State Consumer Disputes Redressal Commission
Hdfc Bank Ltd. vs Arvind Kumar Gautam on 17 June, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 189 / 2014
HDFC Bank Limited, 131/8, Civil Lines
Haridwar Road, Roorkee, District Haridwar
through its Authorised Representative
Sh. Harish Bhatia, Senior Cluster Head
HDFC Bank Limited, 56, Jai Plaza
Rajpur Road, Dehradun
......Appellant / Opposite Party
Versus
Sh. Arvind Kumar Gautam S/o Sh. Chandrabhan Sharma
R/o 347, Arya Samaj Road
Ramnagar, Roorkee
District Haridwar
......Respondent / Complainant
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. Suresh Gautam, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mrs. Veena Sharma, Member
Dated: 17/06/2015
ORDER
(Per: Justice B.C. Kandpal, President):
This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 20.08.2014 passed by the District Forum, Haridwar in consumer complaint No. 305 of 2013. By the order impugned, the District Forum has allowed the consumer complaint and directed the appellant - opposite party to pay compensation of Rs. 3,00,000/- to the respondent - complainant within a period of one month from the date of the order. The District Forum has further directed the appellant - opposite party to deposit a sum of Rs. 5,00,000/- with the District Forum. The District Forum 2 has, however, observed that in case the appellant - opposite party wishes, it can recover the award amount from the courier company.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that Sh. Jagdish Prasad Saini S/o late Sh. Baljeet Saini, R/o Village Karondi, Post Bhagwanpur, District Haridwar, had borrowed sum of Rs. 2,00,000/- from the complainant, which he had refunded to the complainant vide cheque No. 859938 dated 31.01.2012 amounting to Rs. 2,00,000/- drawn on Punjab National Bank, Navyug Market, Ghaziabad. The complainant had deposited the said cheque with the opposite party - HDFC Bank Limited, 131/8, Civil Lines, Haridwar Road, Roorkee in his Account No. 06571000016769 for encashment of the same. The entry of the said cheque was made in the passbook of the complainant on 05.05.2012. However, the said cheque was dishonoured on 07.05.2012 and a sum of Rs. 100/- was deducted by the bank from the account of the complainant on account of dishonour of the cheque and the cheque in question was sent to the complainant by the bank through courier. It was alleged that the said cheque was misplaced by the courier during transit. On receipt of the intimation regarding misplacement of the cheque by the courier, the complainant issued a notice dated 12.07.2012 to the drawer - Sh. Jagdish Prasad Saini, thereby demanding a sum of Rs. 2,00,000/- from him, but the said notice was received back with an endorsement that the addressee is not available at his house since last few months. It was further alleged by the complainant that the amount of the cheque has not been received by him as yet and the cheque was lost in transit on account of negligence of the bank and the courier company. Thereafter, alleging deficiency in service on the part of the bank, the complainant filed a consumer complaint before the District Forum, Haridwar.
33. The bank filed written statement before the District Forum and pleaded that the cheque was sent to the complainant through Trackon Couriers Pvt. Ltd.; that the cheque was dishonoured on account of insufficient funds; that the complainant has issued a notice dated 12.07.2012 to Sh. Jagdish Prasad Saini under Section 138 of the Negotiable Instruments Act, 1881; that the complainant has also filed a complaint against the drawer of the cheque - Sh. Jagdish Prasad Saini and that there is no deficiency in service on their part.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 20.08.2014 in the above terms. Aggrieved by the said order, the bank has filed the present appeal.
5. We have heard the learned counsel for the parties and have also perused the record.
6. The complainant has come up with a case that on account of the cheque having been lost in transit, he could not receive the amount of the cheque from the drawer of the cheque and since the cheque was lost in transit by the courier, to whom the same was handed over by the bank to be delivered to the complainant, the deficiency in service is that of the bank and the bank is liable to compensate the complainant for the loss occasioned to him on account of loss of the cheque.
