BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.133/2008 Order dated this the 3rd day of March 2009 COMPLAINANT/S Sri.M.R.Nagaraju S/o Raju, R/o Vokkalageri Pete, Malavalli Town, Malavalli. (By Sri.M.J.Jain., Advocate) -Vs- OPPOSITE PARTY/S Vijaya Bank, Malavalli Branch, Malavalli, Rep. by its Manager. (By Sri.Thimme Gowda., Advocate) Date of complaint 15.12.2008 Date of service of notice to Opposite party 29.12.2008 Date of order 03.03.2009 Total Period 2 Months 4 Days Result The complaint is dismissed. However, there is no order as to costs. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, for a direction to Opposite party to pay D.D. amount of Rs.1 lakh with interest at 24% p.m. as damages and compensation of Rs.1,00,000/- and costs alleging deficiency in service. 2. The case of the complainant is that he is a driver by occupation. The complainant intended to purchase a lorry to earn his livelihood. So, he approached Sri Rama Finance Pvt. Ltd., Channapatna for loan and it has sanctioned loan and issued a D.D. for Rs.1,00,000/- bearing No.458844 dated 01.10.2008. The complainant presented the said D.D. on 11.10.2008 for encashment. Even after considerable time, the proceeds of the D.D. were not credited to his account. The Opposite party was giving evasive reply, when he was approaching. Ultimately on 24.11.2008, the Opposite party has written a letter to the complainant stating that the D.D. had been lost in transit. The complainant sustained loss of earning of Rs.30,000/- p.m. apart from paying installments and burdened with payment of interest on the loan amount. Therefore, the Opposite party has committed deficiency in service. Hence, this complaint. 3. The Opposite party has filed version disputing some of the allegations. It is the case of the Opposite party that the complainant had presented the muticity cheque for Rs.1,00,000/- for collection through his S.B. A/c 21457 on 11.10.2008 and not the demand draft as pleaded. The allegation that the D.D. was not credited to his account even after considerable time in spite of several demands to know the status etc., are all false. The Opposite party has intimated the complainant stating that the cheque has been lost in transit. The allegations that the complainant has obtained loan to purchase the vehicle for his livelihood, due to loss of D.D. he could not purchase the vehicle and lost the income of Rs.30,000/- p.m. and suffered mental agony are all false. The allegations that as per the agreement with the Financier, the complainant has to pay the monthly installment and interest due to the negligence of the Opposite party are all false and created. The complainant has misled the Opposite party stating that he has deposited D.D. for Rs.1 lakh for collection. The Opposite party had asked the complainant to produce the counter-foil to know the nature of instrument. But, the complainant has not all produced the counter-foil or co-operated with the Opposite party to trace the instrument. On thorough search the instrument was found and it was sent to service branch at Mysore. On enquiry, it came to the notice of the Opposite party that instrument has not reached the service branch. Immediately, the Opposite party has collected the details of Srirama Transport & Finance Co. and sent a letter requesting to stop payment and also to issue duplicate cheque, knowing these efforts of the Opposite party, the complainant has approached the firm and asked them not to issue duplicate cheque and warned them of consequences. The Opposite party sent a registered letter and C.O.P. to the firm and copy to complainant on 24.11.2008. Subsequently, the Opposite party has sent indemnity bond to firm on 29.11.2008. Still the firm was reluctant to issue duplicate cheque stating that the complainant was objected. The Opposite party contacted the Legal Adviser of the firm and sent the representation of the complainant on 4.12.2008 and thereafter, the Opposite party has received the duplicate cheque on 15.12.2008 and the cheque amount was credited to the account of the complainant on 17.12.2008. Under these circumstances, the complainant with an ulterior motive of wrongful gain had deliberately mislead the Opposite party and intentionally caused delay by using high-handedness against the firm. Therefore, there is no delay or deficiency on the part of the Opposite party. The Opposite party has taken quick and effective measures to secure the instrument. The complainant has not at all approached this Forum with clean hands and he has suppressed the materials facts with ulterior motive. The complainant is not at all entitled to any relief. Therefore, the complaint is to be dismissed with costs. 