IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA

Dated this the 25^th day of February, 2010.

Present : Sri. Jacob Stephen (President)

Smt. C. Lathika Bhai (Member)

Sri. N. Premkumar (Member)

C.C.No.116/07

Between:

E.A. Peter,

Kochuzhathil House,

Palackalthakidi.P.O.,

Kunnamthanam, Mallappally Taluk,

Pathanamthitta Dist.

Rep. by his wife Leelamma. K.P.,

W/o. E.A. Peter,  -do.  –do.

(By Adv. Asha Cherian)                                                                  .....       Complainant.

And:

1. The Manager,

State Bank of Travancore,

Mallappally Branch,

Mallappally West.P.O.,

Pathanamthitta Dist.

(By Adv. S. Mohankumar)

2. Salim International Tours & Travels,

Kairali Complex, Ambalathara,

Thiruvananthapuram.                                                         .....       Opposite parties.

ORDER

Smt. C. Lathika Bhai (Member):

                        The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                        2. The fact of the complaint is as follows:  The complainant and his wife are the joint account holders of the first opposite party bank.  The complainant presented a cheque No.665142 for an amount of Rs.25,000/- of ICICI bank for collection before the first opposite party, which was issued by the second opposite party.  The above said cheque was returned unpaid, but it was lost from the first opposite party and it could not be traced out till the date.

                        3. As per the advertisement seen in the Malayala Manorama daily published by the second opposite party, the complainant had paid an amount of Rs.25,000/- to second opposite party for getting a visa in Dubai for a security guard.  Since the 2^nd opposite party has not arranged the visa as agreed, he issued the above said cheque in favour of the complainant for the repayment of the amount collected by him.  The cheque has not been encashed and the complainant has not received any amount from the 2^nd opposite party and it was informed to the 2^nd opposite party through a letter by the complainant.  The complainant also sent a letter to the 1^st opposite party and through their reply letter dated 26.4.05 the 1^st opposite party admitted that the cheque is lost.  The cheque was lost due to the deficiency in service from the part of 1^st opposite party and hence the complainant could not recover the amount of Rs.25,000/- from the 2^nd opposite party.  The complainant also lost the remedy under Sec.138 of the Negotiable Instrument Act against the 2^nd opposite party.  The 2^nd opposite party has not made any payment till date to the complainant.  The complainant is entitled to get an amount of Rs.25,000/- from the 1^st opposite party for their deficiency and the complainant is entitled to get the cheque amount with interest from the 2^nd opposite party.  In the circumstances, the complainant filed this complaint against the opposite parties for getting an order for directing the 1^st opposite party to pay an amount of Rs.25,000/- to the complainant and also directing the 2^nd opposite party to pay the cheque amount with interest along with a compensation and cost.  The complainant’s pray for granting the reliefs.

                        4. The 1^st opposite party has filed a version stating the following contentions:  The main contention raised by the 1^st opposite party is that the complaint is barred by limitation.  The complainant has filed a petition before them on 7.3.05.  Thus his right to file, the complainant expired on 7.3.07 as per Sec.24(a)(1) of the Consumer Protection Act.  According to them, Postal Department is an essential party in this complaint.  The 1^st opposite party has admitted that the complainant and his wife have a joint S.B. Account with them and also admitted that the cheque No.665142 sum of Rs.25,000/- of ICICI Bank was presented before them for collection.  The complainant has presented the cheque for collection in December 2004, it was dishonoured and sent to the complainant by registered post.  Again he presented the cheque for collection on January 2005 and the same was again dishonoured.  On the basis of the instruction given by the complainant the cheque was sent to the complainant through ordinary post on 25.1.05.  There is no negligence from the part of 1^st opposite party in providing their service.  The 2^nd complainant has no locus standi to sue against the 1^st opposite party.  The complainant has authorised Mr. K.A. Pachu, S/o. Azhakan, Kochuzhathil House, Kunnamthanam as per the power of attorney executed on 20.10.05 in respect of this subject matter.  The 1^st opposite party has offered their help and co-operation for the legal remedies to get a duplicate of the lost instrument.  But the complainant has not availed any remedy from the 1^st opposite party.  The complainant never lost his remedies under Sec.138 of N.I.Act against 2^nd opposite party.  The complainant is entitled to realise the cheque amount and other reliefs only from 2^nd opposite party.  The complainant has filed a petition before the Banking Ombudsman in this regard, which stands dismissed on 25.7.07.  Hence this complaint, agitating the same matter, is barred by resjudicata.  Therefore, the 1^st opposite party prayed for the dismissal of the complaint along with their cost.

