DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30 th day of April 2009.

Present : Smt. H. Seena, President

: Smt. Preetha.G. Nair (Member)

Smt. Bhanumathi.A.K. (Member)

C.C.No.37/2007

Shoukath

House No.24/254

Prince Manzil

Nurani

Palakkad. - Complainant

(Adv. C. Sreekumar & Adv.K. Sindhupriya))

V/s

The Manager

State Bank of Travancore

Surya Complex

Palakkad. - Opposite Party

(Adv. A. Gourisankar & Adv. G. Ananthakrishnan)

O R D E R

By Smt. Preetha.G. Nair

The complainant holds savings account No.57028759453 (Old No.16871) along with his wife in the Opposite Party's Bank. The complainant presented a cheque for collection thorugh the Opposite Party Bank on 13.02.2006 bearing the number 1317521 of State Bank of Travancore, Kondotty Branch for Rs.3,00,000/- drawn in favour of him. The Opposite party bank had turned down the complainant's enquiries about the collection status of the cheque by giving false reasons. Finally when the complainant updated his passbook it was found that collection charge of Rs.475/- for the above numbered cheque was taken from his account. The Opposite party neither credited the cheque amount to his account nor the cheque was returned to the complainant till date. The Bank Manger orally admitted that the above numbered cheque was misplaced or lost in transit. Further the complainant asked this reason to be written down on a paper but the Manager refused to give this fact in writing. On 16.02.2007 the complainant issued notice to the Opposite party. The opposite party replied to it through a letter dated 05.03.2007 without addressing the subject matter. There was a direction from the Banking Ombudsman in connection with this matter and according to the complainant it is not at all binding to the complainant. The Opposite party has not taken standard of due care and attention as required in the ordinary practice of Banking. Complainant has lost his chance for seeking remedy under the Negotiable Instruments Act and has

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has sustained irreparable loss, inconveniences and huge damages. In the above circumstances complainant prays for an order directing the Opposite party to compensate the cheque amount of Rs.3,00,000/- with 18% interest from the date of presentation of the cheque for collection, damages towards the lost cheque with future interest and Rs.30,000/- as the damages for mental agony and to return Rs.475/- as collection charge and to pay Rs.5,000/- as the litigation expenses.

Opposite party filed version stating the following contentions. The Opposite party stated that as per the directions of the Banking Ombudsman the Bank had conveyed to the complainant their willingness to re-imburse the expenses incurred for getting a duplicate cheque. The Opposite party stated that the Bank agreed to issue necessary certificate to proceed under Sec. 138 of Negotiable Instrument Act against the drawer of the cheque. Complainant has not turned up . The Opposite party submitted that the cheque given by the complainant was sent for collection to State Bank of Travancore, Kondotty Branch and the cheque has either been lost in transit or has been misplaced at the Opposite party's Branch. The Opposite party stated that usually when a cheque is forwarded for collection and is dishonoured, and if the person does not come to collect the cheques it is sent to such person by post. In this case the Opposite party stated that when the complainant contacted the Opposite party informed that the unpaid cheque would have been sent to his address. When the complainant informed the non-receipt of the cheque, the Opposite party checked the address to which it was sent but it was not found. The Opposite party stated that they were ready and willing to give written communication to the complainant with a certificate that the cheque is lost, if the complainant is interested in initiating prosecution under Section 138 of Negotiable Instrument Act. The Opposite party contented that the party by whom the alleged lost cheque was issued is not made a party to the complainant. Hence the complainant is also bad for non-joinder of necessary parties. Finally the Opposite party stated that the Bank has acted in a very responsible manner and has not committed any deficiency of service.

Complainant filed proof affidavit along with documents. Exhibit A1 to A6 were marked. Opposite party filed proof affidavit .

Matter was heard

The Issues for consideration are:

1. Whether the complaint is bad for non-joinder of necessary parties?

2. Whether there is any deficiency of service on the part of the Opposite party?

3. If so, what is the reliefs and costs?

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Issue No.1

Opposite party has raised a contention that the complaint is bad for non-joinder of necessary party as the person who has issued the cheque is not impleaded in the party array. The contention of the opposite party seems to be unacceptable. Opposite party has admitted that the cheque has been lost in transit. Complaint is filed for claiming compensation for the deficiency of service on the part of the opposite party only. Hence we answer the point in favour of the complainant

Issue No.2

We have heard the learned counsel for both parties and gone through the records of the case. Presentation of cheque by the complainant is admitted by the opposite party. Further as stated by opposite party it has been sent for collection to State Bank of Travancore, Kondotty Branch. The cheque has been returned on 25/02/2006 with endoresement “No such account at present. Opposite party admits in affidavit that the cheque has been lost in transit or has been misplaced at the opposite party's branch. As per Exhibit A1 collection charge of Rs.475/- is levied from the complainant. The grievance of the complainant is that even though opposite party has taken collection charges, the cheque amount was neither credited in the account of the complainant nor the cheque was returned. It can be seen that there is genuine reason for non-crediting of the amount whereas no sufficient explanation is given for non return of the cheque.

Opposite party contented that they have informed the complainant that they would render all necessary assistance for attaining a duplicate cheque. No evidence is adduced by the opposite party with regard to this aspect.

Another contention of the opposite party is that complainant has already approached the Banking Ombudsman in this regard and order has been obtained. Complaint on the same subject matter is barred by resjudicata. It is settled position that order of Ombudsman is not a bar for filing complaint under Consumer Protection Act for deficiency of service.

From the foregoing discussions we are of the view that the act of Opposite party amounts to clear deficiency of service and hence the complainant is entitled for compensation.

Issue No.3

Complainant has claimed cheque amount of Rs. 3 lakhs together with compensation from the

opposite party. In a catena of judgements, National Commission has held that the bank cannot be held liable to reimburse the value of the cheque lost in transit, but the Consumer Fora can award

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compensation commensurate with the deficiency in service. Accordingly we quantity the amount of compensation as Rs.1,00,000/- (1 lakh).

In the result complaint allowed. Opposite party is directed to pay an amount of Rs.1,00,000/- as compensation and Rs.1,000/- as cost of the proceedings within one month from the date of communication of the order failing which the whole amount shall carry interest at the rate of 9% per annum from the date of order till realization.

Pronounced in the open court on the this the 30th day April of 2009.

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

APPENDIX

Witness examined on the side of Complainant

Nil

Witness examined on the side of Opposite party

Nil

Exhibits marked on the side of the complainant

1. Ext. A1 – Pass Book issued by Opposite party in favour of the complainant

2. Ext. A2 – Copy of the notice issued by complainant

3. Ext. A3 – Reply send by Opposite party

4. Ext A4 series – Copy of the letter issued by complainant on 16.02.207 along with postal receipt and acknowledgement

5. Ext. A5 – Reply send by Opposite party dated 05.03.2007.

Exhibits marked on the side of the Opposite Party

Nil

Cost (allowed)

Rs.1,000/- (Rs. One thousand only)

Forwarded/By Order

Senior Superintendent