Presented by Miss R. Pattnayak, President . The present complaint pertains to deficiency in service as envisaged under the provision of Consumer Protection Act-1986, and its brief facts is as follows:-
The Complainant is a bona fide account holder of Opposite Party No.1(one) bank namely Uco Bank, Bhatli Branch,Dist:Bargarh having his saving bank account NO.049601000012568. The Complainant has purchased a Tata Indigo ECS LX TDI vehicle bearing it's Registration No. OR-17-K-5540, Chassis No. MAT607161CWD26527, Engine No. 4751DT14DXYP-27524 from Bhasin Motors, Raipur, Chhatisgard,being financed by the Opposite Party No.3(three) namely Cholomandalam Investment and Finance Company Limited, Bargarh, which is to be payable in monthly installment of Rs.10,480/-(Rupees ten thousand four hundred eighty)only through cheque to the Opposite Party No.3(three). As per the agreement between the Complainant and the Opposite Party Party No.3(three), he has paying the loan installments regularly starting from Dt.10/07/2010 at the rate of Rs.10,480/-(Rupees ten thousand four hundred eighty)only per month to the Opposite Party No.3(three) through cheque. At the time of financing the said vehicle as per the demand of Opposite Party No.3(three), the Complainant has submitted ten numbers of blank cheques (Account Payee) before the Opposite Party No.3(three) for better convenience for payment of monthly installments. So to recover the monthly loan installment, the Opposite Party No.3(three) as a procedure every time presents a cheque of Rs.10,480/-(Rupees ten thousand four hundred eighty)only given by the Complainant before the Opposite Party No.2(two) for realization and the Opposite Party No.2(two) paid the cheque amount to the Opposite Party No.3(three).
On Dt.10/10/2012 when the Opposite Party No.3(three) presented the cheque bearing No. 583804 Dt.10/10/2012 of Rs.10,480/-(Rupees ten thousand four hundred eighty)only for realization of 4th installments, through it's banker the same had been returned without making payment to the Opposite Party No.3(three) by the Opposite Party No.2(two) with a cheque return memo dated 10/10/2012 with a reason of return as “Today's opening balance is insufficient”. The Opposite Party No.3(three) intimated the fact to the Complainant and asked him for payment of said amount of Rs.10,480/-(Rupees ten thousand four hundred eighty)only immediately otherwise Opposite Party No.3(three) will take legal action. But on Dt.10/10/2012 when the said cheque in question had been presented for payment out of S.B. Account No.012568 of the Complainant, there was more than sufficient fund in the said account of the Complainant as the Complainant has deposited a sum of Rs.10,000/-(Rupees ten thousand)only on Dt.03/10/2012 and Rs.500/-(Rupees ten thousand)only on Dt.06/10/2012 in his said account. There after, the Complainant told the Opposite Party No.3(three) about the sufficient of fund in his said account, the Opposite Party No.3(three) handed over him the xerox copy of cheque return memo dated 10/10/2012 issued by Opposite Party No.2(two) and xerox copy of rejected cheque No.58384 Dt.10/10/2012. The Complainant further submitted that he inquired about the matter and verified his pass book and told about sufficient fund in his pass book, to the Opposite Party No.1(one), but the Opposite Party No.1(one) avoided on some or different pretext and at last on Dt.30/11/2012 threatened him to do what ever he likes against him. Even after that Complainant approached and requested to the Opposite Party No.1(one) several times to resolve the problem but the Opposite Party No. 1 ( one ) remained silent.
It is submitted by the Complainant, that both the Opposite Parties failed to rectify the problem of said rejection of cheque of the Complainant which is kept with the Opposite Party No.3(three) without payment and for that rejection the Opposite Parties have not given any satisfactory explanation or reason which amounts to deficiency of service on the part of the Opposite Parties.
Being aggrieved, the Complainant is constrained to file this case against the Opposite Parties on Dt.05/12/2012, praying to direct the Opposite Party.
To compensate the Complainant to a tune of Rs.1,00,000/-(Rupees one lakh)only for mental agony.
To not to impose any interest on the disputed cheques amounts.
To receive the said cheque amount in cash and to return the cheque No.58680 Dt.10/10/2012.
In support of his case, the Complainant relies on the following documents:-
Copy of S.B. Pass Book bearing Account NO. 012568 issued by Opposite Party No.1(one).
Copy of cheque return memo Dt.10/10/2012 issued by Uco Bank service branch, Mumbai.
Copy of cheque bearing NO. 583804 Dt,10/10/2012 issued by Opposite Party No.1(one).
