JUDGEMENT DELIVERED BY SMT.SAMIUNNISA .C.H., PRESIDENT: The complainant has filed a complaint under section 12 of Consumer Protection Act, 1986 against the OP alleging the deficiency in service claiming Rs.13,800/- against the Op for mental harassment and litigation expenses along with interest. 2. The nutshell of the Complaint is as under: The Complainant is a permanent resident of Gadag town, for the higher studies of the complainant, the Government of Karnataka sanctioned a stipend of Rs.8,800/- to continuous his studies for KAS and IAS at Delhi. The Government of Karnataka release a cheque for Rs.8,800/- dated: 08.09.2013 through Joint Director, State Treasury, Bangalore in the name of the complainant. The complainant in the S.B. Account holder bearing A/c No.1207221000221 in the Bank of Opponent, the complainant present the said cheque for realization through his Banker Syndicate Bank, Main Branch, Gadag (Opponent), but the cheque was not a realise nor returned back to the complainant, the complainant approached the Opponent several times, the opponent replied that the cheque was presented for realization had towards the C.A.O., Bangalore on 15.10.2013 was delivered to C.A.O., Bangalore, Dated: 19.10.2013 and is untraceable and Opponent advise the complainant to get another cheque, but the C.A.O. Bangalore had clearly rejected the proposal of the complainant to issue a fresh cheque. 3. On several oral request of the complainant, the Opponent Bank has not responded properly hence complainant got issued a legal notice through his counsel to the Opponent on 25.11.2013. Inspite of service of notice, it is alleged that the Opponent failed to comply the said notice and the complainant come forward with this complaint alleging deficiency of service. 4. Case registered, notice was ordered by the predecessors on seat, after the notice was served Opponent appeared through his counsel. 5. Opponent filed his version as follows: At the outset of the Opponent disputed the contents of the complaint, the case of the complainant is not tenable under the law. The contents in the complaint are not true and bonafides. Further, the Opponent has denied that the complaint is hit by non-joinder of necessary parties. Further, it is stated that there is no deficiency of service on his part as alleged and sought for the dismissal of the complaint. 6. In the background of the above said of the pleadings, the complainant himself examined before this Forum and the complainant had filed 06 documents. On the other hand, the Senior Manager of the Opponent examined on the Bank of the above said pleadings, oral evidence and documentary evidence, Forum had raised following points for adjudication of this case which are as here under: 1. Weather the Opponent proves that the complainant is hit for non-joinder of necessary parties? 2. Weather complainant proves that there was the deficiency of service on the part of the OP? 3. Whether the complainant is entitled for relief sought for? 3. What order? Our findings to the Point No.1: in the Negative, Point No.2 : Affirmative, Point No.3: Partly affirmative, Point No.4 : as per the final Order R E A S O N S 7. POINT NO.1: It is the case of the complainant that he is a customer of Opponent-Bank holding a S.B. Account bearing No.1207221000221 and transacting with Opponent. Even this fact is not disputed by the Opponent. The Opponent stated that the cheque has been forwarded to C.A.O., Bangalore, as per the procedure it was delivered on 19.10.2013, but the Opponent failed to produce the documentary evidence in support of his contention. Merely forwarding a letter to customer is not a remedy nor is the responsibility of the Opponent is shifted. 8. It is the duty of the service provider to encash the cheque otherwise return the instrument to the customer. The customer cannot collect the instrument forwarded to the service provider from their authorities. The customer is directly connected with the service provider. Hence it is responsibility of the service provider trace-out the instrument or his liable for the consequences, the question of non-joinder of necessary parties will not arise. Hence, I.A. was rejected and answer to Point No.1 in negative. 9. POINT NO.2: The complainant is the customer of Opponent Bank holding a S.B. Account No.1207221000221. The complainant presenting a crossed cheque bearing No.210047 on 08.10.2013 issued by the Joint Director, State Treasury, Bangalore towards the stipend for the higher studied for the complainant for realization. Neither cheque nor amount was received by the complainant after repeated request the Opponent had issued a letter dated: 14.11.2013 by stating that the said cheque was delivered to the C.A.O., Bangalore on 19.10.2013 and his un-traceable as per the telephonic enquiry made to the C.A.O., Bangalore dated: 14.11.2013. Even the Opponent had advised to secure a duplicate cheque from the drawer from the complainant for the transaction. On advice of the opponent, the opponent approach the said treasury for the issuance of the duplicate cheque, the drawer had rejected this proposal. 10. In the background of the said pleadings, now the entire case of the complainant as well as the versions filed by the Opponent is pursued several facts are admitted in the Written Version filed by the Opponent. The Opponent has not disputed the loss of the cheque this presumption of the complainant we are opinion that there is no scope under law for presumption and assumption. 11. In the background of the above facts pleaded by the Opponent and find that the Opponent is in gross negligency of the handling the valuable of instrument of his customer, the Opponent cannot withheld his mistake by merely issuing a letter to the complainant regarding non-tracing of instrument. Hence light going attitude of the Opponent and mishandling of instrument is not tolerable, by which greater hardship will be caused to the customer. Such mere issuance of letter stating the non-traceable of cheque is not sufficient, hold the absolutely there is a deficiency of service on the part of the Opponent. In the background of the above facts and circumstances, I am of the opinion that there is deficiency of service by holding valuable instrument by the Opponent. Even the substantiate by above said prescription I wish to reply upon discussion reported in IV (2003) CPJ 53 (NC) State Bank of Patiala V/s Rajendralal and Another. “Consumer Protection Act, 1986 Section 2 (1) (B) – Banking services, cheque deposited for collection neither the cheque nor the amount received, Dist. Forum had deficiency in service is proved, OP liable to pay cheque amount with interest, order upheld in Appeal” In the above discussion there lordship held that the Banker cannot escape from their responsibility just by continuing the cheque has misplaced/loss in transit in the background of above citation. I answer the Point No.2 in affirmative. 12. POINT NO.3: While filing this case, the complainant has sought refund of cheque amount Rs.8,800/- and compensation of Rs.5,000/- for mental agony. As per the above discussion, there is no doubt that the Opponent is in gross negligency in handling the instrument deposited by the complainant. The complainant is a student he had been issued by the said cheque as stipend for his higher studies. Hence, the Opponent must be penalize by the way of damages and also the expenses of this pleadings. Hence, I answer the Point No.3 is partially affirmative. 13. POINT NO.4: In view of the above findings, we proceed to pass the following: //O R D E R// The Complaint is partially allowed with costs. 2. The OP is hereby directed to pay a sum of Rs.8,800=00 (Rupees eight thousand eight hundred) together with the interest at 12% p.a. to the Complainant from the date of Complaint till realization. Further, it is Order that OP is also hereby liable to pay a sum of Rs.3,000/- (Rupees three thousand) towards mental agony and harassment and Rs.1,000/- (Rupees one thousand) towards litigation cost. 3. Further, it is order that OP had to comply this Order within a period of 30 days failing which, he had to pay the interest at 16% p.a. till realization. 4. Send the copies of this order to the parties free of cost (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court on this 05th day of December, 2015) Member Member President
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