State Consumer Disputes Redressal Commission
The Managerb ,Feroke Service Co ... vs Saju Stephen on 17 March, 2016
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHAR LANE, VAZHUTHACADU, THIRUVANANTHAPURAM APPEAL NO.222/14 JUDGMENT DATED:17/03/2016 (Against the order in CC No.258/2012 on the file of CDRF, Wayanad, Dtd:28/02/14) PRESENT SHRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER SMT. SANTHAMMA THOMAS : MEMBER APPELLANT The Manager, Feroke Service Co-operative Bank Ltd., No.F1095, Nallam (Arekadu Branch) Nallalam Post, Kozhikode. (By Adv: Sri. Shyam Padman) Vs. RESPONDENTS Saju Stephen, S/o. Thomas, Pulikottil House, Residing near Government Guest House, Sulthan Bathery Post, Wayanad. The Manager, Punjab National Bank, Chungam, Sulthan Bathery. (By Adv: Sri. P. Rajmohan for R1 & Sri. R.S. Mohanan Nair for R2) JUDGMENT
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMEBR 2nd opposite party in CC No. 258/2012 in the CDRF, Wayanad, Kelpetta, is the appellant. The 1st respondent complainant was an account holder of the Punjab National Bank, Sulthan Bathery branch the 1st opposite party. It is alleged in the complaint that on 27.08.2012 the complainant entrusted cheque dated 30.05.2012 for Rs.3 lakhs with the 1st opposite party for collection. They promised to process the cheque in two weeks. After 2 weeks when the complainant approached them, he was informed that the cheque had been sent for collection to the 2nd opposite party, the Ferok Service Co-operative Bank, Arekode Branch. Though further time was availed to clear the transaction, opposite parties failed to keep the promise. Hence alleging deficiency in service, the complainant approached the consumer forum.
2. Both opposite parties admitted entrustment of cheque for collection. Opposite party No.1 contended that they got information after two weeks from the 2nd opposite party that the cheque was mistakenly forwarded to City Bank, N.A Bangalore instead of returning to opposite party No.1. According to them there was no deficiency in service on their part as the cheque was immediately despatched for collection.
3. According to the 2nd opposite party the complainant is not a consumer as they offered no service to him. The cheque received for collection was dated 30/05/2012 and its expiry date was on 30/08/2012. They received the cheque for collection on 1.9.12 that was after the expiry date. Hence no loss was caused to the complainant. Further they received another cheque from City Bank N.A Bangalore for collection on the very same day. Both the cheques were dishonoured for the reason "funds insufficient" and the cheque of the complainant was mistakenly sent back to City Bank N.A Bangalore and the other cheque was sent to the 1st opposite party. On noticing the mistake the 1st opposite party returned the wrongly received cheque but the city bank N.A Bangalore did not do so. Though the 2nd opposite party bank sent several letters to the City Bank N.A Bangalore, they never responded. Opposite party No.2. made a complaint before the Reserve Bank against the City Bank. They further contended that City Bank N.A Bangalore is a necessary party to the proceedings. According to them there was no deficiency in service on their part.
4. Before the consumer forum the complainant was examined as PW1. Exts.A1 to A4 were marked on his side. One witness each was examined on the side of opposite party Nos.1 and 2. Exts.B1 to B13 were marked on their side. Finding that the 2nd opposite party committed mistake and deficiency in service, the consumer forum directed the 2nd opposite party to pay the Rs.3 lakhs, the entire cheque amount to the complainant with interest and cost of the proceedings. The aggrieved 2nd opposite party has preferred this appeal.
5. Admittedly, the complainant presented a cheque for Rs.3 lakhs for collection with the 1st opposite party bank. They sent the cheque for collection to the 2nd opposite party. There is no evidence to show that the 1st opposite party was not prompt in despatching the cheque for collection and rightly the consumer forum absolved the 1st opposite party from liability. The 2nd opposite party had admitted receipt of the cheque of the complainant. But they contend that it was a day later than the due date to honour the cheque. They also contend that on that day they received one more cheque from the City Bank NA Bangalore and both the cheques were dishonoured for the reason "funds were insufficient" in the account of the drawer of the cheques. But while returning the cheques mistake was committed by sending the cheque of the complainant to the City Bank N.A Bangalore and the other cheque to the 1st opposite party, which they duly returned. But the city bank never responded to the requests of the 2nd opposite party to return the mistakenly sent cheque of the complainant.
6. On this admission certainly the 2nd opposite party committed error and therefore deficiency in service. One of the several contentions taken by the appellant / 2nd opposite party is that the City bank N.A Banagalore is a necessary party to the proceedings. But on the admitted facts City Bank is not even a proper party as there is only failure to return a dishonoured cheque wrongly received. The main contention urged before us by the learned counsel for the appellant is based on the following 3 decisions. Federal Bank Vs. NS Sebastian (III (2009) CPJ 3) was a case of a cheque lost in transit. The bank concerned advised the complainant to get duplicate cheque from the drawer. The Hon'ble Supreme Court held that even if the cheque was not lost in transit, it would have been dishonoured due to insufficiency of fund. No effort was taken to obtain duplicate cheque. No action was also taken against the drawer for recovery of the amount. Consequently, the Hon'ble Supreme Court dismissed the complaint.
7. In Hariram Garge Vs. State Bank of Patiala and another (I (2011) CPJ 30) cheque was lost under circumstances similar to those in the above Supreme Court decision. The National Commission upheld the decision of the State Commission which in turn set aside the order of the district forum awarding the entire cheque amount as compensation. Similar is the situation in the decision of the National Commission in State Bank of India Vs. Muntha Lakshmi Kumari (I (2009) CPJ 198). However the bank was directed to pay Rs.5,000/- towards deficiency in service.
8. In this case the contention of the appellant is that the cheque was dishonoured for the reason that "funds were insufficient" in the account of the drawer of the cheque. This aspect was not informed to the complainant on time. No doubt the complainant was entitled to request the drawer of the cheque to issue duplicate cheque. He was also entitled to sue the drawer of the cheque based on the original cause of action. So all the remedies were not lost to him but he lost the remedy under Sec. 138 of the Negotiable Instruments Act as the fact of dishonour was not informed to him. But since the original cause of action and the right to recover the amount was not lost, the consumer forum was not justified in ordering payment of the cheque amount. At the most complainant was entitled to compensation for the deficiency in service which we fix at Rs.10,000. On the above conclusion the order of the consumer forum cannot be sustained. So the appeal is liable to be allowed in part and the relief granted is liable to be modified.
In the result, the appeal is allowed in part. The order of CDRF, Wayanad, Kalpetta, in CC No.218/12 dated 22.2.14 is set aside. The relief granted to the complainant is modified as below. The 2nd opposite party / appellant is directed to pay compensation of Rs.10,000/- (Rupees ten thousand only) to the complainant for their deficiency in service within one month from the date of receipt of copy of this order. The parties shall bear their respective costs in the appeal.
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
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KERALA STATE CONSUMER
DISPUTES REDRESSAL COMMISSION
SISUVIHAR LANE, VAZHUTHACADU,
THIRUVANANTHAPURAM
APPEAL NO.222/14
JUDGMENT DATED:17/03/2016
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