KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. OP No. 93/2001 JUDGMENT DATED: 11-02-2010 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT SHRI. M.K. ABDULLA SONA : MEMBER COMPLAINANTS 1. V.S.A. Subramaniam, KP V/280, Venparambil, Kudappanakunnu P.O, Thiruvananthapuram. (Represented by the 2nd complainant, the Power of Attorney Holder of the 1st complainant) 2. L. Geetha Subramaniam, W/o V.S.A. Subramaniam, KP V/280, Venparambil, Kudappanakunnu P.O, Thiruvananthapuram. (Rep. by Adv. Sri. S. Reghukumar) Vs OPPOSITE PARTIES 1. The General Manager, International Banking Division, Vijaya Bank, Head Office, 41/2, M.G. Road, Bangalore-1. 2. The Branch Manager, Vijaya Bank, Kesavadasapuram, Pattom P.O., Thiruvananthapuram. (Rep. by Adv. Sri. S.S. Kalkura & others) JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT The complainants are the husband and wife/the second complainant being the Power of Attorney Holder of the first complainant who then was working abroad. It was submitted that the first complainant died on 07-03-2003. Copy of the death certificate was produced. The case of the complainants are as follows: 2. The first complainant was employed at Dubai. The first complainant had entrusted cheque dated 01-12-1999 drawn on Abudhabi Commercial Bank by one Ahmed Saif Khamis Magid Almarri for a sum of UAE Dirhams 20,000 to the second opposite party bank for collection and crediting the same into his account on 01-12-1999. On enquires it was found that the amount has not been credited. From 20-01-2000 he was making enquiry. Vide letter dated 30-03-2000 the first complainant, the International Banking Division of the second opposite party bank informed that there is a possibility that the instrument could have been lost in transit and that efforts are being made to obtain payment at the earliest and also advised the first complainant to take up the matter with the drawer of the cheque to place stop payment order and obtain fresh cheque. The first complainant vide letter dated 12-04-2000 informed the opposite parties that fresh cheque could not be obtained from the drawer unless the instrument is returned to him. The second complainant had also written to the Managing Director of the opposite party bank in this regard. Again, the second complainant had intimated the urgency, as she has to repay outstanding loans, penal interest etc. On 22-05-2000, the second complainant was informed by the opposite parties that the matter has been taken up with the postal authorities to obtain documentary proof of evidence of delivering the cheque to the drawee bank. On 23-05-2000 the second complainant was informed that the instrument has been lost in transit between Kochi and Al Quasis and not received at Al Quasis Branch of Abudhabi Commercial Bank and that there are no means to obtain payment of the cheque. The complainant’s had to make a lot of enquires, travel to various offices of the bank and make long distance telephone calls etc. and suffered severe and untold mental agony. State Bank of Travancore, Kesavadasapuram Branch was putting pressure for the closure of the house loan and there were other creditors also to the complainants. The first complainant filed a petition before the Banking Ombudsman which was disposed of vide letter dated 13-05-2000 stating that the Ombudsman has no jurisdiction to proceed against a Foreign Bank. There is laches and negligence on the part of the opposite parties. The complainants have claimed a sum of Rs. 2,50,000/- equivalent in Indian rupee of 20000 Dirham; Rs. 75,000/- as interest at 18% up to 8/00; Rs. 30,000/- towards penal interest paid to the State Bank of Travancore towards the housing loan; Rs. 30,000/- the expenses incurred for travel, STD calls etc., Rs. 2,000/- towards notice and legal expenses; Rs. 2,00,000/- for mental agony, loss of estimation before creditors etc; altogether a sum of Rs. 5,87,000/-. 3. The General Manager of the International Banking Division of the Bank and the Branch Manager of the Kesavadasapuram, Thiruvananthapuram Branch of Vijaya Bank have filed a joint version contending that the complaint is bad for non-joinder of necessary parties, ie, the drawer and the drawee bank viz. Abudhabi Commercial Bank, A Quasis, Dubai. It is also alleged that the complaint has been instituted in collusion with the drawer of the cheque. It is admitted that the first complainant on 01-12-1999 presented the cheque to be credited to the complainants Savings Bank Account. It is contended that as per the banking custom, practice and precedent, the cheque was sent for encashment to the Abudhabi Commercial Bank, Al Quasis through their Cochin