Dt. of filing- 01/02/2018
Dt. of Judgement- 25/07/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This consumer complaint is filed by Smt. Ratna Show under Section 12 of the Consumer Protection Act, 1986 against the OP namely United Bank of India alleging deficiency in service on its part.
Case of the complaint in short is that she has a Savings Bank Account No.0990010060666 with the Opposite Party and to operate the said account she had cheque book and the passbook facility. The complainant lost her cheque book and also passbook in respect of the said account on 29.08.2017 and after several search could not find the same. She lodged a General Diary at the Behala Police Station on 05.09.2017 and intimated the incident to the OP on the same date along with the copy of the said General Diary. On that ground a new cheque book and passbook was issued to the complainant in respect of the said account by the OP. Complainant has also asked the OP to stop all payment from her said account. But on 12.09.2017 when the complainant updated her new passbook she came to know that an Account Payee Cheque bearing no. 1555734 of Rs. 7,500/- only has been debited from her account on 11.09.2017. Complainant had not given any cheque to anybody. So, she sent a legal notice through her Ld. Advocate dated 21.09.2017 to the OP seeking information for clearance of the said cheque inspite of request by the complainant to stop payment. But OP did not make any communication. So, the present complaint has been filed by the complainant for directing the OP to pay sum of Rs. 25,000/- towards the deficiency in service, to pay Rs. 25,000/- towards the compensation and Rs. 15,000/- as litigation cost.
Complainant has annexed with the complaint petition. Copy of the G.D. lodged at Behala Police Station on 05.09.2017 and the copy of the Lawyer’s notice dated 21.09.2017.
OP has contested the case by filing written version denying and disputing the allegations made by the complainant contending inter alia that the OP cleared the bearer cheque no.1555734 dated 11.09.2017 of Rs.7,500/- as complainant never asked OP to stop payment during the period in between 29.08.2017 and till issuance of new cheque book and duplicate passbook. So, there has not been any deficiency in service on the part of the OP and thus OP has prayed for dismissal of the case.
During the course of the evidence, both the parties adduced their respective evidence by filing the affidavit-in-chiefs following questionnaire and reply thereto.
So, the following points required determination :
- Whether there has been any deficiency in service on the part of the OP ?
- Whether the complainant is entitled to the relief as prayed for?
Decision with reasons
Both points are taken up for a comprehensive discussion. It is the claim of the complainant that she had lost her cheque book and passbook on 29.08.2017 and so lodged G.D. on 05.09.2017 before the Police and intimated the same to the OP by filing the xerox copy of the said G.D. It is also claimed by the complainant that she had also asked the OP to stop all payment from her said bank account.
The fact that the complainant has a savings account bearing no. 0990010060666 is admitted. It is also an admitted fact that a new cheque book and duplicate passbook has been issued to the complainant by the OP. The bone of contention is the clearance of cheque bearing No.1555734 of Rs. 7,500/- by the OP bank on 11.09.2017. Specific contention of the OP is that the complainant did not make any request of stop payment and only had asked for issuance of new cheque book and passbook.
In support of her claim that she had asked the OP to stop payment after she found that the cheque book and the passbook was lost, she has only filed copy of the G.D lodged before the Behala Police Station on 05.09.2017 and a notice which has been sent by the complainant through her Ld. Advocate on 21.09.2017. No specific date has been mentioned by the complainant when the new cheque book and duplicate pass book was issued to her by the bank. On perusal of the said G.D., dated 05.09.2017 it appears that it is categorically mentioned therein that complainant lodged the G.D. so that a new cheque book and passbook is issued by the bank. No copy of the letter allegedly given by the complainant to the OP asking for stop payment has been filed by the complainant. So, before this Forum there is absolutely no material that the complainant from the date of missing of the cheque book on 29.08.2017 to till sending of legal notice dated 21.09.2017, asked the OP for stop payment. We have already highlighted that no date of issuance of new cheque book has been stated by the complainant. So, unless an account holder asks the bank to stop payment of any cheque, bank cannot refuse to clear the cheque issued by the account holder. Apart from this, it is nowhere stated by the complainant that the alleged lost cheque which was cleared on 11.09.2017 did not bear her signature or that it was forged. According to the bank, the said cheque was a bearer cheque and was presented by Asit Baran Bera on 11.09.2017 and as there was no direction of stop payment from the complainant, same was cleared.
Ld. Advocate appearing for the complainant has emphasised more on the notice sent by the complainant on 21.09.2017 that in the said notice it has been stated specifically that the complainant had asked on 05.09.2017 for stop all payment from her said account as her cheque book and passbook was lost. It is argued that since the OP remained silent and did not reply to the said notice, they cannot deny that the complainant did not ask for stop payment. But in this context, it may be pertinent to point out that it is settled principle of law that the party seeking the relief and making the allegation, has to establish the same. The said notice dated 21.09.2017 was sent after the clearance of the cheque in question. It is already highlighted above that complaint has not filed any document to show that she sent any letter between 29.08.2017 to till before 21.09.2017 asking specifically to stop payment. So as because OP did not reply to the said notice, it will not automatically establish the claim of the complainant. It may also be mentioned here that complainant allegedly lost the cheque book and pass book on 29.08.2017 but she remained silent nearly for a week. She neither informed to bank nor to police. She lodged the G.D only non 05.09.2017. No explanation is forthcoming for such delay. So, as the complainant has not filed any document to substantiate her claim that she asked for stop payment, there cannot be any deficiency in service on the part of the OP and thus present complaint is liable to be dismissed.
Hence,
Ordered
CC/47/2018 is dismissed on contest.
