State Consumer Disputes Redressal Commission
American Express Bank Ltd. vs Vivek Garg, on 22 January, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986.) Date of decision :22.1.2008 Appeal No. FA-07/845 (Arising from order dated 29.08.2007 passed by the District Forum, New Delhi, Kasturba Gandhi Marg, New Delhi in Compliant case No. 22/07) American Express Bank Ltd. Travel Related Services Enkay Centre, A. A1& A-2, Udyog Vihar, Phase-V, Gurgaon - 122 016 (Haryana) .. Appellant Through Sh. Amit Kumar, Advocate Versus 1. Sh. Vivek Garg, S/o Sh. Amrit Lal Garg, New Delhi -110026 ..Respondent No. 1 In person 2. Master Trust Limited Through Asstt. Manager, 1012, 10th Flor, Arunachal Building, New Delhi 110 001 CORAM Justice J.D. Kapoor President Ms. Rumnita Mittal Member1
Whether reporters of local newspapers be allowed to see the Judgement.
2. To be referred to the Reporter or not.
Justice J.D. Kapoor (Oral)
1. Respondent has appeared on his own and has argued and as such appeal is being decided on merits.
2. Vide impugned order dated 29.8.2007 passed by the District Forum, the appellant has been directed to give 7000USD travelers cheque or money in Indian currency equivalent to the same to the respondent and Rs. 21,000/- as compensation along with Rs., 5000/- as cost of litigation.
Feeling aggrieved the appellant has preferred the appeal.
3. At the outset, it may be mentioned that the impugned order is an exparte order and it is contented that the appellant was not given opportunity to put its version and impugned order is very harsh as there was no deficiency on its part.
4. The allegations of the respondent leading to impugned order, in brief, were that respondent purchased from appellant American Express Bank Travelers cheque USD 8000 equivalent to Rs. 3,60,000/-. The copy of purchase bill was attached with the complaint. After finishing the work in Singapore, the respondent left for Delhi on 21.3.2006 and on reaching Delhi, respondent noticed that he had lost his un-utilised travelers cheque USD 7000 equivalent to Rs. 3,15,000/- . On the same day i.e. 21.3.2006 the respondent gave information about loss of T.C. with area Police and appellant too. The respondent was assured by appellant that the payment of 7000 T.C.s have been blocked and are safe and will be refunded back to the respondent within a week but it proved to be a false assurance.
5. As against this, the version of the appellant in brief is that travelers cheque were purchased by the respondent for and on behalf of his company and the District Forum has grossly erred in treating the traveler cheque at par with the ordinary cheques and therefore ordered refund in respect of unused travellers cheque on the presumption of non encashment of said cheques. It is also contended that travellers cheques are as good as currency notes and whosoever is the bearer of TCs can encash them and therefore blocking of travelers cheque is not possible and permissible. It is also contentded that in the event TCs being lost or stolen, the holder of such TC is required to exercise due diligence and reasonableness in order to block them and also by an understanding that the said TCs have not been handed over to a third party or transacted or kept signed at both the places.
6. Counsel for the respondent argued that the travellers cheques cannot be encahsed without presenting Passport and obtaining counter signature of the holder thereof. It is not in dispute that the amount of travelers cheques are still lying with the appellant for the last one year. 7. The contention of the learned counsel for the appellant that person who is in possession of the travellers cheques even if he has no passport can encash the cheques does not impress us. It is argued by the learned counsel for the respondent that it is the practice for encahsment of travellers cheques that one signatures are obtained in the presence of representative of the agency another signatures are obtained only on the presentation of the passport.
8. In our view, on the premise that due diligence and caution was not taken by the respondent to safeguard the traveller cheques, the appellant cannot take advantage or escape from the liability of encashment of traveller cheques as these cheques can be encashed on the presentation of the passport only and after obtaining the counter signatures . Reasonable care has to be taken by the appellant in encashing the travelers cheque by the unauthorized person. Even if the travellers cheques are lost it does not prima facie show that holder thereof did not exercise due diligence or care.
9. The contention of the learned counsel for the appellant that the traveller cheques were purchased for commercial purpose and, therefore, the respondent is not a consumer as defined under section 2(1)(d) of the C.P. Act does not hold water at all. It is the nature of transaction which determines the purpose. If any goods or services are purchased or hired for further sale to earn profit only then the purpose becomes commercial and not otherwise. Traveller cheques were purchased by the respondent for his own use and not for further sale as agent or sub-agent. Thus the respondent very much comes under the definition of a consumer.
10. The learned counsel for the appellant has pointed out certain discrepancies in the FIR lodged with the police and the averments made in the complaint filed before the District Forum. Before the District Forum respondent claimed that on reaching Delhi from Singapore he noticed that unused TCs are missing and on the other hand he claimed that he lost TCs during the flight. Be that as it may, the core issue is whether the TCs were lost or not . The FIR lodged with the police prima facie shows loss of traveller cheques may be by way of theft.
11. Aforesaid reasons persuade us to dismiss the appeal being devoid of merits.
However, request of the learned counsel for the appellant that impugned order shall be complied with subject to furnishing of indemnity bond by the respondent appears to be genuine.
In order to safeguard its interest, we direct that impugned order shall be complied against furnishing indemnity bond by the respondent within one month after receipt of this order.
12. The appeal is disposed of in aforesaid terms.
13. F.D.R./ Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
14. A copy of this order as per statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to the record room.
Announced on the 22nd January, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member rk