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Date of Filing :: 04-06-2018

Date of Disposal :: 31-08-2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM::PRAKASAM DISTRICT AT ONGOLE

Saturday, this the 31st day of August, 2019

PRESENT: SRI S.V. CHALAPATHI, M.Com., L.L.B., PRESIDENT

SRI K.UMA MAHESWARA RAO, M.A., B.L., MEMBER

CC.No.27/2018
Between:-
Makineni Hari Babu,
S/o Narasimha Rao,
Aged about 32 years,
Hindu, business,
R/o.Mangamoor Road,
D.No.36-72-475,
Beside Blu Dart Courier,
Ongole Town,
Prakasam District – 523001. … Complainant.

And

1. The Andhra Bank,

Rep. by its Branch Manager,
S.S.N. College Branch,
Mangamoor Donka,
Ongole Town,
Prakasam District.

2. The Professional Couriers,

Rep. by its Manager,
Vijaya Complex,
Near R.T.C. Bus Stand,
Ongole Town,
Prakasam District. … Opposite party.

This complaint is being filed under section-12 of Consumer Protection Act, 1986,
coming on 22-08-2019 before us for hearing in the presence of Sri P.Siva Hari,
Advocate for complainant and Sri G.Ravi Sankar, Advocate for 1st opposite party & Sri
I.Mallikarjuna Reddy, Advocate for 2nd opposite party and having stood over for
consideration till this day and this Forum made the following:

ORDER
(ORDER BY Sri S.V. CHALAPATHI, PRESIDENT)

1. This complaint is filed under section-12 of Consumer Protection Act, 1986,

against the opposite parties 1 and 2, requesting this forum to give direction to
both the opposite parties to pay the cheque amount of Rs.7,50,000/- with interest
@ 24% from 21.03.2018 till the date of payment and also to pay compensation of
Rs.2,00,000/- towards mental agony and for costs of the litigation.
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2. The brief averments of the complaint are as follows:

The complainant is a business man and he has got savings bank account
in 1st opposite party bank, and he was doing transactions through the said
savings bank account No.1305100270002200, while so, on 21.03.2018, he
presented a cheque bearing No.657585, drawn on Indian Bank, Medarametla
Branch, for collection, the cheque amount is Rs.7,50,000/-. The 1st opposite
party bank sent the cheque through the 2nd opposite party courier service to
Indian Bank, Medarametla, for collection. The 2nd opposite party issued a receipt
acknowledging the receipt of cover. The 2nd opposite party misplaced the said
cover containing the cheque. The cheque is valuable security and it was given
by a borrower to the complainant for discharge of his debt. The cover was
misplaced by opposite parties negligently and without taking proper care. The 1st
opposite party collected some amount from the complainant, the 2nd opposite
party also collected some amount from the 1st opposite party. Therefore, both
the opposite parties committed deficiency in service in sending and clearing of
the said cheque. The complainant was in dire need of money, he suffered
mental agony, thereby, there is deficiency in service, he also issued a legal
notice to both the opposite parties on 05.05.2019, the opposite parties received
the notices, the 2nd opposite party issued reply with all false allegations, whereas,
1st opposite party not sent any reply. Hence, both are jointly and severally liable
to pay the cheque amount and interest and costs of litigation. Hence, the case.

3. The brief averments of the written version filed by 1st opposite party are as
follows:-
It is pleaded that, on 22.03.2018, the complainant presented a cheque for
Rs.7,50,000/- in the bank for clearance, and on the same day, the bank sent the
said cheque for clearance through professional courier (OP.2) to Indian Bank
Medarametla branch, but the said cheque was not received by the Indian Bank,
therefore, they contacted the Indian Bank and got reply that, cheque was not
received by their branch, then they enquired 2nd opposite party about delivery of
the cover. The 2nd opposite party replied that the entire consignment bearing
No.ONG431840, dt.22.03.2018, was misplaced and they have already lodged a
complaint with Medarametla Police, and a case was also registered. Thereafter,
on 27.04.2018, the bank informed the same to the complainant in writing along
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with other documents, therefore, the bank is pleading that there is no deficiency
in service on their part and it is the negligence of 2nd opposite party. Further, it is
pleaded that the complainant failed to mention about the particulars of the
person, who issued the cheque and for what purpose. The complainant never
alleged that, the cheque was misused or encashed by any other person,
therefore, they finally pleaded that it is a frivolous complaint against the bank,
hence, the complaint is liable for dismissal with costs and to grant compensation
in the interest of justice.

