DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30^th day of June 2011

Present : Smt. Preetha G Nair, Member

: Smt.Bhanumathi.A.K. Member Date of filing: 03/03/2009

(C.C.No.29/2009)

A.Radhakrishnan

S/o.Appa Moothan,

29/243, Temple Street,

Moothanthara,

Koppam Amsam,

Palakkad Taluk - Complainant

(By Adv.R.Manikandan)

V/s

1. Manager,

M/s.Palakkad District Co-operative Bank,

Melamuri Branch,

Melamuri, Palakkad.

(By Adv.M.S.Skaria)

2. M/s.The Palakkad District Co-operative Bank

Main Branch, Palakkad

(By Adv.M.S.Skaria)

3. The Secretary,

M/s.The Malampuzha Service Co-operative Bank,

No.P-907, Kadukkamkunnam,

Palakkad

(By Adv.A.V.Ravi) - Opposite parties

O R D E R

By Smt.PREETHA G NAIR, MEMBER

The complainant had presented a cheque for Rs.90,000/- bearing No.27813 dated 21/10/08 drawn on 3^rd opposite party for collection through the 1^st opposite party. The cheque was presented for collection on 21/8/08. Since no reply was received from 1^st opposite party, on 18/11/08 the complainant filed a complaint. The 1^st opposite party gave a reply on 21/11/08 stating that they sent the cheque for collection through the 2^nd opposite party and the 2^nd opposite party is having document showing the receipt of the cheque by the 3^rd opposite party. An additional statement is also made in the reply stating that according to the 3^rd opposite party they had not received the cheque. If the cheque was returned to the complainant he could have initiated legal action against the drawer of the cheque. But the opposite parties not returned the cheque to the complainant. The service rendered by the opposite parties are highly deficient and amounts to unfair trade practice. Then the complainant had caused a lawyer notice dated 15/12/08 to the 1^st and 3^rd opposite parties. The 3^rd opposite party sent reply stated that they had not received the cheque and 1^st opposite party has sent reply stated that they are not responsible for the loss of the cheque. Hence the complainant prays an order directing the opposite parties to pay

1. the value of the cheque of Rs.90,000/- with 12% interest per annum and

2. Rs.10,000/- as compensation for mental agony and

3. Cost of the proceedings to the complainant.

Opposite parties 1 and 2 filed version stating the following contentions. It is true that the complainant had presented a cheque for collection on 21/10/08 and not on 21/08/08. The 1^st opposite party had sent the cheque for collection on 21/10/08 to the Main Branch and on 7/11/08 the 1^st opposite party had reminded the main branch about the cheque for collection. As a reply to the said reminder on 11/11/08 the main branch sent a copy of the letter sent by them to the 3^rd opposite party. The 1^st and 2^nd opposite parties are not responsible for the loss of the cheque. The opposite parties stated that the complaint is not maintainable since all opposite parties are Co-operative Societies and the transaction is regulated by the Kerala Co-operative Societies Act.

The version of the 3^rd opposite party is that they have not received any cheque sent by the 2^nd opposite party. The 3^rd opposite party stated that they had no connection with the so called transaction between the complainant and the Secretary of Palakkad District Co-operative Bank Ltd.

Complainant filed chief affidavit and documents. Ext.A1 to Ext.A8 marked on the side of the complainant. All opposite parties filed affidavit alongwith documents. Ext.B1 to B11 marked on the side of the opposite parties. Complainant, 1^st opposite party and two witnesses examined.

Issues to be considered are

1. Whether the complaint is maintainable ?

2. Whether there is any deficiency in service on the part of opposite parties ?

3. If so, what is the relief and cost entitled to the complainant ?

Issue No.I

Opposite parties are institution governed by the Kerala Co-operative Societies Act and Rules. The Opposite parties stated that the Hon’ble Forum has no jurisdiction to entertain the complaint since under section 100 of Kerala Co-operative Societies Act there is a specific bar for entertaining any complaint. The Hon’ble Supreme Court in the Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M.Lalitha 2004 CPJ 1 SC held that Forum has jurisdiction to be exercised in respect of Co-operative Societies.

