State Consumer Disputes Redressal Commission
Punjab And Sind Bank vs Smt. Nirmal Kaur & Ors. on 4 October, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.634 of 2010.
Date of Institution: 19.04.2010.
Date of Decision: 04.10.2013.
1. Punjab and Sind Bank, Mehal Kalan, District Sangrur, through its
Senior Manager.
2. Punjab and Sind Bank, Sangrur through its Senior Manager.
.....Appellants.
Versus
1. Smt. Nirmal Kaur W/o Sh. Bachan Singh, R/o Patti Sodha, V&PO
Mahan Kalan, District Barnala, through Attorney Sh. Dharamjit
Singh S/o Sh. Bachan Singh, R/o VPO Mahal Kalan, District
Barnala.
2. Standard Chartered Bank, Customer Care Unit, 19, Rajaji Salai,
Chennai, through its Customer Care Head.
3. The Manager, State Bank of Travancore, PB. No.7826, United
India Insurance Building, Esplande, Chennai-600108.
4. The Manager, State Bank of India, Patiala Gate, Sangrur.
...Respondents.
First Appeal against the order dated
11.03.2010 passed by the District
Consumer Disputes Redressal Forum,
Barnala.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Ms Adarshpal Kaur, Advocate, counsel for the appellants.
None for respondent no.1.
Sh. Jatin Kumar, Advocate, counsel for respondent no.2. Sh. K.S. Arya, Advocate, counsel for respondent no.3. Respondent no.4 Exparte.
First Appeal No.634 of 2010 2INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
This order will dispose of the three (3) appeals i.e. F.A. No.634 of 2010 (Punjab and Sind Bank & Anr. Vs Smt. Nirmal Kaur & Ors.), F.A. No.669 of 2010 (State Bank of Travancore Vs Smt. Nirmal Kaur & Ors.) and F.A. No.940 of 2010 (Standard Chartered Bank Vs Smt. Nirmal Kaur & Ors.) as all the appeals are directed against the same order dated 11.03.2010 (date of order wrong mentioned in appeal as "12.03.2010") passed by the learned District Consumer Disputes Redressal Forum, Barnala (in short "the District Forum"). Facts are taken from F.A. No.634 of 2010 and the parties would be referred by their status in this appeal.
2. Facts in brief are that Smt. Nirmal Kaur, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants/opposite parties no.5 & 4 respectively (hereinafter called "appellants") and respondents no.2 to 4/opposite parties no.1 to 3 (hereinafter called "respondents no.2 to 4"), making the averments that mother of respondent no.1, namely Smt. Jal Kaur sent a draft No.938636 dated 02.08.1999 amounting to Rs.54,927/- to respondent no.1 from New Zealand. The said draft was to be paid in the account of respondent no.1 bearing No.5038/2D maintained in Punjab & Sind Bank, Branch Mahal Kalan, but the same was never deposited in her account. The said bank draft was drawn by respondent no.3 to respondent no.4, but till date, respondent no.1 has not received the payment in her account at Branch Mahal Kalan. Respondent no.1 approached the appellants and respondents no.2 to 4 a number of times, but all in vain. A legal notice was also sent and the First Appeal No.634 of 2010 3 reply was sent by respondent no.2 and some documents were sought and the same were sent vide letter dated 04.03.2009, but till date nothing has been done. There is deficiency in service on the part of the appellants and respondents no.2 to 4.
3. It was prayed that the appellants and respondents no.2 to 4 may be directed to pay Rs.54,927/- along with interest @ 18% p.a. and to pay Rs.1.00 lac as compensation and Rs.10,000/- as litigation expenses.
4. In the written version filed on behalf of respondent no.2, preliminary objection were taken that the complaint is the abuse of the process of law and all the allegations are false. The complaint is false and frivolous and has been filed with the sole intention of harassing the answering respondent. Respondent no.1 is not a consumer. There is no deficiency in service. The complaint is barred by time and deserves dismissal.
