KERALA STATE CONSUMER DISPUTES             REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

          APPEALNO. 709/2005

 JUDGMENT DATED 09.02.2011

PRESENT:-

       JUSTICE SHRI.K.R.UDAYABHANU         :       PRESIDENT

      SHRI. ABDULLA SONA                              :    MEMBER

  APPELLANTS

                 K.R. Omana,

W/o Sreenivasan,

Cherussery House, Thaikkattussery P.O.,

Thrissur.

                 (Rep. by Adv.  Sri. K.P. Sarvothaman)

                                               Vs

RESPONDENT

             Canara Bank,

             Cherpu Branch,

             Represented by Manager

            Jose, Thrissur.

                           (Rep. by Adv. Sri. P.K. Ravisankar & V. Gopakumar)

 JUDGMENT DATED 09.02.2011

JUSTICE SHRI.K.R.UDAYABHANU      :    PRESIDENT

The appellant is the complainant in O.P. 898/02 in the file of CDRF  Thrissur. The complaint has been allowed directing the opposite party to pay a sum of Rs. 2,000/- as compensation and Rs. 800/- as cost. The appellant has sought for enhanced compensation.

          It is the case of the complainant that she was having account in the opposite party bank. On 3.9.2002 one payyakkal Radha issued cheque to her  for a sum of Rs. 1,98,050/- was drawn on Dhanalekshmi Bank, Thrissur.  The cheque was given to discharge the loan liability that she was having with the petitioner.  In the meanwhile the above said Radha’s son quarreled with the son of the petitioner and the matter was settled at the Police Station.  Thereafter due to the influence of her son, Radha issued a lawyer notice to the petitioner demanding the return of the cheque stating that the same was given only as security for the amount borrowed and that the amount has already been returned.  Consequently there was a dispute.  It is thereafter that cheque was given to the opposite party for encashment.  Subsequently the manager told that cheque was lost.  He also told subsequently that the cheque was dishonored due to insufficiency of funds.  The dishonoured cheque was not given back.  On enquiries it was found that the cheque was returned to the opposite party bank from Dhanalekhsmi Bank and that it was lost from the custody of the opposite party.  As the cheque was not received the complainant could not initiate criminal proceedings against the above mentioned  Radha.  No attempt was made by the opposite party to trace the cheque.  She has claimed a sum of Rs. 50,000/- as compensation and Rs. 1,000/- as costs.

 The opposite parties have filed version stating that the cheque was dishonored and the dishonored cheque was received in the account section and from the accounts section the same  was forwarded to the opposite party branch.  The dishonored cheque  was lost in transit.  It could not be traced out.  The complainant was given  a letter showing the factum of loss.  It is contented that the account was opened by the complainant with the bank agreeing to the condition that the cheque if lost  in transit the bank will not assume any responsibility.   It is pointed out that the complainant could have initiated proceedings before the Magistrate Court with the letter of the opposite parties. 

          The evidence adduced consisted of Exts. P1 to P3 , R1 to R3. 

The Forum has held that it cannot be said that only because  the dishonored cheque was not returned the petitioner could not have initiated civil or criminal action against the person who issued the cheque; and ordered the opposite party to pay a sum of Rs. 2,000/- as compensation and Rs. 800/- as cost .  The appellant/complainant has sought for enhanced compensation pointing out that the complainant has suffered considerable loss as the entire amount of Rs. 1,98,050/- could not be recovered.

          We find that the most effective remedy for dishonouring of cheque is the proceedings under Section 138 of the N.I. Act.  The same stands virtually foreclosed as the cheque has been lost.  In the circumstances, we find that the amount of compensation awarded is too low.  Hence the opposite party/respondent is directed to pay a sum of Rs. 20,000/- as compensation to the complainant with interest @ 7% per annum from the date of complaint ie. 30.12.2002 till realization.  The complainant will also entitled for cost of Rs. 5,000/-  The amounts are to be paid within 3 months from the date of receipt of this order, failing which the complainant will be entitled for interest at 12% from 4.2.2011 the date of this order. 

          In the result, the appeal is allowed in part as above.

          The office will forward the L.C.R. to the Forum along with  the copy of this order.  

                              JUSTICE.K.R.UDAYABHANU     :    PRESIDENT

                                     M.K. ABDULLA SONA         :  MEMBER

ST