4. The 2nd opposite party filed its written version and the brief averments are
as follows:-
The 2nd opposite party, which is a Professional Courier Office at Ongole, it
contended that, there is no privity of contract between the courier service and,
complainant and the complaint filed by the complainant is without any legal entity
and no obligation on them, to pay the amount, to the complainant, the
complainant has not paid any charges to them and therefore, there is no
connection of consumer and service provider. Further, the complainant never
booked any cover with them, and he is a stranger. Further, inspite of giving a
reply notice, the complainant filed the case just to harass them, and hence, it is a
case filed knowing fully well, as it is not maintainable. Hence, the complaint is
liable for dismissal with exemplary costs.

5. On behalf of complainant, his chief affidavit was filed, the same is treated
as evidence of P.W.1., he also produced Exs.A1 to A7 documents. On behalf of
1st opposite party, chief affidavit of Branch Manager was filed, and the same is
treated as evidence of R.W.1., on behalf of 2nd opposite party, one Chandolu Hari
Prasad, Office incharge filed his affidavit and the same is treated as evidence of
R.W.2. No documents filed by Ops.1&2.

6. Heard the arguments on both sides.

7. Now the point for consideration is:

Whether there is deficiency in service on the part of opposite parties 1 and
2? and to what relief?
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8. Point:- Before discussing the point in question, it is relevant to mention the

admitted points of both sides. It is not in dispute that the complainant is a
business man and he opened S.B.Account in 1st opposite party Bank and the
account number is 130510027000220, and that, he is doing transactions through
his bank account, and that, he is a business man. Further, it is also admitted by
1st opposite party bank that on 21.03.2018, the complainant presented a cheque
bearing No.657585, for an amount of Rs.7,50,000/- drawn on Indian Bank,
Medarametla Branch, for collection. Apart from the above allegations, it is also
admitted fact by complainant and OP.No.1 Branch, that the bank sent the above
said cheque, on the same day, i.e., on 21.03.2018 to Indian Bank, Medarametla
Branch, through, 2nd opposite party courier service, and obtained a receipt
bearing No.ONG431840, and posted the cheque on 22.03.2018. It is the
contention of 1st opposite party bank that, they have not received clearance
intimation from Indian Bank, therefore, they enquired Indian Bank, Medarametla
Branch about the clearance of cheque. Then, they received information saying
that no cover containing the cheque was received by their bank. Then, the 1st
opposite party enquired with 2nd opposite party courier service about the delivery
of cover. In reply, the 2nd opposite party stated that, the entire consignment
dt.22.03.2018, was misplaced and they have lodged a complaint with
Medarametla Police, and a case was also registered. On receiving such
information the 1st opposite party bank on 27.04.2018, informed the same, to the
complainant, along with some documents, assuring that, the status of the cheque
would be informed after getting reply from police. With these pleadings, the 1st
opposite party is contending that, there is no negligence or deficiency in service
on their part. Whereas, the 2nd opposite party without specifically denying about
entrustment of a cover by 1st opposite party bank, containing cheque for
clearance, to Indian Bank, Medarametla Branch, on 22.03.2018, and that, issue
of a receipt to 1st opposite party bank acknowledging the receipt of a cover, and
then, when 1st opposite party bank enquired about delivery of the cover, then
sending reply, stating that, the entire consignment No.ONG431840,
dt.22.03.2018, was misplaced and they have, lodged a complaint in Medarametla
Police Station, and it was registered. Further, the 2nd opposite party simply
denied the contents of complaint and pleaded that, there is no privity of contract
between their branch and the complainant, and the complainant has not booked
the cover and not paid any charges, and therefore, there is no relationship of
consumer and service provider, and hence, the complaint is liable for dismissal.
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9. The opposite parties 1 and 2 with the above said pleadings, they are
contending that, there is no deficiency in service on their part, and the complaint
is liable for dismissal. However the 1st opposite party bank is contending that,
the 2nd opposite party courier office collected some amount for sending the cover
to Indian Bank, Medarametla, and also issued a receipt, therefore, due to
negligence of 2nd opposite party, the cover was misplaced during transit, and
hence, the 2nd opposite party is alone responsible for the loss of cheque.
Whereas, the complainant is contending that, the said cheque is a valuable
security and it was given by a barrower for clearance of his debt, both opposite
parties collected some amount to do their service, therefore, both have
committed deficiency of service in sending the cheque for clearance. Further,
the complainant in his chief affidavit contended that, he was in dire need of
money, and suffered both mentally and physically, thereby, there is deficiency in
service on the part of both opposite parties. Further, he pleaded that, due to
misplacement of cheque, he was deprived of a right to proceed against drawyee
U/Sec.138 of NI Act., he also got issued a legal notice to both opposite parties,
but except the 2nd opposite party, no reply was received from 1st opposite party.

