ADV. RAVI SUSHA, MEMBER.

            The complaint is filed by the complainant  for getting  an order directing the 1^st opp.party to credit Rs.1,50,000/- to the complainant with 9% interest and pay compensation and cost.

          The averments in the complaint can be briefly summarized as follows;

          The complainant  has presented two Nos. of cheques bearing Nos.231698 and 231699 of ICICI Bank for Rs.5,000/-  and Rs. 1,00,000/- respectively to State Bank of Travancore, Kollam, Main Branch on 8.5.2006 for clearance and crediting to my S.B. Account No.57034180707.  Several times the complainant approached the Bank to get the cash.  But the opp.parties responded not fairly and after about 46 days they informed  the complainant that the said cheques were lost.  On 23.6.2006 the complainant sent a complaint to OMBUDS MAN, Reserve Bank of India, Thiruvananthapuram praying to take early action to get credit the amount to the complainant’s account.   After seven months OMBUDS MAN  give a replay to the complainant closing the complaint to file a suit against the drawer.  The complainant could lnot find any justification to file a suit against the drawer for a serious mistake committed by a responsible bank.  Moreover The complainant is a pensioner and not financially sound to proceed with a suit.   Hence the complaint.

          The opp.parties filed a version contending as follows:  The complainant had presented two cheques for clearance as stated in the complainant.  But the other averment that the complainant several times approached the bank and all these times the Bank responded to him indecently is not correct.  The cheques presented by the complainant were drawn on the ICICI Bank Greater Kailash Branch, Newedlhi.  The bank according to the procedure sent those cheques to the plaintiffs service Bank at Newdelhi and waited for the clearance for crediting the said amount in  complainant’s SB account as instructed by him.  But those cheques were reported lost in transit.  On enquiry it is confirmed that those cheques were not presented before the drawee bank for payment when a cheque is lost in transit or in the clearing process the general rule is to bring the same fact to the notice of the account holder.   So that the account holder can inform the drawer to record payment and can also take care that other cheques issued by him are not dishonoured.   Accordingly the Bank informed the said fact to the complainant through telephone.  Later the bank sent a written request on 19.6.2006.  The plaintiff service branch also in all possible steps to obtain cheques from the drawer in law of the lost one.  In such circumstances it is the bounden duty of the drawer to issue a duplicate cheque.  But the drawer has not cared to fulfill his duty.   The 1^st opp.party was helpless and cannot do anything with out obtaining the duplicate of the cheque from the drawer. This complaint is not sustainable either in law or on facts.   There is no latches or dereliction of duty from the side of the opp.party’s bank.    The complainant is not entitled to get any reliefs sought in the complaint.  Hence the opp.parties prays to dismiss the complaint

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties

2.     Reliefs and costs.

For the complainant PW.1 is examined.

For the opp.party DW.1 is examined.  Ext. D1 and D2 are marked.

Points:

          The case of the complaint is that he presented two cheque of ICICI Bank to the 1^st opp.party for encashment on 8.5.2006 but the payment of that cheque could not be made to the complainant and the cheque was lost in transit.  Since no amount of that cheque had been credited in the account of the complainant the complainant claimed full amount of the cheque.

          According to the opp.party’s bank the cheques presented by the complainant sent to the plaintiff’s service bank at Newdelhi and waited for the clearance for crediting the said amount in complainant’s SB  account.  But those cheques were reported lost in transits.  Opp.party bank informed  said fact to the complainant through telephone and  later on 19.6.2006 sent a written request.  Opp.party’s contention is that it is the bounden duty of the drawer to issue a duplicate cheque.

          Here there is no dispute that on the point that the cheques in question had been lost in transit.   Since in this case facts are not in dispute and thus the only question for considerations whether in the facts and circumstances as mentioned above whether the 1^st opp.party bank is to pay the full amount of cheques to the complainant in case of cheque lost in transits.

The position of law is very much clear that on point that in case of loss of cheque in transit where the cheque was sent for collection and the cheque was lost in transit, the bank is held negligent as the bank did not take proper care as was expected from it.   A banker, in collecting the cheque, is required to exercise the same care which a reasonable businessman would being to bear in handling valuable negotiable instruments.

          Thus the fact that since the cheque was lost in transit, therefore the opp.party bank was lightly held negligent in delivering services to the complainant.

          There are serious of judgements delivered by the Hon’ble National Commission indicating the position of law in the manner that in case cheque is lost in transit and where the amount was not credited in the account of the complainant and further the cheque in question had not been returned by the bank, the bank would be liable to pay some amount of compensation and not entire amount of cheque.

          In the result the complaint is allowed partly in the manner that the 1^st opp.party’s bank would pay a sum of Rs.50,000/- as amount of compensation to the complainant and Rs.1,000/- as cost..  The order is to be complied with within one month from the date of receipt of this order.

          Dated this the    30th     day of March, 2009.

                                                                                   .

I N D E X

List of witnesses for the complainant

PW.1. – Majeed

List of documents for the complainant: NIL

List of witnesses for the opp.parties

DW.1. – Balakrishnan.S.

List of documents for the opp;.party

D1. – Ombutsman’s findings

D2. – Certified copy of plaint in OS.516/06