State Consumer Disputes Redressal Commission
Ashish Enterprises vs Interpayment Visa Travellers Cheque on 23 January, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 23rd January 2006 Complaint Case No.C-73/97 M/s Ashish Enterprises Complainant Proprietor Sh. Ashish Gupta C-6/34, Sufdarjung Dev. Area, New Delhi. Versus (1)M/s Interpayment Visa Travellers Cheque Opposite Party No.1. 503 & 507, Merchantile House, Through 15, Kasturba Gandi Marg, Mr. Vikas Madan, New Delhi. Advocate. (2) M/s Interpayment Services Ltd. Opposite Party No.2 P.O. Box 12, Poole, Dorset BH 152 BB, England. 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) Complainant purchased from Oriental Bank of Commerce eight Travellers Cheque which were of 500 US $ issued by the OPs. He utilised some of the cheques and handed over the remaining which were of total value of 2500 US $. On account of some of the travellers cheques having been declared as lost and stolen by the respondents, the complainant suffered damages as to the loss of business opportunity and defamation, and through this complaint has sought compensation of Rs. 8.52 lakhs alongwith pendentilite and future interest @ 18%.
Put briefly, the facts giving rise to this complaint, as stated by the complainant, are as under:-
2. Respondents M/s Inter-Payment VISA Travellers Cheques are the agents/representatives in India of their principals M/s Inter-Payment Services Ltd., P.O. Box-12, Poole, Dorset, BH-152 BB England and are operating in India from the address as mentioned in the memorandum of the parties. Complainant had booked a stall in Indian pavilion to be installed at Modern Living Exhibition at Tel Aviv, Israel scheduled for July 1995.
With that purpose in view and for other business commitments abroad, the complainant along with his father planned a visit abroad. Accordingly the complainant purchased 8 VISA Travellers Cheques Sl. No. TC 1582002668013 to 1582002668020 each for 500 USD on 28-6-95 for bonafide consideration from Oreintal Bank of Commerce through debiting the equivalent of said amount to the current account No. 1082 maintained by the complainant with said branch of OBC.
Three TCs out of said lot were issued by the complainant during his visit abroad.
3. On return from abroad the complainant surrendered to OBC the remaining TCs amounting to USD 2,500. However, after few days of surrender of the said cheques, the complainant was informed by the Oriental Bank of Commerce that the TCs surrendered by the complainant to them when sent for clearance, have been returned back as stolen. The complainant immediately approached the bank and asked them to investigate the matter as the said TCs were purchased by the complainant from that very bank itself. After few days the complainant was informed by the bank that the report stating these TCs to be stolen was wrong and the same stands cleared.
4. In the meantime the complainant received a fax dated 13-9-95 from M/s Ocean Company Ltd., Tel Aviv, Israel that TCs No. 1582002668013 & 1582002668016 for 500 USD each issued by the complainant to them have been returned to them by the City Bank with the remarks Lost and Stolen. Doubting the standing and integrity of the complainant, M/s Ocean Company Ltd. also faxed the said message to Indian Trade Promotion Organisation and Commercial Section of Indian Embassy at Tel Aviv, thus damaging the reputation of the complainant in the business circles. The complainant took up the matter with his bankers, OBC. In reply the complainant received a letter dated 16-9-1995 from the bank enclosing a facsimile message dt. 8-9-95 from Inter Payment Services Ltd., OP No.2 and copy of the letter dated 11-9-95 from OP No.1 clarifying the matter that the bank has been informed by M/s Inter Payment Services Ltd., England that the aforesaid TCs were wrongly returned and it was an error on the part of the OPs and that the OPs have expressed their apologies.
5. Thus according to the complainant the dishonour of the aforesaid TCs with the endorsement of false imputation Lost and Stolen thereon is a clear case of negligence, default and mis-representation on the part of the OPs in flashing a fax message to the complainant as well as to ITPO and Indian Embassy, Tel Aviv which has lowered the complainant in the estimation of his Trade Associates and caused defamation and loss of reputation of the complainant in business circles, his associates and other personalities and authorities in business sphere of the complainant which is no less than a death knell for a budding entrepreneur in the export business.
Hence this complaint.
