1. Complainant who is a practising advocate holds a savings Bank account with opposite party from August, 2002. Thereafter his account number was changed. It is stated that the complainant was not satisfied with service of opposite party and so the transaction was kept as minimum. On 29-4-2008, he found that the balance was forfeited by opposite party for the reason that complainant did not maintain minimum balance in his account.

It is alleged that opposite party forfeited the balance without informing complainant. Complainant issued notice to opposite party through a lawyer. That instead of tendering apology and correcting the mistake opposite party had stated in the notice that after core banking was introduced minimum balance was re-fixed as Rs.1,000/- instead of Rs.500/-. That this matter was notified in the notice board of the bank. It is submitted that Bank ought to have informed by a post card before forfeiting Rs.300/- from the Savings Bank account. Hence this complaint alleging deficiency in service.


2. Opposite party filed version admitting that complainant is holding Savings Bank account in the Bank from 2002 onwards. It is submitted that Opposite party Bank (State Bank of Travancore_ initiated Core Banking facilities. That service charges were revised with effect from 01-10-2007. This was informed to all customers by way of affixing the notice on Bank Notice Board and also through it's websites.

That Core banking facility was introduced in the said branch, Melattur from 17-8-2005. Till then all the service charges were collected/calculated manually and debited/credited to the concerned accounts of customers. After the implementation of core banking all these things are done by computer and as per core banking solution which is a package implemented by state Bank of Travancore. Till 01-10-2007 the minimum balance limit for cheque facility accounts was Rs.500/-.


3. That complainant had no transactions with the bank from 26-12-2005 to 15-4-2008. On 31-5-2005 complainant had only Rs.77/- as balance. Later on 26-8-2005 complainant remitted Rs.1,000/-. The computer system debited Rs.55/- as service charges as per old rate. On 30-9-2007 complainant had only Rs.569/- as balance.

It was below the minimum to be maintained. So on 30-12-2007 computer system debited Rs.300/- from Rs.569/- and the balance was Rs.269/-. Again on 31-3-2008 the computer system debited the entire balance. So total Rs.624/- was debited from the account. That the Branch is maintaining more than 9000 accounts and sending notices and post cards to each and every customer is snot practical. Detailed facts were stated in the reply notice and also offered that bank was ready to give refund of the said amount as part of keeping cordial relation if the complainant gave a request for the same. That opposite party has already given credit of Rs.624/- as offered though complainant failed to make request. That there is no deficiency in service.


4. Evidence consists of the affidavit filed by complainant and Exts.A1 and A2 marked for him. Opposite party filed counter affidavit and Exts.B1 and B2 marked for opposite party.



5. The grievance of the complainant is that opposite party illegally collected Rs.300/- without prior notice as charges for not maintaining minimum balance. The consistent case of opposite party as stated in Ext.A2 reply notice, pleadings and affidavit is that after introduction of core banking system the service charges and such matters are being debited/collected by the computer self operating system and that from 01-10-2007 the minimum balance limit has been refixed as Rs.1,000/-. That Bank had informed it's customers about the change by displaying on the Bank notice board and through it's website.

Complainant does not have a case that the charges were collected when his account had maintained the required minimum balance. His case is that he was not sufficiently informed before debiting the amount of Rs.300/-. Relying upon Ext.B1 which is a copy of notice, opposite party contended that such notice was displayed on the Bank notice board. In our view a customer should be vigilant of his account and the transactions in his account. The entire burden to check whether there is sufficient balance cannot be shifted to opposite party. His contention that Bank could have informed every customer by post card does not find favour with us. In Ext.A2 reply notice Bank has explained in detail the factual matrix and the changes introduced after core banking. As per Ext.B2 account statement Bank has already given credit of Rs.624/- which was collected towards such charges for not maintaining sufficient balance. The monetary loss of complainant is therefore redressed. We do not find any merits in the contentions raised by complainant.


6. In the result we dismiss the complaint. No order as to costs.

The facts of the complaint are as follows: The complainant presented a cheque dated 26/8/2001 for an amount of Rs.60,000/- through his account in the 1st opposite party on 3/9/2001. He was issued with an acknowledgement receipt of cheque and as directed by the 1st opposite party, complainant waited for some days to get the cheque collected from the drawer's bank. After some days when the complainant enquired about the cheque, the 1st opposite party again directed the complainant to wait for some more days. But inspite of several requests the cheque amount has not been given. The complainant sent an advocate notice demanding the return of cheque or payment of the cheque amount for which the 1st opposite party sent a reply stating that the cheque was sent for collection through a Courier on 4/9/2001 and the courier has informed that the cheque was misplaced or lost. There is gross deficiency of service and dereliction of duty on the part of the 1st opposite party. Hence this complaint for redressal of his grievances.