                        5. The 2^nd opposite party has not appeared or filed version, hence he is declared as exparte.

                        6. The points for consideration in this complaint are:-

(1)   Whether the complaint is maintainable before the Forum?

(2)   Whether the complainant is entitled to get a relief as prayed for

in the complaint?

(3)   Relief & Cost?

            6. The evidence in this case consists from the complainant’s side is the proof affidavit and documents filed by the power of attorney holder of the complainant.  On the basis of the proof affidavit filed by the power of attorney holder, the power of attorney holder was examined as PW1 and the documents produced were marked as Ext.A1 to A11.  One witness for the complainant has adduced oral evidence as PW2 and through him Ext.A12 was marked.  No oral evidence has been adduced from the side of 1^st opposite party.  The documents produced by them were marked through PW1 as Ext.B1 and B2 at the time of cross-examination.  After closure of the evidence, both sides heard. 

             7. Point No.1:- The 1^st opposite party has filed an I.A.232/08 challenging the maintainability of the complaint before the Forum.  The issue raised by the opposite party is that the complaint is barred by limitation.  The complainant had filed a petition before the 1^st opposite party on 7.3.05 for getting the dishonoured cheque from 1^st opposite party and hence the cause of action for this complaint has arised on 7.3.05.  The right to file the complaint before the Forum expired on 7.3.07 as per Sec.24A(1) of the C.P.Act.  The complainant has filed this complaint on 30.11.07 and the complaint is not maintainable as it is barred by limitation.

            8. On a perusal of the version and the proof affidavit filed by the 1^st opposite party, it is stated that “the complainant has filed a petition before the banking Ombudsman in this regard which stands dismissed on 25.7.07 by the Ombudsman on seeing that there is no need of action on this petition”.  So the cause of action of this complaint started only on 25.7.07, i.e. from the date of dismissal of the petition by Ombudsman.  In the view of this matter this complaint is not barred by limitation and hence we find that the complaint is maintainable before this Forum.  The 1^st point is found against the opposite party hence and the I.A filed by the 1^st opposite party is dismissed.

            9. Point Nos. 2 & 3:-  The complainant’s case is that the cheque No.665142 for an amount of Rs.25,000/- of ICICI bank issued by the 2^nd opposite party in favour of the complainant was presented before the 1^st opposite party for collection.  But the cheque was returned unpaid and the said cheque was not returned to the complainant as the above said cheque was lost due to the negligence and deficiency in service of the 1^st opposite party.  The complainant approached first opposite party several time for the said cheque, but the dishonoured cheque could not traced out.  Due to this, the complainant could not recover the cheque amount from the 2^nd opposite party and also lost his remedy under section 138 of N.I. Act.  Therefore he filed this complaint for getting the reliefs as sought for in the complaint.

