State Consumer Disputes Redressal Commission
Chandrakumar S/O Somaji Bhoyer vs Manager State Bank Of India Main Branch ... on 23 November, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. FA/12/111 (Arisen out of Order Dated 19/01/2012 in Case No. cc/11/46 of District Gondia) 1. Chandrakumar S/o Somaji Bhoyer R/o Khatitola post- Dawaniwada Tah- Gondia Gondia ...........Appellant(s) Versus 1. Manager State Bank of India main Branch Gondia Asstt Manager Vasant Khandelwal Gondia Gondia ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MR. S B SAWARKAR MEMBER For the Appellant: Advocate Mr.R.A.Randive. For the Respondent: Advocate Anita Bhojwani. Dated : 23 Nov 2017 Final Order / Judgement Per Shri B.A.Shaikh, Hon'ble Presiding Member.
1. This appeal is filed by original complainant, feeling aggrieved by the order dated 19/01/2012 passed by the District Consumer Forum of Gondia in consumer complaint No.46/2011, by which the said consumer complaint has been partly allowed.
2. The case of the original complainant/appellant as set out by him in the consumer complaint filed before the District Consumer Forum, Gondia in brief is as under.
The complainant had given hand loan of Rs.1,00,000/- to Shri I.P.Goutam, as demanded by him. Shri I.P.Goutam then issued one cheque dated 30/01/2011 for Rs.1,00,000/- in the name of the complainant towards repayment of the said loan. The said cheque was presented by the complainant to the State Bank of India, branch at Gondia for depositing amount of that cheque in his bank account, maintained with the said branch. The said cheque was presented to the said branch on 07/02/2011. However the said cheque was dishonored by the concerned bank as the funds in the account of Shri I.P.Goutam were in sufficient and therefore complainant was charged Rs.100/- for dishonor of that cheque. Information about dishonored of cheque was given to the complainant by the concern clerk of the above bank. However the said bank did not return the said cheque with the bank memo to him, though complainant made request for that purpose from time to time. Lastly he issued notice dated 05/08/2011 to the said bank through his advocate requesting to return the cheque within 7 days. The O.P./Bank did not return the cheque, but in reply said that the cheque be again demanded from Shri I.P.Goutam by complainant. The complainant again sent notice dated 09/09/2011 to the O.P./Bank through advocate claiming compensation. But that compensation was not paid. Therefore the complainant filed the consumer complaint against the O.P./Bank claiming compensation of Rs.1,00,000/- with interest towards the loss sustained due to loss of the above cheque and further claiming compensation of Rs.1,00,000/- for physical and mental harassment.
3. The O.P./Bank appeared before the District Forum and filed reply and thereby resisted the complaint. The submission of the O.P./Bank in brief is as under.
It is not known to O.P./Bank as to whether the complainant had given hand loan of Rs.1,00,000/- to Shri I.P.Goutam and that Shri I.P.Goutam had given above cheque of Rs.1,00,000/- to the complainant towards repayment of that hand loan. It is admitted that the complainant had submitted that cheque of Rs.1,00,000/- to the O.P./Bank for collection and that the said cheque was dishonored by the drowee bank and returned the said to the O.P/Bank unpaid on 08/02/2011. The O.P. also admitted that the officer of the O.P./Bank informed the complainant that the said cheque was dishonored. The said dishonored cheque was sent alongwith the advice of drawee bank to the complainant by post on 09/02/2011. It was lost in the transit. Notices issued by the complainant were duly replied by the O.P. on 17/08/2011 and 29/10/2011. The complainant has not made any effort to recover the amount of that cheque from Shri I.P.Goutam after dishonor of above cheque. He did not request Shri I.P.Goutam to issue fresh cheque or duplicate cheque so as to settle the matter. Had the complainant filed complaint before the Court of Judicial Magistrate First Class (J.M.F.C.) at Gondia under Negotiable Instrumental Act against Shri I.P.Goutam, then he might have paid that amount of cheque to the complainant. On this ground the O.P. submitted that the complaint is liable to be dismissed with cost.
