State Consumer Disputes Redressal Commission
Chandra Bhushana,Gupta Korada,All Are ... vs American Express Banking Corporation, ... on 29 November, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBERC.C.7/2005
DATED THIS THE 29 DAY OF NOVEMBER 2011
1. Chandra Bhushana, | Complainants Gupta Korada, | |
2. Mrs. Vasantha Kumari, | Korada. | |
3. Surendra Korada, | All are residing at Plot No.1782, I Block, | Anna Nagar West, Chennai 600 040. | Vs.
1. American Express Banking Corporation, | Rep. by its Chief Executive Officer, | Cyber City, Tower C, | DLF Building, No.8, Section-25, DLF Phase II, | Gurgaon 122 002. | Opposite Parties |
2. M/s. Prithvi Securities Limited, | Rep. by its Director, | No.33, Montieth Road, Egmore, | Chennai 600 008. Tamil Nadu | This complaint dt. 04.01.2005 filed against the opposite parties alleging deficiency in service, claiming Rs.10 lakhs mental agony, to pay Rs.9,00,325/- (i.e. the value of TCs lost) and interest at 12% from the date of loss of TCs, interest calculated upto 08.12.2004 is Rs.1,53,000/-.
This petition coming on before us for hearing finally on 11.10.2011, upon perusing the material documents, and upon hearing the counsels for both the parties, and having stood over till this day for consideration, this Commission made the following order.
Counsel for the Complainant : Mr.R.Raghavan, Advocate.
Counsel for the 1st Opposite Party : M/s. King & Patridge, Advocate.
Counsel for the 2nd Opposite Party :
Exparte.
M. THANIKACHALAM J, PRESIDENT
1. The complainants, claiming to be the consumers, have filed this case for the recovery of a total sum of Rs.20,53,325/-, alleging deficiency against the opposite parties on the following grounds.
2. The complainants 1 & 2 are the husband and wife and their son is the third complainant. In order to attend the eldest sons marriage of the first complainant, at Poland, as well as to visit places of tourist, planned to club meetings with business contacts in U.K., they have planned a travel, for that, they have purchased the Traveller Cheques of the first opposite party, from the second opposite party, who is the authorized agent as detailed in Para 3 of the complaint, totaling a sum of Rs.9,31,525/-.
3. The complainants, were informed on their reaching at London by their eldest son that there were incidents of housing breaking in that area and therefore they have decided to encash the Traveller Cheques and deposit the same in the Bank account of their son Madhu.
They have approached Abbey National Bank, who informed/advised to approach nearest Post Office or AMEX Counters, since they did not encash TCs. The complainants had kept all the TCs except the value for Rs.31,200/-, inside the red plastic folder provided by the second opposite party. Madhu, after deposit of the cash in his account, proceeded to enquire the nearest AMEX Counter or Post Office. At that time, when the first complainant opened the bagpack, he could not find the red folder containing the TCs. Their effort to trace out it through ANB video clipping as well as filing Police complaint, ended in vain. They have also immediately informed the AMEX furnishing the required particulars. A worldwide warning about the loss of TCs had been given and the TCs are no more valid. When they sought for refund, the complainants were informed the possibility of TCs being encashed and therefore, they refused to accept the claim of the complainants, for refund, as per the letter dated 06.08.2003.
4. AMEX informed that the refund of the amount for the lost TCs could not be given as the procedure is that it could be ordered for refund only when somebody tries to encash the lost TCs or some finds the same and returns it to the Bank.
The efforts of the complainants, an appeal through newspaper, seeking help in recovery of the lost TCs, also has not yielded any fruitful result. After their return to Chennai, complainants met AMEX Office at Spencer Plaza where there was no response. Therefore, they were compelled to issue legal notice, which elicited reply, as if, the complainants had not taken proper safeguards while handling the TCs as an ordinary prudent person. In view of the fact, TCs were missing, the purpose of carrying was defeated, that too, when the AMEX refused to repay the amount while they had stopped payment against the TCs. In fact, there is no information till this date that TCs had been encashed. Because of the non-refund of the amount in spite of repeated requests, reminders, complainants suffered mental agony and damages, which is quantified at Rs.10 lakhs. The complainants have also lost their peace of mind, mentally ill, for that, American Express Bank is liable to compensate.
