State Consumer Disputes Redressal Commission
The Manager,Tamilnadu Mercantile Bank ... vs A.Maria Antony, Thoothukkudi. & 2 ... on 19 October, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present
Date of appeal filed: 16.11.2017
THIRU. S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
F.A.No.149/2017
THURSDAY, THE 19th DAY OF OCTOBER 2023.
The Branch Manager,
Tamilnadu Mercantile Bank Limited,
Mullakadu Branch,
Thoothukudi District. Appellant/1 st Opposite Party
-Vs-
1. A.Maria Antony,
S/o Antony Michael,
77-C, 4th Street,
Poopalarayarpuram,
Thoothukudi - 628 002. 1st Respondent/Complainant
2. The Manager,
State Bank of India,
Collection Centre,
Sripuram Branch,
Tirunelveli. 2nd Respondent/2nd Opposite Party
3. The Manager,
Lakshmi Vilas Bank Limited,
Kallakurichi,
Villupuram District. 3rd Respondent/3rd Opposite Party
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Counsel for Appellant/Opposite Party-1 : Mr.A.R.M.Ramesh, Advocate.
Counsel for Respondent-1/Complainant : Mr.R.Aravind Raj, Advocate.
Counsel for Respondent-2/Opposite Party-2 : Mr.G.Radhakrishnan, Advocate.
Counsel for Respondent-3/Opposite Party-3 : Mr.Pala Ramasamy, Advocate.
Aggrieved by the award passed by the District Consumer Disputes Redressal
Commission, Tuticorin made in C.C.No.62/2013, dated 11.10.2017 the first opposite
party preferred this appeal. This appeal coming before me for final hearing on
29.08.2023 and upon perusing the material records, this Commission made the
following:
ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. The Facts:
One Vijayalakshmi wife of Sureshbabu issued a cheque in favour of the complainant Mr.A.Maria Antony for an amount of Rs.5,00,000/- dated 29.05.2012 drawn on Lakshmi Vilas Bank, Kallakurichi. The complainant through his bank, the first opposite party/Tamilnadu Mercantile Bank herein for collection and the above cheque was returned on 27.06.2012 with the reason " funds insufficient ". The complainant approached the first opposite party for getting back his returned cheque, found a portion of the cheque was mutilated. When asked, the first opposite party on 27.06.2012 gave a letter, acknowledging their mistake that the cheque was partly lost during transit. The complainant after sending notice to the drawer of cheque preferred a complaint under Section 138 of Negotiable Instruments Act. But the complaint was returned as the mutilated cheque did not contain the signature of 3 the drawer by the Magistrate court. So the complainant lost a valuable right to prosecute under Section 138 of Negotiable Instruments Act. Hence he filed the complaint to direct the opposite parties are jointly and severally to pay the cheque amount of Rs.5,00,000/- with 12% interest and Rs.1,00,000/- towards compensation for mental agony and also Rs.10,000/- as costs of the proceedings.
2. The first opposite party filed the written version admitted the presentation of cheque and the return of cheque for insufficient funds. But they have contended that the cheque was not mutilated by them and they did not accept their deficiency by any letter. Actually the cheque was not immediately handed over to the complainant and for the delay alone they have given a letter to the complainant, for him to prosecute before the District Commission. So there is no deficiency on their part. Hence the complaint is liable to be dismissed.
3. Similarly, the second and third opposite party also filed the written version that the cheque was not damaged or mutilated by them.
4. The District Commission received proof affidavit, documents marked as Exhibits-A1 to A6, finally partly allowed the complaint directing the opposite parties to pay Rs.5,00,000/- towards the cheque amount to the complainant and to pay Rs.10,000/- towards compensation for deficiency in service and also to pay Rs.3000/- as costs to the complainant.
5. Aggrieved with the above order, this appeal has been preferred by the first opposite party on the following:
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Grounds: That, the District Commission failed to note that the cheque was returned for want of sufficient funds and it was not returned for the reason of damaged or mutilated cheque. Moreover the notice sent by the complainant to the drawer, he never stated that the cheque was mutilated or damaged. So the bank was not deficient and they are not the reason for the damage caused to the cheque. Even otherwise the award of cheque amount is against law and hence they prayed to allow the appeal.
6. In this case, the appellant alone filed written arguments and their oral arguments was also heard and no representation for the respondent-1/complainant.
7. On the side of respondent-1/complainant no additional documents were marked in the appeal. On the side of the appellant/1st opposite party additional document were marked as Ex.B1 in the appeal.
8. As stated earlier, it is an admitted fact that one Vijayalakshmi issued a cheque in favour of the complainant and the complainant presented the cheque through the first opposite party/Tamil Nadu Mercantile Bank which was sent it for collection through the second opposite party/State Bank of India and the drawers bank Lakshmi Vilas Bank/the third opposite party herein. It is further admitted the above cheque was returned for want of sufficient amount. It is also an admitted fact the cheque which is marked as Ex.A1 is found damaged particularly half of the cheque was missing. It is the contention of the complainant that the above cheque was damaged, mutilated and half portion missing only by the opposite parties/banks. It is his further case that the first opposite party/bank issued a letter on 27.06.2012 which is marked as Ex.A2 in which the bank admitted their deficiency. 5
9. On the other hand, it is the contention of the first opposite party/Tamilnadu Mercantile Bank that the cheque was not damaged by them and they have given the cheque in the proper form. Since there was a delay in handing over the cheque they have issued a letter accepting the delay in handing over the cheque. It is their specific case that the cheque was not damaged in their bank and they did not admit their deficiency in any letter.
