SRI.K. VIJAYAKUMARAN ACHARY, PRESIDENT.<br /> <br /> <br /> This complaint is filed for getting to pay the amount of Rs.50,000/- and interest from 12.2.2004 and other reliefs. The averments in the complaint as follows:<br /> <br /> The complainant is maintaining SB Account No.6085 with the first opp.party. On 12.2.2004 the complainant had presented cheque No.041812 drawn on the Panthalam branch of the Pathanamthitta District Co-op. Bank, dated 12.2.2004 for Rs.50,000/- for collection through the 1st opp.party. The complainant after a week of the presentation of the said cheque contacted the 1st opp.party and enquired about the collection of the amount covered by the cheque. But he was informed that the cheque entrusted by the first opp.party with the 2nd opp.party for collection was not returned and requested the complainant to wait for some time. After some time the complainant again contacted the first opp.party and at time also it was informed that the amount has not been collected. O n 25.6.2004 the complainant again approached the first opp.party for getting the money covered by the cheque. But he was informed by the 1st opp.party that the above cheque sent for collection through the 2nd opp.party was lost in transit and payment as per the cheque can be effected only when the 2nd opp.party gives the cheque amount. There is deficiency in service on the part of the opp.parties. The complainant has sustained a loss of Rs,50,000/- due to the acts of the opp.parties and therefore the opp.parties are liable to give the complainant for the amount covered by the cheque. <br /> <br /> The complainant was subsequently amended and opp.parties 3 and 4 were impleaded as per order dated 7.12.2004<br /> <br /> The 1st opp.party filed a version contending, inter alia, that the complaint is not maintainable. It is admitted that the complainant had presented cheque No.041812 drawn on the Pathanamthitta Dist. Co-operative Bank, Pandalam Branch for Rs.50,000/- for collection which was send for collection through the 2nd opp.party. The first opp.party has no clearing house of its own, and so the cheque was sent for collection through the 2nd opp.party, since the District Co-operative Bank is the apex Bank and 1st opp.party is the primary bank. The amount as per the cheque can be credited in the complainant’s account only on the receipt of the amount. The complainant is a customer of the 2nd opp.party and first opp.party is a collecting agent between the complainant and the 2nd opp.party. The averment that the complainant approached the 1st opp.party on 25.6.2004 for getting the amount is false. The first opp.party intimatED the complainant on 25.6.2004 what has happened. There is no deficiency in service on the part of the first opp.party. After the cheque has been handed over to the 2nd opp.party it is their duty to take the safety precaution of the cheque. The 2nd opp.party is solely responsible for the loss, if any, sustained by the complainant. The complainant ought to have impleaded the courier service also, in the light of the explanation of the 2nd opp.party.<br /> <br /> The 2nd opp.party filed a version contending that the complaint is not maintainable either in law or on facts. The first opp.party has lodged a cheque bearing No.041812 dated 12.2.2004 for Rs.50,000/- drawn on the Pandalam branch of Pathanamthitta District Co-operative Bank on 12.2.2004. It was sent for collection on 16.2.2004 through the Speed and Safe Courier Service, Kottiyam Vide despatch No 4543. Though the instrument was received by the agent of Courier Service it was not delivered to the addressee. Due to inordinate delay, this opp.party sent a letter to the Courier Service on 8.4.2004 who gave a reply dated 12.4.2004 . The reply was not acceptable There upon another letter was issued to the courier service on 15.4.2004 requesting to settle the matter, for which no reply was issued. Therefore this opp.party has informed the matter to the Head Office as per letter dated 3.5.2004. The cheque was sent through the Courier Service with the aim of speedy service to the account holder. It is usual procedure adopted by all the banks. The cheque was missed in transit by the Speed and Safe Courier and they are liable to compensate the complainant. There is laches or unfair trade practice on the part of the 2nd opp.party. The