10. In the light of the above contentions of both parties, now we have to
analyze that, which opposite party committed deficiency in service? and against
whom compensation can be awarded?

11. Admittedly the complainant is requesting this forum to pass an award

directing the opposite parties to pay the cheque amount of Rs.7,50,000/- with
interest @ 24% p.a., from 21.03.2018 till the date of realization and also to award
compensation of Rs.2,00,000/- for causing mental agony. In support of his claim,
he filed Exs.A1 to A7 documents and also relied on his chief affidavit (evidence
of P.W.1) Ex.A1 is the copy of legal notice issued by complainant to opposite
parties dt.05.05.2018, demanding to pay cheque amount within 15 days. Ex.A2
& A3 are the postal acknowledgements. Ex.A4 is the copy of reply notice sent by
OP.2. dt.14.05.2018. Ex.A5 is the copy of report given by OP.No.2 to S.I. of
Police, Medarametla, dt.26.04.2018, stating that, the delivery boy, on
23.03.2018, while distributing the covers, he lost the courier load and all the
documents were lost. Ex.A6 is the receipt issued by OP.2 to OP.1 Bank
acknowledging the receipt of cover, it is dt.22.03.2018. Ex.A7 is the letter
dt.27.04.2018 sent by 1st opposite party bank to the complainant, stating that, the
cheque for Rs.7,50,000/- deposited by him on 22.03.2018, for clearance to Indian
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Bank, Medarametla branch, was sent through Professional Courier, on the same
day for clearance, but the cheque was not cleared, then they enquired Indian
Bank, Medarametla, regarding the cheque, they informed that, they have not
received any cheque till date, afterwards, they enquired the professional courier
regarding the cheque, they informed that, the entire consignment number
ONG431840, dt.22.03.2017 was misplaced, and they have lodged complaint at
Medarametla Police Station. With this letter, the bank also enclosed, the relevant
documents in proof of sending the cheque for collection through professional
courier. As seen from the contents of the documents filed by complainant,
particularly Exs.A1, A4 to A7, are proving that, the complainant deposited a
cheque bearing No.657585, drawn on Indian Bank, for Rs.7,50,000/- in 1st
opposite party bank on 21.03.2018, for collection, the 1st opposite party sent the
cheque for clearance to Indian Bank, Medarametla, through 2nd opposite party
courier service on 22.03.2018. The opposite party No.2 courier service is
admitting about booking of cover by 1st opposite party bank on 22.03.2018 and
about issue of original of Ex.A6 receipt to the bank. It also admitted about loss of
the entire consignment by their delivery boy on 23.03.2018 and giving a report to
the Police, Medarametla. Admittedly Ex.A5 document is not in dispute. At the
same time, the bank OP.1 clearly admitted about the deposit of the cheque by
the complainant for collection on 21.03.2018. The bank also admitted about
sending the cheque to Indian Bank, Medarametla through 2nd opposite party
courier service on 22.03.2018. It is also not in dispute that, the cover was lost
while in the custody of OP.No.2, and O.P.No.2 failed to deliver the cover to
Indian Bank, Medarametla. In view of these circumstances the complainant
rightly issued Ex.A1 notice, to both the opposite parties demanding them to pay
the cheque amount. The complainant filed the present complaint requesting for a
direction to opposite parties 1 and 2 to pay Rs.7,50,000/- with interest @24%
p.a., and compensation of Rs.20,000/-.