4. The District Forum below after hearings both parties and considering evidence brought on record, passed the impugned order and thereby directed the O.P./Bank to pay to the complainant Rs.2000/- towards the loss sustained by him due to loss of cheques in transit and also to pay him litigation cost of Rs.1000/-. The District Forum concluded in the impugned order that the O.P./Bank can not be held liable to pay entire amount of Rs.1,00,000/- of that cheque to the complainant as the O.P./Bank has taken all the necessary steps after that cheque was lost in transit. The District Forum observed that the O.P./Bank informed in writing to the drawee bank on 15/06/2011 to stop the payment of that cheque as it is lost in transit and its note is recorded by drawee bank and that the O.P./Bank also lodged report of the loss of the cheques, to the concerned Police Station on 12/10/2011 and that O.P./Bank by way of precautionary measure, informed all the events pertaining to loss of cheque to drawee bank, Shri I.P.Goutam who issued that cehque and to the Police Station and also tried to avoid the untoward incident. However the Forum observed that had the O.P./Bank sent the dishonored cheque by Registered Post and not by simple post then the possibility of its loss in transit could have been avoided and thus the O.P./Bank adopted causal approach and thus rendered deficient service to the complainant. In the result of the said observations, the District Forum directed the O.P./Bank to pay compensation of Rs.2000/- alongwith litigation cost of Rs.1000/- to the complainant.
5. As observed above, feeling aggrieved, the original complainant has filed this appeal for enhancement of the compensation and cost up to Rs.2,00,000/-. It is seen that initially the appeal was dismissed in default by this Commission. However the said order of dismissal of default of this appeal dated 03/12/2013 was set aside by Hon'ble Bombay High Court, Bench at Nagpur in Writ Petition No.3707/2014 dated 09/02/2015 and Hon'ble High Court remanded the appeal for fresh adjudication in accordance with law.
6. Both the parties before Hon'ble High Court had under taken to appear before this Commission on 25/02/2015 for deciding the appeal on merits. Accordingly the advocate Mr.R.A.Randive appeared for the appellant and advocate Anita Bhojwani appeared for the respondent before this Commission on 25/02/2015. The respondent's advocate sought adjournment on 25/02/2015 for hearing. Advocates of both parties thereafter filed their respective written notes of arguments as seen from the record of appeal. But none appeared for the appellant for making oral submission on last four dates i.e. on 16/03/2017, 12/06/2017, 31/08/2017 and 7/11/2017. Considering that both parties already filed their respective written notes of arguments, we proceeded to hear the respondent's advocate on 07/11/2017 and accordingly heard her on that date. The appeal was then reserved for final order. Thus we proceed to decide the appeal on merit.
7. It is thus not disputed that the cheque for Rs.1,00,000/- as drawn by Shri I.P.Goutam in the name of the complainant/appellant was submitted by the original complainant/appellant to the original O.P./respondent bank for collection and it was lost in transit when it was sent back by the respondent by post alongwith the written memo after it was dishonored for want of sufficient funds, by drawee bank.
8. The learned advocate of the original complainant in his written notes of arguments filed in appeal relied on decision in following cases and submitted that in view of the loss of the said cheque, the appellant is deprived from getting the amount of Rs.1,00,000/- of that cheque from the person name I.P.Goutam who issued the same and that he was also deprived of filing a criminal case under Section 138 of Negotiable Instrumental Act against I.P.Goutam. The advocate of appellant therefore requested that the amount of Rs.2,00,000/- claimed in the complaint may be awarded by modifying the impugning order.
M/s.I.C.I.C.I. Bank Ltd.......V/s......Shri Sonnegowda and others, 2012 (2) CPR 319 (NC). In that case, the cheque was presented to the Banker for collection by the complainant. The said cheque was not encashed due to insufficient funds in the account of the drawer. However, the said cheque was not returned to the complainant alongwith the written memo, but it was returned to the drawer of the cheque and therefore it was observed that there was no fault of the complainant and the complainant has been deprived of getting his money from the person who issued said cheque in his favour. Hence it was directed that the petitioner/Bank shall return to the original complainant bounced cheque alongwith necessary endorsement to the complainant within 30 days and in case of failure, it shall be liable to pay Rs.2,00,000/- to the complainant with interest @ 12% P.A. from 09/08/2010 until actual payment and also to pay compensation of Rs.25,000/- with litigation cost of Rs.5000/-
Panjab National Bank.......V/s........Soma Sundaram P.R. and others, I (2014) CPJ 228 (KER). In that case the learned Karnataka State Commission found that there was no evidence adduced by the Bank to show that the cheque was returned with necessary endorsement to the complainant and hence deficiency in service is proved and it is held that the complainant is entitled to Rs.1,60,000/- being the amount of cheque.
