DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 266 of 21-06-2010

Decided on : 28-01-2011

Indra Devi Wd/o Late Sh. LHF Munib Parsad, R/o H. No. 15936, Guru Gobind Singh Nagar, Street No. 10/1, Bathinda.

.... Complainant

Versus

1. Union Bank of India, The Mall, Bathinda, through its Branch Manager

2. Union Bank of India, H.O. Union Bank Bhavan, 239, Vidhan Bhavan Marg, Nariman Point, Mumbai 400021.

3. Akash Ganga Courier Limited,Corporate Office, 784-785, Ground Floor, Faiz Road, Chowk Karol Bagh. New Delhi through its M.D.

4. Akash Ganga Courier Ltd., Railway Road, Bathinda, through its Manager

    

.... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Deepak Sehgal, counsel for the complainant

For the Opposite parties : Sh. Naveen Goyal, counsel for the opposite party Nos. 1 & 2.

Sh. Vinod Garg, counsel for opposite party Nos. 3 & 4.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. This complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). In brief the case of the complainant is that her husband namely Sh, Munib Parsad, now deceased was posted as LHF in the Office of Commandant, 18 FOD, Unchi Bassi. After the death of her husband, she received a sum of Rs. 90,739/- from the employer of her husband through two cheques bearing No. 951790 dated 17-03-2010 for a sum of Rs. 89,103/- and cheque No. 951785dated 16-03-2010 for a sum of Rs. 1636/- issued by the concerned department in favour of the complainant drawn on A/c No. 10695747660 with State Bank of India, Dasuya. The complainant deposited both the cheques in her account No. 372702030611065 with opposite party No. for encashment on 27-03-2010 and the opposite party No. 1 assured the complainant that the payment of the said cheques would be made within a day or two after clearance. Thereafter, the complainant kept on visiting the opposite party No. 1 for the collection of the amount but to no effect. In the second week of May, 2010, the complainant came to know that the opposite party No. 2 had lost her both the orginal cheques during transit due to which the said cheques could not be got encashed. The complainant also came to know that opposite parties also wrote a letter in this regard to the employer of her husband requesting them for issuing duplicate cheques. The complainant alongwith one attendant visited the office of employer of her husband twice for getting issued duplicate cheques and spent a huge amount. The complainant alleged that she visited opposite party No. 1 many times and requested it to make the payment, but the amount has not been released to her till date. Hence, this complaint seeking directions of this Forum to the opposite parties to release the amount of cheques in question and to pay her compensation and cost.

2. The opposite party Nos. 1 & 2 pleaded in their joint written reply that deficiency in service, if any, is on the part of Akash Ganga Courier Limited and the opposite party Nos. 1 & 2 are not liable to pay any damages to the complainant. It has been submitted that the cheque in question was presented for eacashment by the complainant to opposite party No. 1 and it was sent for encashment by the opposite party No. 1 through Akash Ganga Courier Limited having its registered office at Loonkaransar (Raj) and Corporate office at Karol Bagh, New Delhi. The opposite party No. 1 never assured the complainant that the amount would be paid within a day or two as the repayment of the cheque amount was subject to its encashment. The cheques presented for enchashment by the consumer to the bank were not insured and this fact was specifically told to the complainant and presentation of the cheque was at the risk of the consumer.

3. The opposite party Nos. 3 & 4 in their joint written reply have taken legal objection that complainant has no locus standi or cause of action to file a complaint against them as there was no privty of contract between the complainant and opposite party Nos. 3 & 4because no consideration has been paid to them and in this regard they have cited 2003(1) CLT 269. On merits, the opposite party Nos. 3 & 4 have pleaded that opposite party Nos. 1 & 2 vide letter dated 7.5.2010 intimated the complainant that the cheques have been lost in the transaction. The opposite party Nos. 1 & 2 had booked one courier vide receipt no. 72360384 on 30-03-2010 and did not disclose the contents of the said courier and booked the same at normal rates as a normal documents. Had they disclosed it to be a valuable document, they would have paid guarantee charges @2% by declaring its value. The opposite party Nos. 1 & 2 did not even disclose the name of the State nor mentioned any pin code number of the destination. Accordingly, the document was delivered at Dausa to S.B.I. Via Delhi and then via Jaipur. The receiving bank received the same and raised no objection. The document was booked on 30-03-2010 and the opposite party Nos. 1 & 2 never raised any query nor made any complaint to the opposite parties regarding the said courier. If the opposite party Nos. 1 & 2 had taken timely action, they could have helped them in getting the document back which would have reduced the time lost and harassment suffered by the complainant. But the opposite party Nos. 1 & 2 remained silent and now they are trying to shift their burden on them. It has been pleaded that as per statement given before this Forum, the complainant had already received the amounts of the cheques in question.