4. During trial, the complainant is examined as CW.1 and one witness also examined and produced documents Ex.C.1 to C.5. The Opposite party is examined and produced the documents Ex.R.1 to R.13. 5. The complainant has filed written arguments. 6. We have heard the arguments of Opposite party and perused the records. 7. Now the points that arise for our considerations are:- 1. Whether the Opposite party has committed deficiency in service? 2. Whether the Opposite party is liable to pay the D.D. of Rs.1,00,000/- with interest at 24% p.m. and compensation of Rs.1,00,000/-? 8. Our findings and reasons are as here under:- 9. The undisputed facts are that the complainant is a customer of the Opposite party Bank having account No.21457 in Opposite party Bank. According to the complainant, he presented the D.D. for Rs.1,00,000/- bearing No.458844 dated 01.10.2008 issued by Srirama Finance Pvt. Ltd., Channapatna for realization on 11.10.2008. The proceeds of the D.D. was not credited to his account and Opposite party was giving evasive reply, whenever he was enquiring and later Opposite party wrote a letter on 24.11.2008 stating that the D.D. has been lost in transit and hence the Opposite party has committed deficiency in service, but the Opposite party has denied the said allegations. According to the Opposite party, the complainant has misled stating that the D.D. was presented. Though the Opposite party asked for the counter-foil to know the true nature of the instrument, the complainant did not produce the counter-foil or co-operated with the Opposite party to trace the instrument. On thorough search, it was found that the complainant has presented muticity cheque for Rs.1,00,000/- for collection and not the D.D. and it was sent to service branch at Mysore for collection and came to know that the instrument has not reached the service branch and lost in transit. So, it is proved that the cheque presented by the complainant and not D.D. pleaded by the complainant was lost in transit. But, the evidence and the records clearly established that the Opposite party did not keep quiet, but has taken serious efforts and keen interest to collect the information of the cheque and also collect the amount and in this regard, the complainant has not co-operated. According to the complainant, on 24.11.2008 the Opposite party wrote a letter stating that the D.D. has been lost in transit. But Ex.C.2 reveals that nowhere the Opposite party has stated that the D.D. is lost, but the letter was sent to Sriram Transport Finance Co., Channapatna stating that Sri.Nagaraja presented muticity cheque for Rs.1,00,000/- bearing No.458844 dated 01.10.2008 drawn on State Bank of India, Channapatna Branch for collection through our branch and same has been lost in transit; subsequently, we have sent a letter on 13.11.2008 for stop payment of the instrument and you have confirmed over phone the said instrument stop payment instructions have been sent and the same is not encashed. Hence, we request you kindly to issue duplicate cheque in this regard at the earliest. The copy of the said letter is sent to the complainant as per Ex.C.2 and it is Ex.R.2 produced by the Opposite party by registered post to the Sriram Transport and Finance Co. Thereafter, the complainant has given a petition to the Opposite party as per Ex.R.4 (Ex.C.1) on 27.11.2008 making allegations against the Opposite party again stating that the D.D. for Rs.1 lakh was presented to the bank for collection, but proceeds was not credited to his account and has sustained loss and claimed loss of Rs.5,00,000/- in addition to D.D. amount and first installment of loan and in this application Ex.R.4, the complainant did not whisper about the receipt of the letter Ex.C.2 about the lost of the muticity cheque in transit, though it was sent by certificate of posting to the complainant as per Ex.R.3 on 24.11.2008. The Opposite party Bank is in Malavalli Town. Even the complainant is residing at Malavalli Town and naturally the letter Ex.C.2 should have reached the complainant within two days. In spite of it, he did not whisper the loss of cheque in his application Ex.C.1 (Ex.R.4), but continued to mislead the bank stating that the D.D. for Rs.1,00,000/- was presented and proceeds were not credited to his account. So, it clearly reveals that only after the Opposite party Bank traced the cheque and after sending the same for collection and coming to know the lost in transit, it informed the complainant stating that it is not a D.D. but it is a cheque. Further, as per Ex.R.12, the Opposite party Bank sent a letter dated 13.11.2008 to Srirama Transport and Finance Company Ltd., Channapatna about the lost of muticity cheque for Rs.1,00,000/- and requested to stop payment. Further, the