6. The claim of the complainant has been resisted by the OP mainly on the following three premises:-
(i) That the complainant is not a consumer qua the OPs in as much as that as many as two sets of travellers cheques were issued one of which was in favour of Prabhat Kumar and another set was in favour of Ashish Gupta, Proprietor of M/s Ashish Enterprises, i.e. the complainant company and as regardes the travellers cheques in question in favour of Prabhat Kumar the complainant has no locus standi to file this complaint on his behalf. At one place the complainant has referred Prabhat Kr. Gupta as his father while at other place he has shown him as Export Manager and therefore the complaint is not maintainable.
(ii) That there is no deficiency on the part of the OP No.2 as they received intimation from the American Bank intimating that certain travellers cheques had been lost.
Those particular two travellers cheques which are in question being international cheques involved the OPs bonafidely were bound to stop the payment immediately to protect the interest of the genuine holders of travellers cheques. In these circumstances it was not possible for the OP to take immediate detailed scrutiny and therefore the allegation of being negligent or deficient in service does not stick.
(iii) On scrutiny the OPs on their own removed stop payment instructions and informed the complainant through the bank. After this instruction the complainant had received the balance amount of travellers cheques which they have surrendered to the bank.
(iv) The travellers cheque holder at the time of purchase had to sign in person with the issuer and endorsement is made in the passport and then only he can claim the amount. In this case only Prabhat kumar can claim and not complainant.
(v) They used the travellers cheques for a commercial purpose against RBI guidelines and therefore service rendered by the OPs does not fall within the ambit of service as defined u/s 2(1)(o) of the Consumer Protection Act.
7. While confronting the aforesaid allegation of the OPs that travellers cheques were issued in favour of Prabhat Kumar and the complainant has no locus standi to file complaint on behalf of Prabhat Kumar as there was no privity of contract the complainant has showed that Shri Prabhat Kumar was his father and Sales and Export Manager of the partnership concern. In view of the debiting of the amount from the account of partnership concern owned by the complainant though the cheques were purchased in the name of Prabhat Kumar, we find substance in this contention as any person who avails or hires service for consideration includes a person who is beneficiary of other than person who hires service and since in the instant case the beneficiary was father of the proprietor of the partnership firm who incidentally happened to be Export and Sales Manager also, the complainant is well within his right to seek compensation on account of travellers cheques issued in the name of Prabhat Kumar though debited from the account of partnership concern and availed by the beneficiary Prabhat Kumar.
8. As regards the defence taken by the OPs that they had removed the instructions stopping payment, the removal instruction took place on 11-09-1995 and this fact shows that they have admitted mistake and negligence on their part by issuing the instructions about travellers cheque being lost and stolen and by the time they removed instructions the complainant had already suffered damage and loss in business.
9. As regards the objection that the transaction was of commercial nature, there is no force as the complainant did not further transmit and sell travellers cheque to earn profit. Any company, concern or any person who avails services of the bank or providers service of travellers cheque gets it for personal use may be for the company or individual. Commercial object is the one which is done for the purpose of earning profit by way of further transmission of the service to somebody else or sale of goods to other person.
10. In order to exonerate itself from the charge of deficiency in service the OPs counsel states that certain dates which according to him are of great significance. Travellers cheques were purchased on 28-6-95 and returned on 17-7-95. Complainant surrendered 2500 US $ on 19-7-95. After 4-5 days from 19-7-95 instructions were given to the bank by the OPs about cheques having been lost and stolen.
These were removed on 1-8-95 and amount equal to 2500 US $ were credited in the account of the complainant. Complainant received FAX for the first time on 13-9-95 and the complainant had sufficient time to inform his counter part about the removal of the instruction.
11. Be that as it may and even if the contentions of the Counsel for the OP are accepted the fact remains that the instructions of scrutiny were removed after the complainant had already suffered or after the event. OPs were therefore negligent in not informing the bank about the travellers cheques having been lost. In our view the act in informing the instruction of lost and stolen was not bonafide but an act of negligence which come within the meaning of deficiency as defined u/s 2(1)(g) of the Consumer Protection Act meaning 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.
12. For such kind of deficiency the provider of service cannot be compelled to compensate the complainant as to the actual amount he would have earned by way of business transaction and other kind of losses, defamation and loss of reputation.
The only object of the Consume Protection Act is to commensurately compensate the consumer as to the negligence of the opposite party.
13. Taking over all view of the matter and the nature of negligence and deficiency on the part of the OPs, we deem that compensation of Rs. 25,000/- which shall include cost of litigation would meet the ends of justice.
14. Complaint is disposed of in above terms. Payment shall be made within one month.
15. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
16. Announced on the 20th day of January 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj