State Consumer Disputes Redressal Commission
Gurnam Singh vs Icici Bank Ltd. on 3 February, 2023
Appeal No. Sh. Gurnam Singh 03.02.2023
50 of 2012 Vs.
ICICI Bank Ltd. and Anr.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 10.04.2012
Date of Final Hearing: 19.01.2023
Date of Pronouncement: 03.02.2023
First Appeal No. 50 / 2012
Sh. Gurnam Singh S/o Sh. Harwansh Singh
R/o Gandhi Nagar, Ward No. 02, Lalkuan
District Nainital
(Through: Sh. Arun Uniyal, Advocate)
.....Appellant
VERSUS
1. ICICI Bank Ltd.
Through Branch Manager
G.B. Pant Marg, Tikoniya Chowk
Haldwani, District Nainital
2. ICICI Bank Ltd.
Through Managing Director / Chairman
ICICI Bank Tower
Bandra Kurla Complex, Bandra, East Mumabi
(Through: Sh. Nitin Kumar, Advocate)
.....Respondents
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against the judgment dated 13.03.2012 passed by the learned District Consumer Disputes Redressal Forum, Nainital (hereinafter 1 Appeal No. Sh. Gurnam Singh 03.02.2023 50 of 2012 Vs. ICICI Bank Ltd. and Anr.
to be referred as the District Commission) in consumer complaint No. 03 of 2011 styled as Sh. Gurnam Singh Vs. ICICI Bank Ltd., wherein and whereby the complaint was dismissed.
2. The facts giving rise to the present appeal, in brief, are as such that the appellant - complainant was operating a Saving Bank Account No. 024001503361 with the opposite party No. 1 - Branch of Opposite Party No. 2 since 21.06.2005. The appellant - complainant received a cheque of Rs. 4 Lacs (Rupees Four Lacs only) bearing No. 010857 dated 28.10.2009 drawn from account No. 4258 of The Nainital Bank Ltd., Branch Lal Kuan, District Nainital, which was deposited in the above account of the appellant
- complainant. Upon enquiries, it came to the knowledge of the appellant
- complainant that the said cheque was dishonoured and was returned from The Nainital Bank Ltd., Branch Lal Kuan, District Nainital on 31.10.2009; since 31.10.2009 the appellant - complainant continuously approached the bank branch and made enquiry about the proceedings of the said cheque, but each time, the authorities of the opposite parties - Bank kept on delaying and hiding the information regarding the proceeds of the above said cheque and on every occasion the appellant - complainant was told to come to the branch again and no heed was ever paid to the above request of the appellant - complainant. Inspite of wondering and approaching the opposite parties Bank branch several times, no appropriate reply was given, thereby the opposite parties - Bank have violated the terms of the banking services, which are solely based on fiduciary relationship between the banker and the account holder, i.e. banking service provider and its customer. The appellant - complainant dispatched the legal notice to the opposite parties on 01.11.2010, consequent upon, a letter was dispatched to the appellant - complainant from the bank on 26.11.2010, wherein it was mentioned that the cheque in question was received on 20.11.2009 by Sh. Ritesh, a family member of the complainant, whereas such Ritesh is neither 2 Appeal No. Sh. Gurnam Singh 03.02.2023 50 of 2012 Vs. ICICI Bank Ltd. and Anr.
the employee, nor his family member. After receipt of the bank latter dated 26.11.2010, the appellant - complainant went to the First Flight Courier, Haldwani and enquired about the POD No. B 13652589 dated 18.11.2009, then it came to the knowledge of the appellant - complainant that the such POD number is incomplete and does not belong to the First Flight Courier, Haldwani and the First Flight Courier has no knowledge about it, thereafter, the appellant - complainant contacted the customer service center of First Flight Courier Ltd. through email and to get knowledge about POD number B13652589. In reply thereby the First Flight Courier Ltd. vide its letter dated 30.12.2010 has informed the appellant - complainant that the POD number is very old, hence, showed their inability to furnish any information about it. The appellant - complainant is the old customer of the opposite parties and the opposite parties inspite of providing the best service, has given an incorrect and fake information about banking transaction and thereby have lost his valuable cheque in transit. In result thereof, the appellant - complainant has to deprive of his legal right to file a suit under the provision of law of Negotiable Instrument Act against the drawer of the cheque in question. By filing the complaint, the appellant - complainant has sought Rs. 4 Lacs (Rupees Four Lacs) the amount of cheque alongwith compensation of Rs. 40,000/- (Rupees Forty Thousand only) and Rs. 42,000/- (Rupees Forty Two Thousand only) for mental and physical agony and litigation costs of Rs. 15,000/- (Rupees Fifteen Thousand only) from the opposite parties.
