D.O.F. 22.07.2009

                                                                                   D.O.O. 28.01.2011

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 28^th day of January,  2011.

C.C.No.189/2009

C.A. Chacko,

Chethipuzha House,

Naduvil (Via),

Vayattuparamba P.O.,                                          :         Complainant

Kannur – 670 582

1.  The Manager,

     North Malabar Gramin Bank,

    Karuvanchal Branch,
    P.O. Karuvanchal      

(Represented by Adv. P.K. Ramesh) 

 2. M/s. Speed & Safe courier Service (P) Ltd,     :         Opposite Parties

    H.O. at Benadict 1^st cross road,

    Kochi – 18.

(Represented by Adv. Shashi D. Nambiar)

3.  The Manager,

    North Malabar Gramin Bank,

    Periya Bazar Branch, Periya,

    Kasaragod.

O R D E R

Sri. K. Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing opposite party to pay ` 2,14,000 as cheque amount together with interest ` 7,133 and an amount of ` 2,50,000 as compensation and ` 2,10,000 as other expenses.  The complainant presented a cheque on 02.12.2008 before the opposite party with cheque No.659698 for an amount of ` 2,14,000 before North Malabar Gramin Bank, Karuvanchal Branch.  After two weeks opposite party informed him that the cheque was sent for collection.  Though complainant approached opposite party several times they were not ready to pay the money.  On 27.02.2009 opposite party told him that the cheque was sent for collection as OBC 848/2008 and the same was not returned.  Subsequently on demand a written reply was given saying that OBC 848/2008 for ` 2,14,000 was sent for collection to NMGB, Periya Branch, was returned unpaid. There was no satisfactory explanation.  Lawyer notice sent on 11.06.2009 for which a reply was given saying untrue facts.  Complainant suffered huge financial loss and mental agony.  Hence this complaint.

          In pursuance of the notice the opposite party entered appearance and filed version.  The brief facts of the version filed by opposite party 1 is as follows :  Complainant had presented a cheque on 02.12.2008 for collection.  The cheque was sent for collection to  Periya Bazar Branch but it was understood on enquiries that since there was no balance in the account the cheque returned unpaid and entrusted the instrument and return memo to the couriers for onward transmission to opposite party No.1 on 10.12.2008.  The cheque was never received back from the courier though it was properly entrusted to them.  The opposite party sent complainant a written reply on 28.02.2009 setting out the actual facts.  The lawyer notice also replied with real facts.  Complainant can very well invoke remedy under Negotiable Instruments Act. The cheque was presented to NMGB, Ambalathara Branch for collection and the same transmitted to NMGB, Periya Bazar Branch.  The cheque was returned on 20.03.2009 for insufficiency of funds and as unpaid.  It was once again presented to Panathadi Service Co-operative Bank, Koodamthalla Branch and was again returned unpaid.  Since the transmission loss occurred at the hands of couriers this opposite party is not liable for any compensation.  Hence to dismiss the complaint.

          Opposite party 2 filed version separately contending that the complainant has no manner of right to seek relief from this opposite party.  1^st opposite party entrusted the document on 10.12.2008 and it was forwarded to its destination but it was misplaced during its enroute.  The 1^st opposite party had not disclosed the contents of the packet.  Only after getting the complaint, 2^nd opposite party came to know that the packet was contained the alleged cheque.  He has not admitted the contents of the packet.  Opposite party No.2 did not received any cheque as alleged in the complaint.  He denied that 1^st opposite party has entrusted the packet that contains the cheque of the complainant.  The misplacement of the documents during its enroute was not wilful or on account of negligence on the part of opposite party No.2.  It will not amounts to service deficiency.   Hence to dismiss the complaint.

          Opposite party No.3 also filed version contending that opposite party 3 returned the unpaid and entrusted the instrument with return memo to the 2^nd opposite party M/s. Speed & Safe couriers on 10.12.2002. Opposite party No.2 did not deliver the cover containing the instrument and return memo to opposite party 1.  There is no laches on the part of opposite party No.3 hence they are not liable to compensate.  Hence to dismiss the complaint.

