Present: Sh. H.S. Brar counsel for the complainant with complainant.<br /> Sh. Rajneesh Garg counsel for the opposite party.<br /> <br /> ORDER<br /> DHARAM SINGH PRESIDENT<br /> Jagdish Singh complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite party to pay the amount of cheque bearing No. 964124 dated 25.9.2006 for Rs.3,50,000/- alongwith interest @ 18% per annum from the date of presentation of the cheque with the opposite party till the realization of the amount and to pay Rs.1,50,000/- as compensation for mental tension, harassment, loss of business, wastage of precious time and inconvenience besides Rs.5500/- as litigation expenses. <br /> 2. The complainant averred in his complaint that he is the old consumer of opposite party and is having his account No. 10696317976 with the opposite party. One Rajinder Singh had issued a cheque as mentioned above drawn on Punjab and Sind Bank, V&PO Machaki Kalan in favour of complainant to discharge his liability to pay the debt amount. The complainant presented the said cheque before the opposite party for encashment through his account. The complainant approached the opposite party time to time for encashment of the cheque but the opposite party always avoided that the cheque has been sent for clearance to Punjab and Sing Bank, Machaki Kalan Branch and has not yet been received back/ encashed and lastly on 6.3.2007 the opposite party told that the cheque has been misplaced and has not been traced out yet. After that the complainant requested the opposite party many a times to make the payment of the cheque amount but the opposite party always linger on the matter under one pretext or the other and failed to make the payment of the cheque amount. The opposite party issued the statement of account of the complainant. Since the day of presentation of cheque he is under mental tension and is being harassed by the opposite party. The complainant also issued one notice vide registered post on 10.3.2007 but without any result. He suffered much loss and wasted his precious time and energy so he is entitled to claim Rs.1,50,000/- as compensation on account of illegal harassment and Rs.5500/- as litigation expenses. There is clear cut deficiency of service on the part of the opposite party. Hence this complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 4.05.2007 complaint was admitted and notice was ordered to be issued to the opposite party. <br /> 4. On receipt of the notice, the opposite party appeared through Sh Rajneesh Garg Advocate and filed reply taking preliminary objections that the present complaint is bad for non joinder of necessary parties. The department of Post and Telegraph is a necessary party. They have not been impleaded as parties to the present complaint. The answering opposite party has not been properly impleaded. The complainant does not come under the definition of consumer as defined under Consumer Protection Act and the answering opposite party has not rendered any service for consideration to the complainant. On merits the opposite party admitted that the complainant is having the account with the opposite party. It is wrong that the answering opposite party avoided the payment of above said cheque. The opposite party send the above said cheque to Punjab and Sind Bank Branch Machaki Kalan vide Regd. No. 213 dated 28.9.2006 which was done in the office of Post Office, when the payment of the cheque/advise was not received then the opposite party wrote one letter dated 2.11.2006 to the said branch requesting them to send the payment of the cheque and said branch vide its letter dated 2.12.2006 informed the answering opposite party that the said branch has not received any registered letter. After receiving this letter the opposite party wrote one letter dated 9.12.2006 informing the fact regarding non delivery of the said registered post. In reply to the said letter the department of Posts informed vide its letter dated 11.12.2006 that they are looking into the matter and would inform the opposite party. But no reply was received from the department of Posts and opposite party again wrote letter dated 29.12.2006 and requested the department of Posts to inform the opposite party about the latest position of the registered post. In response to this letter the Department of Posts informed that the registered letter has been delivered to Punjab and Sind Bank, Branch Kotkapura. The opposite party then again wrote letter dated 12.1.2007, 14.3.2007 and 11.5.2007 and requested the Post Master, Post Office, Faridkot to look into the matter personally and respond the opposite party but the said department had not responded to the repeated requests made by the opposite party to them. It appears that the said letter has been misplaced as the same has not been delivered to Punjab and Sind Bank, Machaki Kalan and Punjab and Sind Bank, Kotkapura, moreover it has not been returned to the opposite party. The same has been misplaced by the department of Posts, Post Office, Faridkot. The opposite party not lingering the matter on any pretext. The opposite party has not caused any mental tension. The complainant is not entitled to any litigation expenses or any type of compensation from the opposite party. There is no deficiency of service on the part of the opposite party. The opposite party is acting under the law and rules. So the complaint be dismissed with special compensatory costs. <br /> 5. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, copy of statement of account Ex.C-2, copy of cheque Ex.C-3, carbon copy of notice Ex.C-4, postal receipt Ex.C-5 and closed his evidence. <br /> 6. In order to rebut the evidence of the complainant the opposite party tendered in their evidence affidavit of P.K. Goyal Branch Manager, State Bank of India, Main Branch, Faridkot Ex.R-1, copies of letters Ex.R-2 to Ex.R-10 and closed their evidence. <br /> 7. