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: 228/2004 Filed on 27/05/2004

Dated: 30..04..2009

Complainant:

Radha Krishnan, Erattaplavila Veedu, Ramapuram, Thannimoodu-P.O., Thiruvananthapuram.

(By Adv. Manoj Balaji)

Opposite party:

The District Co-operative Bank Ltd., M & E Branch, Neyyattinkara, represented by its Manager.

(By Adv. Pallichal S. Aswakumar)

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 28..04..2006, 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 15..04..2009, the Forum on 30..04..2009 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

The complainant who is an ex-service personnel has filed the complaint alleging deficiency in service on the part of the opposite party and the facts of the case are the following: The complainant had presented the cheque on 4/9/2003 issued to him by Sri. A.R.M. Nazeer, for collection through the opposite party's bank wherein the complainant had maintained an account. It has understood that the said cheque which was forwarded to the Indian Overseas Bank, Aralummoodu branch for collection through Balaramapuram branch returned dishonoured. Complainant made due enquiry and as there was no proper explanation, the complainant filed an application to the Manager requesting the return of the cheque. While so, the opposite party intimated the complainant vide letter dated 4/2/2004 that the cheque was lost from his bank and they are not in a position to return the cheque. Complainant has further pleaded that because of the negligent act on the part of the opposite party the complainant is deprived of recovery of the said amount. Hence this complaint for compensation and costs.

2. The opposite party has filed their version admitting the presentation of a cheque for Rs. 1,50,000/- by the complainant. The above cheque returned on 13/9/2003 due to insufficient funds and the cheque was kept in the branch. In the meantime the Branch Manager was transferred and new Manager took charge on 29/9/2003. When the complainant demanded the dishonoured cheque, the new Manager was unable to locate the same and hence a letter was sent to the complainant on 4/2/2004, on the presumption that the dishonoured cheque was lost from the branch and because of that reason the opposite party was not in a position to return the dishonoured instrument to the complainant. The opposite party made a detailed enquiry with respect to the above instrument and it is found that the complainant received the above referred dishonoured instrument from the bank along with some other instrument, in collusion with some of the staff of the bank. Complainant is a money lender and also a regular customer of the bank and he is having good access over the staff of the branch and without conducting proper enquiry the then Manager Sri. Neelakanta Pillai, issued the letter dated 4/2/2004 to the complainant. Complainant is well aware of the fact that the cheque will be dishonoured on presentation because the drawer, Sri. A.R.M. Nazeer, Balaramapuram has been under imprisonment in connection with a criminal case and there was no fund in his bank account with Indian Overseas Bank, Aralummoodu branch, to honour the above referred cheque. There is no deficiency of service or willful negligence on the part of the opposite party. The reliefs claimed in the complaint are not allowable. Opposite party submits that the Trivandrum District Co-operative Bank Ltd., represented by its General Manager, Head Office, Fort, Trivandrum-23, is a necessary and proper party for the proper and fair disposal of the complaint. Hence opposite party prays for dismissal of the complaint.

3.The complainant has filed affidavit and has been examined as PW1, marked Exts.P1 to P3 on his side. DW1 & DW2 were examined on behalf of the opposite party. Exts. D1 to D4 were marked on his side.

4. The issues that would arise for consideration are:

1. Whether there is any deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled for the reliefs claimed?

5. Points (i) & (ii) : The allegation in the complaint is that the cheque presented before the opposite party bank was lost in their possession and hence the remedy to recover the amount mentioned in the said dishonoured cheque has been defeated. The opposite party's main contention is that the complainant has received the said dishonoured cheque with other instruments from the bank in collusion with some of the staff of the bank and then Manager issued a letter dated 4/2/2004 to the complainant without making proper enquiry. We have heard in detail both the parties. Both parties have produced documents in support of their contentions. The learned counsel for the complainant had argued that the Ext.P3 would reveal that the cheque has been lost from the bank. As per Ext.P3, the opposite party has informed the complainant that the cheque is not seen in the branch and hence they are unable to return the cheque. As per the deposition of DW2

'നിര്‍ബന്ധിത സാഹചരൃത്തിലാണ്ഞാന്‍ Ext.P3 കത്ത് കൊടുത്തത്'. ThThe very same witness has deposed during the cross examination that “ഞാന്‍ charge എടുത്തശേഷം ഈ ccase-ന് ആസ്പദമായ ചെക്ക്തിരികെ കൊടുത്തിട്ടില്ല. അത് തിരികെ കൊടുക്കാന്‍ കഴിയാത്തതിനാലാണ് Ext.P3 ലറ്റര്‍ വാദിക്ക് കൊടുത്തത്. Ext.P3 ലറ്ററില്‍പറഞ്ഞിരിക്കുന്ന വിവരങ്ങള്‍ എന്‍െറ അറിവില്‍ ശരിയാണ്. DW2 further deposed that 'വാദി എന്നെ ഭീഷണിപ്പെടുത്തിയിട്ടല്ല ഞാന്‍ lletter കൊടുത്തത്'.