complainant has not suffered any loss as stated by him. There was no sufficient money in the account of the person who issued the cheque to the complainant. This opp.party has instructed the complainant to present a duplicate cheque for collection which was not done by the complainant. If a duplicate cheque was presented this opp.party would have rendered service. The latches are on the part of the courier service and this opp.party furnished all details regarding the transaction between the courier service and this opp.party. The complainant ought to have approached the Civil Court against the drawer of the cheque for realizing the amount which was an efficacious remedy . Without exhausting the same the complainant approached this Forum for relief. Therefore the opp.party 2 prays for the dismissal of the complaint.<br /> <br /> Opp.parties 3 and 4 filed a joint version contending that these opp.parties are unnecessary parties. The complainant is not a consumer nor a beneficiary of these opp.parties. These opp.parties have not offered any service to the complainant for consideration and as such there is no privity of contract between the complainant and these opp.parties . Nothing has been alleged as against these opp.parties as such the complainant has not made out a cause of action made against these opp.parties. The District Co-operative Bank issued a lawyer’s notice alleging non delivery of a consignment booked on 12.2.2004. Since the lawyer’s notice did not contain the consignment note details these opp.parties were not able to make an effective enquiry. After receipt of the advocate notice these opp.parties verified the records and it was found that no consignment has been booked by the Kollam District Co-operative Bank on 12.2.2004. It has booked a cover on 16.2.2004. The consignment note do not contain any declaration regarding the contents or value of the contents and as such these opp.party denies that the consignment booked by the Kollam District Co-operative Bank contained the cheque allegedly entrusted by the complainant to the Kollam District Co-operative Bank. If the consignment contained any valuable document like cheque the consignee would have declared its value or insured the same. Even assuming that the cover contained the cheque since the consignee has not declared the contents and its value at the time of booking as per the terms of the entrustment the liability of these opp.parties is only for a liquidated damages of Rs.15/-. The complainant is not entitled to claim any compensation from these opp.parties. Hence these opp.parties prays for the dismissal of the complainant.<br /> <br /> The points that would arise for consideration are:<br /> [I] Whether there is deficiency in service on the part of the opp.parties<br /> [ii] Reliefs and costs.<br /> <br /> For the complainant PW.1 is examined and P1 to P5 are marked.<br /> For the opp.parties DW.1 DW.3 are examined and D1 to D 20 are marked.<br /> <br /> Points 1 and 2<br /> <br /> <br /> The fact that the complainant presented a cheque for Rs.50,000/- drawn on the Pandalam Branch of Pathanamthitta Jilla Co-operative Bank with opp.party 1 for collection and credit to his S.B account with the opp.party 1 bank and that opp.party 1 has forwarded to same to opp.party 2 for collection is not in dispute. There is also no dispute that the above cheque was neither collected nor returned to the complainant. According to opp.party 2 they have entrusted the above cheque with opp.parties 3 and 4 for forwarding the same to the Pandalam Branch of Pathanamthitta Jilla Co-operative Bank but the same was lost at the hands of opp.parties 3 and 4. The definite contention of opp.parties 3 and 4 is that the above cheque was not entrusted with them by opp.party 2 for encashment and that there is no negligence or deficiency in service on the part of their side.