12. In reply the 1st opposite party bank is contending that, they have not
committed any deficiency of service and that they honestly entrusted the cheque
to 2nd opposite party for delivery to Indian Bank, but OP.No.2 failed to deliver the
cover and committed default and therefore OP.No.2 alone is liable for
compensation. The 1st opposite party counsel in support of his case he drawn
our attention to the following decisions:
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No.1) 2009 I CPR (NC) 91, “A.P.Bopanna Vs. Kodagu District Co-operative
Central Bank”.
No.2) 2003 IV CPJ (NC) 53, “State Bank of Patiala Vs. Rajenderlal and Anr.”
No.3) 2006 III CPR 411 (NC) “Canara Bank Vs. Shri Sudhir Ahuja”.
No.4) Revision Petition No.2068 of 2010, in the case “Hariram Vs. State Bank
of Bikaner & Jaipur & Anr.” Dt.28.10.2010, rendered by NCDRC, New
Delhi.

13. Relying on these decisions, the counsel contended that, the 1st opposite
party bank is not at all responsible for the loss of cheque and that, they have
sincerely sent the cheque to Indian Bank for collection on 22.03.2018 itself,
through OP.2 courier service by paying charges and by obtaining a valid receipt,
in acknowledgment of receiving cover by courier service, therefore, the OP.No.2
courier service is responsible for loss of the cheque and they failed to perform
their obligation sincerely and honestly as promised by them, and therefore, any
compensation is awarded is must be against OP.No.2 courier service, who is
admittedly responsible for loss of the cover. He further contended that, bank
cannot be directed to pay the cheque amount of Rs.7,50,000/- with interest and
compensation.

14. The counsel for opposite party No.1, apart from relying on the above 4
decisions, he contended that, the complainant not revealed the name of the
person, who issued the cheque to him and he has not taken steps to get fresh
cheque from the person, who issued the cheque or he has not taken steps to
recover the amount from the said person by filing a civil suit. Admittedly, no
steps were taken as provided U/Sec.45A of N.I.Act., there is no proof to show
that, there was sufficient and adequate money available in the account of drawer,
during the relevant period. Based on this argument, he requested this Forum to
dismiss the complaint. Whereas, the counsel appearing for OP.No.2 relied on
Ex.A4 reply notice contended that, there was no contract between complainant
and OP.2 and that, there is no privity of contract between parties, and the
complainant has no right to issue notice or to file a complaint against the courier
service, he has not paid any charges for delivery of the cover, hence, this
complaint is frivolous and liable for dismissal with costs.