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

1.     Whether there is any deficiency on the part of opposite parties?

2.     Whether complainant is entitled for the relief as prayed in the complaint?

3.     Relief and cost.

The evidence consists of oral testimony of PW1, DW1, DW2, Ext.A1 to A4 and Ext.B1 to B10.

Issues 1 to 3 :

          Admittedly complainant presented a cheque on 02.12.2008 before opposite party No.1 for collection but amount was not paid.  Cheque was missed.  Opposite party No.1 contended that complainant can seek remedy under Negotiable Instruments Act.  Opposite party 2 contended that though the documents were entrusted with him opposite party 1 did not disclosed the content therein hence opposite party No.2 has no liability.  It was also contented that since the document was missed during its enroute not on account of negligence on the part of opposite party No.2 has no liability. Opposite party No.3 on the other hand contended that they have entrusted to 2^nd opposite party the cover contained the alleged cheque and with return memo.  Hence there is no deficiency on the part of opposite party No.3.  Complainant adduced evidence by way of chief affidavit in tune with the pleadings.  The documents namely cheque deposit receipt, letter of complainant asking for written explanation and its reply, lawyer notice etc have been marked as Ext.A1 to A4 respectively.

          Complainant was cross examined by opposite party No.1 and 2 but nothing has brought out contrary to what he has deposed by way of affidavit or against the pleadings.  It can be seen that it is an admitted fact that the alleged cheque was entrusted with opposite party.  Opposite party No.3 admitted that the return memo and the cheque have been missed on transit. Hence it is a proved fact that opposite party No.1 has now returned the cheque nor paid the amount to complainant.  Opposite party No.1 contended that they have sent the alleged cheque to opposite party No.3.  Opposite party No.3 contented that they have returned the cheque unpaid and entrusted the instrument with return memo to opposite party No.2 but opposite party No.2 did not deliver the same to opposite party No.1.  The contention of opposite party No.2 on the other hand is that the misplacement of the cover, the content of which has not been disclosed by 3^rd opposite party was not wilful or on account of negligence on the part of opposite party No.2.  Hence they have no liability to compensate.  Ext.B10 courier consignment note proves that an article had given to 2^nd opposite party to sent the same to 1^st  opposite party on 10.12.2008.

          It is a fact that complainant lost the cheque due to the deficiency in service on the part of opposite parties.  There is no justifiable answer for the loss of he cheque from any one of the opposite parties.  Criminal action could have been taken by the complainant in order to recover the amount under Section 138 of Negotiable Instruments Act if the cheque was delivered to him with the return memo.    So that it makes much mental pain and hardship to complainant with respect to the recovery of the amount.

          The evidence reveals that 1^st opposite party has sent the cheque to 3^rd opposite party on 03.12.2008.  Ext.B3 is a unchallenged document by which it can be made ascertain that the alleged cheque has been sent to 3^rd opposite party.  3^rd opposite party contended that the same has been sent back on 09.12.2008 to 1^st opposite party.  Ext.B1 courier consignment note reveals that opposite parties has entrusted an article with 2^nd opposite party for the purpose of sending the same to 1^st opposite party.  But it does not prove what exactly the article /document has been entrusted.  2^nd opposite party contended that 3^rd opposite party has not disclosed the content of the cover entrusted to them which is not denied by 3^rd opposite party.  Hence there is no evidence that the cheque, the special matter of this complaint has been entrusted to 2^nd opposite party.  2^nd opposite party specifically pleaded that the contents of the cover entrusted to opposite party No.2 has not been disclosed so that they are not liable for compensation.  It is not challenged by 3^rd opposite party.  If  that be so negligence happened on the part of 3^rd opposite party and he is liable for the damage since there is deficiency of service on the part of 3^rd opposite party.  Complainant is entitled for the compensation for the loss sustained by him.  But complainant has not produced the evidence in respect to the loss sustained by him.  He is not mentioned anything about the attempt that he has been expected to be made to get the amount of the cheque from the person who has originally issued the cheque.  In case if he has not made any attempt to get back the money or to get a new cheque from the person who has originally issued the cheque it is not possible to jump into a conclusion that the cheque amount is lost.  Loss of cheque in transit does not mean the amount of the cheque has been lost.  Complainant is entitled for the cheque amount only if he is able to prove that the amount has been lost.   This is a case wherein 3^rd opposite party has taken the contention that the cheque was returned due to insufficient fund.  Ext.B4 shown the tick in Column No.1 “funds insufficient”.  Hence it is definite the amount has not been withdrawn from the bank.  The question of actual loss of money does not arise if there was no sufficient amount in the bank account.  So the liability of the person who issued the cheque with respect to the amount has been through out existing whatever may be the difficulties suffered by the complainant.  Complainant’s claim for the amount from the person who issued the cheque has not been exhausted.  Complainant is legally entitled to recover the amount from him. Hence it is highly essential to evaluate the attempt that has been taken by the complainant in order to decide the liability of opposite party.  But complainant failed to place any evidence before the Forum with respect to the actual loss that he has suffered.  It is understandable that there is difficulties to take an action under Section 138 of Negotiable Instruments Act since returned cheque is not with him.  But it can not be ignored that this is not a situation wherein the entire legal remedy has been exhausted.