10. Now the point for consideration is:
Whether the cheque was mutilated by the opposite parties/bank and whether it was admitted by the first opposite party/Tamilnadu Mercantile Bank?
11. Discussion on the point: Admittedly, in Ex.A1 the cheque is in a damaged condition, a part of the cheque was not available and found missing. Particularly the signature of the drawer was not found in the cheque and hence the complaint filed under Section 138 of Negotiable Instruments Act was return by the Fast Track Court, Tuticorin which is marked as Ex.A6. If the cheque was found damaged and it is the case of the complainant that the damage was caused by all the opposite parties/banks, then the responsibility cannot be fixed between the opposite parties. However it has to be borne in mind the cheque was returned only for want of in sufficient funds as if evidenced from Ex.A2 the cheque returned memo. So still it was returned by the drawers bank i.e., by the Lakshmi Vilas Bank the cheque was not damaged and the cheque was not returned citing mutilated cheque or damaged cheque. So the damage was done after receipt from the drawer's bank by the first opposite party/herein.
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12. Admittedly the cheque was returned on 02.06.2012 but it was handed over to the complainant as per Ex.A2 only on 27.06.2012. In Ex.A2 the Bank Manager specifically admitted that the cheque was partly misplaced during transit which means a part of the cheque was damaged during transit. So the Ex.A2 clearly an admission about the cheque was damaged only at the hands of the first opposite party/bank.
13. It is contended by the opposite parties that the complainant in the statutory notice issued to the drawer of the cheque did not mention about the damage caused to the cheque. Infact no prudent complainant would admit the cheque was mutilated in the statutory notice. So the non-mentioning of the damaged condition will not preclude the complainant from prosecuting the bank over their deficiency in service. The non-mentioning in this statutory notice did not mean that cheque was handed over by the opposite parties in proper form. So the damage was done by the first opposite party/bank is clearly proved by Ex.A2. Then certainly it amounts to deficiency in service. So the conclusion of the District Commission is confirmed by this Commission in this regard.
14. At the same time for a damaged cheque the bank need not be asked to pay entire cheque amount. Under Section 45A, the complainant can very well get duplicate cheque from the drawer and he can even file a civil suit to realize the above amount. Without doing so he cannot expect the cheque amount to be realized through this Consumer Forum.
15. In this aspect, the National Commission in State Bank of India .Vs. Muntha Lakshmi Kumari, I (2009) CPJ 198 (NC) has held the following:- 7
"Consumer Protection Act, 1986- Sections 2(1)(g) and 14(1)(d)- Banking and Financial Services- Cheque lost in transit- Deficiency in service alleged- Payment of cheque amount directed- Hence appeal- Complainant failed to get duplicate cheque, in spite of being asked to do so- Cheque misused/encashed, not proved- Bank not liable to pay cheque amount- Order of State Commission set aside- Compensation for deficiency in service on part of Bank awarded." Further The National Commission in S. Ashok Kumar .Vs. Andhra Bank & Anr., III (2009) CPJ 333 has observed the following:
"Consumer Protection Act, 1986- Section 2(1)(g) - Negotiable Instruments Act, 1881- Section 45A- Banking and Financial Services- Cheque lost in transit - No steps taken under Section 45A, Negotiable Act, or approach proper Forum for recovery of amount- Complaint filed against bank- No deficiency in service could be attributed to bank for loss of cheque by courier service- Cheque amount cannot be recovered from bank- Compensation and cost awarded- Order upheld in appeal."8
16. On the same analogy in the present case, it is clear that the total amount of cheque cannot be paid by the appellant bank to the complainant. However, some compensation is to be awarded for the problem and harassment faced by the complainant due to negligence on the part of the appellant bank in not pursuing the matter, in a right perspective manner. So the District Commission award of Rs.5,00,000/- towards reimbursement of cheque amount is unsustainable. The complainant can very well initiate civil proceedings to realize the above amount. The complainant did not plead whether he actually suffered loss to the tune of above cheque amount. So, the award of cheque amount Rs.5,00,000/- is hereby liable to be set aside and modified. At the same time the complainant suffered mental agony and lost a chance to prosecute the drawer so he must be awarded suitably and the compensation awarded by the District Commission is hereby enhanced from Rs.10,000/ to Rs.1,00,000/- and it should be paid with interest @9% till its realization. In other respect the District Commission order is hereby confirmed. Hence the appeal is partly allowed without cost and answered the point accordingly.
17. In the result,
1. The appeal is partly allowed.
2. The award of cheque amount of Rs.5,00,000/- passed by the District Commission, Tuticorin, made in C.C.No.62/2013, dated 11.10.2017 is hereby set aside.
3. The compensation awarded towards mental agony is increased from 10,000/- to Rs.1,00,000 and this amount is to be paid along with 9% interest from date of complaint till its realization. 9
4. There shall be no order as to costs in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 19th day of October 2023.
Sd/-xxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
Additional of Document filed before this Commission on the side of the appellant/1st opposite party.
Ex.B1 30.05.2012 Scanted copy (Electronic Mail) of the Cheque No.754865 of the LVB along with covering letter central processing centre dated 20.04.2013 & the letter of SBI, MICR Cheque processing centre.
Sd/-xxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
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