            10. In order to prove the complainant’s case, the power of attorney holder of the complainant has adduced oral evidence as PW1 and Ext.A1 to A11 were marked on the basis of the proof affidavit filed by her.  One witness for the complainant has been examined as PW2 and Ext.A12 marked through him.  Ext.A1 is the power of attorney executed by the complainant in favour of PW1.  Ext.A2 is the letter dated 21.3.05 sent by the complainant to 2^nd opposite party.  Ext.A3 is the copy of letter dated 7.6.05 sent by the complainant to the 1^st opposite party.  Ext.A4 is the letter sent by the 1^st opposite party to the complainant on 26.4.05.  Ext.A5 is the copy of the letter dated 21.3.05 sent by the complainant to the Manager of ICICI bank, Thiruvananthapuram.  Ext.A6 is the copy of the letter issued by the 1^st opposite party to the complainant sent by the ICICI bank to the 1^st opposite party.  Ext.A7 is the counterfoil-dated 11.2.04 for the presentation of cheque before the 1^st opposite party for collection.  Ext.A8 is the cheque return memo dated 16.12.04 issued by the 1^st opposite party to the complainant.  Ext.A9 is the cheque return memo dated 23.12.04 issued by the 1^st opposite party to the complainant.  Ext.A10 is the counterfoil for the presentation of cheque again on 4.1.05.  Ext.A11 is the dishonour memo received from the ICICI bank dated 16.12.04.  1^st opposite party’s counsel has cross-examined PW1.

            11. One witness for the complainant, the Manager of SBT, Mallappally, who is also the 1^st opposite party in this complaint has adduced oral evidence as PW2 and Ext.A12 marked.  Ext.A12 is the copy of despatch register of SBT, Mallappally during the year 2005.

            12. According to the opposite parties their main contention is that the complaint is barred by limitation and barred by resjudicata.  Further contention is that the power of attorney holder of the complainant has no locus-standi to sue against the 1^st opposite party because the complainant had authorised Mr. Pachu through a power of attorney dated 20.10.05 for the very same subject matter.  The complainant has remedies provided under Sec. 45 A of N.I. Act to obtain a duplicate of the lost cheque.

            13. In order to prove the 1^st opposite party’s contention, there is no oral evidence. The documents Ext.B1 and B2 were marked at the time of cross-examination of PW1.  Ext.B1 is the copy of power of attorney executed by the complainant in favour of Mr. Pachu on 20.10.05.  Ext.B2 is the complaint filed by the complainant before the 1^st opposite party on 7.3.05.

            14. There is no oral or documentary evidence from 2^nd opposite party as he is exparte.  The 1^st opposite party contended that the complainant had executed two power of attorneys in favour of two persons for the same subject matter hence PW1 has no locus-standi to sue against them.  On a perusal of Ext.A1 and Ext.B1 the two power of attorneys executed by the complainant, it is clear that these two power of attorneys are for different purposes and Ext.A1 executed in favour of the PW1 is to appear and represent him before the Tribunal, all other courts and CDRF also.  Ext.B1 is executed in the year 2005 and Ext.A1 is executed in the year 2008 in favour of his wife and specifically stated its purposes.  Hence that contention of the 1^st opposite party is not sustainable.

            15. It is an admitted fact that the complainant had presented an ICICI bank cheque for Rs.25,000/- before the 1^st opposite party for collection and it was returned unpaid and lost in transit.  1^st opposite party contended that on 25.1.05 the dishonoured cheque was sent to the complainant in ordinary post as per the request of the complainant.  On a perusal of Ext.A12 Despatch register, the entry No.256 is shown as “Sri. E.A. Peter, Kizhakkethil, Kunnamthanam, cheque returned Rs.25,000/-“.  At the time of deposition PW2 admitted that, “hmZnbpsS A{Ukv E.A. Peter, sIm¨pg¯nÂ, ]mebv¡¯InSn. ]n.H., Ip¶´m\w F¶mWv “.  But the cheque was sent to E.A. Peter, Kizhakkethil, Kunnamthanam.  It clearly proves that there is a mistake in writing the address while sending the returned cheque to the complainant.  Due to the negligence and laches in writing the correct address of the complainant, the cheque was lost.  It is a clear deficiency in service from the part of 1^st opposite party, for that the 1^st opposite party is liable to compensate the mental agony, financial loss and other inconveniences sustained to the complainant.  Though the cheque lost due to the deficiency of service of 1^st opposite party the complainant is not entitled to get the cheque amount from the 1^st opposite party.  He is entitled to get compensation or other reliefs from the 1^st opposite party. 