9. On the other hand, the learned advocate of the original O.P./respondent herein supported the impugned order and submitted in brief that all the necessary attempts were made by the O.P/Bank as stated in detail in reply filed before the District Forum, after the cheque was lost in transit and that complainant did not take any step to obtain another cheque from the drawer of the cheque and therefore he is not entitled to amount of cheque and compensation claimed by him. She relied on the decision in the following cases and submitted that appeal may be dismissed.
i) State Bank of India.........V/s.......Muntha Lakshmi Kumari, I (2009) CPJ 198 (NC). It is held that complainant failed to get duplicate cheque, in spite of being asked to do so. It is not proved that cheque was misused/encashed. It is thus held that bank is not liable to pay cheques amount. Hence order of State Commission was set aside and only compensation for deficiency in service on part of Bank was awarded.
ii) Federal Bank Ltd.......V/s......N.S.Savastuab, III (2009) CPJ 3 (SC). In that case a cheque was loss in transit and bank advised complainant to get duplicate cheque from drawer. Banking ombudsman held no deficiency in service on part of bank. Consumer complaint was then filed, State Commission held that bank is liable to pay interest on cheques amount. That order was upheld by Hon'ble National Commission. It was held that no amount was deposited by drawer in account and even if cheque was not lost in transit, it would have been dishonored due to insufficiency of funds. No steps were taken to obtain duplicate cheque. No action was taken against drawer for recovery of amount of cheque. Hence orders of consumer Fora below were set aside.
iii) Canara Bank......V/s......Sudhir Ahuja, I (2007) CPJ 1 (NC). In the said case cheque was lost in transit. Hence it was held that deficiency in service is proved and Bank is liable to pay some amount of compensation and not entire amount of cheque. Order of State Commission directing O.P. to pay entire cheque amount is not legally sustainable. O.P. is liable to pay Rs.5000/- as compensation.
iv) State Bank of Patiala......V/s......Rajender Lal and Anothers, IV (2003) CPJ 53 (NC). In the said case cheque was dishonored due to insufficiency of funds and it was then lost in transit. It is held that it is legally open for complainant to initiate civil/criminal proceedings and hence O.P. is not liable to pay cheque amount. Moreover as O.P. failed to inform complainant about dishonor of cheque and its loss in transit, it cannot escape from liability for payment of reasonable compensation. Order was modified accordingly.
v) Central Bank of India.......V/s......Ajay Aggarwal and Another, IV (2008) CPJ 342. In that case cheque was misplaced. It is held that unless unauthorized encashment of said cheque by third person, due to negligence of bank is proved, Bank cannot be held liable to pay cheque amount. There was no evidence produced regarding encashment of cheques. Hence it is held that order directing bank to credit cheque amount is unjustified. Thus order was set aside in appeal. It is held that misplacement of cheque amount to deficiency in service and thus Bank liable to pay compensation for mental agony and harassment suffered.
vi) Basant Kumar Agarwal.......V/s.....Syndicate Bank and anothers, IV (2011) CPJ 31. In that case cheque in question could not be traced even after honest attempt was made by O.P. and he requested complainant to have another cheque issued. It is held that Forum is justified in passing an order of issuing non-drawal certificate and granting compensation.
vii) Corporation Bank........V/s......N.C.S.Films, III (2007) CPJ 30 (NC). In the said case it was contention of O.P. that cheque earlier deposited for collection was returned, as there was no sufficient fund in the account of drawer. Account of the drawer was inoperative. It is held that the complaint is maintainable for loss of cheque in transit, but the complainant can not claim entire cheque amount.
