State Consumer Disputes Redressal Commission
Rajinder Saini vs Icici Bank on 7 August, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.84 of 2017
Date of Institution : 06.02.2017
Order Reserved on: 03.08.2017
Date of Decision : 07.08.2017
Rajinder Saini son of Sh. Janak Raj, resident of Kali Mata Mandir
Road, Dinanagar, Tehsil and District Gurdaspur.
.....Appellant/complainant
Versus
1. ICICI Bank, Branch Dinanagar, Tehsil and District Gurdaspur
through its Branch Manager.
2. ICICI Bank, Branch Gurdaspur, Tehsil and District Gurdaspur,
through its Manager.
.....Respondents/opposite parties
First Appeal against order dated
25.11.2016 passed by the District
Consumer Disputes Redressal Forum,
Gurdaspur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Gagandeep Singh, Advocate For the respondents : Sh. Nitin Kaushal, Advocate ............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 25.11.2016 of District Consumer Disputes Redressal Forum Gurdaspur (in short the 'District Forum'), directing OP bank to pay an amount of Rs.50,000/- to appellant as compensation for having suffered pecuniary loss and harassment on account of the lost cheques, besides to pay him Rs.10,000/- as costs of litigation and future process of recovery of the proceeds of the '2' nos of lost First Appeal No.84 of 2017 2 cheques in question. Respondents of this appeal are the opposite parties in the complaint before the District Forum and appellant of this appeal is complainant therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant instituted complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he has been holder of Saving Bank Account No.027101517866 in ICICI Bank, Branch Dinanagar. It was further averred that on 09.11.2015, he presented two cheques bearing no.000021 and 000022 for encashment and for adjustment in his account, each cheque was of Rs.2,00,000/- to be drawn in the Bank of Baroda, Branch Pathankot. The above said cheques were issued by Sh.Vishal Handa of Pathankot as drawer. The ICICI Bank Branch Dinanagar sent both the cheques to Pathankot Bank Branch for clearance and the Bank of Baroda sent both the cheques to Gurdaspur Branch with the Memo "FUNDS INSUFFICIENT". Branch Manager of OP no.2 bank admitted this fact. It was further averred that after presenting the cheques in ICICI Bank, Branch Dinanagar, he approached OPs for receipt of cheques and the memos, but they put him off on one pretext or the other. The OPs assured him that the above said cheques and Memos would be sent to him through post, but he did not receive the cheques and Memos from them. The OPs failed to handover the cheques and Memos to him, despite repeated requests. Branch Manager of OP no.2 admitted that the Bank received the cheques and Memos, but the same were not traceable. They requested for some time to trace out the above First Appeal No.84 of 2017 3 cheques and Memos, but they failed to trace out them. The complainant again approached OP no.2 on 05.04.2016, but he was told by the Branch Manager that the cheques and Memos have yet not been traced out. The complainant alleged deficiency in service and unfair trade practice on the part of OPs. The complainant prayed that OPs be directed to pay Rs.4,00,000/- alongwith interest @12% per annum; further to pay Rs.25,000/- as compensation for mental harassment and Rs.15,000/- as litigation expenses.
3. Upon notice, OPs appeared and filed joint written reply by raising preliminary objections that the complainant has no cause of action to file the present complaint. They denied any deficiency in services on the part of the ICICI Bank. The complainant did not fall within the definition of Consumer, as provided under Consumer Protection Act 1986 and the complaint is not within limitation and the complaint of the complainant is bad for non-joinder of necessary parties. On merits, it was averred that the cheques were sent to Bank of Baroda for clearance. After presentation, both cheques in clearing got rejected by Bank of Baroda due to reason "Funds Insufficient". Nobody came to get the cheques and firstly the cheques were dispatched through courier and afterwards through registered post, but both times they were received back undelivered, as the address was not traceable and bank lost these cheques. The complainant intentionally did not file any complaint against Vishal Handa, the drawer the cheques. They denied any deficiency in service and unfair trade practice on their part and prayed for dismissal of the complaint.
First Appeal No.84 of 2017 4
4. Complainant tendered in evidence his own affidavit Ex.CW1/A, alongwith other documents Ex.C-1 to Ex.C-4 and closed the evidence. As against it, OPs tendered in evidence affidavit of Harneet Singh Manager ICICI Bank Ex.OP-1, alongwith other documents Ex.OP-2 to Ex.OP-8 and closed the evidence. On conclusion of evidence and arguments, the District Forum allowed the complaint as referred to above. Aggrieved by above order, the complainant now appellant has directed this appeal against the same for enhancement of compensation.
5. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. Both the pleadings and evidence adduced on record by the parties have been evaluated by us with assistance of counsel for the parties. Affidavit of complainant Rajinder Saini is Ex.CW-1/A on the record in support of his averments. Ex.C-1 is the receipt of depositing the cheques with OP bank. Ex.C-2 is the certificate issued by OP bank to the effect that Rajinder Saini maintained account bearing number 027101517866 in the bank. Two cheques of Rs.2 lakh each were presented in clearing, but the both the cheques were got rejected from bank of Baroda due to insufficient funds. Both cheques were dispatched through registered post, but post cannot be delivered, as address was not traceable. OP bank lost above cheques in transit. The complainant filed complaint against Vishal Handa, drawer of the above cheques under Section 138 of The Negotiable Instrument Act and Under Section 420 IPC, before Illaqa Magistrate Gurdaspur, vide Ex.C-3 on the record. Notice was issued to Vishal Handa by First Appeal No.84 of 2017 5 JMIC Gurdaspur which is Ex.C-4 on the record. OPs also led counter evidence consisting of affidavit of Harneet Singh, Manager of ICICI Bank Ex.OP-1 on the record. He testified to this fact that cheques and memos were dispatched to complainant firstly through courier and thereafter through registered post, but they were received back, as no one was available there and afterward the cheques were lost. He further testified that cheques were dishonored due to insufficient funds in the account of drawer. Ex.OP-2 is the slip for deposit of above cheques with OP bank. Ex.OP-3 is the certificate issued by Bank of Baroda to the effect that the cheques were returned by this bank due to insufficient funds in the account of drawer. Ex.OP-4 is the reply sent to ICICI Bank by Supdt. Post Office, Gurdaspur to the effect that article u/r has been returned to sender on dated 13.01.2016 and delivered to sender on dated 18.01.2016 for delivery to the customer. Even the report Ex.OP-7 and Ex.OP-8 may also be referred to in this regard.
6. The evidence of complainant is that two cheques were lost by OP bank from its custody. The cheques are not proved to have been lost in transit, but from the possession of OP bank. This fact is substantiated on the record by the documents of Postal Department, vide Ex.OP-4 to Ex.OP-8. The cheques could not be honored on account of insufficient funds in the account of drawer Vishal Handa. The complainant proceeded against Vishal Handa under Section 138 of The Negotiable Instrument Act. The complainant has been put to unnecessary harassment on account of loss of original cheques and memos. The complainant has to go in First Appeal No.84 of 2017 6 for secondary evidence by facing lot of difficulties in that regard in litigation with Vishal Handa. The OPs are ex-facie negligent in causing the loss of cheque and memos from their possession. The complainant relied upon law laid down by the National Consumer Commission in case "Mohd. Ayub Vs. Central Bank of India and another" 2006(2)CPJ-185, wherein it has been held that bank failed to ensure credit of amount for a period of six months. Bank directed to make payment of cheque with cost as bank is guilty of deficiency in service. The submission of counsel for OPs is that complainant has a legal right to procure cheques from the drawer in lieu of lost cheques under Section 45 A of the Negotiable Instrument Act, 1881. It would be a quite herculean task for the complainant to embark on this project, when complainant is already litigating with drawer of the cheque Vishal Handa. The drawer of the cheques, Vishal Handa would not issue them to him in a facile manner. We are of this view that remedy of complainant is under Section 45A of The Negotiable Instrument Act. The entire amount of cheques cannot be granted to him and only the amount of compensation for his undue harassment and loss of opportunities is to be granted to him. The District Forum keeping in view Section 45-A of the Negotiable Instrument Act, awarded the amount of compensation of Rs.50,000/- to the complainant and Rs.10,000/- as cost of litigation against OPs. We are of this view that the compensation must be commensurate with the hardship to be faced by complainant in the ongoing litigation with drawer of cheque Vishal Handa. We, thus, raise the amount of compensation from Rs.50,000/- to Rs.70,000/- in this appeal and First Appeal No.84 of 2017 7 further raise the litigation expenses from Rs.10,000/- to Rs.20,000/- in this appeal. By raising the compensation for undue harassment to Rs.70,000/- and litigation expenses to Rs.20,000/-, we do not find any other merit in the appeal. The amount of Rs.4,00,000/- as claimed by complainant, being amount of cheques, cannot be awarded to him, as per statutory provision of Section 45A of the Negotiable Instrument Act.
7. As a result of our above discussion, we partly accept the appeal of the appellant and enhance the amount of compensation to Rs.70,000/- and litigation expenses to Rs.20,000/- payable by OPs to complainant within 30 days from the date of receipt of certified copy of this order.
8. Arguments in this appeal were heard on 03.08.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
9. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER August 07, 2017 MM