5. The complainants being the consumers, who have availed the service of the opposite parties, for consideration for rendering service indulged in unfair trade practice, causing mental agony. Thus alleging consumer complaint is filed for the recovery of a sum of Rs.10 lakhs as compensation towards mental agony, Rs.9,00,325/- being the value of lost TCs, with interest of Rs.1,53,000/-.
6. Brief defence of the first opposite party as follows:-
The Travellers Cheques were purchased by the complainants, on terms and conditions stipulated in the Purchase Agreement, which required detailed enquiry and therefore, as such, a case to be tried in the summary way before the Consumer Forum is not maintainable and if at all regular Civil Court should have been approached. The opposite parties cannot be held vicariously liable for the wrongful and negligence act of the complainants. The complainants have committed multiple violation of the Purchase Agreement for travelers cheque, in terms of view, they were sold and the complaint is liable to be dismissed since they were telling different stories, to suit the circumstances of the loss of the TCs, which are conflicting. There was no deficiency on the part of the opposite parties, in rendering service. Because of conflicting information given by the complainants including the different kind of police reports, the opposite parties were unable to refund the amount, for the alleged theft of TCs since the possibility of such refund arise, only if the purchaser fulfill the terms and conditions stipulated in the Purchase Agreement. The complainants, who are grossly negligence, who seek to disgrade the opposite parties with ulterior motive and make a profit, with disclosed and malafied manner as experienced in context of the TCs by the customers.
7. The agreement clearly states that the opposite parties will replace or refund the amount shown on any lost or stolen Cheque, in accordance with applicable laws. Issuer of TCs cannot stop payment of any travel cheque. In fact, the opposite parties never guaranteed, that it can stop payment any traveler cheque. The very fact, the complainants have lost the TCs, would amount to breach of the Purchase Agreement and the story alleged in the complaint is totally incredible, as if, with large amount, they had been to Abbey National Bank to get TCs, encash and to deposit, later found out, TCS were missing. The entire averments in the complaint are denied, praying to dismiss the complaint with exemplary costs.
8. The second opposite party remained exparte.
9. On behalf of the complainant Ex.A1 to Ex.A14 were exhibited and on behalf of the first opposite party Ex.B1 to Ex.B11 were exhibited. The parties have also filed affidavits in support of their respective and defence. From the pleadings and the documents, the following points are framed for decision:-
(1) Whether the opposite parties have committed any unfair trade practice as alleged by the complainant in Para 21 of the complaint?
(2) Whether the opposite parties have caused any mental agony to the complainants, leading to damage?
(3) Whether the opposite parties have committed any deficiency in service?
(4) Whether the complainants are entitled to compensation as well as the value of TCs lost, with interest against the first opposite party?
POINT NOs.1 to 4:
10. The complainants have purchased TCs of the opposite parties from their Agent-second opposite party, on two different dates, totaling a sum of Rs.9,31,525/- in order to go to Poland via., U.K. etc., The above said purchase of TCs are not questioned, by the opposite parties as seen from the Written Version, specifically. When the complainants have reached London on 09.07.2005, when they were attempting to encash the TCs, retaining few, failed to do so, in the Abbey National Bank and subsequently it came to their knowledge that the folder which contained TCs, worth about Rs.9,00,325/- were missing. The complainants have informed the same, to the first opposite party and it appears, they have given worldwide warning about the loss of TCs and they are mo more valid. Despite Police complaint, and other steps taken by the complainants in the foreign soil to recover the TCS lost, unable to succeed, and after returning to India, approached the Chennai Branch and they have expressed their inability, to refund the value for the lost TCs. Issuance of legal notice, reminders also failed to get the amount and therefore, a consumer complaint is filed, not only seeking the refund of the value of the TCs lost, but also claiming interest, in addition to, a fabulous some of Rs.10 lakhs as compensation, having committed negligence and deficiency by the complainants themselves prima facie.
11. In the complaint, we find unfair trade practice and wordings deficient service, in Para 21 and certain allegations regarding mental agony in Para 18 and 19 of the complaint. We were unable to find any specific accusation regarding any negligence act on the part of the opposite parties or deficiency in service, which are required to pass an order, in favour of the consumer, as contemplated under Section 14 of the Consumer Protection Act, which we will discuss infra also.
12. The prayer column reads (a) The opposite parties should be directed to pay a sum of Rs.10 lakhs towards mental agony caused to the complainant; (2) direct the opposite parties to pay Rs.9,00,325/- (i.e. the value of TCS lost). The second opposite party though remained exparte, we feel, there cannot be any order against them, since there is no accusation of any kind against the second opposite party. The second opposite party being the authorized agent of the first opposite party, had sold the American Express Banks TC, to the complainants and thereafter they have no connection at all, with the first opposite party or the complainants. It is also not the case of the complainants that the second opposite party has committed any negligence or deficiency in service. This being the position, it is not known, how the prayers were sought for, against both the opposite parties, which will go to show the unfounded claim of the complainants, though they might be the looser, by their own negligence, not by the negligence or deficiency of service said to have been committed by the opposite parties. Therefore, at the first instance itself, here itself, we relieve the second opposite party from the claim.
13. The complainants, who have lost the TCs on their own, filed this complaint not only claiming the lost TCs value with interest, but also to pay a sum of Rs.10 lakhs as compensation and the reason alleged for claiming compensation reads (g). The complainants had suffered mental agony loss of peace of mind and could not attend to their work due to continuing dispute and for this the opposite parties must compensate the complaint, in which allegations, we are unable to find any acceptable elements, the fact being for the mental agony if any suffered by the complainants, certainly the opposite parties cannot be held responsible. In this context, we have to see the terms and conditions regarding the purchase of TCs and the procedure followed Before Loss, After Loss.
14. As pleaded in the Written Version, though attempted to deny the conditions available in Para 13 by the complainants, they form part of the contract, wherein, there are two main conditions, relied on by the opposite parties and they are You HAVE NOT GIVEN the Travellers cheque to another person or company to hold or to keep or as a part of a confidence game, You HAVE SAFEGUARD THE Travelers cheque as a prudent person will safeguard a like amount of cash. Similarly after loss, one of the main condition is You GIVE Amexco all reasonable information and help requested to make a complete investigation of the loss or theft. Amexco reserves the right to investigate the loss or theft and to verify compliance with this Purchase Agreement and shall not be responsible for delays resulting from such an investigation. If these conditions are proved to be violated or not followed by the complainants, then in refusing or postponing the payment for the TCs lost cannot be faulted perse as negligence act or deficiency as the case may be.
15. In Para 6 of the complaint, it is said The said red folder was kept in the backpack together with other belongings like house keys, spectacles and Madhus purse. Madhu on reaching ANB wanted to deposit cash in his account at the ATM of ANB but faced some difficulties. Then Madhu approached the bank cashier for help and the cashier informed his officer about the problem. Finally the officer Ms.Mariam asked Madhu to deposit the cash in the cash counter itself.
After completing the cash deposit, the complainants left the bank. Then it reads At that time, the first complainant could not find the red folder containing the TCs, thereby showing the red folder containing TCs was handed over to Madhu, though he is the eldest son of the first complainant, thereby, as rightly urged on behalf of the opposite parties, the third condition Before Loss as quoted above has been violated.
16. The value of the TCs lost is Rs.9,20,025/-, a huge amount, that too, when the complainants were in foreign soil, and as a prudent person, they are excepted to keep the TCs in proper custody, safeguarding the loss, preventing the other hands getting into the TCs. But admittedly, the complainants failed to safeguard the TCs as prudent person will safeguard the cash and therefore, as rightly submitted by the learned counsel for the opposite parties, another condition was also violated. However, after the loss of TCs, it was informed to the AMEX, though not given the details namely numbers of the TCs. It is for the complainants to inform and give warning, since the issuer cannot payment of any TCs. After TCs were lost, one of the main condition appears to be that the holder should give reasonable information, to make a complete investigation of the loss or theft. In this context, we have to recall the pleadings in order to find out, whether that condition was satisfied or not.
