BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No. 56/2002 Filed on 29..01..2002
Dated: 15..01..2009
Complainant:
Dominic John, Venad House, Venjaramoodu, Thiruvananthapuram – 695 607. (By Adv. Koliyacode V. Suresh)
Opposite party:
The Manager, The Hongkong & Shanghai Banking Corporation Limited, P.O.Box No.2244, Vellayambalam, Thiruvananthapuram.
(By Adv. P. Krishnankutty Nair)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 10..11..2003, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 17..12..2008, the Forum on 15..01..2009 delivered the following: ORDER
SMT. S.K.SREELA, MEMBER:
The brief facts giving rise to this complaint are that the complainant who is an account holder of opposite party's bank deposited an amount of Rs.95,000/- in his account on 22..10..2001. The complainant issued a cheque dated 19..10..2001 for an amount of Rs.94,881/- in favour of M/s. FIAT Sundaram Auto Financiers Limited, Thiruvananthapuram. But the said cheque which was sent for collection on 24..10..2001 returned dishonoured for 'insufficient funds'. This act of the opposite party when the complainant's account had sufficient amount to clear the said cheque has affected the reputation goodwill and business of the complainant. The reason given by the opposite party for the same is that 'unfortunate event of dishonour of cheque occurred due to the failure of computer system'. This according to the complainant is a false allegation and the complainant prays for compensation for mental agony and loss of reputation.
2. The opposite party has filed their version contending as follows: That the complainant is not a consumer and the complaint is not maintainable in law or on facts. The complainant has not 'hired or availed any service' of the opposite party as defined under Sec.2(d) of the Consumer Protection Act. This Forum lacks jurisdiction to entertain a claim purely based on a breach of contract. On 19..10..2001 there was no sufficient funds in the credit of the complainant who issued the cheque knowing fully well the consequence of Sec. 138 of Negotiable Instruments Act for issue of such cheque unsupported by financial credit worthiness. The said cheque on 24..10..2001, on presentation was unfortunately endorsed 'dishonoured' due to failure of computer system and on knowing this mistake, the opposite party informed the payee M/s. Fiat Sundaram Auto Finance and requested to present again. M/s. Fiat Sundaram Auto Finance has neither initiated any action against the complainant nor any notice was issued to the complainant. The matter regarding dishonour of cheque was known only between the opposite party, M/s. Fiat Sundaram Auto Finance and the complainant and there is no possibility of affecting the reputation of the complainant. Pay order for the cheque amount was issued to the complainant favouring M/s. Fiat Sundaram Auto Finance without charging any sum towards service/consideration. The pay order was accepted by the complainant from this opposite party and the complainant did not lodge any dissatisfaction. The complainant is still maintaining and operating the account with the opposite party. Hence opposite party prays for dismissal of the complaint.
3. The power of attorney holder of the complainant has filed affidavit and Exts.P1 to P5 were marked on the part of the complainant. Opposite party had no evidence.
4. On the contentions raised, the following questions arise for consideration: Whether there is any deficiency in service on the part of the opposite party? Whether the complainant is entitled for any of the reliefs claimed?
5. Points (i) & (ii) : The allegation in the complaint is with regard to dishonour of cheque on the ground of insufficiency of funds when the complainant's account had sufficient balance amount. A complaint of such nature is maintainable before the Forum and clearly comes under the purview of the Consumer Protection Act and we have no doubt to hold that the complainant is a consumer as envisaged in the Consumer Protection Act. The dishonour of cheque due to 'insufficient funds' though there was sufficient amount in the account of the complainant has been admitted by the opposite party. The explanation for the same given by the opposite party is that it has happened due to the failure of the computer system of the bank. At this juncture, the aspect to be looked into is whether the above said act of the opposite party has caused any damage or loss to the complainant as alleged in the complaint and whether there is any willful act on the part of the opposite party. On a perusal of records on file it can be seen that, the cheque dated 19..10..2001 has been dishonoured on 24..10..2001, the date on which it was presented. According to the opposite party the said cheque was endorsed 'dishonoured' due to failure of computer system and on knowing this mistake, the opposite party informed the payee M/s. Fiat Sundaram Auto Finance and requested to present again and no action has been taken by the said payee against the complainant. The matter regarding dishonour was known only to the opposite party, the complainant and the payee M/s. Fiat Sundaram Auto Finance. The complainant has not denied the same. Moreover the counsel for the opposite party argued that the opposite party had issued a pay order for the amount and the payment was effected the next day itself without any bank charges. The complainant has no case that additional charges or penalty were levied from him. The complainant has not disputed the fact that the opposite party has made immediate alternate arrangement. The complainant does not have a case that this has happened due to any willful act on the part of the opposite party. It is evident that the bank has suo moto rectified the defect and paid pay order in the expense of opposite party itself. This being the situation, there is nothing to disbelieve the fact that, the matter regarding dishonour of cheque was known between the complainant, opposite party and the payee M/s. Fiat Sundaram Auto Finance only. The above said payee was informed by the opposite party with regard to the credit worthiness of the complainant which has not been denied by the complainant either. In such a circumstance, the allegation that this incident has affected the reputation good will and business of the complainant has no force.