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 8. Learned counsel for the complainant has submitted that that the opposite parties have misplaced the cheque bearing No. 964124 dated 25.9.2006 worth Rs.3,50,000/- issued by Rajinder Singh in favour of the complainant which was deposited by the complainant with the opposite party for crediting in his account No. 10696317976, so the complainant is entitled to recover the cheque amount from the opposite party alongwith interest at the rate of 18% per annum alongwith compensation to the tune of Rs.1,50,000/- and costs of litigation Rs.5500/-. <br /> 9. Learned counsel for the opposite party has submitted that the opposite party is not at fault as the cheque in question was sent through registered post to Punjab and Sind Bank Bank Branch Machaki Kalan on 28.9.2006. Despite best efforts of the opposite party it could not be traced by the post office authorities so the opposite party have not liable to make any amount to the complainant as post office authorities is necessary party. The complainant has not suffered any loss due to the non payment of the cheque as the cheque was not cleared. <br /> 10. From the perusal of the file it is made out that complainant have deposited the above mentioned cheque with the opposite party. It was opposite party who sent the cheque for collection of the amount from Punjab and Sind Bank, Branch Machaki Kalan by sending the cheque in question there for encashment. Mode of transaction communication is not in the knowledge of the complainant. Even it is the risk and responsibility of opposite party to get credited cheque in question in the account of the complainant by any means of communication or correspondence to be availed by the opposite party. The opposite party may have sent through special messenger. The opposite party may have sent cheque through courier of any company. The opposite party may have sent cheque through post office or any other mode of communication, so post office authorities through whom the opposite party have sent the cheque is not answering party it is risk and responsibility of the opposite party to complete transaction of the cheque in question. <br /> 11. Since the opposite party have provided services to the complainant with regard to opening of the account and making debit and credit in the account of the complainant complainant is consumer of the opposite party. Thus the complaint is maintainable in the present form. This Forum has jurisdiction to try and decide this complaint. So far the amount in question have not been credited in the account of the complainant, Rajinder Singh who have issued the cheque for payment of Rs.3,50,000/- to the complainant may not be willing to issue another cheque or may not be able to make payment of the amount in question in cash. The conditions of the date of issuance of the cheque might have varied due to providing of deficient services by the opposite party to the complainant. The correspondence undertaken by the opposite party with the post office authorities, Punjab and Sind Bank Branch Machaki Kalan Ex.R-2 to Ex.R-10 is not effecting rights of the complainant for credit of the above noted amount in the account of the complainant. <br /> 12. As per Canara Bank Versus Ram Singh Jaiswal & Ors. reported in II (2005) Consumer Protection Judgments-51 if the cheque is lost in transit and amount is not credited in the account on depositing of the cheque then there is deficiency in service provided by the bank. <br /> 13. It is found held in State Bank of Patiala Versus Vishwas Ahuja reported in II (2005) Consumer Protection Judgments-72 that the cheque lost by the courier of the bank held negligent courier agent of bank and bank is liable for negligence of agent. Remedy under Consumer Protection Act cannot be ousted due to availability of other remedy. In such like circumstances deficiency in service stands proved and bank is liable to make good the loss equivalent for the value of cheque. <br /> 14. As per State Bank of India Versus P. Balakrishnan & Anr. reported in I (2005) Consumer Protection Judgments-661 if the cheque is lost in transit and no immediate efforts is made out to know fate of the cheque handed over to courier and cover is wrongly addressed where proper care has not been taken to see that cheque to proper person and dispatched by safer postal means then opposite party is miserably failed to follow procedure. There is deficiency of service on this account. Exemption available to postal department cannot be extended to opposite party. Payment of cheque amount with interest at the rate of 12% is liable to be directed. Drawer of the cheque is not necessary party as per this authority. <br /> 15. From the above noted facts and circumstances it is made out that the opposite party had been deficient in providing services to the complainant. So the complaint is accepted. Accordingly the opposite party is directed to credit the amount of Rs.3,50,000/- in the account of the complainant alongwith interest at the rate of 12% per annum from 26.9.2006 till the date of the decision of the complaint within the period of one month from the date of the receipt of the copy of this order, failing which the opposite party is directed to pay the above noted amount alongwith interest with further interest of 18% per annum from the date of decision of the complaint till realization of the amount. However the opposite party resort to any legal remedy available to him for getting compensated this amount from any other source or any other person if so advised or remedy available in any other law. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 14.3.2008<br />