State Consumer Disputes Redressal Commission
State Bank Of India vs Simranjeet Singh on 5 February, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 1550 of 2011
Date of institution : 24.10.2011
Date of decision : 05.02.2014
State Bank of India, Kairon Road, Malout, District Sri Muktsar Sahib
through its Branch Manager.
.......Appellant- Opposite Party
Versus
Simranjeet Singh son of Shri Hardeep Singh, R/o Street No.1,
Hanuman Mandir Road, Ward No.8, Mahavir Nagari, Malout, District
Sri Muktsar Sahib.
......Respondent- Complainant
First Appeal against the order dated
9.9.2011 of the District Consumer
Disputes Redressal Forum, Muktsar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri S.K. Gupta, Advocate.
For the respondent : Shri K.S. Dhaliwal, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the appellant/opposite party against the order dated 9.9.2011 passed by District Consumer Disputes Redressal Forum, Muktsar (in short, "District Forum"), vide which the complaint filed by the respondent/complainant, Simranjeet Singh, under Section 12 of the Consumer Protection Act, 1986, was allowed and the opposite party was directed to pay Rs.2,74,119.55P, along with interest at the rate of 7.5% per annum from 1.8.2010 till First Appeal No.1550 of 2011. 2 actual realization by way of banker's cheque within two months from the date of receipt of the certified copy of the order.
2. As per the averments made by the complainant, in his complaint, he had savings account in the opposite party-Bank. He got admission in Ashmark Institute situated in Australia for better education and to build his career, for which his parents arranged for the money by raising the loans from their nearer and dearer. The fee was deposited in that Institute and he applied for visa, which was refused by the authorities. The said fee of Rs.2,76,119.76P was refunded to him by means of demand draft No.165937 of the Standard Chartered Bank, Mumbai. He deposited that demand draft in his account on 30.6.2010 by filling up the voucher. The amount of the demand draft was never credited to his account though he visited the opposite party a number of times and also made written requests. He even approached the Banking Ombudsman, Chandigarh. The opposite party, vide letter dated 27.10.2010, informed him that they were in touch with the Mumbai Branch and the Post Office, Mumbai and after receiving reply from them, it would advise him accordingly. Even after that the amount of the demand draft was not deposited in his account and the same caused mental tension, unnecessary harassment and financial loss to him and his family members. He prayed for the issuance of following directions to the opposite party:-
i) to pay /credit the sum of Rs.2,76,119.76P along with interest at the rate of 18% per annum from the date of deposit till the realization of that amount; First Appeal No.1550 of 2011. 3
ii) to pay Rs.30,000/- as compensation on account of the loss suffered by him;
iii) to pay Rs.30,000/- on account of the mental tension and unnecessary harassment;
iv) to pay Rs.10,000/- as litigation expenses.
3. The opposite party filed the written reply in which it admitted that the complainant had a savings account in this Bank and that the demand draft in question was so deposited by him. It averred that on the receipt of the demand draft the same was sent to State Bank of India, CCPC Branch, Mumbai. Unfortunately, the same was lost in transit. Immediately it took up the matter with that Branch and Standard Chartered Bank Branch, Mumbai. It sent various letters/reminders and e-mails to all the concerned, including Ashmark Institute, Australia, by whom the draft was issued, so that the amount of the demand draft could be credited into the account of the complainant. The matter is still under progress and on the receipt of the amount the same would be immediately credited to the account of the complainant and suitable interest would be paid as per the rules and regulations of the Bank. In these circumstances, the complainant is not entitled to any compensation or litigation expenses. The Bank which issued the draft and the bank by which the same was payable are necessary parties and the complaint is bad for their non-joinder. There was no deficiency in service on its part and, as such, the complainant has no cause of action to file this complaint. As the demand draft was lost during transit, so the District Forum at Muktsar had no territorial jurisdiction to entertain First Appeal No.1550 of 2011. 4 and try the complaint. Moreover, the complaint is premature as the above said efforts are being made by it.
4. Both the parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.
5. We have learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the opposite party that the demand draft was sent to the Branch of this Bank at Mumbai through post and was lost in transit. Evidence has been produced on the record that all the efforts were made by the opposite party to trace out the demand draft and in that direction, it had been writing to all the concerned parties, including the Institute, which had issued that demand draft. Therefore, it cannot be said that there was any deficiency in service on the part of the opposite party. He also submitted that the District Forum could not have made an order for the payment of the amount of the demand draft and at the most, it could have awarded compensation and litigation costs to the complainant, if it was of the opinion that there was deficiency in service on the part of the opposite party. It has also been proved on the record that the amount of that demand draft has not been paid by the concerned Bank to anyone so far. The complainant could have procured a new demand draft from the Institute on the ground that the first demand draft has been lost and the payment thereof has not First Appeal No.1550 of 2011. 5 been received by anyone so far. In support of his submissions, he relied upon the following judgments:-
i) III(2007) CPJ 28 (NC) (INDIAN BANK vs. K.
SWAMANNA);
ii) III(2007) CPJ 30 (NC) (CORPORATION BANK vs.
N.C.S. FILMS);
iii) I(2007) CPJ 1 (NC) (CANARA BANK vs. SUDHIR
AHUJA);
iv) IV(2003) CPJ 53 (NC) (STATE BANK OF PATIALA vs.
RAJENDER LAL & ANR.).