2. The opposite parties 1 & 2 have filed their joint version contending as follows: The cheque bearing No.240158 dated 26/8/2001 drawn on the 3rd opposite party presented by the complainant on 3/9/2001 was sent by the 1st opposite party for collection through M/s. Speed and Safe Courier, T.C.24/105, W.C. Hospital Road, Thycaud, Thiruvananthapuram to the drawee 3rd opposite party. On getting information from the 3rd opposite party that the cheque was not received by the 1st opposite party orally and through letters dated 22/10/2001 & 19/11/2001, called upon the aforesaid Couriers to advise the date of delivery of the cheque or in case the item was not delivered, to return the same.

The 1st opposite party was informed by the said Courier that the cheque was misplaced or lost and so the same was not handed over to the drawee bank. Immediately on knowing about the loss of the cheque the 1st opposite party informed the complainant of the same and he was orally adivsed, to contact the drawer of the cheque and obtain another cheque for the same amount. The 1st opposite party had further informed the complainant that the 1st opposite party would arrange for executing an indemnity in case the drawer deems it necessary for issuing another cheque. All the averments to the contrary in the complaint are absolutely false. It is submitted that the 1st opposite party had entrusted the cheque in good faith to the aforesaid Courier for the benefit of the complainant. The cheque was lost due to circumstances beyond the control of the opposite parties 1 & 2 by M/s. Speed and Safe Couriers.


It is further submitted that the 1st opposite party had acted only as an agent of the complainant in entrusting M/s. Speed and Safe Couriers, the cheque for sending it for collection to the drawee bank. Therefore, the complainant has no cause of action against opposite parties 1 & 2. The cause of action if any of the complainant is against the said Couriers. There is no hiring of service for considerations between the complainant and opposite parties 1 & 2. The Manager of the said Courier is a necessary party to these proceedings. As the Courier is not impleaded as a party herein the complaint is bad for non-joinder of necessary parties and liable only to be dismisssed. There is no deficiency in service or dereliction of duty on the part of the opposite parties 1 & 2. Hence prays for dismissal of the complaint with costs.




3. The 3rd opposite party has filed their version stating that the complainant is totally a stranger to this opposite party. He had neither any business nor any transaction with the 3rd opposite party. Yousuf Kunju is not an Account Holder of the 3rd opposite party. No cheque is forwarded to the 3rd opposite party by the 1st opposite party for realisation of its proceeds. The complainant's property dealings are known to him alone. The 3rd opposite party neither witnessed any such transaction nor heard about it. Neither any deficiency of service alleged nor any damage is claimed against the 3rd opposite party, and all the allegations are levelled against the 1st and 2nd opposite parties and that as such the 3rd opposite party is an unnecessary party to this proceedings. Hence prays for exonerating the 3rd opposite party from the array of opposite parties along with costs of the proceedings.

4. All the parties have filed their affidavits. Exts. P1 to P5 were marked on the part of the complainant and Exts. D1 to D5 were marked on the side of the opposite parties 1 & 2.

5. From the contentions raised, the following issues arise for consideration:

1.

Whether there is any deficiency in service on the part of the opposite parties?
2.

Whether the complainant is entitled for the reliefs claimed in the complaint?

6. Points (i) & (ii) : It is an undisputed fact that the complainant had entrusted a cheque for Rs.60,000/- with the SBT, Poovachal branch and that the cheque has not been credited so far. According to the opposite parties 1 & 2 the cheque was sent by the 1st opposite party for collection through M/s. Speed and Safe Courier to the drawee bank which is the 3rd opposite party. The opposite parties 1 & 2 have averred in their version that, on getting information from the 3rd opposite party that the cheque has not been received by them, these opposite parties 1 & 2 contacted the Courier Company and the said Courier company informed that the cheque was misplaced/lost and so the same has not been handed over to the drawee bank.




7. It is an admitted fact that the cheque has not reached the 3rd opposite party and it has been misplaced or lost by the Speed & Safe Courier Company to whom the 1st opposite party had entrusted for collection. At this juncture, the aspect to be looked into is whether for this act of the Courier Company, the opposite parties 1 & 2 are answerable to the complainant. The cheque has been entrusted by the complainant to the 1st opposite party and not to the Courier Company. The complainant's dealings are with the 1st opposite party and not with the Courier Company. Moreover, the entrustment of the cheque with the Courier Company by the 1st opposite party is the internal transaction between the bank and the Courier Company. A consumer like the complainant need not known how the cheques are sent for collection etc.

