Prakash Kumar,Aravind Bhavan,Arambattakunnu P O,Padinjarathara - Complainant(s)
Versus
The Manager,Canara Bank,Padinjarathara - Opp.Party(s)
Saji Mathew
29 Aug 2008
ORDER
CDRF Wayanad Civil Station,Kalpetta North consumer case(CC) No. CC/08/19
Prakash Kumar,Aravind Bhavan,Arambattakunnu P O,Padinjarathara
...........Appellant(s)
Vs.
The Manager,Canara Bank,Padinjarathara
...........Respondent(s)
BEFORE:
1. K GHEEVARGHESE 2. P Raveendran 3. SAJI MATHEW
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
By Sri. K. Gheevarghese, President: The complaint filed under section 12 of the Consumer Protection Act. The complaint in brief is as follows. The Complainant is an account holder in the Opposite Party's Bank, a cheque of Rs. 60,000/- was presented in the Opposite Party's bank by the Complainant on 04.06.2007 in order to sent it for collection to the Canara Bank branch at Kalpetta. A receipt towards acceptance of cheque was issued to the Complainant on the very same day and the collection charge Rs. 202/- was also received, when presented the cheque the Opposite Party informed the complainant to contact the bank within 5 days to know whether the cheque is encashed or not. - 2 - The Complainant made several visit to the bank towards the last week of June 2007 the Complainant was informed that the cheque could not be traced out and found missing. 2. The missing of cheque from the possession of the Opposite Party is a deficiency in service. The complainant is also withheld from proceeding any further legal action against the drawer of the cheque in the absence of the cheque. The lawyer notice sent to the Opposite Party was replied with falls allegations. The Opposite Party may be directed to pay Rs.60,000/-, the cheque amount to the complainant along with compensation of Rs.20,000/-. 3. The Opposite Party filed version on their appearance. The cheque of Rs. 60,000/- drawn in favour of the Complainant is admitted and the same was sent for collection to Canara Bank branch at Kalpetta. The cheque was then returned unpaid with an endorsement insufficient fund. The returned cheque was sent to the Complainant by post on 11.6.2007, no information was transferred to the Complainant regarding the missing of the cheque. Even if the cheque is found lost the Complainant can proceed legally against the drawer. The cheque was lost not from the custody of the Opposite Party it was sent by post to the Complainant. The Opposite party has not done any act amounting to the deficiency in service. The petition may be dismissed with cost to the Opposite Party. 4. Points in consideration are: 1. Is there any deficiency in service on the part of the Opposite Party?. 2. Relief and cost. 5. Point No.1: - The complainant filed affidavit swearing has contentions, Ext.A1 and A7 are marked to substantiate allegations. The Opposite Party filed affidavit and examined as (Contd......3) - 3 - OPW1. Ext.B1 is marked on the part of the Opposite Party. The case of the Complainant is that the cheque presented for collection in the Opposite Party's bank was lost from their possession and it is to be compensated. According to the Opposite Party the cheques sent for collection was returned with endorsement insufficient fund and the same was sent to the Complainant. The matter to be considered is whether the cheque was returned to the Complainant. According to the Opposite Party the returned cheque was sent to the Complainant in registered post with A/D. In order to substantiate the contention of the Opposite Party no postal receipt or any acknowledgment card is produced as the documentary evidence on their side to show that the instrument was sent. More over even if the postal receipts and acknowledgment card was missed relevant documents may be there in the Post Office. But no steps are taken. It is to be considered in such a juncture that the Opposite Party has not sent the returned cheque to the Complainant. The opposite party has no case that the cheque was not presented in their bank. The returned memo from the Canara Bank branch at Kalpetta was not even produced as a piece of evidence on their side. The cheque is considered to be lost from the possession of the Opposite Party. 6. The other option left for the Complainant to proceed legally against the drawer of the cheque was also absolved since the drawer was no more. There is deficiency in service on the part of the Opposite Party. The point No.1 is found accordingly. 7. Point No.2: - The cheque amount is Rs. 60,000/- which lost from the possession of the Opposite Party. On examination of the Complainant it is deposed that the drawer of the cheque is no more and the legal action if any against the drawer of the amount could not be proceeded. The Complainant is entitled not for the entire cheque amount instead towards the compensation of the instrument which is lost. The complainant is to be paid just and (Contd......4) - 4 - reasonable amount along with interest from the date of filing this complaint till realization of the amount. In the result, the complaint is partly allowed. The Opposite Party is directed to give the Complainant the compensation of Rs.40,000/- (Rupees Forty thousand only) with an interest at the rate of 9% from the date of filing this complaint till payment. The Complainant is also entitled for the cost of Rs. 5,00/-(Rupees Five hundred only). The Opposite Party is directed to comply with this order within one month from this date. Pronounced in open Forum on this the 29th day of August 2008.