7. On the other hand, it was submitted by the learned counsel for the complainant that the opposite party was required to take all steps to prevent the loss of the demand draft in transit. The same was deposited with it on 30.6.2010 and after waiting for a couple of months to hear the action taken by the opposite party, the complaint was filed. There was clear-cut negligence on the part of the opposite party as the demand draft was lost as a result of the acts of commission and omission on its part and that amounts to deficiency in service. The District Forum did not commit any error by allowing the compensation to the extent of the amount of the demand draft, as the complainant had been deprived of that amount and he is unable to secure the second demand draft as the concerned agent has already shifted to Australia and it is not possible for the complainant to have a second demand draft.
8. It is the admitted case of the parties that the demand draft of Rs.2,76,119.76P was issued in favour of the complainant and the First Appeal No.1550 of 2011. 6 same was deposited by him with the opposite party-Bank on 30.6.2010 and that the same was sent to the concerned branch of the Bank for collection and had been lost in transit. Can it be said that the opposite party was negligent and, as such, was deficient in service in not taking reasonable precautions to avoid the loss of the demand draft in transit? Affidavit of Paramjit Singh, Manager was proved on the record as Ex.OP1/A. He deposed therein that the demand draft was sent to State Bank of India, CCPC Branch, Mumbai but unfortunately the same was lost in transit. They immediately took up the matter with the concerned Branch and the Standard Chartered Bank, Mumbai. There is no evidence by the opposite party that they had taken reasonable care to prevent the loss of the demand draft during transit. There is no evidence as to through whom and in which manner the same was transmitted to the other Branch. This loss of the demand draft in transit itself shows the negligence on the part of the opposite party and from that it is to be inferred that it was deficient in service. Therefore, it is liable to pay compensation to the complainant, who suffered mental injury and also financially on account of the non-receipt of the amount of the demand draft running into lakhs.
9. At the same time, it is also an admitted fact that the amount of that demand draft has not been paid or received by anyone. The opposite party produced evidence for proving that they made every effort to get a duplicate demand draft from the Institute and also asked the complainant to have such a duplicate demand draft. Ex.OP-2 is the Non Payment Certificate issued by the concerned First Appeal No.1550 of 2011. 7 Branch. Ex.OP-3 is the e-mail sent for securing the duplicate demand draft. Ex.OP-5 is the letter written by the opposite party to the complainant requesting him to arrange for a duplicate demand draft for making the payment. Letter dated 24.12.2010 annexed with the appeal as Annexure A-11 is the letter written to the Institute by the opposite party making request for issuing another demand draft of the same value. The other letters written by the opposite party to the concerned Banks were also annexed with the appeal which shows the sincere efforts being made for securing the duplicate demand draft. All this evidence of the opposite party shows that though there was negligence on its part but the same was not grave and it tried to mitigate the same.
10. It is now well settled by virtue of the ratio of the judgments cited by the learned counsel for the opposite party that the District Forum could not have made an order for the refund of the amount of the demand draft itself, though it could have directed it to pay the compensation. In the latest judgment reported in I(2009) CPJ 198 (NC) (STATE BANK OF INDIA vs. MUNTHA LAKSHMI KUMARI) the complainant had a bank account with the ADB, Karempudi Branch. On 21.9.1996 he deposited the cheque of Rs.20,000/- drawn on State Bank of Hyderabad with the opposite party-Bank which was sent for collection to the other Branch through courier agency but was lost in transit. The complainant failed to get a duplicate cheque in spite of being asked to do so and the cheque in question was neither misused nor got encashed by anyone. It was held by the Hon'ble National Commission that the Bank was not First Appeal No.1550 of 2011. 8 liable to pay the amount of the cheque and only compensation could have been awarded for deficiency in service on the part of the Bank. In Rajender Singh's case (supra) it was held that where the cheque is lost in transit, the Bank cannot escape the liability for payment of reasonable compensation. Similar proposition of law was laid down in the other judgments so cited by the learned counsel for the opposite party. As a result of the ratio of these judgments, it is to be concluded that the District Forum was not justified in giving direction to the opposite party to pay the amount of the demand draft itself, along with interest. It should have awarded reasonable compensation keeping in view the amount of the demand draft and the other circumstances proved on the record. As already discussed above, the opposite party had not only directed the complainant to secure a duplicate demand draft from the Institute but it was also making direct communication with that Institute to secure such a duplicate demand draft in order to make payment to the complainant. Keeping in view all these circumstances we are of the considered opinion that Rs.30,000/- is reasonable compensation for the deficiency in service on the part of the opposite party.
11. Accordingly the appeal is allowed and the order of the District Forum is modified to the effect that the opposite party is directed to pay a compensation of Rs.30,000/- and litigation expenses of Rs.8,000/- to the complainant.
12. The appellant-Bank deposited the sum of Rs.25,000/- at the time of filing of the appeal on 24.10.2011. It deposited another sum of Rs.25,000/- on 23.11.2011 in compliance of the order dated First Appeal No.1550 of 2011. 9 8.11.2011. Out of these sums, Rs.38,000/- shall be remitted to the complainant/respondent and the remaining amount of Rs.12,000/- along with interest, which has accrued on the amount of Rs.50,000/- for the period it remained deposited with the Bank shall be remitted to the appellant-Bank by the registry by way of crossed cheques/demand drafts after the expiry of 45 days under intimation to the District Forum and the appellant/Bank.
13. The arguments in this case were heard on 29.1.2014 and the order was reserved. Now, the order be communicated to the parties.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) February 05, 2014 MEMBER Bansal