State Consumer Disputes Redressal Commission
M/S.The Professional Couriers,T.P.C. ... vs . Thiru.R.Chinnadurai, ... on 17 February, 2011
BEFORE THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI (BENCH II) Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., Presiding Member Judicial Tmt.Vasugi Ramanan, M.A., B.L., Member F.A.No.335/2008 & F.A.308/2010 [Against order in C.C.No.22/2006 on the file of the DCDRF, Dindigul] THURSDAY, THE 17th DAY OF FEBRUARY 2011. F.A.335/2008 M/s.The Professional Couriers, Rep.by its Branch Manager, T.P.C. Tower, No.137-R.S. Road, Dindigul. .. Appellant/3rd Opposite party Vs. 1. Thiru.R.Chinnadurai, S/o.Rengasamy Gounder, Arasamarathuppatty Neelamalaikkottai Post, Dindigul District. .. 1st Respondent/ Complainant 2.Canara Bank, Rep.by its Branch Manager, Sriramapuram Branch, Palani Road, Sriramapuram, Dindigul District. .. 2nd Respondent/1st opposite party 3. Canara Bank, Rep.by its Branch Manager, Dindigul Main Road, Salai Road, Dindigul. .. 3rd Respondent/2nd opposite party The 1stRespondent/complainant filed a complaint before the District Forum, Dindigul, alleging deficiency against the opposite parties to pay the lost cheque amount of Rs.7,00,000/- and Rs.1,00,000/- as compensation for mental agony and Rsw.1,45,000/- as compensation for deficiency of service and cost of the complaint. The District Forum allowed the complaint against the opposite parties. Against the said order, this appeal is preferred by opposite parties, praying to set aside the order of the District Forum, Dindigul, dt.11.02.2008 in CC.No.22/2006. This appeal coming before us for hearing finally on 04.02.2011, upon hearing the arguments of the counsel on bothsides, and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :- Counsel for the Appellant/3rd Opposite party : M/s.S.Haja Mohideen Gisthi, Advocate. Counsel for the Respondents 2 and 3 : Mr.T.C.A.Shrinivasan, Advocate. 1st Respondent/complainant : Called absent. F.A.No.308/2010 [Against order in C.C.No.22/2006 on the file of the DCDRF, Dindigul] THURSDAY, THE 17th DAY OF FEBRUARY 2011. 1. Canara Bank, Rep.by its Branch Manager, Sriramapuram Branch, Palani Road, Sriramapuram, Dindigul District. .. 1st Appellant/1st opposite party 2. Canara Bank, Rep.by its Branch Manager, Dindigul Main Branch, Salai Road, Dindigul. .. 2nd Appellant/2nd opposite party Vs. 1. Thiru.R.Chinnadurai, S/o.Rengasamy Gounder, Arasamarathuppatty Neelamalaikkottai Post, Dindigul District. .. 1st Respondent/Complainant 2. M/s.The Professional Couriers, Rep.by its Branch Manager, T.P.C. Tower, No.137-R.S. Road, Dindigul District. .. 2nd Respondent/3rd opposite party The 1stRespondent/complainant filed a complaint before the District Forum, Dindigul, alleging deficiency against the opposite parties to pay the lost cheque amount of Rs.7,00,000/- and Rs.1,00,000/- as compensation for mental agony and Rsw.1,45,000/- as compensation for deficiency of service and cost of the complaint. The District Forum allowed the complaint against the opposite parties. Against the said order, this appeal is preferred by opposite parties, praying to set aside the order of the District Forum, Dindigul, dt.11.02.2008 in CC.No.22/2006. This appeal coming before us for hearing finally on 04.02.2011, upon hearing the arguments of the counsel on bothsides, and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :- Counsel for the Appellants/Opposite parties 1&2 : Mr.T.C.A.Shrinivasan, Advocate. Counsel for the 2nd Respondent : M/s.S.Haja Mohideen Gisthi, Advocate. 1st Respondent/complainant : Called absent. COMMON ORDER
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL F.A. No.335/2008 :
The 3rd opposite party is the appellant.
F.A. No.308/2010 : The 1st and 2nd opposite parties are the appellants.
1. Details of complaint in both the appellants :- The complainant Chinnadurai who is the 1st respondent in both appeals has filed a complaint against the appellants in COP No.22/2006 before the District Consumer Disputes Redressal Forum, Dindigul for the deficiency of service, claiming Rs.7,00,000/- for the loss of the cheque presented for collection with the 1st opposite party and for Rs.1,00,000/- as compensation for mental agony and for Rs.1,45,000/- for deficiency of service and cost.