Foreign Exchange Branch on 09-12-1999. Inspite of lapse of sufficient time as the proceeds of the cheque was not credited enquires were made and it was informed by the Al Quasis Branch of Abudhabi Commercial Bank that they have not received any such cheque. The same has been lost in transit. The opposite parties had requested the drawee bank to debit from the account of the issuer of the cheque on the basis of the photocopy of the cheque provided by the opposite parties, as there was such practice in few countries like UK and USA. The Abudhabi Commercial Bank has refused to do so on the ground that such practice does not exist in UAE. The opposite parties have requested the above bank to personally meet the drawer of the cheque and obtain authorization to debit in his account the payment of the transaction. The Abudhabi Commercial Bank Branch contacted their customer, the drawer of the cheque and informed the opposite parties that their request has been refused by the drawer. Hence it is clear that the drawer has no intention to pay the cheque amount and that even if the cheque is not lost in transit it is not likely that the cheque would have been honoured. The complaint has been deliberately instituted to make illegal gains without resorting to recover the amount due from the debtors. The postal authorities are also necessary parties. The postal authorities inspite of several correspondences, have turned a deaf ear. The complainant ought to have proceeded to obtain a duplicate cheque from the drawer. There is no negligence on the part of the opposite parties as the cheque has been despatched with all reasonable skill and care and the loss of the cheque by the postal authorities is not on account of deficiency of service committed by the opposite parties. They have sought for compensation of Rs. 10,000/- vide Section 26(A) of the Consumer Protection Act as the complaint is frivolous and vexatious. 4. The version was subsequently amended vide order in IA 1394/04. It is added that the Cochin Foreign Exchange Branch at Mattancherry has despatched the cheque vide Registration No. MC 6270 dated 09-12-1999 to Abudhabi Commercial Bank. The postal authorities as per letter dated 26-07-2000 has informed that registered letter No. 6270 dated 09-12-1999 despatched from Mattancherry Post Office addressed to Abudhabi Commercial Bank, Dubai, on enquiries, it is found that the registered letter was delivered to the addressee on 19-12-1999. It is further mentioned that the drawer bank has been falsely representing that they have not received the cheque. It is reiterated that there was no deficiency of service on the part of the opposite parties. 5. The complainant has filed a replication that the statements incorporated in the version as per the amendment are false and fabricated. It is pointed out that the present tracing out of the documents in 2003 whereas the transaction is of the year 1999 render the present stand suspicious. The opposite parties have no case that the documents were misplaced. 6. The evidence adduced consisted of the proof affidavits of the respective sides and Ext.A1 to A6 and D1 to D11. 7. In the proof affidavit of the second complainant she has reiterated the case of the complainants as mentioned in the complaint. It is the Branch Manger of Kesavadasapuram, Thiruvananthapuram Branch who has filed the proof affidavit at the instance of the opposite parties. Ext.A1 is the copy of the cheque. The complainant has also produced the pay-in-slip dated 01-12-1999. The letter dated 22-05-2000 is of the bank intimating the second complainant that they are following up the matter. The copy of the lawyer notice is dated 23-08-2000 to the opposite parties and the copy of the reply notice is dated 18-09-2000 and the letter of the Banking Ombudsman is dated 13-05-2000. The opposite parties have produced copy of the letter dated 02-02-2000 sent by them addressed to the Abudhabi Commercial Bank, Al Quasis, Dubai requesting to expedite payment of the proceeds of the cheque; letter dated 10-12-000 another letter to the Dubai Bank enclosing the copy of the cheque and requesting to encash the cheque; letter dated 23-05-2000 addressed to the second complainant expressing regret and requesting to take up the matter directly with the drawer of the cheque; copy of the letter dated 23-05-2000 from the first opposite party to the second opposite party mentioning that they have taken up with the matter with Cochin Customer Care Centre (of post offices) seeking to inform when and to whom the registered letter has been delivered; the copy of the postal receipt dated 09-12-1999 addressed to the Abudhabi Commercial Bank, Dubai by registered post; the copy of the letter from the Senior Manager, Post Offices dated 26-07-2000 mentioning that the registered letter was delivered to the addressee on 19-12-1999, as well as the statement of accounts of the account of the first complainant from 11-10-2001, to prove that the first complainant had only negligible amount in his Savings Bank Account. 