Haryana

Jind

CC/341/2012

Joginder Singh - Complainant(s)

Versus

The Manager PNB - Opp.Party(s)

Sh S.K. Garg

27 Jul 2016

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JIND. 
                                           Complaint No. 341 of 2012
   Date of Institution: 12.11.2012
   Date of final order: 9.8.2016

Joginder Singh s/o Sh. Daya Nand r/o village Shahpur, District Jind.

                                                             ….Complainant.
                                       Versus
The Manager Punjab National Bank, branch office Kandela, District Jind. 
Punjab National Bank Head Office,7, Bhikaji Cama Place New Delhi-110066 through its Chairman/Managing Director. 
                                                          …..Opposite parties.
                          Complaint under section 12 of
              Consumer Protection Act, 1986.

Before: Sh. Dina Nath Arora, President.
    Smt. Bimla Sheokand, Member.
            Sh. Mahinder Kumar Khurana, Member.    

Present:  Sh. S.K. Garg Adv. for complainant.
          Sh. P.K. Gupta Adv. for opposite parties. 
              
                   
ORDER:

             The brief facts in the complaint are that complainant  is having saving bank account with the opposite party No.1 as such he used to operate it by depositing amount in cash or cheque or by withdrawing the cash. The complainant deposited a cheque No.000004 for Rs.1,00,000/- drawn on Bank of India and issued by Sh. Darshan Lal Batra s/o Sh. Barkhat Ram Batra r/o Jind in the office of opposite party No.1. The said cheque in original was returned by Bank of India 
            Joginder Singh Vs. Manager PNB etc.
                       …2…    
branch office, Jind to the opposite party No.1 with its memo with the remarks “Insufficient Balance”. The above said cheque has been lost by the officials/officers of opposite party No.1 due to their negligene, carelessness in performance of their official duty. The opposite parties used to charge collection charges of a cheque by debiting the said amount in saving bank account of the person who has presented the cheque for collection.  Due to not returning of the above said cheque in original along with memo of Bank of India in time by opposite party No.1, the complainant could not file a complaint under Section 138 of Negotiable Instruments Act against Sh. Darshan Lal Batra nor he can file a suit for recovery. The complainant served a legal notice dated 16.8.2012 through his counsel upon the opposite parties but all in vain. Deficiency in service on the part of the opposite parties is alleged. It is prayed that the complaint be accepted and opposite parties be directed to  make the payment of Rs.1,00,000/- along with interest @ 18% p.a., a sum of Rs.25,000/- as compensation on account of mental pain and agony as well as to pay a sum of  Rs. 5,500/- as litigation expenses  to the complainant. 
2.    Upon notice, the opposite parties  have appeared and filed the   written statement stating in the preliminary objections i.e. the  complaint is not maintainable in the present forum. On merits, it is contended that the bank is authorized to send the cheque by ordinary/registered post/courier service/speed post and the bank will not be responsible for any loss  or miscarriage of the cheque. The cheque has been returned by the paying bank with the remarks of 
            Joginder Singh Vs. Manager PNB etc.
                       …3…    
insufficient balance the same was informed by Jind branch of Punjab National Bank to Kandela Branch. The collection charges of the cheque were being debited to the account of the person presenting the cheque as per the practice and system of the Bank. The Jind Branch has informed the Kandela Branch that the cheque was returned and sent back to Kandela on 11.4.2012 through courier but the cheque was not received by the Kandela Branch and was lost in transit.  Therefore, there is no deficiency in service on the part of the  opposite parties. Dismissal of complaint with costs is prayed for. 
3.    In evidence, the complainant has produced his own affidavit  Ex. C-1,  voucher dated 20.3.2012 Ex. C-2, letter dated 9.7.2012 Ex. C-3, postal receipts Ex. C-4 and Ex. C-5 and  copy of notice dated 16.8.2012 Ex. C-6 and closed the evidence. On the other hand, the opposite parties have produced the affidavit of Sh. S.K. Sharma, Branch Manager, PNB Ex. OP-1, copy of letter dated 14.11.2013 Ex. OP-2, copy of voucher Ex. OP-3 and copy of letter Ex. OP-4 and closed the evidence.  
4.    We have heard Ld. counsel of both the parties and also perused the record placed on file. Ld. counsel for complainant argued that complainant is having saving account number with opposite party No.1 and he had deposited a cheue No.000004 for Rs.1,00,000/- drawn on Bank of India  and issued by sh. Darshan Lal Batra r/o Jind but the above said cheque has been lost by the opposite parties and complainant is entitled of the above said cheque amount of Rs.1,00,000/- along with interest and prayed to allow the complaint. 
            Joginder Singh Vs. Manager PNB etc.
                       …4…    
