Karnataka

Kolar

CC/2/2017

ShivaKumar - Complainant(s)

Versus

The Manager,Vijaya Bank - Opp.Party(s)

08 Aug 2017

ORDER

Date of Filing: 03/01/2017

Date of Order: 08/08/2017

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 08^TH DAY OF AUGUST 2017

PRESENT

SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 02 OF 2017

Sri. S.M. Shivakumar,

S/o. Munivenkatappa,

Aged About 40 Years,

R/at: Seeresandra Village,

Huthur Hobli, Kolar Taluk.                   ….  COMPLAINANT.

(Rep. by Sriyuth. S.D. Chowde Gowda, Advocate)

 

- V/s -

1) The Manager,

Vijaya Bank,

Head Office, No.41/2,

M.G.Road, Bangalore-560 001.

(Rep. by Sriyuth. N.G.Vasudev Moorthy, Advocate)

 

2) The Manager,

Vijaya Bank, Kolar Branch,

M.B.Road, Kolar.

(Rep. by Sriyuth. N.G.Vasudev Moorthy, Advocate)   …. OPPOSITE PARTIES.

 

-: ORDERS:-

BY SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

01.   The complainant has filed this complaint against the OP Nos.1 & 2 Under Section 12 of the Consumer Protection Act, 1986 praying to direct the OP Nos.1 & 2 to pay Rs.2,50,000/- towards cheque amount along with compensation and interest.

 

02.   The facts in brief:-

(a)    The complainant submitted that, the complainant is the account holder of OP No.2-Bank bearing account No.112101011001640.  The complainant submitted that, his friend Mr.A.Venkatesh had borrowed hand loan of Rs.2,50,000/- from the complainant and to discharge the legal liability Mr.A.Venkatesh had issued a cheque bearing No.675284 for an amount of Rs.2,50,000/- to the complainant.  Further complainant submitted that, on 06.04.2016 complainant presented the said cheque in the OP No.2-Bank for encashment, but till today OP No.2 neither made encashment of the said cheque nor given endorsement i.e., whether there is sufficient funds or not.  In this regard complainant approached OP No.2-Bank on several occasions and also asked for CC TV footage.  The OP No.2 had not respond to the complainant’s approach.  On 16.09.2016 complainant issued legal notice to the OP No.2-Bank, for which, OP No.2 had given reply stating that, “the Pragathi Krishna Gramina Bank has returned cheque with copy of the Memorandum of cheques which were unpaid on 24.04.2016, but till date OP No.2-Bank had not received the same.  On enquiry with the courier, it is found that, a courier boy has dumped some covers on the table of the OP No.2-Bank and he himself has stamped on the delivery run sheet of courier and has put his signatures in the place of OP No.2-Bank employee’s signature.  If OP No.2-Bank receives the returned cheque certainly it will send the same to the complainant”.

(b)    Further complainant’s submission is that, in the reply given by the OP No.2-Bank it is clear that, the complainant has presented the cheque bearing No.675284 for encashment with the OP No.2-Bank and therefore OP No.2 has sent the same to Pragathi Gramina Bank, Avani Branch and Pragathi Gramina Bank has also returned the cheque along with memorandum dated: 21.04.2016 to the OP No.2-Bank.  When OP No.2-Bank has received the said unpaid cheque through courier it is the bounden duty of the OP No.2-Bank to return the said cheque along with an endorsement to the complainant.  So that, the complainant might have approached the competent jurisdictional court by filing a criminal case under Section 138 of Negotiable Instrument Act for recovery of the said cheque amount from Sri.A.Venkatesh.  But due to the negligence act of OP No.2-Bank the complainant has no alternative remedy except filing this complaint against the Ops to recover the said amount.  Hence this complaint.

(c)    The learned counsel appearing for complainant has submitted the following copies of the documents:-

(i) Legal Notice dated: 06.09.2016

(ii) Postal receipts and acknowledgment

 

03.   In response to the notice issued from this Forum, the learned counsel appearing for OP Nos.1 & 2 has filed its version by resisting the claim of the complainant in toto:-

(a) The Ops admits that, the complainant is the customer of OP No.2 and he is having account with the OP No.2 Bank.  The OP-2 further submits that, on 06.04.2016 complainant presented a cheque for Rs.2,50,000/- for collection and the same was sent to PKGB, AVani Branch, Mulbagal Taluk.  The OP No.2 has no knowledge that, the PKGB has returned the cheque with an endorsement stating that “Insufficient funds”.  OP No.2 has not received any letter from PKGB, Avani Branch, Mulbagal Taluk.  The Ops further submitted that, Mr.Venkatesh is a powerful person and with an ulterior motive he manages with courier boy and created one letter showing false and frivolous seal and signature.  In fact the signature is not pertains to any of the staff of Ops.  And really if any endorsement has been returned absolutely there is no any reason to harass the customer.  Mr.Venkatesh has played fraud by joining the hands of courier boy and he created fake document stating that, cover was delivered to the OP No.2. 