The 1st opposite party was obviously aware that the cheque has been lost from the Courier Company and whether any legal action has been initiated against them hitherto has not been brought on record. When a cheque is entrusted with the opposite parties, it is incumbent on their part to have ensured that it was duly sent for collection safely and without any delay. As a bank, the duty cast upon the opposite parties are of a higher degree of care and caution which they have failed in this case. As per Sec 2(1)(g) of the Consumer Protection Act "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service". Considering this provision it is proved beyond doubt that there is fault or shortcoming in the nature and manner of performance which was undertaken to be performed by the opposite parties banks in pursuance of disbursement of cheque amount.

8. The 1st opposite party in their version has contended that they had informed the complainant that they would arrange for executing an indemnity in case the drawer deems it necessary for issuing another cheque. Besides all these, the 3rd opposite party in their written version has remotely pleaded that the drawer Yousuf Kunju is not an Account Holder of the 3rd opposite party. But at this point of time, we need not consider the same as it is not the matter in dispute before us.

9. From the above discussion we conclude that the complainant has established a case of deficiency in service on the part of the opposite parties 1 & 2 and the ends of justice would be met, if the complainant is paid an amount of Rs.5,000/- towards compensation along with a cost of Rs.1,000/- by the opposite parties 1 & 2. In the circumstances of the case, there is no order as against the 3rd opposite party.

In the result, the complaint is allowed. The opposite parties 1 & 2 shall pay an amount of Rs.5,000/- (Rupees Five thousand only) along with a cost of Rs.1,000/- (Rupees One thousand only) to the complainant within a period of 2 months, failing which the above amounts shall carry interest @ 9%. The 3rd opposite party is exempted from any liability.

M. Anantheshwar Kamath,

S/o. Panduranga Kamath,

Manjeshwar, Hosbettu Village, } Complainant

Kasaragod Taluk.

(Adv. Kodoth Unnikrishnan, Kasaragod)



The Manager,

State Bank of Travancore,

Manjeshwar Branch, } Opposite party

Po. Manjeshwar, Kasaragod Taluk.

(Advs. I.V. Bhat and Adv. S.Mahalinga, Kasaragod)



O R D E R

SRI.K.T.SIDHIQ, PRESIDENT



The case of the complainant in nutshell is that the title deeds of his property deposited with the opposite party for availing a loan by way of equitable mortgage has not returned inspite of clearing the entire dues. The complainant is a senior citizen aged 70 years and a cardiac patient requires his title deeds for all purpose. Hence the complaint alleging deficiency in service on the part of opposite party.

2. According to opposite party the original document is not traceable and all attempts made by the opposite party for tracing out the document became futile. But the Bank is ready to get a certified copy of the said document at their expense along with a certificate showing that the document was irrecoverably lost from their custody such a certified copy would be a good substitute for the original. The complainant has not sustained any monetary loss nor any mental agony.

3. Complainant filed affidavit in support of his claim. Ext.A1 office copy of the lawyer notice dated 18-02-09 issued to opposite party and Ext.A2 its reply dated 19-03-2009 is marked. Both sides heard.

4. There is no dispute regarding the deposit of title deeds of the property of the complainant with opposite party and its subsequent loss or missing from the custody of the opposite party. The complainant during enquiry has stated that he want to dispose of his property to join with his daughter and they are residing with their family in a far away place and due to lack of original title deeds nobody ready to purchase the property.

5. The attempt of the counsel for the opposite party Sri.Mahlinga was to establish that the certified copy of a document is sufficient to create equitable mortgage. He relied very much on the decisions of the Hon’ble High Court of Kerala reported in 1980 KLT 550 in the case of Syndicate BANK V. Modern Tile & Clay Works and the case State Bank of Travancore TVM V. Velayudhan Pillai & Others reported in AIR 1996 Kerala 32. But the facts and circumstances of the said cases are entirely different. It is not the case of the complainant that he want to avail another loan by creating another equitable mortgage with any other Banks or financial institutions with his property as security.

6. The original title deed of a property is an important document. In common parlance a purchaser would hesitate to purchase a property if the original title deed is not passed. Usually no banks would provide any loan in the absence of the original deeds for creating equitable mortgage and even opposite party has not stated that whether they are granting loans on the strength of certified copies of the title deeds. The irresponsible act of the opposite party amounts to deficiency in service as envisaged under the Consumer Protection Act.

7. The claim of the complainant is Rs.50,000/- and the same is appears to be a little high. However considering his age and ailments we pass the following order.

The complaint is allowed and opposite party is directed to pay Rs.30,000/- to the complainant with a cost of Rs.3000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which opposite party shall pay interest @ 9% for Rs.30,000/- from the date of complaint till payment.