15. Considering the contentions of both parties and considering the above
referred decisions by 1st opposite party, the perusal of all the above referred
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decisions, goes to show that, in those cases, the loss of cheque was only in the
custody of banks, in those circumstances, the Hon’ble National Commission
disagreed the finding i.e., awarding of cheque amount, interest and
compensation against the banks by the lower foras. The Hon’ble National
Commission, in all the cases, awarded only some amount of compensation, by
observing that directing the banks to pay cheque amount is legally not justified.
Particularly, in the decision reported in 2009 I CPR 91 (NC) The Hon’ble National
Commission relied on a decision rendered by Hon’ble Supreme Court in the
case, “Citi Bank NA Vs. Geekay Agro Pack Pvt.Ltd. and Anr.” Wherein, it is
held as under:
“9.This appeal filed by Geekay for not getting adequate compensation for
the total amount of loss incurred by it is misconceived. For the recovery of total
amount of loss, it is open for the appellant Geekay to file a civil suit before the
appropriate Court which, we are informed has already been filed. The National
Commission could have awarded compensation only for the deficiency of service
only. The said compensation has been awarded by the National Commission.
Therefore, there is no reason to interfere in the appeal filed by Geekay also. In
the result, all these appeals are dismissed. No order as to costs insofar as
proceedings before this Court are concerned”.

Relying on this decision, the Hon’ble National Commission awarded

compensation of Rs.5,000/- only, against the bank. Further, the counsel
appearing for complainant, also drawn our attention to a decision reported in
2009 III CPJ (SC) 3, in the case, “Branch Manager, Federal Bank Limited Vs.
N.S. Sabastian” and contended that, bank cannot be directed to pay the cheque
amount.

16. Considering all the above referred decisions and considering the fact that,
the complainant not revealed the name of the person, who issued the cheque
and not revealed the aspect whether he has taken steps to obtain a fresh cheque
from the drawer and not taken steps to recover the amount by filing both Criminal
and Civil Cases and not revealed whether sufficient amount was available in the
account of drawer, during relevant period and not stated anything regarding
misuse of the said cheque or encashment of cheque by anybody, after missing
the cover. In the light of these circumstances, the 1st opposite party bank cannot
be directed to pay the cheque amount along with compensation, for the reason, it
amounts legally not justified. Further the liability could be limited to only
deficiency in service. The complainant can be directed to approach the borrower
for issue of duplicate cheque or can take appropriate steps against drawer.
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Hence, the liability of bank and the deficiency in service can be considered only
to some extent, that is limited to awarding compensation only.

17. The counsel appearing for OP.No.2, vehemently opposed to award any
compensation or to direct to pay the cheque amount against 2nd opposite party,
stating that, there is no privity of contract, and there is no relationship of
consumer and service provider, between complainant and OP.No.2, and the
complaint is liable for dismissal. This argument of OP.No.2, is not at all
acceptable, though, the complainant not directly booked the parcel with 2nd
opposite party and though he has not paid any charges directly to courier
service, but, the facts in this case, clearly goes to show that, the OP.No.1 bank
entrusted the cheque of complainant to OP.No.2 by paying charges to deliver it,
to Indian Bank Medarametla. The 2nd opposite party is clearly admitting that the
cover was lost while in their custody and they also gave a report to the Police
about loss of consignment, the same was informed to the bank. Therefore, it
cannot be contended that, they are not responsible for loss of the cover. The
bank inturn informed the same to complainant, hence complainant got knowledge
about the role of OP.No.2. Hence cause of action has arisen against OP.No.2.
OP.No.2 is necessary and proper party to the case. Without OP.No.2 no
effective decree can be passed. Admittedly, the ultimate sufferer and victim is
complainant, due to failure of delivery of cheque and failure of clearance of the
cheque he is deprived of valuable security. The OP.No.2 is admitting the liability
on one hand and on the other hand denying the liability towards complainant. At
this stage, the perusal of decision rendered by Hon’ble Supreme Court in the
case “Branch Manager, Federal Bank Limited” goes to show that, in that case,
the professional courier, with which, the cover was booked for delivery was not
added as party, but, the cover was lost during transit, in that case, the Hon’ble
Supreme Court awarded compensation against the bank, but not directed to pay
cheque amount. In that case, the case facts are entirely different, the bank was
able to prove that there was no sufficient amount in the account of drawer and
therefore, the Hon’ble Supreme Court held that “It was impossible for the
respondent to get the amount credited in his account. If the cheque had not
been lost in transit the same would have been dishonoured due to insufficiency
of funds. On its part, the bank had advised the respondent to obtain duplicate
cheque from the drawer”. With this observation, the Hon’ble Supreme Court
disallowed the payment of interest as awarded by the State Commission.
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18. With the afore said discussion, though, the 2nd opposite party is not directly
connected to complainant in booking the cover for transit, but, indirectly there is
implied contract between complainant and OP.No.2 through OP.No.1 bank,
because, OP.No.1 bank collected charges from complainant for sending the
cover to Indian Bank, Medarametla. The said cover admittedly lost in the
custody of OP.No.2 alone, therefore, there is implied contract between
complainant and OP.No.2 and OP.No.2 can’t escape liability. Due to non-
delivery of cover, the complainant suffered mental agony and inconvenience,
therefore, there is deficiency in service on the part of both opposite parties.
Hence, they can be held liable jointly and severally to pay the compensation. It is
not justified to order payment of cheque amount by the opposite parties. The
complainant can take steps U/Sec.45A of NI Act. before appropriate forum or by
filing a suit before competent Civil Court.