representation of the complainant was sent to Sriram Transport & Finance Co., with letter Ex.R.5 on 04.12.2008. Ex.R.10 is the copy of the muticity cheque and Ex.R.13 proves apart from oral evidence of the Opposite party that he has made several telephonic conversations with Srirama Transport & Finance Co., in this matter about the lost of cheque in transit and to issue duplicate cheque and thereafter they have written letter as per Ex.R.2 to send the duplicate cheque, since it was not sent. After approaching the legal adviser of the Opposite party Bank, they sent the letter of indemnity bond as per Ex.R.7 on the stamp paper to issue duplicate cheque and thereafter Srirama Transport & Finance Co., Ltd., by its letter dated 15.12.2008 handed over the another cheque bearing No.45918 for Rs.1,00,000/- in favour of the complainant Sri.Nagaraju through the Opposite party staff Sri.Siddaraju along with a letter Ex.R.9 and thereafter, the said cheque was sent for collection and amount was credited to the account of the complainant on 17.12.2008 and it was informed to the complainant through his cell phone which reveals in Ex.R.13 and it is not denied by the complainant and according to the complainant, after giving the letter Ex.C.1 to the Opposite party, he has not at all visited the Opposite party Bank. The delay in sending duplicate cheque by the Srirama Transport & Finance Co., Ltd., which sanctioned the loan of Rs.1,00,000/- to the complainant was due to the objection raised by the complainant as per the evidence of Opposite party. In view of the several phone calls made and the efforts made by the Opposite party it is clear that the finance company which sanction the loan, delayed to issue of duplicate cheque, only after persuasion through the legal adviser of Srirama Transport & Finance Co., though the indemnity bond was sent earlier, they sent another cheque. Otherwise, the Srirama Transport & Finance Co., would have definitely sent the duplicate cheque earlier, because earlier to the petition by the complainant Ex.C.1 on 27.11.2008 to the Opposite party bank, the Opposite party Bank had informed as per Ex.C.2 to the complainant and Srirama Transport & Finance Co., about the lost of the cheque in transit and requested to stop the payment and the same was confirmed through phone and sought for issue of duplicate cheque. So, from 13.11.2008 till 15.12.2008 the Srirama Transport & Finance Co., delayed the matter only due to the objection by the complainant, because he had given the petition to the Opposite party Ex.C.1 claiming compensation of Rs.5,00,000/- along with the D.D., amount otherwise he would approach Court of law. 10. Therefore, under these circumstances, it is clearly established that though the cheque presented by the complainant was sent for collection, it was lost in transit and coming to know of the same, the Opposite party took all efforts to obtain the duplicate cheque to help the complainant from the Financier of the complainant and finally he was successful to get the cheque of the loan sanctioned by the complainant and collected the proceeds and credited to his account and informed the same to the complainant through his mobile phone. In spite of this knowledge, the complainant has filed this complaint on 15.12.2008, though the Opposite party has taken steps from 13.11.2008 about the lost of cheque and requisition to Srirama Transport & Finance Co., for stop payment and issued duplicate cheque on 13.11.2008 and further on 24.11.2008. Though there is delay in collection of the cheque amount, but it cannot be said that the Opposite party has committed deficiency in service and negligent in discharging the duty. On the other hand, the complainant has mislead the Opposite party and also this Forum stating that he had presented the D.D. for Rs.1,00,000/-, though the muticity cheque issued by Srirama Transport & Finance Co.,. Therefore, we hold that the complainant has not proved that the Opposite party has committed deficiency in service. 11. The complainant has sought for D.D. amount of Rs.1,00,000/- with interest at 24% p.m. and compensation of Rs.1,00,000/- alleging deficiency in service by Opposite party, on the ground that he had obtained the loan to purchase the vehicle in order to earn his livelihood and because of lost of D.D. he could not purchase the vehicle and therefore, he sustained loss of income and he was made liable to pay interest on the loan amount. Apart from the evidence of the complainant, the complainant has examined a witness Sri.T.R.Ramachandra. He has deposed that there was an agreement in writing to sell lorry K.A-12-1609 to the complainant for Rs.1,90,000/- and the amount was not paid as per the agreement and he did not sell