6. From the above it is evident that the cheque has not been returned to the complainant by the opposite party. Though the opposite party has contended that the instrument has been received by the complainant in collusion with some of the staff of the bank, no evidence has been brought out in support of the same and the opposite party has not produced any records to show whether any enquiry has been initiated against those who are allegedly involved in it. Though DW1 has deposed that the cheque was given by the Peon for which the opposite party has miserably failed to substantiate the same. If at all the Peon had given the same, no action or enquiry has been conducted against the same person.

7. Considering the above facts and circumstances of the case we find that the complainant has succeeded in proving negligence against the opposite party. As a financial institution, duty upon the opposite party was of a higher degree of care and caution which they have failed. In the light of the above discussion we allow the complaint.

In the result the complaint is allowed and the complainant is found entitled for an amount of Rs.10,000/- (Rupees Ten thousand only) towards compensation and Rs.2,500/- (Rupees Two thousand five hundred only) towards costs of the proceedings from the opposite party. The opposite party shall pay the above mentioned amounts to the complainant within a period of one month from the date of receipt of the order, failing which the amounts shall carry interest @ 12%.

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 30^th day of April, 2009.

S.K. SREELA, MEMBER.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI.A, MEMBER.

ad.

OoiiiiiO.P.No.228/2004

APPENDIX

I. Complainant's witness:

PW1 : K. Radhakrishnan

II. Complainant's documents:

P1 : Photocopy of Savings Bank pass book of A/c.No.4743

P2 : Receipt dt. 4/9/2000 of SB Ac.No.4743 for Rs.1,50,000/- issued by opp. Party

P3 : Lr. dt. 4/2/2004 issued by opp. Party to the complainant.

III. Opposite party's witness:

DW1 Saraswathy

DW2 G. Neelakanta Pillai

IV. Opposite party's documents:

D1 : Photocopy of Register of bills for collection page No.136 produced by opp. Party

D2 : Photocopy of cheque returned Register page No.76 produced by opp. Party

D3 : Photocopy of despatch Register dt. 7/10/2003 produced by opp. Party

D4 : Original Memorandum No.case/Legal affairs/581/04-05 dt.28/12/2004 produced by opp. Party.

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: 228/2004 Filed on 27/05/2004

Dated: 30..04..2009

Complainant:

Radha Krishnan, Erattaplavila Veedu, Ramapuram, Thannimoodu-P.O., Thiruvananthapuram.

(By Adv. Manoj Balaji)

Opposite party:

The District Co-operative Bank Ltd., M & E Branch, Neyyattinkara, represented by its Manager.

(By Adv. Pallichal S. Aswakumar)

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 28..04..2006, 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 15..04..2009, the Forum on 30..04..2009 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

The complainant who is an ex-service personnel has filed the complaint alleging deficiency in service on the part of the opposite party and the facts of the case are the following: The complainant had presented the cheque on 4/9/2003 issued to him by Sri. A.R.M. Nazeer, for collection through the opposite party's bank wherein the complainant had maintained an account. It has understood that the said cheque which was forwarded to the Indian Overseas Bank, Aralummoodu branch for collection through Balaramapuram branch returned dishonoured. Complainant made due enquiry and as there was no proper explanation, the complainant filed an application to the Manager requesting the return of the cheque. While so, the opposite party intimated the complainant vide letter dated 4/2/2004 that the cheque was lost from his bank and they are not in a position to return the cheque. Complainant has further pleaded that because of the negligent act on the part of the opposite party the complainant is deprived of recovery of the said amount. Hence this complaint for compensation and costs.

2. The opposite party has filed their version admitting the presentation of a cheque for Rs. 1,50,000/- by the complainant. The above cheque returned on 13/9/2003 due to insufficient funds and the cheque was kept in the branch. In the meantime the Branch Manager was transferred and new Manager took charge on 29/9/2003. When the complainant demanded the dishonoured cheque, the new Manager was unable to locate the same and hence a letter was sent to the complainant on 4/2/2004, on the presumption that the dishonoured cheque was lost from the branch and because of that reason the opposite party was not in a position to return the dishonoured instrument to the complainant. The opposite party made a detailed enquiry with respect to the above instrument and it is found that the complainant received the above referred dishonoured instrument from the bank along with some other instrument, in collusion with some of the staff of the bank. Complainant is a money lender and also a regular customer of the bank and he is having good access over the staff of the branch and without conducting proper enquiry the then Manager Sri. Neelakanta Pillai, issued the letter dated 4/2/2004 to the complainant. Complainant is well aware of the fact that the cheque will be dishonoured on presentation because the drawer, Sri. A.R.M. Nazeer, Balaramapuram has been under imprisonment in connection with a criminal case and there was no fund in his bank account with Indian Overseas Bank, Aralummoodu branch, to honour the above referred cheque. There is no deficiency of service or willful negligence on the part of the opposite party. The reliefs claimed in the complaint are not allowable. Opposite party submits that the Trivandrum District Co-operative Bank Ltd., represented by its General Manager, Head Office, Fort, Trivandrum-23, is a necessary and proper party for the proper and fair disposal of the complaint. Hence opposite party prays for dismissal of the complaint.

