and not according of the cheque entrusted to them and therefore has prayed for a direction to Op No.1 and 2 jointly to pay Rs.3,23,708/- with interest @ 14% p.a and to award damages and costs.<br /> <br /> Ops 1 and 2 have appeared through their advocate and filed separate version. Op No.3 is not secured. Op No.1 in the version besides denying all the allegations of the complainant has contended that cheque issued by the complainant to a drawee had been corrected by substituting the name of the payee but corrections had been attested by the drawers as whose signatures tallied and further has taken a stand that even according to the complainant’s case that his signatures were forged and cheque is honoured by not verifying it therefore, when such serious allegations of forgery is made, such complaint cannot be decided by this forum and the matter has to be decided by the Civil Court and thus has prayed for dismissal of the complaint.<br /> <br /> Op No.2 in his version has contended that as if the complaint is not maintainable. That complainant is a Private Company is doing commercial transactions and therefore, the complainant is not a consumer. This Op has admitted to have entered into an agreement with the complainant and as per the terms of the agreement they were required to provide a courier service to the complainant as per the bills raised. That as per the terms of the agreement, the complainant can not entrust consignment consisting of cheque or DD as per clause-3 of the agreement. Further, admitted that the complainant had booked a consignment on 30/06/2008 in favour of M/s. Gulashan Polyois Limited, Bangalore and had declared content of the consignment as a document and stated that the complainant did not declare the content of the consignment and its value. The letter entrusted was given to the delivery boy who lost the bag containing the consignment of the complainant also, all their efforts to trace it did not yield any results therefore had even filed a missing complaint to the police. If the complainant had sent a cheque in the consignment he could have declared the same. Therefore, denying any deficiency in their service in this regard and stated that the complainant who had sent a cheque through with consignment is only entitles to actual expenses incurred for obtaining duplicate demand draft or cheque as a maximum entitle up to Rs.5,000/- or whichever is less as per clause 13 of the agreement. This Op has by further denying all other allegations has also denied his liability to compensate the complainant to the extent of Rs.3,23,708/- and prayed for dismissal of the complaint. <br /> <br /> In the course of enquiry into the complaint, the Secretary of the complainant and Ops have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant along with the complaint has produced Xerox copy of the disputed cheque, copy of courier receipts and copies of e-mail transactions that took place between them with a copy of legal notice. Op No.1 has not produced any documents. Op No.2 has produced copy of the contract form entered into with the complainant and conditions of the agreement. Counsel for the complainant has filed written arguments. We have heard the arguments of the counsel for Op No.1 and 2 and perused the records.<br /> <br /> On the above contentions, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the Op No.1 has caused deficiency in their service in honouring the cheque issued by the complainant despite manipulation and forgery.<br /> 2. Whether he further proves that the Op No.2 has caused deficiency in his service in not delivering the consignment to the addressee which was entrusted to him.<br /> 3. To what relief the complainant is entitled to?<br /> <br /> <br /> <br /> Our findings are as under:<br /> <br /> Point No.1 : Directed to approach Civil Court<br /> Point No.2 : In the affirmative<br /> Point No.3: See the final order<br /> <br /> REASONS<br /> <br /> Answer on point No.1: Op No.1 has not disputed that this complainant who is their customer having had issued a cheque for Rs.3,23,708/- dated 28/06/2008 earlier in favour of Gulshan Polyois and later on when that cheque was presented for encashment in their branch at Hyderabad at the time of presentation of cheque payees name was changed from Gulshan Polyois to N. Padmanabha Reddy and cheque was honoured there. The first Op has contended that change of Payee name was attested by the drawer of the cheque and therefore, the cheque is honoured. Where as complainant has denied to had changed the payees name in the cheque and attested the change and has further contended that signatures are forged and that Op bank have honoured the forged cheque and thus has attributed such deficiency against the Op. In the course of arguments, the counsel for the first Op submitted that when there is serious allegation of the forgery of the signatures of the complainant in the cheque such issue can not be decided by this forum in a summary nature of the enquiry. Therefore, submitted that complaint can not be decided here and the complainant has to seek remedy in a Civil Court and the counsel in support of his submission has relied upon the decisions reported in III (1997) CPJ page 422, II (1997) CPJ page 407 and III (2000) CPJ page 102 rendered by