10. We find that Hon'ble Bombay High Court, Bench at Aurangabad in the case of State Bank of India, Jalgaon.......V/s.....Ananada Shamrao Mahajan and others, reported in AIR 2010. Bombay - 71 made the following observations which are relevant for deciding this appeal. In that case there was loss of cheque of Rs.1,50,000/- in transit after it was deposited in the Bank. It is observed by Hon'ble Bombay High Court that holder there of can apply to drawer to give another cheque of same tenor. The holder of cheque instead of applying for duplicate cheque initiated proceeding against the bank. Though bank was negligent in not informing him about loss in tune, holder was also negligent in not seeking duplicate cheque. He was also responsible for loss suffered by him. Compensation awarded to holder to be paid by Bank was reduced from Rs.50,000/- to Rs.10,000/-.
11. Moreover, Hon'ble Supreme Court in the case of Branch Manager, Federal Bank Ltd.......V/s......N.S.Sabastian, reported in AIR 2009 S.C. (Supp) 2842 found that there was loss of cheque by Bank during transit from one branch to other branch. The complainant was the drawee of that cheque. He claimed the amount of cheque of Rs.9.85,000/- with interest from the Bank. In that case the drawee complainant had claimed cheque amount with interest from the Bank. There was no sufficient amount in the account of the drawer of that cheque The Bank and the ombudsmen had informed the complaint to ask for duplicate cheques from its drawer. The complainant neither obtained duplicate cheque nor approached the Court for recovery of the amount due to him from the drawer. Hence it is observed that grant of interest by the Commission is improper. In that case, the State Commission had declined to the respondent's prayer for award of cheques amount of Rs.9,85,000/- but directed the Bank to pay interest @ 18% P.A. on the amount of cheque from the date of its issue till the date of payment. The Hon'ble National Commission dismissed the appeal. The Hon'ble Supreme Court allowed the appeal and set aside the said order and dismissed the complaint.
12. In the instance case, we find that the original complainant/appellant has not brought any evidence on record to show that he had asked the drawer of the cheque i.e. Shri I.P.Goutam to issue a duplicate cheque for the same amount of lost cheque. It is not a specific case of appellant that he had issued any such notice to I.P.Goutam demanding duplicate cheque from him. It is his simple case that due to loss of cheque he could not file a criminal case against I.P.Goutam after bouncing of cheque as the cheque was not returned to him. Moreover the period of limitation was also lapsed. In the absence of any such demand of duplicate cheque by the complainant from I.P.Goutam, it can not be said that I.P.Goutam refused to issue him duplicate cheque for the aforesaid amount.
13. The respondent herein had taken all precautions and precautionary steps after loss of the cheque in transit as stated by it in detailed in reply filed before Forum as produced above in brief.
14. It is also pertinent to note that as the cheque was already dishonored for want of sufficient fund in the account of drawer, there was no question of getting the amount of that cheque by the said complainant. The complainant/appellant has not filed any Civil Suit for recovery of the amount of that cheque from the drawer of that cheque. Therefore, we are of the considered view that there is no question of now granting amount of Rs.1,00,000/- of that cheque with interest as claimed by the complainant /appellant. The decision of the Hon'ble Supreme Court referred to above in the case of Branch Manager, Federal Bank Ltd.......V/s......N.S.Sabastian is applicable to the facts and circumstances of the present case.
15. We find that the aforesaid decisions relied on by the learned advocate of the complainant/appellant are not applicable to the facts and circumstances of the present case since they are totally different from those of the present case. Moreover under the identical facts and circumstances of the present case, the Hon'ble Supreme Court in the above mentioned case of Branch Manager, Federal Bank Ltd.......V/s......N.S.Sabastian held that the complainant is not entitled to the amount of the cheque with interest and compensation. Hence the aforesaid decisions relied on by the learned advocate of the complainant/appellant are of no assistance to appellant in the present appeal. We thus find no merit in this appeal and it deserves to be dismissed.
// ORDER // The appeal is dismissed.
No order as to cost in appeal.
The copy of order be furnished to both parties free of cost.
[HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MR. S B SAWARKAR] MEMBER