6. In the instant case there is no averment made in the complainant regarding willful act or default committed by any officer of the Bank. The aspect for consideration herein is as to whether the opposite party can be burdened with the liability for the alleged deficiency in service caused due to the error in the computer system. It was certainly a mistake on the part of the opposite party but then every mistake cannot necessarily be stated to be deficiency in service. On the facts and in the circumstances of the case, this can be considered only as a bonafide mistake. An inadvertent error committed by the Bank due to the error in their computer system cannot be taken advantage of to make an unconscionable bargain. We find that there has been no deficiency in service on the part of the opposite party. From the facts and circumstances of the case it is evident that the opposite party has initiated immediate appropriate steps required to be done, in favour of the complainant for the inadvertent error on their part. Hence the complaint is found without any merits and is found liable to be dismissed.
In the result the complaint is dismissed. No order as to costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15th day of January, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P. No. 56/2002
APPENDIX
I. Complainant's witness : NIL
II. Complainant's documents:
P1 : Copy of cheque No.037379 dated 19.10.2001 for Rs. 94,881/- of HSBC,Tvpm.
P2 : Copy of slip of returned cheque dated 24.10.2001 showing the reason marked.
P3 : Copy of advocate notice dated 05..12..2001
P4 : Postal receipt dated 05..11..2001
P5 : Reply notice dated 06..12..2001
III. Opposite party's witness: NIL
IV. Opposite party's documents: NIL
PRESIDENT
ad. BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No. 56/2002 Filed on 29..01..2002
Dated: 15..01..2009
Complainant:
Dominic John, Venad House, Venjaramoodu, Thiruvananthapuram – 695 607. (By Adv. Koliyacode V. Suresh)
Opposite party:
The Manager, The Hongkong & Shanghai Banking Corporation Limited, P.O.Box No.2244, Vellayambalam, Thiruvananthapuram.
(By Adv. P. Krishnankutty Nair)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 10..11..2003, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 17..12..2008, the Forum on 15..01..2009 delivered the following: ORDER
SMT. S.K.SREELA, MEMBER:
The brief facts giving rise to this complaint are that the complainant who is an account holder of opposite party's bank deposited an amount of Rs.95,000/- in his account on 22..10..2001. The complainant issued a cheque dated 19..10..2001 for an amount of Rs.94,881/- in favour of M/s. FIAT Sundaram Auto Financiers Limited, Thiruvananthapuram. But the said cheque which was sent for collection on 24..10..2001 returned dishonoured for 'insufficient funds'. This act of the opposite party when the complainant's account had sufficient amount to clear the said cheque has affected the reputation goodwill and business of the complainant. The reason given by the opposite party for the same is that 'unfortunate event of dishonour of cheque occurred due to the failure of computer system'. This according to the complainant is a false allegation and the complainant prays for compensation for mental agony and loss of reputation.
2. The opposite party has filed their version contending as follows: That the complainant is not a consumer and the complaint is not maintainable in law or on facts. The complainant has not 'hired or availed any service' of the opposite party as defined under Sec.2(d) of the Consumer Protection Act. This Forum lacks jurisdiction to entertain a claim purely based on a breach of contract. On 19..10..2001 there was no sufficient funds in the credit of the complainant who issued the cheque knowing fully well the consequence of Sec. 138 of Negotiable Instruments Act for issue of such cheque unsupported by financial credit worthiness. The said cheque on 24..10..2001, on presentation was unfortunately endorsed 'dishonoured' due to failure of computer system and on knowing this mistake, the opposite party informed the payee M/s. Fiat Sundaram Auto Finance and requested to present again. M/s. Fiat Sundaram Auto Finance has neither initiated any action against the complainant nor any notice was issued to the complainant. The matter regarding dishonour of cheque was known only between the opposite party, M/s. Fiat Sundaram Auto Finance and the complainant and there is no possibility of affecting the reputation of the complainant. Pay order for the cheque amount was issued to the complainant favouring M/s. Fiat Sundaram Auto Finance without charging any sum towards service/consideration. The pay order was accepted by the complainant from this opposite party and the complainant did not lodge any dissatisfaction. The complainant is still maintaining and operating the account with the opposite party. Hence opposite party prays for dismissal of the complaint.