Delhi State Commission, Punjab State Commission and West Bengal State Commission respectively. The first decision relied upon aptly applies to the facts of the case as the facts are similar. The Delhi State Commission has held that the forum can not even compare the signatures and thereby set aside the order of the District Forum which had allowed the complaint. In the other decisions also it is held that if there are serious allegations of forgery, fraud etc., said complicated issue can not be satisfactorily adjudicated upon in the time bound proceeding and remedy is only to approach Civil Court. In view of the complex issue involved and decision referred to above, we hold that complaint against Op No.1 can not be decided by this forum and is liable to be dismissed against the first Op with liberty to the complainant to pursue his remedy in Civil Court.<br /> <br /> Answer on point No.2: Having held that complaint against Op No.1 can not be decided by this forum, then we shall take up the grievance of the complainant against the second Op, the Courier agent. We have found from the version and affidavit evidence of Op No.2 he has not denied the transaction of entrustment of an article by the complainant to them for delivering it to the addressee. The second Op admitting the transactions has even produced a copy of an agreement entered into between them and the complainant for the purpose of delivering the letters and articles as entrusted to them by the complainant to the consignees. The second Op has also admitted that the consignment in question was entrusted to them but their delivery boy had lost the tapal bag and they could not trace it. Thus the fact that the second Op lost the consignment entrusted to him by the complainant stands admitted and proved. With this, we shall take other contention of Op and extent of his liability to the complainant.<br /> <br /> The second Op has contended that under the agreement the complainant could not and can not took the consignment or consignments consisting of cheque or DD’s and has referred to clause 3 of the agreement. It is further contended by him that consignment entrusted to them on 30/06/2008 did not contain any note as to its contents. The complainant also did not declare the contents of the consignment except telling that it was a document therefore tried to say that they were not aware that the consignment entrusted by the complainant was containing a cheque of Rs.3,23,708/-. The OP has further stated that as per the terms of the agreement and under the circumstances of the case they are liable to pay the expenses incurred by the complainant for obtaining duplicate DD or maximum of Rs.5,000/- which ever is less as per clause 13 of the terms of the company. The complainant has not controverted these contentions of the second Op. Condition No.3 of the condition of the agreement say the customer agrees to ban any of the following items through the Company. <br /> a) Currency b) Gold c) Drugs d) Exclusive e) Hazards Chemicals f) Bearer bank DDs or Cheques g) Liquids h) Radioactive material etc., etc., which are not very material to us and stated that under Indian Postal Act, 1986 this ban is imposed. The counsel for the second Op further invited our attention to condition of their Courier Service and submitted that the second Op shall not accept any drafts or cheques and in case of any loss up to Rs.5,000/- or actual expenses required for obtaining a draft whichever is less will be paid to the person who booked the consignment. As per clause 3 of the agreement it is evident that the ban is only to bearer cheque and DDs but there is no bar for booking account payee cheque. However in the case on hand, the second Op has contended that the complainant did not declare the content of the consignment as such they had no knowledge about the cheque and stated that the complainant had told them that the consignment contained only a document. Therefore, the counsel for the second Op argued that the second Op would be liable to pay damages for deficiency in not delivery the cheques but not liable to pay the cheque value. Counsel for the complainant again has not disputed the contention of the Op and submission of his counsel that the complainant did not declare that the consignment contained a cheque. Therefore in the absence of declaration and payment of necessary shipment charges to the second Op, the complainant cannot claim the face value of the cheque. Hence, considering all these facts and circumstances in their totality, we find that awarding damages of Rs.5,000/- would be adequate. and that would meet the ends of justice against Op No.2. With this, we answer point No.1 accordingly and point No.2 in the affirmative and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is allowed in part against the Op No.2 and it is dismissed against Op No.1.<br /> <br /> Op No.2 shall pay Rs.5,000/- to the complainant as damages within 30 days from the date of this order failing which Op No.2 to pay interest @ 10% p.a on that amount from the date of this order till the date of payment.<br /> <br /> Op No.2 shall also pay cost of Rs.1,000/- to the complainant.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 2nd August 2010.<br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />