DOF.25.5.2010

DOO.16.2.2011

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 16^th   day February  of 2011

CC.118/2010

K.V.Sreekumar,

Partner,

M/s.Coimbatore Expo Events,

Cannanore Tower,

Yogasala Road,

Kannur.

(Rep. by Adv.R.P.Remesan)                                           Complainant

1.The Manger,

   Karur Vysya Bank Ltd.,

   Overseas Branch,

   Kumaran Road,

  1^st floor, Tirupur

  (Rep. by Adv.G.V.Pankajakshan)

2. The Manger,

    Kannur Dist. Co.op. Bank Ltd.,

    Kannur Evening Branch,

    Kannur 1.                                                         Opposite parties                                                         

    (Rep. by Adv.T.Sarala)

O R D E R

Smt.M.D.Jessy, Member

          This is a complaint filed under section12 of consumer protection Act for an order directing the opposite parties to pay a sum of `50,000 towards interest and damages.

          The case of the complainant in brief is as follows:-Complainant presented a cheque on 6.5.08 bearing No.317149 dated 2.5.08 for `16,854 drawn on 1<sup>st</sup> opposite party through the 2<sup>nd</sup> opposite party for encashment. Later complainant raised that no amount has been credited in his account and he enquired about the same to 2<sup>nd</sup> opposite party. Then 2nd opposite party informed the complainant that the same was lost in transit vide letter dt. 14.2.09. Due to this irresponsible attitude of the opposite parties the complainant has sustained loss byway of interest. On 15.9.09 complainant sent a lawyer notice to the opposite parties. But none of the opposite party came forward to settle the dispute or to send a reply. So the above complaint directing opposite parties to pay `50,000 towards interest and damages sustained to the complainant due to the defective service by the opposite parties.

          On receiving the complaint Forum sent notices to both opposite parties. 1^st opposite party filed their version contending as follows:-As far as 1^st opposite party is concerned the complainant is not a consumer as defined in the act because there was no transaction or dealings between 1^st opposite party and complainant. 1^st opposite party has not tendered any service to complainant and not received any remuneration from the complainant. 1^st opposite party is not aware of the transaction between the complainant and 2^nd opposite party. 1^st opposite party has not received the cheque bearing no.317149 dated 2.6.08 for `16,854 entrusted by the complainant for collection to the 2^nd opposite party. Hence this 1^st opposite party is an unnecessary party and the complaint is bad for misjoinder . 1^st opposite party has not received the cheque from 2^nd opposite party. So there is no deficiency of service. More over 1^st opposite party submits that the cheque in question was issued by one of the current account customer  of 1^st opposite party M/s.New Horizon Systems to the complainant. New Horizon System informed this 1^st opposite party that the cheque bearing No.317149 dated 2.6.08 issued by them to the complainant was lost during transaction from 2nd opposite party. New Horizons systems Manger also informed that instead of the above cheque which was lost during transit they issued another cheuqe bearing No.372298 to the complainant and the complainant encashed the said cheque from 1^st opposite party on 24.3.09. So complainant has not sustained any loss to that extent. 1^st opposite party is unnecessary party in this complaint.

2^nd opposite party filed their version contending as follows:2^nd opposite party admits that the complainant presented a cheque bearing No.317149 for an amount of  `16854 drown on the 1^st opposite party through 2nd opposite party for encashment. But it is not true that the complainant realized that no amount has been credited in his account only 14.2.09 because the complainant is a current account holder with 2^nd opposite party bank. 2^nd opposite party submits that on 9.5.08 the above cheque No.317149 of Karur Vysa Bank, Tirupur branch has been send to the issuing bank with a covering letter for realization by registered pot. Further it is contended that the cheque presented by the complainant was forwarded to the drawee bank on  9.5.08 with a covering  letter for collection through registered post as  usual practice followed by the abank. The said registered article was entered as serial number 172 of postal register. The cheque in question was found missed in transit and postal authority informed 1^st opposite party that they were in search of the missed article and if it is traced out it will be handed over to 2^nd opposite party. On 14.2.09 the 2^nd opposite party gave a letter to the complainant the cheque has not been traced out. There is no deficiency in service or negligence on the part of 2^nd opposite party. So 2^nd opposite party is not liable to compensate the complaint on the basis of the letter intimating the loss of cheque the complainant settled the matter with the drawer of the cheque as such the complainant has not sustained any loss. So complainant is not entitled to get any relief from 2^nd opposite party.

          On the above pleadings the following issues have been taken for consideration.

1. Whether the 1st opposite party is an unnecessary party in the

    proceedings?

2. Whether there is any deficiency on the part of opposite party?

3. Whether the complainant is entitled for the relief as prayed in

     the complaint?

4. Relief and cost.

          On the side of complainant Ext.A1 to A3 marked. Exts.B1 to B4 marked on the side of opposite parties.

Issue No.1

          Complainant presented a cheque on 6.5.08 bearing No.317149 dt.2.5.08 for `16854 drawn on Karur Vysya Bank the 1st opposite party herein for collection through Kannur Dsit.co.op.Bank, 2^nd opposite party. It is the admitted case that the said cheque had been lost during transit while sending it for collection to 1^st opposite party by 2^nd opposite party. Alleging that there is deficiency of service on the part of opposite parties in making collection of the cheque entrusted by the complainant to 2^nd opposite party, the above complaint is filed. 1^st opposite party contended that since the complainant is having no transaction  nor  they received any amount towards service charge, the complainant will not come under the purview of a consumer of 1^st opposite party as defined under the act and hence 1^st opposite party is an unnecessary party in the proceedings. Since the complainant presented the cheque to 1^st opposite party, which is drawn on 1^st opposite party, 1^st opposite party is having casual connection in the transaction and he alone can say whether the cheque in question had been cleared or not. Since the material question arises for consideration is whether the cheque was properly sent for collection to 1^st opposite party by 2^nd opposite party. Eve though the complainant has not paid any amount to 1^st opposite party towards remuneration or service charge, 1^st opposite party is a necessary party in these proceedings. As such there is no question of misjoinder of necessary parties. So 1^st issue is answered accordingly.

Issue No.2

          It is admitted by 2nd opposite party that on 6.5.08 the complainant presented a cheque before them for forwarding it for collection to 1^st opposite party. Ext.B2 despatch Register maintained by 1^st opposite party shows that the said cheque was forwarded to 1^st opposite party through registered post on 9.5.08 itself. But unfortunately the said article was not delivered to the addressee even after the lapse of 3 months. Of late the complainant realized that the cheque  amount has not been credited to his account. At that time the 2^nd opposite party informed the complainant by their  letter dated 14.2.09 regarding the loss of cheque during transit. On the basis of that letter the  matter was subsequently talked over by the complainant with the drawer of the cheque and it is evident from Ext.B1(a) the liability  towards complainant under the lost cheque had been cleared on 24.3.09. None of the opposite parties are responsible for the los of cheque while it was sent for collection through registered post. But it was the bounden duty of 2^nd opposite party to see that the cheque forwarded by the improperly collected or returned here it can see that there is an unnecessary delay caused informing the loss of cheque to the complainant. The complainant can reasonably believe that the amount would be credited to his account properly. The loss of cheque during transit is only known to 2^nd opposite party. If 2nd opposite party had given information regarding the loss of cheque to the complainant with in a reasonable time the matter could have been settled earlier. Here it is found that a written information regarding loss of cheque was given to the complainant only on 14.2.09 that is after a lapse of 9 months from the date of presentation of the cheque to 2^nd opposite party whether the said letter was issued after making a request by the complainant or not is not material but the unnecessary delay caused in informing the loss of cheque to the complainant by  2^nd opposite party is definitely a deficiency in service towards the customer. As far as 1st opposite party is concerned there is no deficiency of service in the transaction towards the complainant. Hence we found that the 2^nd opposite party is liable for the deficiency of service. Hence the issue No.2 is answered accordingly.