5. On merits, it was submitted that respondent no.2 received Inward Remittance (Ref.367IT99073000076) for onward credit to Beneficiary account with Punjab & Sind Bank, Sangrur Branch and not by way of draft as claimed by respondent no.1. As instructed by the Inward Remittance and due to non-availability of branch at Sangrur, respondent no.2 issued Pay Order No.005703 for Rs.55,179-50p favouring State Bank of Travancore for issuance of DD payable at Sangrur for final credit to respondent no.1's account with Punjab & Sind Bank. After clearing the Pay Order on 02.08.1999, State Bank of Travancore issued demand draft no.938686 dated 03.08.1999 for Rs.54,927/- favouring respondent no.1 at SBI, Sangrur. Respondent no.2 understand that DD is still unpaid and funds are available with State Bank. State Bank of Travancore could release the proceeds upon First Appeal No.634 of 2010 4 submission of Lost Draft Indemnity in lieu of the demand draft issued by them in the year 1999. The answering respondent acted in good faith and facilitated routing of funds to the intended Branch location to ultimate credit to beneficiary account through State Bank of Travancore as per banking practice and there is no deficiency in service on the part of the answering respondent and the funds are also not held by the answering respondent. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
6. In the written version filed on behalf of respondent no.3, preliminary objections were taken that respondent no.1 has no locus standi to file the complaint and the complaint is liable to be dismissed Respondent no.1 has not come to the Forum with clean hands and has suppressed the material facts. The answering respondent is entitled to special costs of Rs.1.00 lac for unnecessary dragging it into litigation.
7. On merits, it was submitted that respondent no.2 approached the answering respondent for issuing a draft of Rs.54,927/- in favour of respondent no.1 and the same was issued to respondent no.2 by the answering respondent, but the same was never received by the answering respondent for encashment. The answering respondent received a letter dated 06.05.2009 along with notice dated 16.08.2008 received from respondent no.2 from Sh. Sumir Fatta, Advocate, inquiring about encashment of amount of draft no.938636. The answering respondent verified the same and it was found that the answering respondent has not issued such a demand draft in favour of respondent no.1. On detailed inquiry with the Link Officer of State Bank of Travancore at Mumbai, it was ascertained that a similar entry remained un-reconciled. On further verification, it was found that the answering respondent had issued a draft of Rs.54,927/- on 03.08.1999 First Appeal No.634 of 2010 5 but of a different number i.e. 938686 in favour of respondent no.1 at the request of respondent no.2 which was handed over to respondent no.2 on the same day. The said draft was never presented to the answering respondent for payment and it remained un-reconciled. It was informed to respondent no.2 vide e-mail dated 03.06.2009. It was further informed to respondent no.2 that it may obtain duplicate draft from respondent no.3 by furnishing an indemnity bond supported by an application and remittance of Rs.110/- towards the fee for issuing the duplicate draft, but respondent no.2 failed to comply with the same. There is no deficiency in service or negligence on the part of the answering respondent. Other allegations were denied and dismissal of the complaint was prayed.
8. In the written version filed on behalf of respondent no.4, it was mentioned that respondent no.1 has not mentioned the date on which the draft of Rs.54,927/- was presented by Punjab & Sind Bank to the branch of the answering respondent. The answering respondent has checked its entire account and found that no such draft was presented either by respondent no.1 or by any bank for realization of the proceeds of the draft. The contents of the complaint are vague and the entire record was checked from 1998 till date. Similar legal objections were taken and it was prayed that the complaint may be dismissed.
9. In the written version filed on behalf of the appellants, similar preliminary objections were taken. On merits, it was submitted that from the complaint, it is clear that the draft was never deposited by respondent no.1 with appellant no.1 in her account no.5038/2D. The appellants have not received any payment till date. There is no deficiency in service. Respondent no.1 took up the matter with the First Appeal No.634 of 2010 6 Banking Ombudsman, Chandigarh in the year 2001 and the case was closed, as respondent no.1 failed to show that the draft was ever handed over to the appellants for collection. The complaint is false and frivolous. Other allegations were denied and dismissal of the complaint with costs was prayed.
10. Parties led evidence in support of their respective contentions by way of affidavits and documents.
11. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that respondent no.2, who received the money from the mother of respondent no.1 to be handed over to respondent no.1 through appellant no.1, deposited the same with respondent no.2 who prepared the demand draft through respondent no.3 and they never bothered to ensure that the same should reach respondent no.1 through her banker, appellant no.1. It is a clear case where respondent no.2, respondent no.3 and appellant no.1 were fully aware about the status of the money of respondent no.1 lying with respondent no.3, but never bothered since the year 1999 to see that the same reaches respondent no.1 in time. There is no explanation as to why for such a long period, the money of respondent no.1 was kept by respondent no.3 and the same was never sent back to the original sender. When the appellants and respondents no.2 to 4 received the legal notice, then they woke up and under apprehension of some legal action, submitted the details to respondent no.1. Appellant no.1 is banker of respondent no.1 and is equally liable along with respondents no.2& 3 and is deficient in rendering services to respondent no.1 and it was within its knowledge. The complaint was allowed and respondents no.2 & 3 were directed to make payment of the money of respondent no.1 lying with First Appeal No.634 of 2010 7 respondent no.3 to the tune of Rs.54,927/- along with interest @ 9% p.a. from the date of receiving amount i.e. 03.08.1999 and the appellants and respondents no.2 to 4 were directed to pay Rs.1.00 lac as compensation as consolidated amount.
12. Aggrieved by the impugned order dated 11.03.2010, the appellants have come up in the present appeal, with a prayer to set aside the impugned order.
13. Respondent no.3-State Bank of Travancore also filed the appeal i.e. F.A. No.669 of 2010 (State Bank of Travancore Vs Smt. Nirmal Kaur & Ors.) for setting aside of the impugned order.
14. Respondent no.2 Standard Chartered Bank also filed the appeal i.e. F.A. No.940 of 2010 (Standard Chartered Bank Vs Smt. Nirmal Kaur & Ors.) with a prayer that the impugned order may be set aside.
15. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments submitted on behalf of the parties, except respondent no.4 who has not contested the appeal and was proceeded against exparte.
16. In the written arguments filed on behalf of the appellants, it was submitted that an amount of Rs.54,927/- was sent to respondent no.1 from New Zealand through respondent no.2-Standard Chartered Bank. Respondent no.2 was not having any branch at Sangrur, so it got a demand draft prepared from respondent no.3-State Bank of Travancore. Respondent no.1 was having the saving account with the appellants. This demand draft was to be sent by respondent no.2 to the appellant bank and then the appellant bank was to get the amount collected from respondent no.3 through SBI, Sangrur, respondent no.4 First Appeal No.634 of 2010 8 and deposit the same in saving account of respondent no.1. Respondent no.2 failed to send the draft to the appellants. There is no deficiency in service and respondent no.1 is not a consumer, as no service of the appellants was hired and the appellants are not liable.
17. Respondent no.2 neither made any averment nor produced any evidence to the effect that the draft was never sent by it to the appellants. In the affidavit submitted by Sh. R. Ramanath, Manager of respondent no.2, he admitted that the draft is still unpaid and money is lying with State Bank of Travancore. There is no evidence that respondent no.3 sent the draft to the appellants and the appellants cannot be termed deficient in service. The appellants went out of their way to provide good customer services to respondent no.1 and wrote to respondent no.2, asking it to send the requisite details of the draft, if ever sent by it, so that the same could be located, but there was no cooperation from respondent no.2 and it neglected to send the draft. Respondent no.1 has filed the complaint before the Ombudsman, but the same was dismissed, as there was no lapse on the part of the appellants and the impugned order passed by the District Forum is liable to be set aside.
18. In the written arguments filed on behalf of the respondent no.1, pleadings were repeated. It was further submitted that the District Forum vide order dated 12.03.2010 directed the Standard Chartered Bank and State Bank of Travancore to make the payment of the money lying with the Bank of Travancore amounting to Rs.54,927/- along with interest @ 9% p.a. w.e.f. 03.08.1999 i.e. the date of receipt of money and to pay Rs.1.00 lac as compensation jointly and severally. The order passed by the District Forum is legal and valid and respondent no.1 has to wait for a long period of 11 years and the appeal may be dismissed. First Appeal No.634 of 2010 9
19. In the written arguments filed on behalf of respondent no.2- Standard Chartered Bank, it was submitted that the complaint is barred by limitation. The cause of action arose in the year 1999 and the complaint was filed in the year 2009 and is hopelessly time barred. There is no deficiency on the part of respondent no.2 nor any unfair trade practice. Respondent no.2 sent the Pay Order to State Bank of Travancore for preparation of demand draft in favour of SBI, Sangrur to be payable to respondent no.1. Other pleas were repeated and it was further submitted that as per factual position as instructed in the Inward Remittance and due to non-availability of Branch of Standard Chartered Bank at Sangrur, respondent no.2 issued the Pay Order No.005703 for Rs.55,179-50 in favour of State Bank of Travancore for issuance a demand draft payable at Sangrur for final credit to respondent no.1's account with the appellant bank. After clearance of the Pay Order, State Bank of Travancore issued a demand draft No.938686 dated 03.08.1999 for Rs.54,927/- in favour of respondent no.1 at SBI, Sangrur. The order passed by the District Forum is not sustainable. The money of respondent no.1 was kept by the State Bank of Travancore and it was never sent back to the original sender. Respondent no.1 kept on sleeping over the matter and never bothered to approach respondent no.2 for her money for 10 years. Prior to notice dated 06.05.2009, respondent no.2 did not receive any communication from respondent no.1 with regard to the payment or encashment of the said amount. The District Forum has wrongly ordered respondent no.2 to pay the amount, whereas the amount was deposited with respondent no.3 and there is no deficiency in service on the part of respondent no.2. The evidence of respondent no.2 was not considered and the impugned order is liable to be set aside.
First Appeal No.634 of 2010 10
20. In the written arguments filed on behalf of respondent no.3- State Bank of Travancore, it was submitted that respondent no.1 has not hired the services of respondent no.3 and respondent no.1 is not its consumer. The said money was sent through Inward Remittance vide Reference No.3671T99073000076, but the same was not deposited in her account and she never received the money. Admittedly, respondent no.2-Standard Chartered Bank received funds through Inward Remittance to be paid to respondent no.1 in her account with appellant no.1. As there was no branch office at Mahal Kalan of Standard Chartered Bank, it approached respondent no.3 to issue demand draft in favour of respondent no.1 and accordingly, demand draft no.938636 for Rs.54,927/- was prepared and delivered to Standard Chartered Bank and it was for Standard Chartered Bank to handover the draft in question to respondent no.1/beneficiary for presentation of the same in her account for collection. It was the sole duty of the bank to see and check that the DD got prepared should reach respondent no.1 in time and if misplaced, to arrange for issuance of duplicate one for respondent no.1. Respondent no.1 has approached only Standard Chartered Bank and said DD was never presented to State Bank of India for its encashment. The answering respondent bank is not, at all, liable and there is no deficiency in service. Respondent no.1 had no dealings with the answering respondent bank, nor remittance of money took place. No amount was charged or paid for making the demand draft nor respondent no.1 has paid any money for issuing the duplicate demand drat and respondent no.3 is not liable. Standard Chartered Bank has also not made any request for issuance of duplicate DD. The order passed by the District Forum not sustainable and is liable to be set aside.
First Appeal No.634 of 2010 11
21. We have considered the respective written submissions submitted on behalf of the parties and have thoroughly scanned the entire record and other material placed on the file.
22. Smt. Jal Kaur sent a draft no.938636 dated 02.08.21999 amounting to Rs.54,927/- to respondent no.1 from New Zealand. The said draft was to be paid in the account of respondent no.1 bearing No.5038-2D maintained with appellant no.1 at its branch at Mehal Kalan, but the same was never deposited. As per version of respondent no.2, it received Inward Remittance mentioned above which was to be credited in the account of respondent no.1 in appellant no.1 bank, but since respondent no.2 had no branch at Sangrur, it issued a Pay Order No.005705 for Rs.55,179-50p in favour of respondent no.3 for issuance of demand draft payable at Sangrur, so that the amount could be credited in the account of respondent no.1 at Punjab & Sind Bank, Mehal Kalan i.e. appellant no.1. Respondent no.3 has admitted that respondent no.2 approached it for issuance of draft of Rs.54,927/- and the same was issued on 03.08.1999 in favour of respondent no.1 on the request of respondent no.2 and it was handed over to respondent no.1 on the same day. Respondent no.3 has not placed on record any document to prove that the said draft was handed over to respondent no.2. Rather, respondent no.3 informed respondent no.2 that it may obtain a duplicate draft from it, by furnishing an indemnity bond after completing other formalities.
23. The amount was deposited by respondent no.2 with respondent no.3 for preparing the draft, but thereafter, neither respondent no.2 bothered to collect the draft and to send it to the concerned branch nor respondent no.3 ever handed over the original draft to respondent no.2. The deficiency was mainly on the part of First Appeal No.634 of 2010 12 respondents no.2 & 3 and the appellants were not, at all, deficient because no draft reached the appellants and, as such, there was no question of crediting any amount in the account of respondent no.1 by the appellants, but the District Forum has held the appellants and respondents no.2 to 4 jointly and severally to pay the compensation of Rs.1.00 lac and the order passed by the District Forum is liable to be set aside qua the appellants.
24. Respondent no.4-bank was also not deficient in any manner, therefore, respondent no.4 is also not liable to pay any compensation.
25. As discussed above, the deficiency in service was on the part of respondents no.2 & 3 and the amount was deposited with respondent no.3, who was to hand over the draft to respondent no.2 and, as such, the District Forum has rightly held both respondents no.2 & 3 liable to pay the amount of Rs.54,927/- along with interest @ 9% p.a. from the date of receiving the amount i.e. 03.08.1999 till payment.
26. The compensation awarded by the District Forum is on the higher side and does not commensurate with the relief claimed and, as such, the impugned order is modified and respondents no.2 & 3 are only held liable to pay compensation to the tune of Rs.30,000/- to respondent no.1 jointly and severally.
27. Sequel to the above discussion, appeal filed by the appellants i.e. F.A. No.634 of 2010 is accepted and the impugned order under appeal dated 11.03.2010 passed by the District Forum is set aside qua the appellants and respondent no.4. Consequently, the complaint filed by respondent no.1/complainant against the appellants and respondent no.4 is dismissed. No order as to costs. First Appeal No.634 of 2010 13
28. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to appellant no.1 by way of a crossed cheque/demand draft after the expiry of 45 days.
First Appeal No.669 of 2010:-
29. In view of the reasons and discussion held in F.A. No.634 of 2010 (Punjab and Sind Bank & Anr. Vs Smt. Nirmal Kaur & Ors.), the F.A. No.669 of 2010 (State Bank of Travancore Vs Smt. Nirmal Kaur & Ors.) is partly accepted and the impugned order under appeal dated 11.03.2010 passed by the District Forum is modified to the extent that the appellant along with respondent no.2-Standard Chartered Bank shall pay Rs.30,000/- as compensation to respondent no.1/complainant jointly and severally. Remaining part of the impugned order is affirmed and upheld.
30. The appellant-State Bank of Travancore had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
31. Remaining amount as per the impugned order as well as modified vide this order shall be paid by the appellant-State Bank of Travancore and respondent no.2-Standard Chartered Bank to respondent no.1/complainant jointly and severally within 45 days of receipt of copy of the order.
First Appeal No.940 of 2010:-
First Appeal No.634 of 2010 14
32. In view of the reasons and discussion held in F.A. No.634 of 2010 (Punjab and Sind Bank & Anr. Vs Smt. Nirmal Kaur & Ors.) and the F.A. No.669 of 2010 (State Bank of Travancore Vs Smt. Nirmal Kaur & Ors.), the F.A. No.940 of 2010 (Standard Chartered Bank Vs Smt. Nirmal Kaur & Ors.) is partly accepted and the impugned order under appeal dated 11.03.2010 passed by the District Forum is modified to the extent as mentioned above in Para-29.
33. The appellant-Standard Chartered Bank had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
34. Remaining amount be paid as per Para-31 of this order.
35. The arguments in all these appeals were heard on 24.09.2013 and the orders were reserved. Now the orders be communicated to the parties.
36. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
37. Copy of the order be placed in F.A. No.669 of 2010 (State Bank of Travancore Vs Smt. Nirmal Kaur & Ors.) and the F.A. No.940 of 2010 (Standard Chartered Bank Vs Smt. Nirmal Kaur & Ors.).
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member October 04, 2013.
(Gurmeet S)