7. The bank has taken the stand that since the cheque itself was dishonoured on 07.05.2012 on account of insufficient funds in the account of Sh. Jagdish Prasad Saini, who had issued the cheque and hence in view of dishonour of the cheque, the bank can not be held liable to pay the amount of the cheque. It was also stated that since 4 the complainant has issued a notice dated 12.07.2012 to Sh. Jagdish Prasad Saini under Section 138 of the Negotiable Instruments Act, 1881, calling upon him to pay the amount of the cheque amounting to Rs. 2,00,000/- and, therefore, the bank can not be held liable to pay the amount of the cheque.
8. Learned counsel for the appellant - bank submitted that since the cheque in question was dishonoured on account of insufficient funds in the account of the drawer and hence no loss has been occasioned to the complainant on account of loss of the said cheque and the appellant - bank can not be held liable to pay the amount of the cheque to the complainant. Learned counsel also submitted that since the complainant has issued notice dated 12.07.2012 to the drawer of the cheque under Section 138 of the Negotiable Instruments Act, 1881, calling upon him to pay the amount of the cheque and hence the complainant can recover the amount of the cheque from the drawer under the said proceedings by filing a complaint, but the District Forum has erred in allowing the consumer complaint in the above terms per order impugned, which is not legally sustainable and is liable to be set aside and the appeal is fit to be allowed.
9. Per contra, learned counsel for respondent - complainant submitted that since the cheque in question was lost in transit on account of negligence of the agent of the appellant - bank and hence the bank is liable to make the loss good to the complainant and to pay the amount of the cheque to the complainant.
10. Having considered the respective submissions raised by the learned counsel for the parties, we find force in the submissions raised by the learned counsel for the appellant - bank. The reason being that in para 2 of the consumer complaint, the complainant has himself 5 admitted that the cheque in question was dishonoured on 07.05.2012. There is a copy of detail of transaction of the complainant's account for the period from 01.04.2012 to 03.06.2012 (Paper No. 29), which shows that the cheque was dishonoured on account of insufficient funds in the account of the drawer. The cheque was not lost when it was being sent to the bank for realization, but the same was lost after the same had been dishonoured and during transit when it was sent back to the complainant.
11. This apart, in para 3 of the notice dated 12.07.2012 (Paper No. 17) issued by the complainant to Sh. Jagdish Prasad Saini, the drawer of the cheque, the complainant has stated that in the month of March, 2012, he had presented the cheque No. 859938 for sum of Rs. 2,00,000/- in his account for encashment, but the same was not encashed and was received back by him with an endorsement of insufficient funds in the account of the drawer. In para 5 of the said notice, the complainant has stated that on the assurance of the drawer of the cheque, the cheque was again presented for encashment on 07.05.2012, but the same was again dishonoured, intimation whereof was given to him by the bank on 12.06.2012. Thus, from the averments made in the notice dated 12.07.2012, it is quite clear that the cheque in question had already been dishonoured in the month of March, 2012 and the same was again dishonoured on 07.05.2012.
12. Thus, the things as stand out from the record, are that the cheque in question was a dishonoured cheque having been dishonoured on account of insufficient funds in the account of the drawer of the cheque and that the complainant has issued a notice to the drawer of the cheque under Section 138 of the Negotiable Instruments Act, 1881, calling upon him to pay the amount of the cheque. Hence, in such a situation, the bank can not be held liable to 6 pay the amount of the cheque to the complainant when the complainant has a remedy available to recover the amount of the cheque from the drawer thereof and also in view of the fact that the cheque had already been dishonoured after it was presented for encashment. It shall not be out of place to reiterate that in India, consumer justice is a part of social and economic justice, as enshrined in the Constitution of India and in the present case, the justice demands that the bank can not be saddled with the amount of the cheque, but some nominal compensation should be imposed upon the bank on account of loss of cheque during transit and the bank can not at all be saddled to pay the amount of the cheque to the complainant.