Issue No.3

As per banking transaction when a cheque presented for collection is delayed, the bank is liable to pay interest over the cheque amount. If the loss of cheque is informed by 2^nd opposite party to the complainant properly, he can very well settle the mater earlier. Hence 2^nd opposite party is liable to compensate the complainant for the loss sustained to him. The complainant has not adduced any evidence to prove that he had sustained special damages due to the delay in clearing the cheque amount. The complainant can entitled to get reasonable interest over the cheque amount from 2^nd opposite party as damage. Since the delay caused is more than 9 months we calculate the loss of interest @9% over the cheque amount from the date of presentation of cheque i.e. from 6.5.08 to 14.2.09 and the issue is answered accordingly.

Issue No.4

          On the above findings the 2^nd opposite party is liable to pay an amount of  `1138 towards damage to the complainant with a cost of  `500 towards litigation expense.

          In the result, the complaint is  allowed directing the  2^nd opposite party  to pay an amount of `1138 (Rupees One thousand one hundred and thirty eight only)  towards compensation together with `500 (Rupees Five hundred only) as cost of this  proceedings to the complainant within one month from the date of  receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection Act.

                          Sd/-                    Sd/-                         

                        President                   Member               

Smt.K.P.Preethakumari, Member

             I have difference of opinion with respect to issue No.2 it is an admitted fact that the cheque was lost in transit. But in order to attribute deficiency of service on the part of opposite parties the crucial question to be decided is that at which point the cheque was lost. The cheque drawn at 1^st opposite party dt.2.5.08 was presented through 2^nd opposite party for encashment on 6.5.08. The Ext.B2 is the copy of the despatch register maintained by 2^nd opposite party. Ext.B3 is the copy of the register kept by the parcel branch, department of post. As per the entry No.46 dt.9.5.08, it is seen that a registered article having banking No.BC.1766 for 16854 was issued to Karur Vysya Bank by registered post. Similarly Ext.B3 shows that the registered article was issued to 1^st opposite party by 2^nd opposite party on the same day. Ext.B4 is a letter induplicate addressed to 1^st opposite party stating that the 2^nd opposite party is issuing the cheque bearing No.317149, drawn from 1^st opposite party for an amount of   `16854 for collection by registered post and with respect to it, their banking number is 1766. So from Ext.B2 to B4 it is very clear that the 2^nd opposite party had issued the cheque for collection on 9.5.08. This was admittedly presented before 2nd opposite party on 6.5.08. It shows that they have issued it within 3 days to 1^st opposite party. The complainant has not disputed the above documents. So it is undoubtedly proved that the 2^nd opposite party had performed their part and hence it is very clear that there is no deficiency of service on the part of 2^nd opposite party. More over it is very evident that the cheque was lost some where else in between the post office and its destiny. The postal authorities are not impleaded as party even though the complainant is a beneficent of them as far this case is concerned. In such cases attributing deficiency of service to the opposite parties cannot be justified at all.  The complaint is bad for non-joinder of necessary party also. More over the complainant has also duty bound to enquire a bout the cheque which was presented for collection. According to me there is no deficiency of service on the part of opposite parties and hence the complaint is liable to be dismissed.

                                    Sd/- Member

          The above complaint allowed as per majority opinion.

                               Sd/ President              Sd/-Member

APPENDIX

Exhibits for the complainant

A1.Copy of the lawyer notice sent to Ops

A2 & A3.Postal AD

Exhibits for the opposite party:

B1.Copy of statement of accounts of M/s. New Horizon systems

     maintained by OP1.

B2.Copy of dispatch register page 106 maintained by OP2

B3.Copy of the (registered parcel) postal register

B4.Copy of the letter dt.9.5.08 sent by OP 2 to oP1.

Witness examined for either side: Nil

                           /forwarded by order/

                     Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.