4. Parties have led their evidence in support of their respective pleadings.

5. Arguments heard and written submissions submitted by the parties perused.

6. The learned counsel for the complainant submitted that the complainant had received a sum of Rs. 90,739/- after the death of her husband from his employer through two cheques bearing No. 951790 dated 17-03-2010 for a sum of Rs. 89,103/- and cheque No. 951785 dated 16-03-2010 for a sum of Rs. 1636/- drawn on A/c No. 10695747660 with State Bank of India, Dasuya. The complainant deposited both the above said cheques in her account No. 372702030611065 with opposite party No. 1 i.e. Union Bank of India, The Mall, Bathinda, for their encashment on 27-03-2010. The said cheques of the complainant were not encashed despite her various visits. In the second week of May, 2010, she came to know that her cheques in question were lost during transit due to which the same could not be get encashed. The opposite parties had also written a letter dated 07-05-2010 to the Commandant, 18 FOD, Unchi Bassi, regarding the lost of cheques during transit with the request to issue duplicate cheques. The payment of the above said cheques has not been made to the complainant.

7. The learned counsel for opposite party Nos. 1 & 2 has submitted that if there is any deficiency in service i.e. on the part of Akash Ganga Courier Limited having its registered office at Loonkaransar and having its corporate office at Karol Bagh, New Delhi. The cheques presented for encashment by the complainant to the bank were not insured and it has been specifically mentioned that cheque is not insured and the presentation of such cheques is at the risk of consumer. If the cheques have been lost, the complainant can have fresh cheques from a person who issued the same.

8. The learned counsel for opposite party Nos. 3 & 4 has submitted that complainant is not consumer as privity of contract between the complainant and the opposite party Nos. 3 & 4 has never taken place and has taken support of law laid down in 2003(1) CLT 269. The opposite party Nos. 1 & 2 vide letter dated 07-05-2010 intimated the complainant that the cheques have been lost in transit. The opposite party Nos. 1 & 2 had booked one courier vide receipt No. 72360384 on 30-03-2010. They did not disclose the contents of the said courier. The opposite party Nos. 1 & 2 had booked the same at normal rates as a normal document. If they have disclosed it to be a valuable document, the opposite party Nos. 1 & 2 would have to pay guarantee charges @2% by declaring its value. Moreover, opposite party Nos. 1 & 2 is trying to shift their liability on opposite party Nos. 3 & 4. The document was booked on 30-03-2010 and the opposite party Nos. 1 & 2 had never made any query nor made any complaint to opposite party Nos. 3 & 4 regarding the said courier. If the opposite party Nos. 1 & 2 had timely informed the opposite party Nos. 3 & 4, the timely action would have been taken by them.

   The cheques were presented to opposite party Nos. 1 & 2 for encashment which were sent by them through courier i.e. opposite party Nos. 3 & 4. The cheques were lost during transit and the opposite party No. 1 wrote letter Ex. C-7 in this regard to Commandant, 10 FOD, Unchi Bassi that the above said cheques have been lost and requested him to issue the duplicate cheques. Indira Devi had to visit the employer of her husband to make a request for the issuance of duplicate cheques number of times and spent a huge amount for the same as Dasuya is situated about 275 Kms from Bathinda and the complainant and her son had to spent approximately Rs. 1,000/- per visit. The opposite party Nos. 1 & 2 have shifted whole liability on opposite party Nos. 3 & 4 that if there is any deficiency in service i.e. on the part of opposite party Nos. 3 &4 as the cheques have been lost during transit. On the other hand, the opposite party Nos. 3 & 4 submitted that opposite party Nos. 1 & 2 never disclosed the contents of the courier. If they would have disclosed the contents of the courier as valuable document, they must have taken much care of such document. Moreover, the cheques were not insured by opposite party Nos. 1 & 2.