17. As pleaded in Para 6 and 7 of the complaint, when the complainants wanted to proceed back home and when Madhu wants his personal belongings, the first complainant opened the back pack and could not find the red folder containing the TCs, thereby showing that the TCs should have been lost in the Bank premises.
That is why as pleaded, they requested the Bank to play the video footage, to see whether the same could throw light on the lost red folder. Admittedly, as conceded subsequently, it is proved, even we could say that the complainants have not lost the red folder or the TCs in the ANB Bank.
18. The complainants lodged a police complaint with Metropolitan Police Station, Greenwich originally as if, it was lost in the Bank, then it was lost in the Street, giving a complaint Property Lost in Streets. If really, as pleaded in the complaint, the TCs were lost or stolen by somebody, it should have been taken with other belongings of Madhu or the first complainant as the case may be, for that also, they should have given a police complaint, which is absent. Thus, for the TCs said to have been lost, the complainants have given three different kinds of complaints/version as seen from the Police report, as pleaded in the complaint, which had created a genuine doubt in the minds of the first opposite party, as if, the complainants have failed to comply the terms of the purchase agreement and they did not safeguard the TCs and the story may be totally incredible etc., On that ground alone, the opposite parties failed to concede the request of the complainants, doubting about the conduct of the complainants, that too, considering the fact, some of the TCs are available with the second complainant. Therefore, a genuine doubt entertained by the first opposite party, on the basis of the different stand taken by the complainants, cannot be termed as negligence or deficiency in service and the first opposite party was fortified to deny the payment apprehending, there may be a chance for somebody to encash the TCs assuring in that case, they will pay the amount or if the lost TCs are restored to them.
19. It is not the case of the complainants, that they have tendered the TCs, signed in the TCs in the presence of the authority concerned, showing the identity and despite the first opposite party failed to pay the amount on any frivolous grounds. Admittedly, at the time of purchase of the TCs, one has to sign on the top of the left corner and while presenting the TCs for encashment, they have to sign, at the bottom in the space provided. It is not known, whether they have signed the TCs at the foot of the TCs or not, though pleaded, not signed. As seen from the refund form, the place of loss is mentioned as Abbey National Bank [Ex.A6] and the police, on that basis, when a complaint was given, the Police also reported that no offender has been arrested and the complainants will be notified with any development takes place as seen from Ex.A7. The first opposite party informed under Ex.A8 that they cannot refund the TCs amount since, refund can only be made on lost or stolen, further informing, the investigation also does not provide sufficient evidence that the condition has been fulfilled. After review of the matter under Ex.A9, the first opposite party informed that they have reviewed of all 3 claims for request for a refund, informing denial of the refund, further informing, if any additional information regarding the claim is available, that will be considered. Ex.A10 also makes it doubtful, whether the complainants have lost the TCs or they were stolen in the premises. Therefore, based upon the police report, inconsistent stand taken by the complainants, to safeguard their interest if any future claim comes, cautiously the first opposite party denied the payment, which cannot be perse labeled as negligence or deficiency in service. Therefore, we are of the considered opinion that the opposite parties, have not committed any deficiency and as urged by the learned counsel for the complainants, mere denial to refund the amount will not come within the meaning of deficiency in service, since the complainants as said above, failed to satisfy the conditions as well as failed to project a uniform case regarding the loss of TCs. Therefore, strictly speaking on the basis of the deficiency or negligence, the complainants are not entitled to any relief much less any interest or compensation as held by this Commission also in S.C. Segaram Vs. ANZ Grindlays Bank & Others reported in I (1995) CPJ 323.