Notice were duly served on the Opposite Parties and case was posted for appearance and filinf of version by the Opposite Parties, but only Opposite Party No3 (three) appeared and filed his version. SR not back from O.P NO.1 and 2 but the Opposite Party No.2(two) filed his version through post. Copy not served. Opposite Party No.1(one) remained absent on call and filed no step on each date of posting of the case and ultimately O.P NO.1(ONE ) set expartee on Dt. 8.5.2013 and the case is posted for hearing..
On his version as well as in the oral argument Opposite Party No.3(three) while denying all the allegations raised by the Complainant has submitted that the instant consumer complaint is not maintainable before this Forum in view of the fact that there exist two clauses namely, the “Arbitration” Clause and 'Jurisdiction' clause in the said agreement. Which reveals that if any disputes between the parties arise that is to be referred to the sole Arbitrator for Arbitration and all the disputes arising out of the agreement shall be exclusively triable by the court of Chennai.
The Opposite Party No.3(three) admitted that the Complainant has purchased the said vehicle being financed by him and the Complainant has been paying the loan installments regularly starting from Dt.10/07/2012 at the rate of Rs.10,480/-(Rupees ten thousand four hundred eighty)only per month to him through cheque and the Complainant had submitted nine numbers of postdated cheques numbering from 583801 to 583809 dated from Dt.10/07/2012 to 10/03/2013 for convenient repayment of monthly EMIS. It is further admitted by the Opposite Party No.3(three) is that vide letter dated 31/12/2012 Uco Bank requested for a representation of cheque No.583804 @ 10,480/-(Rupees ten thousand four hundred eighty)only which was earlier returned by bank, due to poor visibility of account number. After that Citi Bank being one of the collection house bank for Cholamandalam investment and finance company limited informed the Opposite Party immediately on getting confirmation from the Complainant, the said cheque was represented again and was cleared accordingly on Dt.07/01/2013. After clearance of the cheque on Dt.07/01/2013, the Complainant on dated 08/01/2013 came to the Office and preferred to deposit one EMI in cash along with over dues and cheque bouncing charges showing reason that due to this type of banking errors, the financial track of the Complainant is getting hampered so he wished to deposit one extra E.M.I. by cash.
He further submitted that the cheque bouncing charges and late payment charges are in accordance to the agreed terms of the agreement which have been voluntarily been paid by the Complainant and in the present case, if the Complainant wishes he may pray for recovery of the same from Opposite Party No.1(one) and No.2(two) for their ignorance. So he prayed before this from that only Opposite Party No.1(one) and No.2(two) alone can be held liable and not this Opposite Party No.3(three).
The Opposite Party No.2(two) filed his version through post which this Forum received on Dt.21/01/2013 where the Opposite Party No.2(two) submitted that cheque No.583804 Dt.10/10/2012 for Rs.10,480/-(Rupees ten thousand four hundred eighty)only was erroneously returned, because some stamping was made on the account number in the cheque making it illegible. Therefore a wrong account number was selected for posting and the cheque was returned unpaid as the cheque was not issued in that account and there was not sufficient balance on the wrongly selected account. As soon as Opposite Party No.2(two) learnt for wrongful return through the Notice of the Forum contacted the presenting bank (Citi Bank NA) and requested them to reclaim the amount of wrongly returned cheque. Citi Bank N.A. Mumbai has claimed the amount of the above mentioned cheque on Dt.07/01/2013 and the same amount is paid and credited to the Opposite Party No.3(three)'s account and also contacted Opposite Party No.1(one) and the Complainant over phone and apprised them of these development and apologised with the complainant for the inconvenience and difficulty he is put to and assured him for non-recurrence of such incident in future.
The Opposite Party No.3(Three) filed the documents in support of his case as follows.
Copy of letter of Citi Bank N.A. confirming the credit.
The Opposite Party No.3(three) filed the following documents in support of the case.
Copy of loan agreement.
Copy of letter Dt.31/12/2012 of UCO Bank requesting re-present of cheque.
Copy of the statement of Account Dt.25/01/2013.
Perused the Complaint petition, Opposite Party No.2(two) and No.3(three)'s version as well as the copies of documents filed by the partes.