3. In the written statement, the opposite parties have averred that when the cheque in question got dishonoured and was received back by the opposite party No. 2, it was sent to the appellant - complainant by the opposite party No. 2 without any delay through First Flight Couriers from Mumbai which was delivered on the complainant's address on dated 20.11.2009 and one Sh. Ritesh received the said cheque on behalf of the 3 Appeal No. Sh. Gurnam Singh 03.02.2023 50 of 2012 Vs. ICICI Bank Ltd. and Anr.
complainant as it is evident from the running sheet online and the said courier service records and this very fact was told to the complainant many times and even then, keeping in mind the interests of complainant, upon enquiry from the said courier service, the said courier service has issued a letter dated 11.06.2011 to the opposite parties to this effect. If the complainant was not satisfied, he should have file the complaint against the said courier service and not against the answering opposite parties, as such the present complaint is not maintainable. It is further averred that the complainant merely with an intention to harass the answering opposite parties, has filed a wrong complaint against the answering opposite parties and has not made First Flight Couriers opposite party in this complaint, though it was a necessary party to be impleaded. The cheque in question was dishonoured as the said cheque amount was not credited to the complainant's account. Inspite of that the complainant should have visited the said person issuing the cheque, but he never did so, as such the answering opposite parties are not liable to pay cheque amount in the light of the case law laid down by the Hon'ble National Commission in the case of Hari Ram Garg versus State Bank of Patiala & another, 1 (2010) CPJ 30 (NC). Thus, the answering opposite parties are not responsible at all and are not liable for any relief as sought by the complainant, hence, the complaint is liable to be dismissed with heavy cost.
4. The District commission after perusing the material and evidence on the record, passed the judgment on dated 13.03.2012 wherein it is held as under:-
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dkEiySDl] ckUnzk bZLV] eqEcbZ&egkjk'Vª 400001 }kjk çcU/k funs"kd @ ps;jeSu ds fo:} miHkksDrk laj{k.k vf/kfu;e 1986 dh /kkjk&12@13 ds vUrxZr yk;k x;k ifjokn [kkfjt fd;k tkrk gSA i{kdkj viuk&viuk O;;
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5. Aggrieved by the aforesaid judgment of the District Commission, the appellant - complainant has preferred the present appeal contending that the respondents have booked the service of courier company to dispatch the dishonoured cheque to the appellant - complainant, but the booking receipt was never filed on the record of the District Commission on behalf of the respondents. It is further averred that First Flight Courier Online Delivery Tracking System has not recognized the such POD number B 13652589 of its courier company, this fact has transpired that the opposite parties as well as courier company has mislead the Commission. It is further averred in the appeal that it is also conceded by the respondents - opposite parties that the envelope of dishonoured cheque by the First Flight Courier was delivered to some Ritesh on behalf of the appellant - complainant, it thereby means that as per the version of the respondents - opposite parties such post was never delivered to the appellant - complainant himself. It is further averred that there is no provision for asking duplicate cheque from the drawer under the Negotiable Instrument Act. As per Negotiable Instrument Act, it was the responsibility of the respondents - opposite parties to transit the dishonoured cheque to the appellant - complainant and for that purpose, the service of the courier company was taken by the Bank and if any negligence is done on the part of the courier company, then for such negligence the respondents - opposite parties are responsible, because the respondents - opposite parties made an agreement with the First Flight Courier Company for availing its service to deliver the post of the Bank to the addressee. Thus, the District Commission has passed the impugned 5 Appeal No. Sh. Gurnam Singh 03.02.2023 50 of 2012 Vs. ICICI Bank Ltd. and Anr.
judgment incorrect way and has not exercised the jurisdiction, which was vested in it. The District Commission has acted upon the material illegality and irregularity while passing the impugned judgment. Therefore, the impugned judgment is liable to be set aside.