<br /> <br /> Opp.party 2 has produced Ext. D4 and D5 to establish that the cheque was entrusted with Opp.party 3. Ext. D4 show that there is an entry on 16.2.2004 as item No. 5 addressed to the Pandalam Branch of PathanamthittaJilla Co-operative bank and that the same was sent by registered post. Ext.D5 is the extract of despatch register which shows that Pandalam Branch of Pathanamthitta Jilla Co-operative Bank was addressed as per the above despatch No, and in the column ‘subject’ it is written as Rs.50,000/-. If the cheque was forwarded to Pandalam Branch of Pathanamthitta Co-operative Bank by registered post, one is at a loss to understand as to how the same was entrusted with opp.parties 3 and 4. If the cheque was entrusted with opp.parties 3 and 4 as claimed by opp.party 2 then sending the same by registered post does not arise. It is also pertinent to note that the person who made the entries in Ext. D4 and D5 has not been examined to bring out the truth . Exts. D4 and D5 also leads to an inference that the contention of opp.parties 3 and 4 that the cheque was not entrusted with there is porobable. It is argued by the learned counsel appearing for opp.parties 3 and 4 that had the cheque been entrusted with them as alleged they would have issued a receipt just like Ext. D18 for having received the item and in this case also if the cheque was produced before them, they would have issued a receipt in triplicate to opp.party 2., and opp.party 2 could have produced the same to establish the fact that the cheque was actually handed over to opp.parties 3 and 4. In fact there is no satisfactory explanation for opp.party 2 for not producing such a receipt. The non production of such a receipt, the entry in Ext. D4 “ registered ” and the entry in Ext. D5 etc. raise suspicion and opp.party 2 failed to explain the discrepancy satisfactorly. It is also worth pointing out in this contest that opp.party 3 and 4 are the agents of opp.party 2 and even assuming that the cheque was lost at the hands of opp.parties 3 and 4, opp.party 2 is liable. From the evidence now before us we find that the cheque which was received by opp.party 2 from opp.party 1 was neither returned nor the amount as per the cheque credited to the account of the complainant due to the negligence of Opp.party 2 which would clearly establish the deficiency in service on the part of opp.party 2.<br /> <br /> The complainant is claiming the cheque amount or compensation to the tune of the cheque amount. It is well settled that in cases wherein cheque is lost in transit, Compensation alone can be allowed and not the entire cheque amount and reliance can be drawn from the decision of the National Commission reported in 1 [2007] CPJ 1 [NC]. Therefore, the complainant is not entitled to get the entire cheque amount as compensation but only a reasonable amount as compensation.<br /> <br /> In the result, the complaint is allowed. The 2nd opp.party is directed to pay Rs.10,000/- as compensation to the complainant and Rs.5,000/- as costs. The order is to be complied with within one month from the date of this order.<br /> <br /> <br /> Dated this the 16th day of October, 2007.<br /> <br /> K. Vijayakumaran Achary :Sd/-<br /> Adv. Ravi Susha :Sd/-<br /> <br /> <br /> Forwarded/by Order,<br /> <br /> <br /> <br /> SENIOR SUPERINTENDENT<br /> <br /> <br /> <br /> List of witness for the complainant<br /> <br /> PW.1 – Rajendran Pillai<br /> <br /> <br /> List of documents for the complainant<br /> <br /> <br /> P1. – Letter dated 25.6.2004 to the complainant<br /> P2. – Letter dt. 3.5.2004 to the General Manager, Kollam<br /> P3. – Letter dated 18.6.04 by Chathannoor Branch to the General Manager<br /> P4. – Photocopy of cheque<br /> List of witnesses for the opp.parties<br /> DW.1. – Kamalan<br /> DW.2. – B. Mohanlal<br /> DW.3. – Sasidharan M.K.<br /> D4. – Yesodharan Pillai<br /> List of documents for the opp.parties<br /> D1. – Receipt<br /> D2. – Letter dt. 17.5.2004 to the Manager Chathannoor Branch<br /> D3. –Reply Letter dated 19.5.2004<br /> D4. – Courier transaction dispatch register.<br /> D5. – Despatch Register<br /> D6. – Faith card<br /> D7. – Reply of faith card<br /> D8. – Letter dated 8.4.2004<br /> D9. – Reply from opp.party 3<br /> D10. – Letter dated 15.4.2004<br /> D11. – Letter dt. 3.5.2004 by opp.party 1 to the Head Office<br /> D12. – Letter dated 18.6.;2004 issued b y 2nd opp.party<br /> D13. – Advocat notice dated 30.6.2004<br /> D14. - Letter from opp.party dated 17.5.2004<br /> D15. – Reply letter dated 19.5.2004<br /> D16. – Stop Memo dated 12.8.2004<br /> D17. – Reply Letter dated 18.9.2004<br /> D18. – Advocate notice<br /> D19. – Courier consignment note<br /> D20. – Cash credit account ledger<br /> D21. – Courier consignment note<br /> <br /> <br /> <br /> <br /> <br />