8. It was pointed out that the version was filed on 16-08-2002 and correspondences in between the parties and lawyer notices and reply notice preceded the amendment application that has been filed only on 10-12-2004. The alleged letter from the Senior Manager of the Post Offices stating that the registered letter has been delivered to the addressee on 19-12-1999 is dated 26-07-2000. There is no explanation as to why the above fact was not within the knowledge of the opposite parties during the stage of correspondence and when reply notice was issued and when the version was filed. Hence the genuineness of the above letter is strongly disputed. No oral evidence has been adduced to prove the genuineness of the above letter. We find that the above aspect is a factor against the case set up by the opposite parties. The same also display the lack of proper care on the part of the opposite parties with respect to the dealings of the customers and inspite of the fact that the matter involved is Rs. 2,50,000/- and more. 9. Further, it is seen that the postal authorities has no machinery for making door delivery to the addressees in UAE. The above fact has not been disputed. Further, there is no reason as to why the opposite parties has not despatched the instrument by reliable couriers who would have made door delivery to the particular bank. Expenses involved could have been credited to the account of the depositor without any difficulty. We find that the opposite parties had not bestowed sufficient care to see that the instrument is properly despatched with a view to see that the instrument reaches the destination especially in view of the fact that in a foreign country like UAE the position of an Indian working in such a country to seek remedies is not the same as that of the adversary. 10. It was contended that the date in the cheque below the signature is 04-04-1999 whereas the date of the cheque is 01-12-1999 and that the same rendered the genuineness of the instrument suspicious. We find that only the date of the cheque is relevant and the cheque if presented within 6 months from the date of the cheque can be encashed. In the absence of the presence of the drawer, who is mentioned as a Soudi national, during the proceedings the reason for putting the date of 04-04-1999 cannot be found out. We find that the above contention has no merits. 11. No evidence as to the suspicious circumstances or the alleged collusion between the first complainant and the drawer of the cheque has been adduced. Hence we find that there is no merit in the above contention. 12. The attitude of the drawer of the cheque that he will issue a fresh cheque only on return of the allegedly lost cheque, which is stated in the letter produced by the opposite party as well as mentioned by the complainants cannot be said to be unlikely as he is a foreign national and the first complainant who has been mentioned during the proceedings as an employee of the drawer. The first complainant evidently would not be in a position to initiate proceedings against such a drawer in such a country and the apprehension that the proceedings if any initiated against the drawer by the first complainant would not be without serious risks cannot be ruled out. We find that the opposite parties are better equipped to take steps against the drawer and the drawee bank, than the complainants. The opposite parties are having the material and manpower and the expertise to initiate such proceedings. In the instant case, the opposite parties have not literally lifted the little finger even to help the complainants. Negligence and deficiency in service is evident in handling the transaction by the opposite parties. Initiating proceedings by the complainants against a foreign national residing abroad and against an institution having no branches in India is not easily possible for the persons of the status of the complainants. 