BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

C.C.No.237/2016     Filed on 13.05.2016

ORDER DATED: 13.11.2019

Complainant:

(by Adv. Mini Gangadharan)

Opposite parties:

(by Adv. Maya R. Mani)

This C.C having been heard on 18.10.2019, the Forum on 13.11.2019 delivered the following:

ORDER

SMT. PREETHA G. NAIR.,  MEMBER:

The complainant is working as school Health Nurse in Jawahar Public School, who rendered the service of 1^st opposite party under 2^nd opposite party in presenting a cheque in her favour for collection through 1^st opposite party paying service charges.  On 27.01.2016 the complainant has presented a cheque bearing No.045194 dated 01.11.2015 of the Nedungolam service Co-Operative Bank Ltd. For Rs.7 lakhs issued to her by one Mrs. Rakhi in discharge of her liability to return the sum so as to send the same for collection to the Nedungolam Service Co-Operative Bank.  At the time of presentment before 1^st opposite party the officials made the complainant to know that they will send the cheque for collection to the drawer bank through a person to enable the same get reach on the drawer’s bank in time and the complainant has to pay for the same , to which she agreed whole heartedly.  The drawer’s bank is only 10kms away from the 1^st opposite party.  The officials of 1^st opposite party bank assured the complainant that the cheque dated 01.11.2015 will be presented for collection at the drawer’s bank within 90 days from the cheque date.  On the next day the complainant again reached 1^st opposite party to know whether the cheque is encashed or not but the 1^st opposite party communicated the complainant that the cheque is sent through courier and it would have reached the drawer’s bank at Nedungolam.  1^st opposite party made the complainant to know it well that the cheque should reach and get collected on or before the 90^th day of the cheque date and hence she was very vigilant on the same and she insisted 1^st opposite party to get the drawer’s cheque collected within 90 days from the date of issue.  The complainant again reached the Federal Bank, Edava on 29.01.2016 to know whether the cheque is returned after presentment at the drawer’s bank, which tempted the 1^st opposite party to call the Nedungolam Service Co-operative Bank Ltd.2845 to ascertain that the cheque reached the drawer’s bank, collected or not.  But no satisfactory explanation was given from the bank to the complainant at that occasion in that regard.  On enquiry made at the drawer’s bank, it is revealed on 29.01.2016 that the cheque in question never reached the drawer bank by then.  On the complainant’s repeated enquiry at the 1^st opposite party, it became clear to her that the 1^st opposite party showed dereliction in its duty as it being negligent towards the concern of the complainant and caused deficiency of service.  The 1^st opposite party issued the complainant with a communication dated 09.02.2016 stating that the cheque bearing No.045194 dated 01.11.2015 for Rupees Seven Lakhs of the Nedungolam Service Co-operative Bank Ltd. Returned unpaid and the service charges/handling charges of Rs.258/- is debited with from her account.  The Federal Bank officials, Edava Branch returned the complainant with the original cheque number dated 01.11.2015 for Rupees Seven Lakhs of the Nedungolam Service Co-operative Bank Ltd. along with the cheque return memo dated 08.02.2016 issued from the drawer bank for the reasons out of dated and insufficient funds.  The endorsement “out of dated” has arisen due to the delay in reaching the cheque within 90 days from its date of issue, which will cause the drawer to escape from criminal liability envisaged under section 138 of Negotiable Instrument Act.  So the complainant caused to compensate her for the loss caused to her.  Hence the complaint.

Opposite party filed version on stating the following contentions.  On 27.01.2016 the complainant had presented a cheque bearing no.045194 dated 01.11.2015 drawn on Nedumgolam Service Co-operative Bank for collection in 1^st opposite party.  Immediately on receiving the cheque 1^st opposite party had advised the complainant to present the cheque directly before the drawer’s bank namely Nedumgolam Service Co-operative Bank Ltd. considering the fact that the drawer’s bank is 10kms away and also that there was only 5 days for the cheque to become stale.  The complainant without considering the advice insisted the opposite party to send the cheque for collection through courier service.  The decision of the complainant was fatal and the time consumed for the delivery was due to the complainant herself.  The opposite party had sent the cheque for collection on 27.01.2016 itself through professional courier service and hence there is absolutely no delay caused on behalf of the opposite parties.  The 1^st opposite party had accepted the cheque only after informing the complainant regarding all the risk factors and consequences.  The cheque was sent on 27.01.2016 itself to the drawer’s bank for collection.  Thereafter the complainant never contacted 1^st opposite party till 08.02.2016.  The complainant presented the cheque dated 01.11.2015 before the 1^st opposite party only after 85 days which itself is great latches on the part of the complainant.  Inspite of the fact that 1^st opposite party was informed about the risk in sending the cheque for collection, she insisted for the same and the said cheque was send through courier on the same day without any delay.  1^st opposite party contacted the courier service though the cheque was sent and they are unable to trace out the same for few days due to wrong delivery.  Later due to the constant follow-up on the part of the opposite parties, the courier service had identified the wrong delivery and had effected the delivery on 06.02.2016.  Thereafter the drawer’s bank returned the cheque with reasons “out of dated and insufficient funds”.  There is no latches on the part of opposite parties and deficiency of service and the latches if any is on the part of the courier service who has not been made party to the complaint inspite of the information in this regard given by 1^st opposite party dated 08.03.2016.  Hence the complaint is bad for non-joinder of necessary parties.