the vehicle to the complainant. According to him, it was agreed to pay the amount within two months to purchase the lorry. According to him, a sale receipt was written, but the sale receipt is not produced. Further, it is not the evidence of the witness Sri.Ramachandra that because of failure by the complainant to pay the amount, he has sold the vehicle to another. Naturally an agreement in writing would come into effect only in case advance is paid, but peculiarly this witness stated no advance amount was paid. Therefore, the evidence of the complainant and witness that there was a written agreement to purchase the lorry from the witness by the complainant for Rs.1,90,000/- cannot be accepted. Nowhere in the complaint it is stated that the complainant had entered into agreement with Sri.T.R.Ramachandra for Rs.1,90,000/- to purchase a lorry, but simply stated that he had availed a loan to purchase the lorry. So, if the price amount was Rs.1,90,000/- and loan obtained was Rs.1,00,000/- only, nothing prevented the complainant to pay balance of Rs.90,000/- at the time of agreement, there is no such payment at all. So, when the witness has stated that he has not sold the vehicle already to another, because of failure of the complainant, there is no hindrance for the complainant to purchase the said lorry, because as per the copy of the R.C. it is a old vehicle manufactured in December 1993 and it is a Eicher Company Truck. So, the evidence that complainant would have earned Rs.30,000/- per month apart from paying the loan installment is highly exhogarative. Further, the allegation of the complainant that he was burdened with payment of installment with interest, as the loan amount was not realized by the bank. The complainant has produced Ex.C.3 it indicates only, the due date of installment, the amount of loan and installment amount, there is no entry of payment at all. The complainant has produced Ex.C.4 the loan ledger copy sent by Fax from Srirama Transport & Finance Co., and Ex.C.5 also another loan transaction. Ex.C.4 is for loan of Rs.1,00,000/- and first installment due by 20.11.2008 and Ex.C.5 is another loan extract towards the loan of Rs.3,00,000/- and the first installment starts from 20.02.2007 and installment amount of Rs.9,660/- and for the loan amount of Rs.1,00,000/- installment at the rate of Rs.5,565/- is shown as paid from 20.11.2008 till 20.02.2009 as per Ex.C.4 and we cannot make out the amount paid to loan account of Rs.3,00,000/- in Ex.C.5. It cannot be accepted that without release of the loan amount, the Financier would demand the payment of installment with interest. Admittedly, only on 17.12.2008, the loan of Rs.1,00,000/- sanctioned by Srirama Transport & Finance Co., is encashed and legally only from that date the financier is entitled to charge interest and claim the installments. For this illegal activity of the Srirama Transport & Finance Co., the Opposite party is not liable, because Srirama Transport & Finance Co., itself has issued the duplicate cheque for the said loan of Rs.1,00,000/- in favour of the complainant and on 17.12.2008, the amount was credited to the account of the complainant and hence only after one month from that date, the finance firm is entitled to the interest and installment. 12. Under these circumstances, since the Opposite party has not committed deficiency in service. On the other hand, it has made all sincere efforts to trace the cheque, though all through the complainant pleaded that he has presented the D.D. and making hectic efforts with financier of the complainant with legal assistance, obtained the duplicate cheque and realised the amount and credited to the account of the complainant, but the complainant mislead the Opposite party suppressing the true facts and therefore, the complainant is not entitled to the relief sought for. As per the decision of Honble National Commission, even in case of lost of cheque in transit, due to delay only compensation can be awarded and not the cheque amount with a direction to obtain a duplicate cheque is to be given. But in the present case, even the complainant is not entitled to compensation, because the Opposite party has made sincere efforts to trace the cheque and made hectic efforts with the financier of the complainant and obtained the duplicate cheque and collected the amount of the cheque and credited to the complainant account within reasonable time and hence, the complainant is not entitled to any relief sought for. 13. In the result, we proceed to pass the following order; ORDER The complaint is dismissed. However, there is no order as to costs. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 3rd day of March 2009). (PRESIDENT) (MEMBER) (MEMBER)