13. Learned counsel for the appellant - bank cited a decision dated 28.05.2007 of this Commission given in First Appeal No. 36 of 2005; Canara Bank Vs. Sh. Ravindra Bhatt and another. In the said case, the complainant deposited two bank drafts of Rs. 3,592/- and Rs. 4,456/- with his banker - Canara Bank for realization of the amount. Both the said drafts were lost in transit and the amount of the same could not be credited to the account of the complainant. It was held that the complainant is not entitled to the amount of the drafts from the bank and at the most, on account of loss of the drafts in transit, reasonable amount of compensation could be awarded to the complainant and in the said case, compensation of Rs. 1,500/- was granted to the complainant. Learned counsel for the appellant - bank also cited decision of the Hon'ble National Commission in the case of Canara Bank Vs. Sudhir Ahuja; I (2007) CPJ 1 (NC). In the said case, the cheque was lost in transit and neither the amount was credited, nor the cheque was returned. It was held that the bank is liable to pay some amount of compensation and not entire amount of cheque and the order of State Commission directing bank to pay entire cheque amount was set aside, as being not legally sustainable and the 7 bank was directed to pay compensation of Rs. 5,000/-. Learned counsel also cited another decision of the Hon'ble National Commission in the case of Indian Bank Vs. K. Swamanna; III (2007) CPJ 28 (NC). In the said case, the cheque was lost in transit. The cheque was returned for want of insufficient fund in the account of drawer. It was held that the complainant ought to have filed suit against drawer and the bank is liable to pay some amount of compensation.
14. Learned counsel for respondent - complainant pressed into service a decision of Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in the case of Punjab National Bank (Old Nedungadi Bank) Vs. Somasundaram and another; I (2014) CPJ 228 (Ker.). In the said case, towards sum of Rs. 1,60,000/- due to the complainant, his friend had issued cheque No. 768107 dated 12.09.2002 drawn on his account maintained with M/s Nedungadi Bank, now M/s Punjab National Bank, Thrikkannapuram Branch. The said cheque was presented for collection through State Bank of Mysore, Palakkad Branch on 03.02.2003. On 28.06.2003, the complainant received intimation from State Bank of Mysore that the cheque was missing. It was held that the complainant is entitled to the amount of the cheque. In the case in hand, as is stated above, the cheque in question, which was lost in transit, was a dishonoured cheque and the same was dishonoured on account of insufficient funds in the account of the drawer. In the said case, the drawer had written a letter to the bank to stop all payments of his account. It was held that the bank should have returned the cheque with due endorsement which they did not do. In the case under hand, the cheque was sent to the complainant with an endorsement of having been dishonoured on account of insufficient funds in the account of the drawer and since it was a 8 dishonoured cheque and hence in view of the law cited by the learned counsel for the appellant, the appellant - bank can not be directed to pay the amount of the cheque. Learned counsel for respondent - complainant also cited a decision of the Hon'ble National Commission in the case of ICICI Bank Limited and another Vs. Ramkishan Choudhary and others; II (2015) CPJ 269 (NC). In the said case, the cheque was sent for clearance and it was returned with endorsement "cheque destroyed". It was held that the bank had no business to destroy the cheque. It was the bounden duty of the bank to return the cheque with remarks that account had been closed and the bank was directed to pay compensation to the complainant. Even in the said case, the bank was not saddled with the amount of the cheque. In the said case, the cheque in question was for a sum of Rs. 1,00,000/-. In the said decision, the Hon'ble National Commission placed reliance on its decision given in Revision Petition No. 4201 of 2007; Vijaya Bank Vs. M/s Nectar Beverages Pvt. Ltd. and others, wherein it was held that "regarding the compensation to be given for deficiency in service, we are unable to agree that the compensation should be the same as that mentioned in the cheque. It was further held that on grounds of deficiency in service, the bank can be ordered to pay the compensation and not the entire amount of the cheque".
15. Taking into consideration the law discussed above and totality of the facts and circumstances of the instant case, we are of the view that a compensation of Rs. 5,000/- in the present case, to be paid by the appellant - bank to the respondent - complainant, would meet the ends of justice. This way, the appeal is to be allowed partly and the order impugned passed by the District Forum is liable to be set aside.
916. For the reasons aforesaid, appeal is partly allowed. Order impugned dated 20.08.2014 passed by the District Forum is hereby set aside. However, the appellant - bank is directed to pay compensation of Rs. 5,000/- to the respondent - complainant. There shall be no order as to costs.
(SMT. VEENA SHARMA) (JUSTICE B.C. KANDPAL) K