As per the cheque collection policy of the bank the time frame provided for collection of outstation cheques other than through clearing system is 10 to 14 days.  The above fact was apprised to the complainant at the time of deposite of cheque on 27.01.2016 for collection.  Inspite of the above 1^st opposite party had taken all reasonable efforts to facilitate the cheque collection within the time frame.  However, the unfortunate delay was caused by the wrong delivery of the consignment by the courier agency.  The returned cheque with memo reached the opposite party only on 09.02.2016 and on 12.02.2016 the same was returned to the complainant with memo stating the reasons and the same was acknowledged by the complainant.  1^st opposite party had taken all reasonable steps to enable the speedy collection of cheque right from the presentation to the return of the cheque with the memo.  The opposite party had no option other than sending the cheque for collection through courier which is the fastest means of service.  The collection charges from the complainant was received only as per the norms and the rules in existence and the opposite party had acted in good faith without any negligence.  The remedy available to the complainant in the event of a cheque becoming stale is to obtain a duplicate cheque form the drawer.  Instead of resorting to the said recourse the complainant is trying to misuse for unlawful gains.  The opposite parties are not responsible for the delay if any caused by the courier service or the drawer’s bank and the dishonour memo can be issued by opposite parties only after receiving the intimation form the drawer’s bank.  Hence the complaint is to be dismissed with cost.

Both parties filed their chief affidavit and their documents.  Complainant not present for cross examination and not marked the documents.  Opposite parties not present for examination and not marked the documents.

Issues to be considered are:

1. Whether there is deficiency in service on the part of opposite parties?
2. If so, what is the reliefs and cost?

Issues (1) and (2)

We perused relevant documents on record.  Admittedly the complainant had presented a cheque dated 01.11.2015 of the Nedumgolam Service Co-operative Bank.  The allegation of the complainant that the drawer’s bank is only 10kms away from 1^st opposite party and the officials of 1^st opposite party stated to her that they will send the cheque for collection to the drawer bank through a person to enable the same get reach on the drawer’s bank in time and she had to pay for the same to which agreed whole heartedly.  Further complainant stated that she again reached opposite parties on the next day to know whether the cheque is encashed or not, but 1^st opposite party communicated that the cheque is sent through courier and it would have reached the drawer’s bank.  Again the complainant went to the 1^st opposite party on 29.01.2016 to know whether the cheque is returned after presentment at the drawer’s bank.  But no satisfactory explanation was given from 1^st opposite party to the complainant.  On enquiry made at the drawer’s bank it is revealed on 29.01.2016 that the cheque never reached the drawer bank by them.  According to the complainant on 09.02.2016 1^st opposite party issued a letter stating that the cheque of the Nedumgolam Service Co-operative Bank returned unpaid and the service charges/handling charges of Rs.258/- is debited with complainant’s account.  The cheque return memo dated 08.02.2016 issued from the drawer bank for reasons out of dated and insufficient funds.  The complainant stated that the endorsement out of dated has arisen due to the delay in reaching the said cheque within 90 days from its date of issue which will cause the drawer to escape from criminal liability and simultaneously the complainant loses the cheque amount of Rs.7 lakhs.

The allegation of opposite parties that on verifying the date of the cheque advised the complainant to present the cheque directly before the drawer’s bank.  But the complainant without considering the advice insisted the 1^st opposite party to send the cheque for collection through the courier service.  But the opposite parties had not produced evidence to prove that the cheque send through courier to the drawer’s bank as per the direction of the complainant.  It is true that complainant had presented the cheque to 1^st opposite party on 27.01.2016.  The opposite parties stated that the courier service were unable to trace out the same for few days due to some wrong delivery.  Also the opposite parties had stated that the drawer’s bank is 10kms away from 1^st opposite party.  It is the duty of 1^st opposite party to send the cheque to the drawer’s bank as early as possible.  Due to the delay of presentation of cheque the drawer’s bank returned the cheque with out of dated and insufficient funds.  The complainant had not proceeded against the drawer of the cheque for realisation of the cheque amount.  The opposite parties failed to provide due services to the complainant, which caused a pecuniary loss of Rs.7,00,000/- to her.  It is the duty of the opposite parties to send the cheque for collection and give the amount to the complainant.  The act of opposite parties’ amount to deficiency in service.

In the result, the complaint is allowed.  We direct the opposite parties to pay Rs.1 lakh as compensation for mental agony and Rs.3,000/- as cost of the proceedings.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 13^th day of November, 2019.

SL

C.C.No.237/2016

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

5. COURT EXHIBITS

      Sd/-             

PRESIDENT