          Whether the complainant has approached the drawer for getting the new cheque is an important question to be answered.  It cannot be ignored that the drawer of a cheque  is bound in case of dishonour by the drawee or acceptor there of, to compensate the holder provided due notice of honour has been given to the drawer. So sending of notice etc has its own relevancy to be considered to determine the actual loss suffered by the complainant.  Complainant has not explained what is the actual loss he has suffered and the evidence also does not bring out the actual picture to come into a definite conclusion with respect to the loss suffered.  It can be assumed that there will be difficulties in case, denial occurred on the part of drawer.  No doubt it is a great concern if it is denied.  But it does not mean that the complainant is entitled for the cheque amount from the banker though the banker must compensate the holder the loss.  Complainant has not adduced evidence to prove the actual loss he has suffered.  So it is not easy to quantify the actual damage of the complainant.  However complainant is entitled for compensation but not for cheque amount.

          In the light of the above discussion, considering the situation and available evidence, we are of opinion that an amount of ` 15,000 as compensation will meet the end of justice.  3<sup>rd</sup> opposite party is liable to pay this amount ` 15,000 to complainant.  Complainant is also entitled for an amount of ` 1,000 as cost of this litigation for which the opposite party No.1 & 2 are jointly liable.  Thus issues 1 to 3 are found in favour of the complainant.

          In the result the complaint is allowed directing the opposite party No.3 to pay ` 15,000 (Rupees Fifteen Thousand only) as compensation and opposite party No.1 & 2 jointly to pay ` 1,000 (Rupees One Thousand only) as cost of this proceeding within one month from the date of receiving this order failing which the complainant is entitled to get interest upon the compensation at the rate of 12% per annum.  Complainant is entitled to execute the order on the expiry of one month as per the provisions of Consumer Protection Act.       

                           Sd/-                          Sd/-                         Sd/-

President                    Member                             Member

APPENDIX

Exhibits for the Complainant

A1.  Counterfoil of cheque deposited receipt dated 02.12.08.

A2.  Reply letter.

A3.  Certificate issued by OP dated 28.02.09.

A3.  Copy of Lawyer notice dated 10.06.2009.

Exhibits for the opposite parties

B1.  Copy of receipt for cheque dated 02.12.08.

B2.  Courier consignment note dated 03.12.08.

B3.  P.O.D copy of courier dated 03.12.08.

B4.  Copy of cheque return memo dated 09.12.08.

B5.  Reply to query dated 09.02.09.

B6.  Copy of letter.

B7.  Copy of reply letter dated 28.02.09.

B8.  Complaint of non-receipt dated 09.02.09.

B9.  copy of reply to complaint of non-receipt dated 12.03.09.

B10. Courier consignment note dated 10.12.09.

 Witness examined for the complainant

PW1. Complainant

Witness examined for opposite party

DW1.  O. Jaya Narayanan.

DW2.  M.M. Karunakaran.

Witness examined for Court

Nil

                                                                       /forwarded by order/

                                                                   SENIOR SUPERINTENDENT