19. With regard to quantum of compensation, the complainant submitted that,

the cheque was issued to him by a borrower for clearance of his debt and at that
time, he was in bitter need of money, thereby, he was mentally suffered and he
was unnecessarily prevented to realize the amount due under the said cheque.
Considering this submission of complainant, we are of the view that, an amount
of Rs.10,000/- can be awarded as compensation against Ops.1&2 jointly and
severally. This compensation will meet the ends of justice. Apart from this relief,
the complainant is also entitled for Rs.3,000/- towards litigation expenses.
Accordingly, the point is answered.

20. In the result, the complaint is partly allowed, directing the opposite parties
1 and 2 to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) as
compensation to the complainant and their liability is joint and several. The
opposite parties 1 and 2 are directed to pay the amount within 15 days from the
date of communication of this order, failing which, it carries interest @ 9% p.a.,
from the date of complaint till payment. The complainant is also entitled for
Rs.3,000/- towards litigation expenses.

Dictated to the Stenographer, typed by her and corrected and pronounced by us

in the open forum this the 31st day of August, 2019.

MEMBER PRESIDENT
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APPENDIX OF EVIDENCE
WITNESS EXAMINED FOR COMPLAINANT:
P.W.1 24.10.2018 Makineni Hari Babu, S/o Narasimha Rao, Aged about
32 years, Hindu, business, R/o.Mangamoor Road,
D.No.36-72-475, Beside Blu Dart Courier,Ongole
Town, Prakasam District – 523001.

WITNESS EXAMINED FOR OPPOSITE PARTY NO.1:

R.W.1 01.02.2019 B.Srinivasulu Reddy, S/o China Malakonda Reddy,
aged 58 years, R/o Ongole.

WITNESS EXAMINED FOR OPPOSITE PARTY NO.2:

R.W.2 19.12.2018 Chandolu Hari Prasad Rao, S/o Sagisetty, Hindu,
Business, aged about 53 years, R/o N.G.O.Colony,
Ongole Town, Prakasam District.

EXHIBITS MARKED FOR COMPLAINANT:

Ex.A1 05.05.2018 Copy of legal notice issued by complainant to
opposite parties.
Ex.A2 - Postal acknowledgement.
Ex.A3 - Postal acknowledgement.
Ex.A4 14.05.2018 Copy of reply notice sent by OP.2.
Ex.A5 26.04.2018 Copy of report given by OP.No.2 to S.I. of Police,
Medarametla.
Ex.A6 22.03.2018 Receipt issued by OP.2 to OP.1 Bank.
Ex.A7 27.04.2018 Letter sent by 1st opposite party bank to the
Complainant.

EXHIBITS MARKED FOR OPPOISTE PARTIES:

NIL

PRESIDENT
Copies to:
1) Complainant.
2) Opposite party No.1.
3) Opposite party No.2.

Free copy was issued in dis.no. /date:

//fair//