Issue II & III

We have gone through the material evidence on record. Admittedly the complainant had presented cheque dated 21/10/08 for collection through the 1^st opposite party. The pay-in-slip given by the 1^st opposite party is marked as Ext.A1. Further the complainant did not receive any reply from the 1^st opposite party. Then the complainant filed a complaint with 1^st opposite party. According to Ext.A4 series the complainant sent lawyer notice to the 1^st opposite party. In Ext.A3 the 1^st opposite party stated that the cheque issued for collection to the 3^rd opposite party through the 2^nd opposite party main branch. The 3^rd opposite party stated that the cheque was not received. The 1^st and 2^nd opposite party stated that the cheque has been sent to 3^rd opposite party, but not honoured and money was not paid. As per Ext.B3 the 1^st opposite party sent the cheque to the 2^nd opposite party for collection. No objection was raised by the 3^rd opposite party to marking of document. In Ext.B2 the 2^nd opposite party sent the cheque to 3^rd opposite party. In Ext.B10 the speed and safe courier service issued the delivery voucher shows that the 3^rd opposite party had received the cheque. But the 3^rd opposite party stated that Ext.B10 does not contain the signature, only affixed the seal of the bank. Later the Manger of the courier service and his employee were examined, who had admitted the fact that the cheque was delivered to the 3^rd opposite party. The explanation for no signature in the receiver’s column of Ext.B10 was that the lady staff of 3^rd opposite party having her lunch and affixed the seal of the bank with her left hand. No steps was taken by the 3^rd opposite party to prove that the seal affixed in the delivery voucher was not of them. Also Ext.B10 was marked without objection from the side of 3^rd opposite party. In Ext.B10 the courier service has issued another parcels to other banks on the same day. The opposite party 1 & 2 sent the cheque for collection to 3^rd opposite party through the courier service. As per Ext.B10, the cheque was received by 3^rd opposite party. Therefore the courier service is not necessary to implead as a party. Further the Manager and the delivery staff was examined. The complainant stated that he had presented a cheque for collection drawn on Malampuzha Service Co-operative Bank through the 1^st opposite party. In Ext.B10 the cheque was received by 3rd opposite party. The 3^rd opposite party stated that the deposition of the Manager of the courier service and his employee was different. The present Bank Manager was examined as DW1. According to DW2 and DW3 during lunch interval they went to the bank for delivery and the staff of the bank were having their noon meal. Further 3^rd Opposite party stated that no single piece of paper is produced to show that DW2 is the Manager of Speed and Safe Couriers. Ext.B10 is the original delivery voucher issued by the Speed and safe couriers service. No evidence was produced by the 3^rd opposite party to prove Ext.B10 is a forged document. At the time of cross examination of complainant stated that the cheque was on the account of 3^rd opposite party bank. State Bank of India V. Muthulakshmy Kumary 2009 (1) CPR 82 (NC) It has been held by the Hon'ble National Commission that the bank who was deficient in returning dishonoured cheque can be made liable only for the deficiency of service. So the claim of the complainant for the aforesaid cheque amount cannot be entertained.

In the above discussions, we hold the view that deficiency in service on the part of 3^rd opposite party not honoured the cheque and money was not paid. Hence 1^st and 2^nd opposite party exonerated.

In the result complaint partly allowed. We direct 3^rd opposite party to pay Rs.30,000/- (Rupees Thirty thousand only) as compensation for mental agony and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings to the complainant within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.

Pronounced in the open court on the 30^th day of June 2011.

Sd/-

Preetha G Nair

Member

Sd/-

Bhanumathi A.K

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 -Pay in slip dated 21/10/08 for Rs.90,000/-

Ext.A2 – Copy of letter sent to 1^st opposite party by the complainant

dt.18/11/08

Ext.A3 – Reply letter From 1^st opposite party to the complainant dt.21/11/08

Ext.A4 series – Copy of Advocate letter, sent to opposite party dt.15/12/08

alongwith postal receipts and returned notice

Ext.A5 - Reply notice dated 1/1/09

Ext.A6 - postal receipts and returned notice

Ext.A7 series – Copy of Adv.letter to 1^st &2^nd opposite party dt.1/1/09 alongwith postal receipts and akcnolwedgment card

Ext.A8 -Reply letter dated 17/1/09

Exhibits marked on the side of the opposite parties

Ext.B1 -Bill for collection No.240169 Rs.90,000/- dt.21/10/08

Ext.B2 - Bill for collection No.0108001 Rs.90,000/- dt.23/10/08

Ext.B3 – Memo dt.7/11/08 sent by 1^st OP to 2^nd OP

Ext.B4 seires– Letter dated 11/11/08 sent by 2^nd OP to 3^rd OP with copy to

Speed & safe courier alongwith two acknolwegement cards.

Ext.B5 – Reply notice sent by 3^rd OP to 2^nd OP dt.13/11/08

Ext.B6 series – Letter sent by 2^nd OP to the 1^st and 3^rd OP alongwith

acknowledgment card dt.18/11/08

Ext.B7 – Lr.sent by 3^rd OP to the complainant dt.21/11/08

Ext.B8 – Stop memo notice issued by 2^nd OP to 3^rd OP dt.8/1/09 alongwith

Acknowledgement card

Ext.B9 - Notice issued by 2^nd OP to the Manager, Speed & Safe Courier Service

dt.12/1/09

Ext.B10 – Delivery voucher dt.25/10/08 issued by Speed and safe Courier

Service.

Ext.B11 – Letter sent by 3^rd OP to 2^nd OP dt.13/11/08

Complainant cross examined

PW1 – A.Radhakrishnan

Opposite party cross examined

DW1 – T.K.Mohanakrishnan

DW2 – Kaladharan.V

DW3- Vinil C.P.

Cost Allowed

Rs.1,000/- allowed as cost of the proceedings