5.    On the other hand, Counsel for opposite parties argued that as per pay in slip signed by the complainant it is the condition that the bank is authorized to send the cheque by ordinary/registered post/courier service/speed post and the bank will not be responsible for any loss or miscarriage of the cheque. Counsel for opposite party further argued that complainant well knew that amount of cheque was not in the account of Darshan Lal Batra  as earlier cheques were also bounced. He further argued that cheque has not been lost by the official of opposite party No.1  and same has been lost in the transit. So there is no negligence on the part of the opposite parties and prayed for dismissal of complaint. 
6.    After hearing Ld. counsel of both the parties, we have gone through the record placed on file. There is no dispute that complainant has presented the cheque No.000004 for Rs.1,00,000/- drawn on Bank of India issued by Darshan Lal r/o Jind with the opposite party No.1 Branch Kandela, District Jind. The opposite party No.1 sent the cheque to his main Branch Office, Jind. Accordingly main branch of Jind has sent the cheque for collection to Bank of India, Jind and same was return by the Bank of India to the opposite party No.1  with remarks “insufficient balance”  they further mentioned that  cheque has been lost in transit not received by us Vide  letter  dated 9.7.2012 issued by PNB Kandela Branch, District Jind.  But  there is no evidence on the record that whether the opposite parties have sent the memo of  remarks regarding insufficient fund issued by Bank of India as well as bounced cheque to the complainant through registered post 
            Joginder Singh Vs. Manager PNB etc.
                       …5…    
or courier nor any record of dispatch register from which they have sent the above said cheque. So the plea of the opposite parties that the cheque has been lost in transit is not acceptable meaning thereby the official of the opposite parties has lost the cheque in the office of the opposite parties. 
7.    In view of the above version of parties, it is clear that the cheque in question has been lost  in the office of opposite party No.1or2  but not lost in transit. When there is no dispute that cheque in question was presented in the  branch of PNB Kandela or same has been sent by the Kandela branch to their main branch of Jind and opposite party No.1 has sent the above said cheque for clearance in the Bank of India at Jind. It is not disputed that the present complaint has been filed on 12.11.2012 and complainant was very much knowledge that above said cheque has been lost and opposite party No.1 has written a letter to the complainant regarding misplace of cheque on 9.7.2012 vide Ex. C-3. The complainant can avail the remedy for filing the civil suit for recovery of the amount because party has timely informed that the cheque has been lost. For recovery of amount of cheque, the complaint would not lie under the Consumer Protection Act, the relief of the cheque amount cannot be given to the complainant in view of the case law titled State Bank of India Vs. Untha Lakshmi Kumari (2009) CPJ 198 (NC) in which it was held that cheque misued/encashed, not oved-Bank not liable to pay cheque amount-order of State Commission set de- Compensation for deficiency in vice on part of bank awarded. The other case 
            Joginder Singh Vs. Manager PNB etc.
                       …6…    
titled as Canara Bank Vs. Sudhir Ahuja 1 (2007) CPJ 1 (NC)  in which it was held that neither amount credited nor cheque returned-Deficiency in service proved-Bank liable to pay some amount of compensation and not entire amount of cheque-order of State Commission directing OP to pay entire cheque amount not legally sustainable-OP liable to pay Rs.5,000/- compensation. 
8.    In view of the above said discussion, it is proved that the official of the opposite parties are negligent and not performing their duty and they have lost the cheque in their Bank and great deficiency in service on the part of the opposite parties is proved. In view of the law discussed above (Supra), the complainant is entitled the compensation. The complaint is partly allowed  with cost and opposite parties are directed to pay a sum of Rs.20,000/-(Rs. twenty thousand only) as compensation to the complainant within 30 days  after receiving the certified copy of this order. We assessed Rs.3000/-(Rs. three thousand only) as litigation expenses to the complainant. Copies of order be supplied to the parties under the rule. File be consigned to the record-room after due compliance.
Announced on: 9.8.2016
                                              President,
       Member       Member                 District Consumer Disputes                                          Redressal Forum, Jind

 

 

           Joginder Singh Vs. Manager PNB etc.
                    

Present:  Sh. S.K. Garg Adv. for complainant.
          Sh. P.K. Gupta Adv. for opposite parties. 
              
              
             Arguments heard. To come up on 9.8.2016 for orders. 
                                      President,
        Member              Member         DCDRF, Jind
                                  8.8.2016
    
Present:  Sh. S.K. Garg Adv. for complainant.
          Sh. P.K. Gupta Adv. for opposite parties. 
              
                   
             Order announced. Vide our separate order of even date, the complaint is partly allowed. File be consigned to record room after due compliance.  
                                       President,
        Member              Member         DCDRF, Jind
                                  9.8.2016