            16. The reliefs sought against the 2^nd opposite party does not comes within the jurisdiction of this Forum and the complainant has other remedies available under N.I. Act and can sue against him through civil court for getting the cheque amount from 2^nd opposite party.  Therefore, the relief sought against the 2^nd opposite party is not considered.

           17. On the basis of the above discussion and considering the inconveniences and mental agony suffered by the complainant, due to the negligence and deficiency of service from the 1^st opposite party, our considered opinion is that the 1^st opposite party is liable to pay a reasonable compensation to the complainant along with cost.  Hence this complaint is allowed accordingly.

            18. In the result, the complaint is allowed partly, thereby the complainant is allowed to realise an amount of Rs.5,000/- (Rupees Five Thousand only) as compensation from the 1^st opposite party along with cost of Rs.1,500/- (Rupees One Thousand Five hundred only).  The 1^st opposite party is directed to pay the amounts within 30 days from the date of receipt of this order, failing which interest at the rate of 8% per annum will be paid to the above said amount till the whole payment from today.

            Declared in the Open Forum on this the 25th day of February, 2010.

                                                                                                                                  (Sd/-)

                                                                                                            C. Lathika Bhai,

                                                                                                                 (Member)

Sri. Jacob Stephen (President)                    :           (Sd/-)

Sri. N. Premkumar (Member)                    :           (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1    :  Leelamma. K.

PW2    :   Joju John

Exhibits marked on the side of the complainant:

A1       :  Photocopy of the power of attorney executed by the complainant in

              favour of Smt. Leelamma Peter,  wife of the  complainant dated 9.1.08.

A2       :  Letter dated 21.3.05 sent by the complainant to the 2^nd opposite party.

A3       :  Photocopy of the letter dated 7.3.05 sent by the complainant to the

   1^st opposite party.

A4       :  Letter dated 26.4.05 sent by the 1^st opposite party to the complainant.

A5       :  Letter dated 21.3.05 sent by the complainant to the Manager of ICICI bank, 

               Thiruvananthapuram. 

A6       :  Photocopy of the letter dated 26.3.05 sent by the ICICI bank to the 1^st opposite  

               party. 

A7       :  Counterfoil-dated 11.2.04 for Rs.25,000/- issued by the 1^st opposite party

   to the complainant. 

A8       :   Returned cheque remittance memo dated 16.12.04 issued by the 1^st opposite 

                party to the complainant. 

A9       :   Returned cheque remittance memo dated 23.12.04 issued by the 1^st opposite 

                party to the complainant.

A10     :  Counterfoil dated 4.1.05 for Rs.25,000/- issued by the 1^st opposite party

   to the complainant. 

A11     :   Cheque returned memo dated 16.12.04  for Rs.25,000/-received from the ICICI 

                bank.

A12     :  Copy of despatch register of SBT, Mallappally during the year 2005.

Witness examined on the side of the opposite parties:  Nil

Exhibits marked on the side of the opposite parties:

B1        :   Photocopy of power of attorney executed by the complainant in favour of Mr. 

                Pachu on 20.10.05. 

B2        :   Letter dated 7.3.05 sent by the complainant to the 1^st opposite party.

                                                                                                                          (By Order)

                                                                                                                 Senior Superintendent

Copy to:  (1)  E.A. Peter, Kochuzhathil House, Palackalthakidi.P.O., Kunnamthanam,   

                        Mallappally Taluk, Pathanamthitta Dist.

(2)   The Manager,  State Bank of Travancore, Mallappally Branch,

           Mallappally West.P.O., Pathanamthitta Dist.

(3)   Salim International Tours & Travels, Kairali Complex, Ambalathara,

                       Thiruvananthapuram.

                (4)   The stock file.