State Consumer Disputes Redressal Commission
The Branch Manager, Punjab National ... vs Somasundaram.P.R on 9 January, 2014
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL.35/2006 JUDGMENT
DATED:09.01.2014 PRESENT :
JUSTICE SHRI. P.Q. BARKATHALI : PRESIDENT The Branch Manager, Punjab National Bank, (Old Nedungadi Bank) :
APPELLANT Thrikkannapuram, Kuttippuram.
(By Adv:
Sri.G.Ananthakrishnan) Vs. Somasundaram.P.R, S/o Radhakrishna Menon, Ambuja Nivas, Kalleppully, Palakkad.
:
RESPONDENTS The Manager, State Bank of Mysore, V.H.Road, Palakkad.
(R2 by Adv: Sri.r.S.Kalkura) JUDGMENT JUSTICE SHRI.P.Q. BARKATH ALI : PRESIDENT This is an appeal filed by the second opposite party in OP.No.152/04 on the file of CDRF, Palakkad challenging the order of the Forum dated, August 30, 2005 directing the appellant/second opposite party bank to return the cheque presented by complainant for collection with necessary endorsement and to pay a cost of Rs.1000/-.
2. The case of the complainant as detailed in his complaint and in his proof affidavit filed before the Forum in brief is this:
Towards Rs.1,60,000/- due to the complainant his friend Balakrishnan issued cheque No.768107 dated:12.9.2002 drawn on his account maintained in the appellant/second opposite party, M/s Nedungadi Bank now M/s Punjab National Bank, Thrikkannapuram Branch. The said cheque was presented for collection through first opposite party State Bank of Mysore, Palakkad Branch on 3.2.2003. The first opposite party has sent the cheque for collection to the second opposite party on the same day. On 28.6.2003 complainant received Ext.P2 intimation from first opposite party to the effect that the cheque was missing. Therefore there is clear deficiency of service on the part of the opposite parties. The complainant claimed Rs.1,60,000/- as compensation and cost of Rs.1000/-.
3. The appellant/1st opposite party State Bank of Mysore represented by its Palakkad Branch Manager in his version before the Forum contended thus:
First opposite party had sent the cheque for collection to second opposite party bank which was received by the second opposite party on 5.2.2003. The courier service agency has got the acknowledgement for delivery.
Therefore there is no deficiency of service on the part of this opposite party.
4. The appellant/second opposite party, Punjab National Bank (old Negungadi Bank) represented by its Thrikkannapuram Branch Manager in his version raised the following contentions:-
There is no privity of contract between the complainant and the opposite party. This opposite party did not receive any cheque as alleged by complainant and first opposite party Sri.Balakrishnan by his letter dated, December 26, 2002 requested for stopping all payments of all such cheques as he has lost some of his cheque leaves. That being so the complaint has to be dismissed.
5. Exts.A1 to A3 were marked on the side of the complainant and Ext.B1 to B5 were marked on the side of opposite parties before the Forum. On an appreciation of evidence the Forum found that there is deficiency of service on the part of the appellant/second opposite party and directed them to return the cheque to the complainant with due endorsement and to pay a cost of Rs.1000/-. The second opposite party has challenged the said order of the Forum in this appeal.
6. Heard the counsels for appellant and respondents.
7. The counsel for the appellant argued that as there is no evidence to show that appellant received the cheque in question there is no deficiency of service on the part of appellant and that even if appellant had received such a cheque in the light of Ext.B5 stop memo issued by Sri.Balakrishnan, the appellant can only return the cheque without encashment and that therefore the complaint has only to be dismissed. The counsel for the complainant on the other hand supported this order of the Forum. He would say that as the appellant bank has failed to return the cheque the Forum should have directed them to pay the cheque amount as compensation.
8. The following points arise for consideration.
1. Whether there was any deficiency of service on the part of the appellant/second opposite party?
2. Whether the impugned order of the Forum can be sustained?
Point Nos.1 & 2:-
The specific case of appellant/second opposite party is that they did not receive the cheque in question which appears to be not correct. Ext.B1 is the copy of register maintained by the first opposite party which shows that they have sent the cheque through professional couriers on 3.2.2003 and the same was delivered to appellant bank on 5.2.2003. Ext.B2 is the copy of delivery statement given to first opposite party by the courier service. Entry 1 in Item No.9 shows therein is the relevant entry. The seal of appellant bank is affixed therein. The number shown in receipt and Ext.B2 tallies. No evidence was adduced by appellant to show that no such item was received by them on 5.2.2003. That being so, the Forum is perfectly justified in coming to the conclusion that appellant/second opposite party had received the disputed cheque.
9. But there is another aspect in this case. Ext.B5 is the copy of letter sent by Sri.Balakrishnan, the account holder to stop all payments of his account. That being so the appellant should have returned this cheque with due endorsement which they did not do. Therefore there is clear deficiency of service on the part of the appellant.
10. The Forum has directed the appellant to return the cheque in question to the complainant with due endorsement within one month. But in the light of the contention received by the appellant they may not be in a position to return the cheque. That being so the complainant is entitled to a compensation of Rs.1,60,000/- being the cheque amount as complainant is now unable to proceed against Sri.Balakrishnan.
In the result I find no merit in the appeal and the same is hereby dismissed with a cost of Rs.5000/-.
JUSTICE P.Q. BARKATHALI: PRESIDENT VL.