(b)    OP Nos.1 & 2 further submitted that, definitely if the Ops have received any cover or cheque it would have immediately inform to the customer or if anything lost definitely Ops would have given endorsement stating that, the cheque has been lost during the transit.  The Ops have suitably replied to the complainant’s notice and the footage of CC TV is not available as the period of CC TV camera is only for 90 days.  The Ops have prepared to issue an endorsement stating that, the cheque presented has been lost during transit and the complainant may proceed on the basis of the endorsement against the said Venkatesh before the competent court.  Instead of that the complainant has filed this false complaint against these Ops which is not maintainable and the same is liable to be dismissed.  All the remaining allegations leveled against these Ops were denied as false.

(c)    The learned counsel appearing for OP Nos.1 & 2 has produced copies of the following documents:-

(i) Letter dated: 21.06.2016 addressed to PKGB

(ii) Reply letter dated: 22.06.2016 by PKGB

(iii) Tappal Book + ledger of PKGB

(iv) Delivery run sheet by Professional Courier

(v) Collection Memo

(vi) Memorandum of cheque unpaid

(vii) Legal Notice dated: 06.09.2016

(viii) Reply notice dated: 03.11.2016

(ix) Account ledger extract of Venkatesh

 

04.   On 24.04.2017 the learned counsel appearing for complainant has submitted affidavit evidence of complainant by way of examination-in-chief.  On 09.05.2017 the learned counsel appearing for OP Nos.1 & 2 has submitted affidavit evidence of one Sri. Bhaskar Reddy, S/o.K.A.Srirame Reddy, Manager of OP No.2.

 

05.   On 29.05.2017 the learned counsel appearing for OP Nos.1 & 2 has submitted written arguments and on 05.06.2017 the learned counsel appearing for complainant has submitted complainant’s written arguments.

 

06.   Therefore the points that do arise for consideration in the above case are:-

(A) Whether the complainant has proved deficiency in service on the part of OPs?

 

2. Whether the complainant is entitled for the relief’s sought for?

 

3. What order?

 

07.   Our findings on the above stated points are:-

POINT (A) & (B):      In the Affirmative.

 

 

POINT (C):               As per final order for

the following:-

 

REASONS

POINT (A) & (B):-

 

08.   On perusal of the pleadings and the material placed before us, it is an undisputed fact that, the complainant is having SB account bearing No.112101011001640 with the OP No.2 Bank.  The complainant has presented a cheque before the OP No.2 Bank bearing No.675284, dated: 06.04.2016 for Rs.2,50,000/- issued by one Sri. A. Venkatesh in favour of the complainant for collection from the Pragathi Krishna Gramina Bank, Avani Branch, Mulbagal Taluk, Kolar District. 

 

09.   The main grievance of the complainant is that, OP No.2 Bank has not made encashment of the said cheque presented by the complainant nor given any endorsement or returned back the said cheque stating “insufficient funds”. 

 

10.   Per contra Ops have submitted that, they have no knowledge that the Pragathi Krishna Gramina Bank, Avani Branch, Mulbagal Taluk, Kolar District, has returned the cheque stating “insufficient funds”.  Further Ops have contended that, OP No.2 Bank has not received any letter on 22.06.2016 from the Pragathi Krishna Gramina Bank, Avani Branch, Mulbagal Taluk, Kolar District.  If they have received any cover or the said cheque, the OP No.2 Bank would have immediately informed the customer/complainant or if the said cheque has been lost during transit, the Ops would have issued an endorsement stating that, the cheque presented by the complainant lost while transit.

