State Consumer Disputes Redressal Commission
V.V. Vasan S/O. K. Velayutham C-21, ... vs The Manager State Bank Of India Post Box ... on 16 May, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., MEMBER (JUDICIAL) F.A.NO.306/2009 (Against order in CC.NO.52/2009 on the file of the DCDRF, Coimbatore) DATED THIS THE 16th DAY OF MAY 2011 V.V. Vasan S/o. K. Velayutham C-21, Sakkarai Chettiar Nagar Varadharajapuram Coimbatore- 15 Appellant/ Complainant Vs. 1.
The Manager State Bank of India Post Box No.3860, Coimbatore
2. The Manager State Bank of India Avinashi Road, Coimbatore Respondents/ Opposite parties The Appellant as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay a sum of Rs.8,54,300/- which is withdrawn from the complainants account, and cost. The District Forum dismissed the complaint.
Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.24.9.2009 in CC.No.52/2009.
This petition coming before us for hearing finally on 03.05.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ Complainant: M/s. M. Mouli Counsel for the Respondents/ Opposite parties : M/s. K. Mohandas M. THANIKACHALAM J, PRESIDENT
1. The complainant/ appellant, having filed a case to recover a sum of RS.8,54,300/-, representing 16 cheques amount, as well for the recovery of a sum of Rs.10 lakhs, as compensation, failed, and the result is this appeal.
2. The complainant/ appellant is holding a SB account, with the opposite party bank, bearing No.10869263571, with cheque facility. Till the month of 2008, the bank was reasonably good, in the transaction, including maintaining the confidentiality. Thereafter, they have committed negligent act, as well as deficiency in service, in honouring 16 cheques (as described in paragraph 11 of the complaint), totaling a sum of RS.854300/-, utilizing the ex-driver of the complainant viz. R. Kadirvelu, who had stolen blank cheque leaves of the complainant, filled the same, withdrawn the money, and misappropriated, for which the opposite party was also aiding, since they have not properly verified the signature affixed in the cheque leaves, and failing to note they were forged signatures. The misappropriation and the withdrawal of the amount, came to the knowledge of the complainant, when he attempted to issue a cheque for Rs.11 lakhs, on 28.1.2009, since he has not previously verified the account, including the withdrawal, because of his frequent tours elsewhere. For the fraud, forgery committed by the driver, a criminal case was also given, and the same is pending. The opposite party, by their negligent act, passed the forged cheques, thereby caused not only mental agony to the extreme, to the complainant, but also causing illegal withdrawal, which should be compensated by the opposite party. Hence the complaint.
3. The opposite party bank, admitting that the complainant is an account holder of their bank, resisted the case, interalia contending, that only upon the cheques issued by the complainant, in favour of his staffs, as well as personal cheques, money was withdrawn/paid then and there, and at that time the opposite party had taken care, to verify the signature, satisfying the genuineness of the signature in the cheque leaves, honoured the cheques, which cannot be termed as negligent act, that it is an unadulterated truth that the bank had utilized the service of the complainants driver, to withdraw the amount, thereby misappropriated that the complainant on the basis of the imaginary, unfounded grounds, has filed this vexatious claim, which is liable to be dismissed, with cost.
4. The District Forum, by its order dt.24.9.2009, by going through the affidavits, as well as admitted facts, came to the conclusion, that the bank had not committed any deficiency of service, and infact the complainant has not proved the alleged negligent act, or the cheques were forged, including the misappropriation. Thus drawing a conclusion, the complaint was dismissed with cost of Rs.5000/-, which is challenged in this appeal, seeking the same redressal, as claimed in the complaint.
5. The learned counsel for the appellant, urged before us, that even this kind of forgery also will come within the meaning of deficiency in service, which was not properly analysed by the District Forum, in addition submitting that the District Forum, has drawn an erroneous conclusion, as if the cheques were not sent for exert opinion, forging was not proved by the complainant, forgetting the fact cheque leaves will be with the opposite party bank. It is the further submission of the complainant, in view of the criminal case filed by him, against Ex-driver and in view of the further fact, the cheques were not properly verified by the opposite party, the District Forum ought to have accepted the case, and its failure should be rectified, by this commission, which is strongly opposed.