13. The contention that the proceedings is bad for non-joinder of the postal authorities, the drawer and the drawee bank is only an attempt to pass the buck. The postal authorities have no facility of door delivery and evidently they have not assured such a manner of delivery of the article. Hence whether the postal authorities could have been made liable is only a matter of conjuncture. The decision cited by the Counsel for the opposite parties in this regard ie, Bloks International Vs Indian Overseas Bank and Ors. II (2005) CPJ 650 is with respect to the liability of the couriers wherein the couriers and bank were the opposite parties. The matter involved was also an international transmission of documents. We find that the decision of the courier operating internationally is different from that of the postal authorities, as the couriers had assured door delivery. So also the decision cited, Federal Bank Ltd. Vs N.S. Sabastian 2009 CTJ 248(Supreme Court) CP is in an entirely different context wherein the drawer as well as the payee belonged to the same State and there was evidence that the drawer of the cheque had no sufficient amounts in his account and that the complainant knew about it and he did not take any steps to get the amount realized from the drawee. The decision of the Single Bench of Andhra Pradesh High Court in Bhogalingam Vs Indo Commercial Bank AIR 1961 Andhra Pradesh 346 is on a different and dissimilar fact situation. Another decision ie, P.C. Cherian Vs Varkey George and Anr. 1973 K.L.T. 651 wherein it was held that the drawer of the cheque ought to have been impleaded as a 3rd party is with respect to the proceedings in a civil case and where the drawer belonged to the same place of the complainant. We find that the ratio of the above decision is totally inapplicable in the present case wherein the alleged deficiency in service on the part of the opposite parties in transmitting the cheque is the issue involved. 14. The contention of the Counsel for the opposite parties relying on article 4 of the Uniform Rules for Collection that the bank concerned with respect to collection assume no liability or responsibility for the consequences arising out of delay and/or loss in transit etc. We find that the above have no statutory support and cannot be relied against the complainants who have no other remedy. 15. We find that the complainant is entitled for the proceeds of the cheque ie, 20,000 UAE Dirhams equivalent to Indian Rs. 2,50,000/- and interest at the rate of 12% from 01-03-2000 ie after expiry of sufficient time from the date of presentation of the cheque for encashment. The rest of the claims, ie, interest liable to be paid to State Bank of Travancore towards housing loan and travel expenses cannot be treated as the immediate consequences and no evidence in this regard was also produced. As interest has been ordered no further compensation is liable to be paid. In the result, the complaint is allowed. The opposite parties are directed to pay Rs. 2,50,000/- with interest at 12% per annum from 01-03-2000 and costs of Rs. 7,500/-. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant would be entitled for interest at the rate of 15% per annum from the date of this order. JUSTICE K.R. UDAYABHANU : PRESIDENT M.K. ABDULLA SONA : MEMBER APPENDIX Witness for the complainant Nil Exts. for complainant A1 Photocopy of the cheque dated 01-12-1999 A1(a) Copy of the Pay-in-Slip dated 01-12-1999 A2 Copy of the letter dated 22-05-2000 sent by the 2nd opposite party to the complainant A3 Copy of the notice dated 23-08-2000 sent by the Advocate for complainant to the opposite parties A4 Copy of reply notice dated 18-09-2000 sent by the Advocate for opposite parties to the complainant A5 Copy of the Order of the Banking Ombudsman dated 13-05-2000 A6 Copy of the Power of Attorney executed by the 1st complainant in favour of the 2nd complainant. Witness for the opposite party Nil Exts. for opposite partyD1 Copy of letter dated 02-02-2000 sent by Vijaya Bank to Abudhabi Commercial Bank, Al Qusais, Dubai. D2 Copy of letter dated 10-02-2000 sent by Vijaya Bank to Abudhabi Commercial Bank, Al Qusais, Dubai. D3 Copy of letter dated 10-02-2000 sent by Vijaya Bank to Abudhabi Commercial Bank, Al Qusais, Dubai. D4 Copy of cheque dated 01-12-1999 D5 Copy of letter dated 03-04-2000 sent by second complainant to the second opposite party D6 Copy of letter dated 23-05-2000 sent by second opposite party to the second complainant D7 Copy of letter dated 23-05-2000 sent by Vijaya Bank to the Asst. General Manager, RO Tvm. D8 Copy of postal receipt dated 09-12-99 addressed to Abu Dhabi Commercial Bank D9 Copy of letter dated 26-07-2000 issued by the Senior Manager, Department of Post, Ernakulam Division, Kochi to the opposite party D10 Copy of Outward Register maintained by the opposite party, Bank D11 Copy of the Statement of Account in the name of the complainant maintained at the opposite party Bank JUSTICE K.R. UDAYABHANU : PRESIDENT M.K. ABDULLA SONA : MEMBER | 
