State Consumer Disputes Redressal Commission
Vijaya Bank vs Parmatama Saha on 25 February, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 25.02.2008 Appeal No. A-07/646 (Arising out of Order dated 27.07.2007 passed by the District Consumer Forum(VII), Sheikh Sarai, New Delhi in Complaint No.DF VII) Vijaya Bank Appellant Having its Head Office at Through 41/2, M.G. Road, Mr. K.D. Khatri, trinity Circle, Bangalore, & Advocate Regional Office at 3rd Floor, Vijaya Building, 17, Barakhamba Road, New Delhi-110001. Through its Branch at 52/11, Gopinath Bazar, Delhi Cantonment, New Delhi. Versus Mr. Parmatama Saha Respondent R/o RZ C2/25, Mahavir Enclave, Gali No.1, New Delhi 110045. CORAM: Justice J.D. Kapoor President Ms. Rumnita Mittal Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President (Oral)
1. Vide impugned order dated 27.07.2007 passed by the District Forum, the appellant-Bank has been directed to pay a sum of Rs. 3,98,475/- towards the amount of cheque deposited by the respondent with it in his Saving Bank A/c which was unauthorizedly encashed by someone else due to negligence of the appellant and also pay interest @ 12% from 07.09.06 and Rs. 5,000/- as cost of litigation. Feeling aggrieved the appellant has preferred this appeal.
2. The impugned order has been assailed solely on the ground that the respondent has failed to deposit the said cheque with the appellant-Bank and the respondent has proved with positive evidence that the Sr. Branch Manager of the appellant-Bank had written a letter dated 12.09.06 to the Chief Manager, SBI, Parliament Street, New Delhi regarding loss of cheque dated 30.08.06 issued by MTNL (Ex CW 1/C) and a letter written to the PNB, Meerut dated 18.09.06 (Ex. CW 1/D) where the cheque was encashed and thus there is no evidence regarding deposit of cheque in question with the appellant-Bank.
3. The allegations of the respondent leading to the impugned order, in brief, were that respondent received a cheque for amount of Rs. 3,98,475/- after his retirement from MTNL on 01.06.06 vide cheque No. 559234 dated 30.08.06. The aforesaid cheque was deposited by the respondent for encashment in his SB A/c No. 32838 on 07.09.06 in appellant-Bank. The appellant-Bank issued a receipt of depositing the said cheque. When he went to the appellant-Bank on 12.09.06 to know about his balance he came to know that the said cheque had been misplaced somewhere from the appellant-Bank. According to the respondent, the said cheque was encashed by someone else by depositing it in a Punjab National Bank, Meerut. The respondent visited several times the appellant Bank as well as SBI, Parliament Street branch but the appellant gave only assurances to him that the cheques amount will be credited to his account shortly.
He made a police complaint at PS Delhi Cantt. On 18.09.06. The police investigated the matter and on 04.10.06 lodged an FIR No. 363/2006 u/s 420/468/471 IPC. The respondent by way of instant complaint prayed for payment of the cheques amount of Rs. 3,98,475/- with interest @ 18% p.a. from 07.09.06 to its actual payment.
He also sought direction to the appellant to pay a sum of Rs. 50,000/- towards compensation for mental pain and harassment with cost of litigation.
4. As referred above, in its defence, the appellant took the plea that the local cheque collection service is provided by the appellant free of charge to its account holders including the respondent, therefore, respoident is not a consumer falling within the definition of Consumer Protection Act, 1986 and that respondent did not deposit any cheque for its encashment in his SB A/c with the appellant-Bank nor the said cheque was stolen from the appellant office and the present case involves very complicated issued required to be proved by way of evidence before the civil court only and this Forum has no jurisdiction to adjudicate and decide this issue. A criminal case is pending for investigation and till the decision of the aforesaid case, the Honble Forum may stay the proceedings.
5. The plea of the appellant-Bank that the respondent is not a consumer and does not come within the definition of consumer as contemplated u/s 2(1)(o) and 2(1)(d) of the Consumer Protection Act. Section 2(1)(o) brings the service of the Bank within the net of service which is as under :-
service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical, or other energy, board of lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
Similarly Section 2(1)(d) (ii) of the Consumer Protection Act also provides a person by availing these services for a consideration as under :-
[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person,.
6. Consideration is inherent in the entire service of operation of S/B account and to say that account holder is not charged for deposis or cheques and is therefore not a consumer is not correct.
7. As regards the plea that the respondent had failed to deposit the said cheque in the said account of appellant- Bank on 07.09.06, the District Forum has after scrutinizing the Ex. CW 1/A) which is the receipt of the deposit has returned a finding of fact in favour of respondent and there is no reason to interfere with it.
8. As regards the documents being referred to and relied upon by the learned counsel for the appellant (Ex. CW 1D) these are letters sent by the Sr. Branch Manager of the appellant-Bank to the Chief Manager, SBI, Parliament Street regarding the loss of cheque in question as well as letters sent by the PNB, Meerut Branch and not with regard to the deposit slips.
9. Whenever any customer or for that purpose deposits consumer deposits any cheques with the Bank, the Bank is liable for any loss to the consumer arising out of its misplacement, theft or unauthorized encashment as it amounts to deficiency in service arising from the act of negligence. The moment a receipt of deposit is issued by a Bank, the consumer becomes entitled to the loss if the Bank misplaces the cheque or the cheque falls in the hands of unauthorized person for encashment.
10. The word deficiency as defined u/s 2(1)(g) of the Consumer Protection Act means :-
any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
11. In terms of Section 14(1)(d) of the Consumer Protection Act, every consumer is entitled for compensation as to the loss and injury that is, for the mental agony, harassment suffered by him due to the negligence of the opposite party and other injustices done to him. The word compensation also includes the awarding of interest in such like cases.
12. Foregoing reasons persuade us to dismiss the appeal being devoid of merit.
13. The impugned order shall be complied with within one month from the date of receipt of this order.
14. Bank Guarantee/FDR, if any furnished by the appellant, be returned forthwith.
15. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.
16. Announced on 25th day of February, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member ysc