9. The opposite party Nos. 3 & 4 have submitted in their written reply that complainant is not consumer to them as no privity of contract has taken place between the complainant and opposite party Nos. 3 & 4. It is pertinent to mention that complainant has presented her cheques to opposite party Nos. 1 & 2 and not to opposite party Nos. 3 & 4. The opposite party Nos. 3 & 4 were impleaded on the application of opposite party Nos. 1 & 2, which shows that opposite party Nos. 1 & 2 wanted to shift their liability on opposite party Nos. 3 & 4. In the present case, the duplicate cheque has been received by the complainant as per statement suffered before this Forum by the learned counsel for the complainant, recorded separately on 03-11-2010 and has received the amount of Rs. 90,739/- on 03-09-2010. Hence, the complainant is not entitled for the amount of the cheques. The support can be sought by the law laid down by the Hon'ble National Commission, New Delhi, in the case titled 2008(II) CPJ 1 (NC) Canara Bank Vs. B. Muraleedharan Nair Aswathi Enterprises wherein it has been held :-

   “.....Cheque lost – Payment of cheque amount with interest directed by State Commission – Hence revision – Complaint for recovery of cheque amount not lie under Consumer Protection Act – Bank can be ordered to pay compensation on ground of deficiency in service, but not entire cheque amount – Gross deficiency in service on part of bank proved – Compensation of Rs. 30,000/- awarded – Order of State Commission modified accordingly.”

   Further the support can be sought by the precedent laid down by the Hon'ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur in the case titled 2008(II) CPJ 535 State Bank of Bikaner & Jaipur Vs. Purushottam wherein it has been held :-

   “.....Banking and Financial Services - Cheque lost in transit – Complaint allowed by Forum – Complainant held entitled to full cheque - Hence appeal – Bank held negligent as not taken proper care - Banker in collecting cheque, required to exercise same care which reasonable businessman would bring to bear in handling valuable negotiable instrument – Bank rightly held negligent in delivering services – Bank liable to pay some compensation but not entire cheque amount .”

   The reliance can also be placed on the precedent laid down by the Hon'ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur in the case titled 2010(3) CPC 107 Hari Ram Vs. SBBJ & Anr wherein it has been held :-

   “....Two cheques with Rs. 1 Lacs each were deposited with bank of respondent No. 1 who sent the same to payee bank for clearance – Cheques lost in transit – Neither cheques were returned nor amount of cheques was credited in complainant's account – deficiency in service well proved – Respondent No. 1 is directed to pay total sum of Rs. 20,000/- including compensation of Rs. 10,000/- awarded by the District Forum – Appeal allowed.”

10. In view of the above precedents, the complainant is entitled for compensation on account of mental harassment. Now the question remains that what amount of compensation be awarded to her. The support can be sought by the law laid down by the Hon'ble National Commission, New Delhi, in the case titled 2008 (III) CPJ 159 (NC) Atul Nanda & Anr Vs. Reserve Bank of India & Ors. Wherein it has been held :-

    “Consumer Protection Act, 1986 – Section 2(1)(g) – Banking and Financial Services - Cheque – Encashment of – Deficiency in service in giving credit to payee, alleged – Contention, large float enjoyed by Banks for their benefits – Bank policies to be framed as per RBI circular – Credit and debit of local cheques to be given on same day or next day – For collection of outstation cheques banks take maximum period upto 7/10/14 days – Interest payable to payee for delay beyond 7/10/14 days – Directions given to banks.”

11. In the case in hand, the complainant got her duplicate cheques enchashed on 03-09-2010 whereas the cheques were issued on 16-03-2010 and 17-03-2010 and the duplicate cheques were issued on 25-08-2010. Therefore, she is entitled for interest @6% P.A. on the delayed payment of cheques which can be calculated after 14 days from the date when they were sent for collection.

    With utmost regard and humility to the authorities cited by the learned counsel for the opposite parties, they are distinguishable on facts.

12. In view of the facts, circumstances and the evidence placed on file by the parties, this Forum is of the view that there is deficiency in service on the part of opposite party Nos. 1 & 2. Hence, this complaint is accepted with Rs. 20,000/- as cost and compensation for mental harassment against opposite party Nos. 1 & 2 which also includes interest @6% P.A. for the delayed payment and dismissed qua opposite party Nos. 3 & 4.

13. The compliance of this order be made within 45 days from the date of receipt of copy of this order. A copy of this order be sent to the parties concerned free of cost and the file be consigned.

Pronounced

28-01-2011

(Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member

(Amarjeet Paul) Member