Financed of vehicle bearing No.0R17K5540 for a sum of Rs.355150/- only including interest to be paid in equally monthly installment basis of Rs.10,480/-(Rupees ten thousand four hundred eighty)only is not disputed by the Parties. Further, it is also not disputed that the Complainant was paying regularly the loan amount to the Opposite Parties. The only dispute in this case is that, on presentation of the cheque by the Opposite Party No.3(three) on Dt.10/10/2012 bearing No.583804 for realization/collection, the Opposite Party No.2(two) dishonoured the said cheque and returned the same with an endorsement “To-day's opening balance is insufficient.” though there was sufficient money in the account of the Complainant on Dt.10/10/2012. The Complainant wanted to know about the reason of such dishonour of his cheque but the Opposite Parties did not give any reply to the Complainant otherwise he illegally charged with the cheque bouncing charges and over due charges.
We perused the copy of Bank Account Statement of the Complainant filed by the Opposite Party No.3(three) from where it is evident that the Complainant has paid Rs.10,480/-(Rupees ten thousand four hundred eighty)only in Dt.10/10/2012 towards 4th installment and due insufficient found as alleged by the Opposite Party No.2(two) the bank imposed cheque bouncing charge and over dues charges as per the agreement have been debited to the account of the Complainant when the said cheque was rejected on intimation of Opposite Party No.3(three) again deposited Rs.10,480/-(Rupees ten thousand four hundred eighty)only in cash.
On perusal of the version of Opposite Party No.2(two), who admitted that cheque bearing No. 583804 Dt.10/10/2012 for Rs.10,480/-(Rupees ten thousand four hundred eighty) was erroneously returned due to some stamping was made on the account number in the cheque making it illegible. Therefore a wrong account number was selected for posting and the cheque was returned unpaid as the cheque was not issued in that account and there was no sufficient balance in the wrongly selected account. Since the Opposite Party No.1(one) not noticed the Opposite Party No.2(two) about the wrongful return, the Opposite Party No.2(two) contacted the presenting bank Citi Bank NA, Mumbai and requested them to reclaim the amount of wrongly returned cheque and Citi Bank NA, Mumbai has claimed the amount of the above cheque on Dt.07/01/2013 and same amount is paid and credited to the payee's (O.P. No.3's account). The Opposite Party No.3(three) also apologized in his version with the complainant for the inconvenience and difficultly he had faced due to the act of Opposite Party No.1(one) and No.2(two) assured him about the non-ocurrance of such incidentin future and also advised to handle such incident very carefully without causing any damage to any other client of the bank.
The copy of letter Dt.31/012/2012/ Dt.11/01/2013 filed by Opposite Party no.3 (Three) at annexure-C/2 and letter dated 11.1.2013 filed by Opposite Party No.2(two) confirming the credit clearly disclose that the said cheque was represent again due to inadvertent return of cheque and was cleared on Dt.07/01/2013 crediting the amount of Opposite Party No.3(three).
The version of Opposite Party No.2(two) and the letter Dt.31/12/2012 and Dt.11/01/2013 it self proves the negligence and deficiency in service towards the Complainant by the Opposite Party No.1(one). For such attitude of Opposite Party No.1(one) and deficiency in service in proving proper service, the Complainant has suffered financial loss and is entitled for compensation from the Opposite Party No.1(one).
Again it is seen that even after sending Court Notice, he had not appeared before the Forum and the Forum view that if Opposite Party No.1(one) is not giving due regards to a court proceeding, what kind of attention he would be giving to his customers. Thus the version of Complainant is accepted. The forum also giving through this order a caution to Opposite party No.1 bank not to repeat such types of mistake in future because due to their the complainant suffered a lot.
Hence gross negligence and deficiency of service lies with the Opposite Party No.1(one) and Opposite Party No.2.
- O R D E R -
The Opposite Party No.1(one) and No.2(two)jointly and severally liable to
Pay Rs.5,000/-(Rupees five thousand)only towards mental agony, harrasement and litigation costs to the Complainant, within one month from the date of Order, failing which the warded amount shall carry 12%(twelve perent) interest till the realization of amount.
Not to impose any charges and interest on yhe disputed chque bearing no. 583804 dated 10.10.2012 and the said amount of Rs 10,480/-(Rupees ten thousand four hundred eighty) only be adjusted to be the E.M.I for the said installment( i.e the 4th installment).
The cash paid afterwards as E.M.I and overdue charges are to be considered as the next E.M.I and are to be recovered like wise and the rest of the cheques are to be used as usual for further E.M.Is.
The O.P No. 3(three), the financer company has no role with the discrepancies occurred and hence exonerated from charges if any and he is directed to see that the order as above is complied without further problems being created.
Accordingly case is allowed and disposed off.
Typed to my dictation
and corrected by me.
I agree, I agree,
(Miss Rajlaxmi Pattnayak) ( Smt. Anjali Behera)
P r e s i d e n t. M e m b e r.