6. It is the common case of the parties, that the complainant was having a bank account with the opposite party, with cheque facilities. From the said account, admittedly between the period 25.6.2008 to 23.1.2009, on various dates, amounts were withdrawn, by cheques, not only presenting cheques in the bank account, but also directly, totaling a sum of Rs.8,54,300/-. The complainant/account holder, who is expected to exercise diligent, care in preserving the valuable documents, viz. cheques, having failed, unfortunately accuses the opposite party, that too, when he himself has committed negligent act, which cannot be thrusted upon the opposite party. A cursory reading of the complaint, would go to show, that the complainant alone had committed fault, if any. The cheque books should be always in the safe custody of the account holder, or the person whom he trusts, for transaction. The complainant claims, that he is doing business. Therefore, he should have verified the accounts, including the pass book, how he or others had withdrawn the amount, from the bank account. The complainant concedes that he never taken care, to keep an eye on the statement of accounts, or on the opposite parties bank.
If such a person accuses, as if the bank, utilizing the service of the Ex-driver, forged the signature of the complainant in the cheques, that is not at all possible, to be believed, even imaginatively. If it is one or two cheques, we can understand, whereas, in this case totally 16 cheques were issued, amounts collected, amounting to Rs.8,54,300/-, spread over roughly 10 months or so. If really, the complainant issued cheques or entrusted the cheques for collection to his staff, when he had an opportunity to draw the amount from ATM, as admitted, that itself would have disclosed the balance generally, then he ought to have doubted, then verified, which he failed, and such a person is not entitled to accuse the opposite party.
7. In the cheque books, there may be counter foil, or there may be extra sheets, where account holder issued to write the cheque number, to whom it was sued the amount, purpose etc. It is not the case of the complainant, that the entire cheque book was stolen, and only the leaves were taken. If that is correct, there may be evidence, in the passbook itself, such as, if the cheque had been issued by the complainant, indicating the sum, if the cheque had been stolen by not filling up the required particulars. If the driver had stolen the cheques, he should have stolen the entire book, and it is not known how only 16 leaves alone were stolen. In the written statement it is said, that the complainant had withdrawn the amount under the cheques, issued in favour of his staffs, including personal cheques, and on which basis, he should have drawn the amount himself, and we find no contra pleadings. The District Forum, has recorded, that as per the cheque dt.7.10.2008, the complainant himself had withdrawn a sum of Rs.2,50,000/-, based upon the account, and this is also sought to be labeled as forged cheque.
Atleast at that time, the complainant should have had the knowledge about the various withdrawals, and if the complainant thought the bank had not properly rendered its service, in verifying the signature, he should have agitated. Except bare pleadings, and some paper cuttings, as if the complainants driver had misused the cheques, we find no semblance of evidence or iota of evidence to think or even imagine, that the bank should have committed negligent act, in honouring the alleged forged cheque, not verifying the signatures.
8. On behalf of the bank, affidavit has been filed, stating that on verification of the cheques, then and there, satisfying that the cheques were issued by the complainant, they have passed the cheque. To take contra view, or to eclips that pleadings, we find no evidence and the complainant, whose duty is to prove, that there was negligent act or deficiency on the part of the opposite party, failed to establish the same, even issuing notice, to the opposite party, to produce the cheques, in order to compare the signature etc. The District Forum, considering all these facts, as well as the opposite party should have performed their duty, as prudent banking people, has come to the conclusion, that this is a vexatious case, liable to be dismissed, in which finding we concur, based upon the decision of this commission also, in F.A.No.384/2007, as well as a decision of the National Commission in Prempreet Textiles Industries Ltd., Vs. Bank of Baroda & Others, reported in CDJ 2006 (CONS.) CAE No.322. The National Commission has taken the view, it is for the account holder to ensure that the cheque book was kept under the locked key, at a safe place, and when the bank satisfied with the signature of the account holder, tallys with the specimen signature, that cannot faulted, which principle can be extended to this case also.
9. As pleaded in the complaint, there are many allegations, regarding fraud, forgery, misappropriation, and those things cannot be proved by mere proof affidavit alone. If the complainant had thought, that his driver, in collusion with bank people, or with somebody, having stolen the cheques, misused the same, forging his signatures, he ought to have filed a civil case, against the driver, including the bank, were there could be better adjudication, not before the consumer forum, where we follow, summary procedure. From the facts narrated by the complainant himself, we feel there is complicated question of fact, which cannot be decided by the Consumer Forum, and in this view also, the complaint is not maintainable. Despite the fact the case was dismissed correctly, unnecessarily the complainant has preferred an appeal, without any merit, and even in the written submission also, no grounds were projected, so as to draw any conclusion, how the District Forum has committed error, either on facts, or on law, and in this view, we are of the opinion, the appeal deserves to be dismissed with cost.
10. In the result, the appeal is dismissed, with cost of Rs.5000/-, confirming the order of the District Forum in CC.No.52/2009 dt.24.9.2009.
J. JAYARAM M.THANIKACHALAM JUDICIALMEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Miscellaneous