6. It is an admitted fact that the cheque in question was submitted before the opposite parties Bank for its encashment. The Pay in Slip for the deposition of the said cheque in the bank of the opposite parties is available on the record which bears paper No. 16 of the record of this Commission. The statement of account of the appellant - complainant (paper No. 4/4 of the District Commission's record) has also depicted that on dated 31.10.2009 Rs. 4,00,000/- (Rupees Four Lacs) was deposited in the account of the appellant - complainant, but on the very same day, the same amount was debited. It is also undisputed that the appellant - complainant was operating the saving bank account No. 024001503361 in the branch of opposite parties Bank. It is also an admitted fact that the appellant - complainant deposited a cheque number 010857 of Rs. Four Lacs dated 28.10.2009 in his account, which was being operated at the opposite parties Bank branch.
7. In para No. 25 of the written statement of the opposite parties, it is averred that the above mentioned cheque was dishonoured and sent back by the opposite party No. 2 to the appellant - complainant through First Flight Couriers from Mumbai, which was delivered on the appellant - complainant's address on 20.11.2009 and received by one Sh. Ritesh. It means the said cheque was dispatched from the respondents - opposite parties on 18.11.2009, i.e. after a lapse of more than 23 days. The return memo of the dishonoured cheque was alleged to have been received by Sh. Ritesh as per the version of the courier company. The respondents - opposite parties have submitted a letter dated 11.06.2011 (paper No. 24/4 6 Appeal No. Sh. Gurnam Singh 03.02.2023 50 of 2012 Vs. ICICI Bank Ltd. and Anr.
of the District Commission's record) of the above courier company stating that AWB B13652589 from ICICI Bank CMS which was booked on 18th November, 2009 and delivered on 20th November, 2009 receivable by Mr. Ritesh and as per soft copy records. Thus, as per the letter of First Flight Couriers Ltd. the respondent - opposite parties have not submitted the receipt of Ritesh Kumar having his signature before the District Commission in order to show that the return memo alongwith the dishonoured cheque vide AWB B13652589 was handed over to Sh. Ritesh. In absence of such receipt of Sh. Ritesh and in absence of soft copy of First Flight Couriers Ltd. it cannot be presumed the contention of the respondent
- opposite parties as genuine and true, because when the appellant - complainant had contacted the First Flight Couriers Ltd., it was apprised by the courier company to the appellant - complainant that we are unable to provide any details. As the said cment is very old, we have the date only for 3 months. Hence, providing details of the said cment is not possible. This email from [email protected] was sent to Sh. Chandra Shekhar Kargeti (Advocate of the appellant - complainant) on Thursday, December 30, 2010. Through this email delivered on 30.12.2011 to the appellant - complainant's counsel, it was informed that we (courier company) are unable to provide any details regarding the consignment No. B 13652589 dated 18.11.2009 booked from Haldwani. It is thereby meant that on dated 30.12.2011, the courier company was unable to provide any information about the envelope of dishonoured cheque, how the said courier company would have been able to give an information on dated 06.11.2011 (paper No. 24/4 of the District Commission's record) to the Bank, because the above mentioned courier company had the dates of only for three months and after the lapse of such three months from dated 20.11.2009, the said courier company was unable to provide the details regarding the consignment No. B 13652589 dated 18.11.2009 to the Bank.7
Appeal No. Sh. Gurnam Singh 03.02.2023
50 of 2012 Vs.
ICICI Bank Ltd. and Anr.
8. The burden of proof that the consignment was received by Sh. Ritesh, who was alleged to be a family member or an employee of the appellant - complainant rests on the shoulder of the respondent - opposite parties, which was not discharged by the respondent - opposite parties by submitting an affidavit in evidence of such employee of the First Flight Courier Company Ltd. who delivered such post to Ritesh as an employee or member of the appellant - complainant.
9. Apart from it there was neither any agreement between the appellant
- complainant and the above said courier company nor did the appellant - complainant get any service of such courier company by paying its charge, hence, it was not necessary for the appellant - complainant to implead the First Flight Courier Company as a necessary party in the complaint. In such circumstances the arguments submitted to this respect is not tenable.