20. However, the facts remain as on this date, the TCs purchased by the complainants were not encashed and it is also not the case of the first opposite party, there was any attempt to encash or encashed by somebody, thereby showing, the amount paid by the complainants are with the first opposite party. The first opposite party though agreed to serve for consideration, taking commission, failed to refund the amount, of course on genuine grounds, for that, we feel, it may not be proper on the part of the first opposite party to retain the amount, for ever and there should be a remedy for the complainants. In order to render justice, as well as to safeguard the interest of the first opposite party, not causing any loss to anybody, we are inclined to order refund of the value of TCs lost, to the respective complainants, on their executing Indemnity Bonds since the whole problem has arisen on account of the carelessness of the complainants and subsequent inconsistent stand taken by the them, elsewhere. Hence, these points are answered accordingly.
21. In the result, the complaint is allowed in part, directing the first opposite party alone, to refund a sum of Rs.3,58,800/- to the first complainant, Rs.3,58,460/- to the second complainant and Rs.1,83,065/- to the third complainant on their executing Indemnity Bond for the above said amounts, according to law, in favour of the first opposite party, within a month from the date of receipt of this order and on receipt of the Indemnity Bonds, the first opposite party is directed to process and refund the amount, within a month from the date of submitting the Indemnity Bonds to the first opposite party, failing which, the above amount shall carry interest at 12% per annum from the date of default, till the realization. The rest of the claim is dismissed.
22. Having regard to the facts and circumstances of the case, the parties are directed to bear their respective costs.
J. JAYARAM M.THANIKACHALAM JUDICIAL MEMBER PRESIDENT Exhibits of the complainants:
A1 04.07.2003 Copy of unused Traveller Cheques.
A2 04.07.2003 Copy of the American Express Travellers Cheques.
07.07.2003 A3 04.07.2003 Copy of the Cash Memos issued by the 2nd Ops. to complainants.
07.07.2003 A4 11.07.2003 Copy of Police Complaint lodged by the complainant with Metropolitan Police Station at Greenwich Police Station U.K. A5 11.07.2003 Copy of the Refund Forms submitted to the Amex Counter, Strand, London by the complainants.
A6 01.08.2003 Copy of the complainant with Metropolitan Police Station at Greenwich Police Station U.K. for theft TCs.
A7 01.08.2003 Copy of the letter received from Metropolitan Police Crime Management Unit in London addressed to the first complainant.
A8 06.08.2003 Copy of the letter received from the American Express Service Europe, UK addressed to the complainants rejecting the Refund Claim.
A9 07.08.2009 Copy of the letter received from American Express Customer Relation, USA addressed to complainants.
A10 14.08.2003 Copy of the letter addressed by the first complainant to the Branch Manager, Abbey National Bank, Canary Wharf, London.
A11 14.08.2003 Copy of the letter addressed by the complainants to the Branch Manager, Canary Wharf, London.
A12 09.09.2003 Copy of the letter from Metropolitan Police Crime Management Unit in London addressed to the first complainant.
A13 03.11.2003 Copy of the legal notice issued by the complainants counsel to American Express Services Europe Ltd., Brighton, U.K. A14 11.03.2004 Copy of the reply received by the complainants counsel from American Express Bank Ltd., Gurgaon, India.
Exhibits of the Opposite Parties:
B1 -- Copy of Passports & Journey Tickets of Complainants 1 to 3.
B2 -- Copy of TCs Sale Receipt issued by first OP to the complainants.
B3 -- Purchase Agreement for Travellers Cheques issued by first OP.
B4 -- Copy of Refund Form submitted by complainants to first OP.
B5 -- Copy of complaint given by complainants.
B6 -- Copy of In-depth Phone Interview given by the complainants.
B7 06.08.2003 Letter from first opposite party to the first complainant.
B8 14.11.2003 Legal Notice issued by complainants to first OP.
B9 21.11.2003 Copy of reply notice given by the first OP.
B10 28.08.2003 Publication in Media in U.K. given by the complainants.
B11 11.03.2004 Copy of reply sent by the first OP to the complainants.
J. JAYARAM M.THANIKACHALAM JUDICIAL MEMBER PRESIDENT