 

11.   Admittedly the complainant is a customer and account holder of the OP No.2-Bank and he presented the said cheque for collection to the OP No.2 Bank and the OP No.2 Bank has sent the same to Pragathi Krishna Gramina Bank, Avani Branch, Mulbagal Taluk, Kolar District, on 13.04.2016 for transfer of the said cheque amount.  When that is the case, it is the bounden duty of the OP No.2 Bank to take proper care of the said cheque and to track the same and if in case the cheque had lost during the transit, the OP No.2 Bank shall take necessary steps immediately by issuing an endorsement to the complainant stating that, “cheque has been lost while in transit”. 

 

12.   But here in the instant case, the OP No.2 had kept quiet without doing its obligations in time.  However the OP No.2 Bank cannot escape from its liability stating that, they have not received any letter from Pragathi Krishna Gramina Bank, Avani Branch, Mulbagal Taluk, Kolar District.  Further the OP No.2 Bank has produced letter correspondence dated: 21.06.2016 made to the Pragathi Krishna Gramina Bank, Avani Branch, Mulbagal Taluk, Kolar District, regarding  cheque bearing No.675284, dated: 05.04.2016.  The Pragathi Krishna Gramina Bank, Avani Branch, Mulbagal Taluk, Kolar District, had given a reply dated: 22.06.2016 along with copy of memorandum of cheques unpaid dated: 21.04.2016, copy of the delivery sheet dated: 22.04.2016 of professional couriers and copy of the outward Tappal Book.  After receiving the letter from the Pragathi Krishna Gramina Bank, Avani Branch, Mulbagal Taluk, Kolar District, the OP No.2 Bank had kept quiet and not informed the same to the complainant about the status of the cheque.  However the OP No.2-Bank contended that, OP No.2-Bank has not received any envelop cover on 22.04.2016 from the Pragathi Krishna Gramina Bank, Avani Branch, Mulbagal Taluk, Kolar District, pertaining to the said cheque and none of its staff members have stamped the delivery run sheet of the courier nor made their signatures.  The OP.2-Bank further submitted that, when OP No.2 Bank enquired the courier, it reveals that, the courier boy has dumped some covers on the table of OP No.2-Bank and courier boy he himself has stamped on the delivery sheet of the courier and he himself has put his signature as if it belongs to OP No.2 employee’s signature.  This contention of the Ops is nothing but a cooked-up story to make believe this Forum to escape from its liability.  Hence the contentions raised by the Ops cannot be accepted. 

 

13.   Secondly, the complainant had issued legal notice dated: 06.09.2016 to the OP No.2-Bank and the OP No.2-Bank had replied the said notice on 03.11.2016, that is, after lapse of 02 months the OP.2 instead of issuing an endorsement to the complainant OP.2 had given a reply that, there is no fault on the part of Ops as they have not received the cheque from the PKGB, Avani Branch, Mulbagal Taluk, Kolar District. Hence there is negligence and deficiency in service on the part of the Ops.  This act of the Ops made the complainant to suffer without any fault of the complainant in the entire transaction.  The complainant had lost his right to file petition under section 138 of the Negotiable Instrument Act. 

 

14.   Hence the Ops have to compensate the loss which the complainant has suffered.  However the complainant has sought for entire payment o the cheque amount, but Under Section Consumer Protection Act, 1986 the complaint can be filed only for compensation based on the deficiency of service arising out of loss of cheque in transit, but not for recovery of the entire cheque amount.  The complainant is at liberty to approach the competent court for recovery of the said entire cheuqe amount by filing complaint Under Section 138 of the Negotiable Instrument Act.  However the complainant had suffered mental agony and therefore it is just and proper to direct the Ops to pay Rs.5,000/- towards compensation and Rs.3,000/- towards litigation costs.

 

POINT (C):-

15.   In view of the above discussions, we proceed to pass the following:-

 

 

ORDER

01.   The complaint is Allowed-in-part with costs of Rs.3,000/-against the OP Nos.1 & 2.

02.   The OPs are directed to give necessary endorsement to the complainant within 30 days from the date of pronouncement of this order with regard to the loss of cheque to enable the complainant to take further necessary steps.  Failing which, the Ops are further directed to pay interest @ 9% per annum to the complainant on the entire cheque amount from the date of pronouncement of this order till realization. 

 

03.   The Ops are further directed to pay compensation of Rs.5,000/- to the complainant towards mental agony. 

 

04.   Send a copy of this order to both parties free of costs.

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 08^th DAY OF AUGUST 2017)

 

 

LADY MEMBER                                PRESIDENT