10. Thus, the respondent - opposite parties have been unable to succeed that such consignment B 13652589 was actually delivered to Ritesh, who was employee or family member of the appellant-complainant and in absence of cogent and reliable evidence, it is proved that the dishonoured cheque was lost in transit.
11. Here it is to mention that as per the Negotiable Instrument under Section 138, the limitation for filing the complaint before the Criminal Court is 15 days from the expiry of one month demand notice. In the instant case, the dishonoured cheque 010857 has lost in transit and without such dishonoured cheque, the appellant - complainant could not initiate proceeding against the drawer under Section 138 of N.I. Act. On record it is not proved that on which date the cheque No. 010857 was dishnoured and when the return memo slip was prepared by the Bank for sending to the appellant - complainant.8
Appeal No. Sh. Gurnam Singh 03.02.2023
50 of 2012 Vs.
ICICI Bank Ltd. and Anr.
12. Learned counsel for the respondents - opposite parties has relied on the cited case law State Bank of Patiala Vs. Rajender Lal & Anr., IV (2003) CPJ 53 (NC), wherein it is held that when the cheque was dishonoured due to insufficiency of fund and has lost in transit, it was legally opened for the complainant to initiate civil / criminal proceedings and the opposite party - bank is not liable to pay cheque amount. In this backdrop, the petitioner could not have been made to pay Rs. 75,000/- being the entire amount of the cheque with interest by the District Forum / State Commission. However, we hasten to add that as there was deficiency in service on petitioner's part in not informing the respondent No. 1 before filing of complaint about dishonor of cheque on 19.05.1999 and its having been lost in transit, it cannot escape the liability for payment of reasonable compensation to respondent No. 1 which we assess at Rs. 15,000/-.
Therefore, order under challenge being legally erroneous deserves to be modified.
13. The appellant - complainant has submitted a case law Bank of Baroda & Anr., Vs. Chitrodiya Babuji Divanji, IV (2019) CPJ 2 (NC), wherein the National Commission has held that:-
"The Respondent constantly pursued his case with the Petitioner for return of dishonoured cheque and cheque return memo. Unfortunately, the cheque was lost by the Bank. The Respondent did not receive the bounced cheque nor did he get the cheque amount of Rs. 3,60,000/-. The Petitioner failed to return the cheque to the Respondent and the Respondent was deprived of his legal right to file a case under Section 138 of Negotiable Instrument Act against the account holder. Thus, 9 Appeal No. Sh. Gurnam Singh 03.02.2023 50 of 2012 Vs. ICICI Bank Ltd. and Anr.
the Respondent had to suffer a loss of Rs. 3,60,000/- . When the cheque in question had been lost by the Petitioner Bank, it is the responsibility of the Bank to compensate the loss."
14. We are of the view that the law laid down in Bank of Baroda & Anr. (supra) is fully applicable to the case in hand. As per the cited case law, we are also of the opinion that the appellant - complainant has succeeded to prove that the dishonoured cheque had lost in transit due to which the appellant - complainant has deprived of his legal right to file a criminal case under Section 138 of N.I. Act against the drawer / account holder and the appellant - complainant had to suffer a loss of Rs. 4 Lacs.
15. Thus, the District Commission has acted upon with material illegality and irregularity while passing the impugned judgment and the finding of the District Commission concerned is not appropriate and not according to law; the District Commission has exceeded its jurisdiction which is not vested in it. Hence, we are inclined to interfere with the impugned judgment. Accordingly, the impugned judgment is liable to be set aside.
16. Appeal is allowed. Impugned judgment and order dated 13.03.2012 passed by the District Commission, Nainital is hereby set aside. The respondents are directed to pay to the appellant a sum of Rs. 4 Lacs (Rupees Four Lacs only) of cheque amount alongwith compensation of Rs. 40,000/- (Rupees Forty Thousand only) and costs of litigation Rs. 15,000/- within one month from the date of this judgment, failing which the appellant is liable to get simple interest @ 8% per annum from the date of this judgment till its realization from the respondents - opposite parties. Costs made easy.
10 Appeal No. Sh. Gurnam Singh 03.02.2023
50 of 2012 Vs.
ICICI Bank Ltd. and Anr.
17. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this order alongwith original record of the District Commission be sent to the concerned District Commission for record and necessary information.
18. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 03.02.2023 11