Karnataka

Belgaum

CC/64/2015

Rama S Chougule - Complainant(s)

Versus

The Manager ICICI Bank Ltd - Opp.Party(s)

Sandeep S And M M Akkishetti

19 Oct 2015

ORDER

(Order dictated by Shri. B.V.Gudli, President)

: ORDER :

          The complainant has filed complaint against Opponents U/s. 12 of C.P. Act alleging deficiency in service of non returning of cheques which were presented for encashment before the opponents.

          2) Opponents appeared through their advocate and have filed their version. The Opponents contend that, the complainant is not a consumer as per the provisions of the Consumer Protections Act. The facts and the circumstances of the complaint are not covered under the provisions of the C.P. Act. Hence the complaint filed by the complainant does not come within the definition of consumer as per the section 2(d) of the Consumer Protection Act 1986. The cheques which were presented by the complainant for encashment were dishonored for reason funds insufficient and the cheques were lost in the transit. The complainant can obtain duplicate cheque from the drawer of the cheques. The complaint filed by the complainant is not maintainable in law. Therefore the complainant is not entitle to any compensation as prayed in the complaint. Hence prays for dismiss the complaint.

          3) In support of the claim of the complainant, complainant has filed his affidavit by way of evidence and original documents produced by the complainant.

          4) We have heard the arguments of the learned counsel for the complainant and Opponents and perused the records.

          5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the opponents and entitled to the reliefs sought?

          6)      Our finding on the point is partly in affirmative, for the following reasons.

:: REASONS ::

          7) On perusal contents of the complaint as well as affidavit of the complainant produced by way of evidence. The complainant had presented two cheques for encashment before the Opponent No.1 amounting to Rs.75,000/- each bearing No.025941 dated 2/7/2014 and 025942 dated 4/7/2014 respectively drawn on Parshwanath Co-Op Bank Ltd., Shahupuri Branch, Kolhapur. After presenting the cheques in the second week of July 2014 the complainant had enquired O.P.1 regarding encashment of cheque. O.P.1 stated that those cheques were not yet returned. After repeated request made by complainant to opponent No.1, he gave untenable reply. O.P.2 had issued a letter dated 29/9/2014 stated that both cheques were returned on 7/7/2014 with an endorsement that funds Insufficient and same were lost in transit. The O.P.1 had also replied to the notice given by the complainant, stated that both the cheques were lost in the transit. Thereafter on 24/11/2014 complainant got legal notice through her counsel to pay cheque amount of Rs.75,000/- each, which were presented by her. The said notice was duly served on the opponents. The opponents have replied to the said notice, that on July 11^th 2014 given reason “Consignee not available” and was redirected to Mumbai. However later the shipment was reported as lost in transit. The complainant approached Banking Ombudsman, Reserve Bank of India, Bangalore on 26/12/2014. Ombudsman, Reserve Bank of India has not given any reply to the said notice. Hence prays for compensation as well as Rs.1,50,000/- towards payment of both the cheques.

          8) O.Ps. have taken contention that the complainant is not a consumer as per the provisions of the Consumer Protection Act, as no facts and circumstances of the case, complaint are covered under the provisions of the C.P. Act. Therefore does not come within definition of consumer as per section 2 (d) of the Consumer Protection Act, 1986. However on perusal written version and affidavit of opponents they have admitted that “it is true that complainant is having Saving Account in No. 017601525396 with ICICI Bank, Khanapur Road, RPD Cross, Belgaum, Karnataka. Further admitted that complainant had deposited cheques bearing No. 025941 dated 4/7/2014 and cheque No. 025942 for Rs.75,000/- each drawn on Parshwanath Co-Op Bank Ltd., Shahapuri Branch, Kolhapur for collection and both cheques were returned with endorsement “funds Insufficient” on 7/7/2014. After return of both the cheques, the Opponents did not return the cheques with endorsement to the complainant. Thereafter the complainant had approached the opponent No.1 and Opponents have replied to the notice issued by the complainant that “The cheques returned unpaid in clearing for the reasons “insufficient funds” on July 7, 2014, accordingly the said cheques were marked returned in your account and dispatched to your communication address through Speed Post and further stated that the shipment was returned “Consignee not available”. Even though the complainant approached Banking Ombudsman, did not reply to the said notice. On perusal contentions taken by the Opponents they have admitted that, the complainant had presented the cheques for encashment before opponent No.1 both the cheque were returned with an endorsement “Funds insufficient”. Inspite of issuance legal notice, the opponents did not return the cheques. Under the circumstances opponents No.1 had been deprived of its legal right to file a case under section 138 of the Negotiable Instrument Act against the account holder. When the cheques in question have been lost at the end of opponents Bank, then it is the opponents alone who is liable to compensate the loss suffered by the complainant. The opponents failed to return the cheques and deprived legal right of the complainant to file complaint u/s.138 of Negotiable Instrument Act and also deprived of getting her money from the person who has issued the cheques in her favour. Moreover the memo refusing the cheques on ground in sufficient fund has not been placed on record.

9) The learned advocate for the complainant relied on decision;

National Consumer Disputes Redressal Commission New Delhi In revision petition No. 649 of 2012 in between M/s. ICICI Bank Ltd., Hosur Branch, Hosur and others.

The facts of the case in hand and decision relied by the Advocate for the complainant is one and the same. There is deficiency in service on the part of the opponents. The opponents have failed to return cheques to the complainant for further action. If the Opponents were returned the cheques to the complainant, she should have file the complaint u/s. 138 of N.I. Act, there is negotiate mistake has been committed by opponent in not returning cheques to the complainant. There is deficiency in service on the part of the opponents.

          10) Taking into consideration of the facts, evidence on record and the discussion made here before deficiency in service on the part of the O.Ps. has been proved.

          11) Hence we proceed to pass the following order;

: ORDER :

          The complaint is allowed.

          The Opponents No.1 is directed to return the cheques along with endorsement to the complainant within 30days from the date of this order. It is further directed that in case opponents fail to return the cheques within time the opponents shall jointly and severally are liable to pay Rs. 75,000/- each to the complainant with interest at the rate of 9% P.A. from 2/7/2014 for cheque No.025941 and 4/7/2014 for cheuqe No. 025942 till actual payment.

          The O.Ps. shall pay compensation of Rs.25,000/- to the complainant for inconvenience cause and mental agony to the complainant and also liable to pay Rs.5,000/- towards costs of the proceedings.

          Order shall be complied within one month from the date of the order.

          (Order dictated, corrected & then pronounced in the Open Forum on this 19^th day of October 2015)

          Member                    Member                    President

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