2. The case of the complainant is that one K.P.Ganesan borrowed Rs.7,00,000/- on 27.11.2003 from the complainant and issued post dated cheque dated 27.1.2004 drawn on Indian Bank, Nehru Nagar, Dindigul and the complainant presented the cheque in the 1st opposite party bank in his SB Account and the 1st opposite party sent the cheque through 2nd opposite party for collection and the 2nd opposite party sent the cheque to the Indian Bank, Nehru Nagar, Thindal for collection and the same bank dishonored the cheque for want of sufficient funds in the account of the drawer and the cheque received by the 2nd opposite party was forwarded to the 1st opposite party through the courier service, 3rd opposite party and it was lost during transit and thereby the complainant was deprived of payment of Rs.7,00,000/- due to the deficiency of service and claimed the amounts as stated above. The 1st and 2nd opposite parties denying the deficiency of service admitting the loss of cheque sent for collection during transit branch back to the 1st opposite party through 3rd opposite party and negligence was due to 3rd opposite party and therefore 1st and 2nd opposite parties are not liable to pay any compensation to the complainant. The 3rd opposite party denying the allegations by stating that the complainant had not booked any article through it and there is no relationship as consumer and service provider between the complainant and 3rd opposite party.
Even though the cheque was lost in transit, while in the custody of 3rd opposite party, the complainant would have recovered the cheque amount from the person who issued the cheque with the help of the bank and no action can be taken against the opposite parties. The 3rd opposite party had discharged duties as carrier service properly and on the cover carries the letter it has been specifically marked by the 3rd opposite party that, this opposite party is liable for Rs.100/- only in case of loss of article and the drawer through Ganesan is also a necessary party for proper adjudication and failure to implead him as a party to the proceedings.
The complainant is barred for non-joinder of parties and the complaint before this Forum is not maintainable.
3. On the basis of bothsides materials, and documents placed before the District Forum, after enquiry, the District Forum allowed the complaint by directing the opposite parties jointly and severally to pay the cheque amount of Rs.7,00,000/- to the complainant with 12% interest from 27.1.2004 till realization of the amount to pay Rs.10,000/- as compensation for mental agony, Rs.10,000/- as compensation for deficiency of service and costs of Rs.5,000/- within 3 months from the date of this order.
4. Aggrieved by the order of the District Forum, opposite parties 1 and 2 and 3rd opposite party have come forward with these two separate appeals against the same order.
5. Since both the appeals arised against based on to the same order passed by the District Forum, Dindigul in CC No.22/2006 by the complainant against opposite parties 1 and 2 are Canara Bank represented by concerned Branch Managers and 3rd opposite party Professional couriers service through whom the cheque was sent for collection was lost and as the District Forum allowed the complaint against all the respondents/ opposite parties, they have come forward by way of two separate appeals. Hence these appeals are heard in common and as the facts of the case are one and the same in both appeals, this common order is being passed.
6. Whether loss of cheque sent for collection by the opposite parties 1 and 2 through the 3rd opposite party would amounts to deficiency of service is the point to be decided ?
POINT : While considering bothsides arguments, averments and contentions, it is found that there is no dispute that the complainant has sent cheuqe for Rs.7,00,000/- issued in favour of him by one K.P.Ganesan through the 1st opposite party and the 1st opposite party sent the same to the 2nd opposite party for collection from the drawer bank, Indian Bank, Nehru Street, Dindigul and the cheque was returned by that drawer bank as dishonoured for insufficient funds in the account of drawer and the returned cheque received by 2nd opposite party was sent to the 1st opposite party through the 3rd opposite party courier service and the cheque was lost during the transit. It was proved by the letter sent by Indian Bank, Dindigul to the 2nd opposite party as per Exhibits A3 and A8. Further in Exhibit B1 also it was informed by the 2rd opposite party about the missing of the Tapal addressed to 1st opposite party. It is clear that the cheque presented by the complainant for collection through the 1st opposite party was duly sent for collection to the concerned bank through the 2nd opposite party and the drawer bank has returned the cheque as dishonored to the concerned banks opposite parties 1 and 2, which was lost before reaching 1st opposite party who has to act on behalf of the customer, the complainant who is holding account with this branch. So it is clearly proved that the loss of cheque was only at the hands of 3rd opposite party and opposite parties 1 and 2 have no say in this regard and they have duly intimated about the loss of cheque to the complainant for obtaining duplicate cheque from the concerned party as per the document Exhibits A3 to A6. In Exhibit A3 dated 20.2.04, the complainant was requested to obtain duplicate of the instrument. Hence it is clear that the opposite parties 1 and 2 have acted upon to their best in the matter.