3. The power of attorney holder of the complainant has filed affidavit and Exts.P1 to P5 were marked on the part of the complainant. Opposite party had no evidence.
4. On the contentions raised, the following questions arise for consideration: Whether there is any deficiency in service on the part of the opposite party? Whether the complainant is entitled for any of the reliefs claimed?
5. Points (i) & (ii) : The allegation in the complaint is with regard to dishonour of cheque on the ground of insufficiency of funds when the complainant's account had sufficient balance amount. A complaint of such nature is maintainable before the Forum and clearly comes under the purview of the Consumer Protection Act and we have no doubt to hold that the complainant is a consumer as envisaged in the Consumer Protection Act. The dishonour of cheque due to 'insufficient funds' though there was sufficient amount in the account of the complainant has been admitted by the opposite party. The explanation for the same given by the opposite party is that it has happened due to the failure of the computer system of the bank. At this juncture, the aspect to be looked into is whether the above said act of the opposite party has caused any damage or loss to the complainant as alleged in the complaint and whether there is any willful act on the part of the opposite party. On a perusal of records on file it can be seen that, the cheque dated 19..10..2001 has been dishonoured on 24..10..2001, the date on which it was presented. According to the opposite party the said cheque was endorsed 'dishonoured' due to failure of computer system and on knowing this mistake, the opposite party informed the payee M/s. Fiat Sundaram Auto Finance and requested to present again and no action has been taken by the said payee against the complainant. The matter regarding dishonour was known only to the opposite party, the complainant and the payee M/s. Fiat Sundaram Auto Finance. The complainant has not denied the same. Moreover the counsel for the opposite party argued that the opposite party had issued a pay order for the amount and the payment was effected the next day itself without any bank charges. The complainant has no case that additional charges or penalty were levied from him. The complainant has not disputed the fact that the opposite party has made immediate alternate arrangement. The complainant does not have a case that this has happened due to any willful act on the part of the opposite party. It is evident that the bank has suo moto rectified the defect and paid pay order in the expense of opposite party itself. This being the situation, there is nothing to disbelieve the fact that, the matter regarding dishonour of cheque was known between the complainant, opposite party and the payee M/s. Fiat Sundaram Auto Finance only. The above said payee was informed by the opposite party with regard to the credit worthiness of the complainant which has not been denied by the complainant either. In such a circumstance, the allegation that this incident has affected the reputation good will and business of the complainant has no force.
6. In the instant case there is no averment made in the complainant regarding willful act or default committed by any officer of the Bank. The aspect for consideration herein is as to whether the opposite party can be burdened with the liability for the alleged deficiency in service caused due to the error in the computer system. It was certainly a mistake on the part of the opposite party but then every mistake cannot necessarily be stated to be deficiency in service. On the facts and in the circumstances of the case, this can be considered only as a bonafide mistake. An inadvertent error committed by the Bank due to the error in their computer system cannot be taken advantage of to make an unconscionable bargain. We find that there has been no deficiency in service on the part of the opposite party. From the facts and circumstances of the case it is evident that the opposite party has initiated immediate appropriate steps required to be done, in favour of the complainant for the inadvertent error on their part. Hence the complaint is found without any merits and is found liable to be dismissed.
In the result the complaint is dismissed. No order as to costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15th day of January, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P. No. 56/2002
APPENDIX
I. Complainant's witness : NIL
II. Complainant's documents:
P1 : Copy of cheque No.037379 dated 19.10.2001 for Rs. 94,881/- of HSBC,Tvpm.
P2 : Copy of slip of returned cheque dated 24.10.2001 showing the reason marked.
P3 : Copy of advocate notice dated 05..12..2001
P4 : Postal receipt dated 05..11..2001
P5 : Reply notice dated 06..12..2001
III. Opposite party's witness: NIL
IV. Opposite party's documents: NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