3.The complainant has filed affidavit and has been examined as PW1, marked Exts.P1 to P3 on his side. DW1 & DW2 were examined on behalf of the opposite party. Exts. D1 to D4 were marked on his side.

4. The issues that would arise for consideration are:

1. Whether there is any deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled for the reliefs claimed?

5. Points (i) & (ii) : The allegation in the complaint is that the cheque presented before the opposite party bank was lost in their possession and hence the remedy to recover the amount mentioned in the said dishonoured cheque has been defeated. The opposite party's main contention is that the complainant has received the said dishonoured cheque with other instruments from the bank in collusion with some of the staff of the bank and then Manager issued a letter dated 4/2/2004 to the complainant without making proper enquiry. We have heard in detail both the parties. Both parties have produced documents in support of their contentions. The learned counsel for the complainant had argued that the Ext.P3 would reveal that the cheque has been lost from the bank. As per Ext.P3, the opposite party has informed the complainant that the cheque is not seen in the branch and hence they are unable to return the cheque. As per the deposition of DW2

'നിര്‍ബന്ധിത സാഹചരൃത്തിലാണ്ഞാന്‍ Ext.P3 കത്ത് കൊടുത്തത്'. ThThe very same witness has deposed during the cross examination that “ഞാന്‍ charge എടുത്തശേഷം ഈ ccase-ന് ആസ്പദമായ ചെക്ക്തിരികെ കൊടുത്തിട്ടില്ല. അത് തിരികെ കൊടുക്കാന്‍ കഴിയാത്തതിനാലാണ് Ext.P3 ലറ്റര്‍ വാദിക്ക് കൊടുത്തത്. Ext.P3 ലറ്ററില്‍പറഞ്ഞിരിക്കുന്ന വിവരങ്ങള്‍ എന്‍െറ അറിവില്‍ ശരിയാണ്. DW2 further deposed that 'വാദി എന്നെ ഭീഷണിപ്പെടുത്തിയിട്ടല്ല ഞാന്‍ lletter കൊടുത്തത്'.

6. From the above it is evident that the cheque has not been returned to the complainant by the opposite party. Though the opposite party has contended that the instrument has been received by the complainant in collusion with some of the staff of the bank, no evidence has been brought out in support of the same and the opposite party has not produced any records to show whether any enquiry has been initiated against those who are allegedly involved in it. Though DW1 has deposed that the cheque was given by the Peon for which the opposite party has miserably failed to substantiate the same. If at all the Peon had given the same, no action or enquiry has been conducted against the same person.

7. Considering the above facts and circumstances of the case we find that the complainant has succeeded in proving negligence against the opposite party. As a financial institution, duty upon the opposite party was of a higher degree of care and caution which they have failed. In the light of the above discussion we allow the complaint.

In the result the complaint is allowed and the complainant is found entitled for an amount of Rs.10,000/- (Rupees Ten thousand only) towards compensation and Rs.2,500/- (Rupees Two thousand five hundred only) towards costs of the proceedings from the opposite party. The opposite party shall pay the above mentioned amounts to the complainant within a period of one month from the date of receipt of the order, failing which the amounts shall carry interest @ 12%.

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 30^th day of April, 2009.

S.K. SREELA, MEMBER.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI.A, MEMBER.

ad.

OoiiiiiO.P.No.228/2004

APPENDIX

I. Complainant's witness:

PW1 : K. Radhakrishnan

II. Complainant's documents:

P1 : Photocopy of Savings Bank pass book of A/c.No.4743

P2 : Receipt dt. 4/9/2000 of SB Ac.No.4743 for Rs.1,50,000/- issued by opp. Party

P3 : Lr. dt. 4/2/2004 issued by opp. Party to the complainant.

III. Opposite party's witness:

DW1 Saraswathy

DW2 G. Neelakanta Pillai

IV. Opposite party's documents:

D1 : Photocopy of Register of bills for collection page No.136 produced by opp. Party

D2 : Photocopy of cheque returned Register page No.76 produced by opp. Party

D3 : Photocopy of despatch Register dt. 7/10/2003 produced by opp. Party

D4 : Original Memorandum No.case/Legal affairs/581/04-05 dt.28/12/2004 produced by opp. Party.

PRESIDENT