7) While considering the District Forums order, the District Forum has directed the opposite parties to pay the entire cheque amount of Rs.7,00,000/- for the dishonored invalid cheque which is in no way acceptable. The appellants counsels before this Commission have vehemently argued that as per the Supreme Court Rulings the banks are not liable for the payment of cheque amount which are sent for encashment or lost in transit and are not traced and they have relied upon the rulings reported in 2009 CTJ 297 (CP) National Consumer Disputes Redressal Commission in, A.P.Popwa Vs. Kodagu District Co-op.
Central Bank and as per the dictum of the Honble Supreme Court the Consumer Forum can award compensation only for the deficiency in service of the trader or service provider and for the recovery of any other loss the party should approach the Civil Forum. In our case, even though the complainant stated that he had lost chance for recovery of money from the party who issued the cheque he has not produced any proof or evidence for the same and in view of the above said ruling and the Honble Supreme Court dictum, the opposite parties 1 and 2 cannot held liable for the payment of cheque amount which was sent by them for encashment and lost in transit and is not traced and hence the complainant is entitled only for the compensation regarding the deficiency of service and as far as the 3rd opposite party contended that liability is only up to the extent of Rs.100/- only as mentioned over the cover of the letter sent and no proof for the same is filed. Further the 3rd opposite party filed separate appeal against the complainant and other parties as Respondents 2 and 3, in which it was stated that there is no direct contract between the complainant and 3rd opposite party received the cheque for delivery through the 2nd opposite party to be delivered to the 1st opposite party which was lost during the transit and thereby the aggrieved parties must be opposite parties 1 and 2 alone in this regard. But the opposite parties 1 and 2 have not preferred any complaint or proceedings against the 3rd opposite party for the deficiency of service or for any other claim except to intimate the loss of instrument to the complainant alone and in the circumstances as rightly pointed out by the 3rd opposite partys counsel in the appeal filed by them, the complainant cannot be the consumer as against the 3rd opposite party who is not the service provider to the complainant as per the terms of Consumer Act.
8. In the circumstances, the District Forum erroneously held that the 3rd opposite party was also liable jointly and severally along with the 1st and 2nd opposite parties to pay the compensation and other claim.
Hence as far as the 3rd opposite party is concerned the complaint against the 3rd opposite party by the complainant is liable to be dismissed and the appeal filed by the 3rd opposite party is liable to be allowed, and thereby we feel, that the order of the District Forum regarding the payment of entire cheque amount of Rs.7,00,000/- to be set aside and regarding the compensation of Rs.10,000/- for mental agony and Rs.10,000/- as compensation for deficiency of service as against the opposite parties 1 and 2 alone would attract.
Hence the same have to be modified with proportion to the loss caused to the complainant. Accordingly we consider that the compensation for mental agony and deficiency of service are to be reduced to Rs.5,000/- each payable by opposite parties 1 and 2 alone to the complainant.
9. In view of the above discussions and the foregoing reasons made we are inclined to allow the appeal in F.A.No.335/2008 and in Appeal F.A.No.308/2010 to be allowed in part and by modifying the order of the District Forum, Dindigul, in CC.No.22/2006 dated 11.02.2008 accordingly.
10. In the result, the appeal in FA No.335/2008 is allowed, by setting aside the order of the District Forum, Dindigul in CC No.22/2006 dated 11.2.08, against the 3rd opposite party/appellant in this appeal and against 1st and 2nd opposite parties orders passed in F.A.308/2010 and by dismissing the complaint against 3rd opposite party. There will be no order as to cost in this appeal.
The Registry is directed to hand over the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
11. In the result, the appeal in FA No.308/2010 is allowed in part, by modifying the order of the District Forum, Dindigul, in CC No.22/2006 dated 11.2.08 as follows :-
a) directing the opposite parties 1 and 2 alone to pay a compensation of Rs.5,000/- for mental agony and Rs.5,000/- for deficiency of service,
b) to pay Rs.3,000/- as cost jointly and severally payable to the complainant by opposite parties 1 and 2 alone by setting aside the order of payment of Rs.7,00,000/- with 12% interest from 27.1.04 till realization and
c) dismissing the complaint against the 3rd opposite party.
d) There will be no order as to cost in this appeal.
VASUGI RAMANAN A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL INDEX : YES / NO sg/B-II/aka//Couriers