National Consumer Disputes Redressal
Ajay Kumar Singh vs Canara Bank on 18 August, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1248 OF 2015 (Against the Order dated 17/03/2015 in Appeal No. 187/2014 of the State Commission Bihar) 1. AJAY KUMAR SINGH S/O SH. KISHORI SINGH PROP; MAA GYATRI GEE TRADERS R/O BHABHUA WARD NO. 04 CHENPUR ROAD, P.S BHABHUA KAIMUR BIHAR ...........Petitioner(s) Versus 1. CANARA BANK THROUGH BRANCH MANAGER BRANCH KEWA P.S- CHENPUR, KAIMUR BIHAR ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
For the Petitioner : Mr. Suwarn Rajan, Advocate For the Respondent :
Dated : 18 Aug 2015 ORDER
This revision is directed against the order of the Bihar State Consumer Disputes Redressal Commission, Patna (in short, "the State Commission") dated 17.3.2015 in first appeal No.187/2014 whereby the State Commission allowed the appeal of the opposite party against the order of the District Forum, Kaimur, Bhabhua, set aside the order and dismissed the complaint.
2. Briefly put, facts relevant for the disposal of the revision petition are that the petitioner is engaged in the business of trading in the name and style of Maa Gayatri Traders. He had opened a current account in respect of said business with the opposite party bank. The bank had extended cash credit facility against the said account. It is the case of the complainant that he deposited cheque No.151302 for Rs.2,22,750/-, cheque No.151305 for Rs.5,24,700/- and cheque No.389329 for Rs.9,96,571/- issued in favour of his firm by purchasers of rice for collection. Two cheques were drawn on Oriental Bank of Commerce and the third cheque was drawn on Vijaya Bank. The amount of said cheques was not credited in the account of the complainant. The complainant, therefore, checked with the bank and no satisfactory answer was given to him. Claiming this to be deficiency in service complainant filed a consumer complaint in the concerned District Forum.
3. The opposite party bank in the written statement claimed that the said cheques were sent for collection at Varanasi branch of the bank. The concerned banks did not honour the cheques because of insufficient funds. The dishonoured cheques were, therefore, transmitted by the Varanasi bank to the opposite party bank but the cheques were lost in the postal transit. The opposite party, thus, pleaded that the cheques have lost due to deficiency on the part of the postal department and, therefore, the opposite party cannot be held guilty of deficiency in service. It was also pleaded that the complainant is a borrower of OP bank and, therefore, he cannot be termed as a consumer qua the bank.
4. On appraisal of the pleadings and the evidence, the District Forum found the opposite party bank guilty of deficiency in service and directed the opposite party to pay to the complainant within two months a sum of Rs.12,44,021/- against the amount of the lost cheques besides Rs.10,000/- as compensation for mental agony. It was observed that if the opposite party fails to pay the amount within two months the amount shall carry 9% interest from the date of institution of complaint till realization.
5. Being aggrieved of the order of the District Forum, opposite party bank filed an appeal. The State Commission after hearing the parties allowed the appeal and set aside the order of the District Forum with following observations: -
"Considering the rival case of the parties and the materials brought on the record as the order under appeal, it would appear that it is not in dispute that the complainant-respondent has deposited three cheques of aforesaid amount for its collection in cash credit account through which the complainant was running the business of trade. However, the fact that the cheques were not honoured for want of insufficient fund is also not denied before this Commission. Since the cheque amount could not be honoured for want of insufficient fund, the cheque amount could not be credited into account of the complainant. As regards the loss of cheques to the appellant-Bank, which was lost in transit cannot be a valid ground for direction to credit the cheques amount into the account of the complaint and allow a compensation. Had it been a case of loss of cheques in postal transit, which deprive the complainant to get the value of the cheque after its deposit to the drawer of the cheque, then the appellant bank can be made responsible for the same. Here, in the instant case, the drawer of the cheques has insufficient balance and as such dishonoured cheques being returned. The complainant did not suffer any loss, however, the complainant was advised to present fresh cheque. In such circumstance, on consideration of the entire facts and circumstances of the case brought before us, we are unable to sustain the order under appeal."
6. Learned Shri Suwaran Rajan, Advocate has contended that the impugned order of the State Commission is erroneous and there is no justification for the observation that the complainant did not suffer any loss because of loss of the aforesaid three cheques. It is further contended that the State Commission has failed to appreciate that because of loss of the cheques the complainant/petitioner was deprived of his remedy to file complaint against the drawers of the cheques under Section 138 N.I. Act and also that because of the silence on the part of the opposite party bank the complainant has been deprived of his civil remedy to recover the amount of cheque from the drawers of the cheques.
7. I have carefully perused the record. I do not find merit in the contention of the petitioner. At the outset it may be mentioned that admittedly the complainant had opened an account with cash credit facility with the opposite party bank in respect of his trading business. Thus, the services of the bank availed by the complainant are in relation to a commercial purpose. Section 2 (1) (d) (ii) of the Consumer Protection Act defines a consumer in relation to the services as a person who hires or avails of services for consideration, present past or future. The section, however, carves an explanation to this definition by providing that "but does not include a person who avails of such services for any commercial purpose." From the pleadings of the parties and the evidence it is clear that the subject account with cash credit facility was opened in relation to the trading business. Therefore, the services of the opposite party bank were availed by the complainant for commercial purpose and as such he falls within the explanation to the definition of consumer and cannot be termed as a consumer. No doubt explanation to Section 2 (I) (d) puts a restricted meaning to commercial purpose by providing that commercial purpose does not include use of goods or availing of services by a person exclusively for the purpose of earning livelihood by means of self-employment. The complainant has nowhere pleaded that he was doing trading business exclusively for earning livelihood by means of self-employment. Therefore, explanation to section (2) (I) (d) is of no avail to the complainant. As the complainant/petitioner is not a consumer, the foras below had no jurisdiction to entertain the complaint.
8. Even if it is presumed that the complainant is a consumer then also it is not a case of deficiency in service in view of the specific stand of the opposite party/respondent that the cheques were not lost due to the negligence of the bank but were lost during postal transit. For the loss of cheques in postal transit the respondent/opposite party cannot be held deficient in service. Otherwise also it has come in evidence that all the three cheques were dishonoured by the drawee banks. There is nothing on the record to suggest that the complainant after the dishonor of the cheques approached the drawers of the cheques to issue fresh cheques or pay the amount of cheques to them. He has not even made them party to the complaint. Therefore, one cannot say whether or not the complainant has already received the amount of cheques from the respective drawers. Thus, in absence of any evidence to this evident even the loss caused to the complainant is not established.
9. In view of the discussion above, I am of the opinion that the appeal of the opposite party was rightly allowed and the order of the State Commission cannot be faulted. The petitioner has failed to show any material irregularity or jurisdictional error in the impugned order of the State Commission, which may call for interference in exercise of the revisional jurisdiction.
10. Revision petition is, therefore, dismissed.
......................J AJIT BHARIHOKE PRESIDING MEMBER