THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,PANCHKULA.
Consumer Complaint No | 70 of 2017 |
Date of Institution | 28.3.2017 |
Date of Decision | 22.12.2017 |
M/s Vasu Construction through its Prop. Sh. Ravi Kumar Monga, Flat No.104, GHS-102, Sector 20, Panchkula.
….Complainant
Versus
HDFC Bank Ltd. SCF No.282, Sector 20, Panchkula through its Branch Manager.
….Opposite Party
COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.
Before: Mr. Dharam Pal, President.
Mrs.Anita Kapoor, Member.
Present: Mr. Sanjeev Malhotra, Advocate for complainant.
Mr.Sumit Narang, Advocate for the OP.
ORDER
(Dharam Pal, President)
1. The complainant having an account with the OP bank bearing account No.06738640000017. In the month of June, 2016, the complainant had deposited two cheques bearing No.869308 and 869309 for the amount of Rs. 1,00,000/- dated 15.6.2016 and 25.5.2016 respectively and both drawn on HDFC Bank, Branch Panipat for encashment on 17.6.2016, which were duly received and acknowledged by OP on 17.6.2016. After deposit of cheques no information of encashment or dishonor of the said cheques had been received by the complainant. Thereafter, the complainant visted the OP and enquired about the cheques from the OP and the complainant had come to know that the OP had misplaced the said cheques. Complainant requested the OP to trace out the said cheques, but from the last more than four months, the OP had not taken any action. Thereafter, the complainant had sent a legal notice dated 30.8.2016 posted on the same date to the OP with the request to trace out the said cheques within a period of 15 days from the date of receipt of this notice or pay Rs. 2 lacs with interest to the complainant. But the OP did not pay any heed. This act and conduct of the OP amounts to deficiency in service on his part. Hence, this complaint.
2. Upon notice, OP appeared and contested the complaint by filing the written statement by taking preliminary objections that the present complaint is not maintainable; the present complaint is bad for non-joinder of necessary party; the complainant has concealed the material true facts from this Forum; the complainant has not come to the court with clean hands. The cheques in question were put in process for encashment, but both the cheques in question were dishonored on account of instructions-payment stopped by Drawer given by the drawer of cheques in question. The address of the complainant registered with the OP Bank is “ M/s Vasu Construction Company, X/1227, GF, Satsang Marg, Chand Mohalla, Gandhi Nagar, New Delhi”. After the cheques were dishonored, the dishonored cheques along with dishonoring memo were packed in envelop by HDFC Bank Clearing House, Sector-17, Chandigarh and handed over to Sai Enterprises, SCO No.94-95, Sector-17 C, Chandigarh agent of courier company viz. Trackon Courier Pvt. Ltd. for delivering the same to complainant company at their New Delhi address i.e. M/s Vasu Construction Company, X/1227, GF, Satsang Marg, Chand Mohalla, Gandhi Nagar, New Delhi. However, unfortunately the said envelop/packet consisting of cheques in question and dishonoring memo was lost by employee of courier company in Sector 17, Chandigarh. Regarding loss of aforesaid envelop/packet, a DDR NO.39, dated 21.7.2016 has been lodged at Police Station Sector-17, Chandigarh by Mr. Manmohan Singh, Prop. Sai Enterprises, SCO No.94-95, Sector-17C, Chandigarh. Mr. Manmohan Singh also admitted in writing regarding misplacing of said envelop/packet in transit and also admitted the liability of consignment. The copy of written document dated 22.7.2016 duly attested by the Notary to OP Bank regarding admission of liability qua consignment. Sh. Satish Monga, Mandate Holder of the Bank Account of the complainant was telephonically informed by OP Bank about misplacement of envelop/packet consisting of cheques in question and dishonouring memo by the courier people and was also informed about the name and address of courier company and its agent. Thus, there is no deficiency in service on the part of OP and prayed for dismissal of complaint.
3. The counsel for the complainant has tendered into evidence an affidavit as Annexure C-A along with documents Annexure C-1 to C-6 and thereafter closed the evidence. On the other hand, counsel for the OP tendered into evidence by way of affidavit Annexure R-A along with documents Annexure R-1 to R-3 and closed the evidence.
4. We have heard the parties and have gone through the record carefully and minutely.
5. There is no dispute that the complainant has account bearing No.06738640000017 in the OP Bank. There is also no dispute that complainant deposited two cheques bearing No.869308 and 869309 dated 15.6.2016 and 25.5.2016 for an amount of Rs. 1 lac. each drawn on HDFC Bank, Branch Panipat for encashment on 17.6.2016. After deposit of cheques no information of encashment or dishonor of the said cheques had been received by the complainant. However, according to the OP Bank, the cheques in question were put in process for encashment, but both the cheques in question were dishonored on account of instructions-Payment stopped by Drawer-given by the drawer of cheques in question (Anexure R-1). After cheques were dishonored, the dishonored cheques along with dishonoring memo were packed in envelop by OP Bank and handed over to Sai enterprises agent of Courier Company viz. Trackon Courier Pvt. Ltd for delivering the same to the complainant company at their New Delhi address. However, the said envelop/packet consisting of cheques in question and dishonoring memo was lost by the employees of courier company. Mr. Manmohan Singh, Proprietor Sai Enterprises agent of courier company lodged DDR No.39, dated 21.7.2016 at Police Station, Sector 17, Chandigarh regarding loss of above said envelop/packet (Annexure R-2). The OP Bank has further stated that the courier company admitted in writing regarding misplacing of above said envelop/packet in transit by the courier company. The OP Bank has submitted that the present complaint is bad for non-joinder of necessary party as the complainant has failed to make courier company as party. We are of the considered opinion that there is no direct contract between the complainant and courier company, but the OP Bank has not preferred any complaint or proceedings against the courier company for the deficiency of service or for any other claim except to intimate the loss of instruments to the complainant alone. The complainant cannot the consumer against the courier company, who is not the service provider to the complainant as per the terms of Consumer Protection Act.
6. Thus, we have no hesitation to hold that opponent bank has committed deficiency in service and is responsible for loss of cheque deprived the complainant to get interest on the amount of cheques for the period from 17.6.2016 till date.
7. For on going reasons it is obvious that since complainant is deprived from getting amount and interest of the amount of cheques for the period from 17.6.2016 till date. In our view 9% interest would be reasonable to be paid by the OP Bank to the complainant on the cheques amount from the date of deposit of cheques i.e. 17.6.2016 till its realization.
8. In view of the above, the present complainant deserves to be allowed and the same is allowed accordingly. Hence, the OP is directed:-
a.) To pay 9% interest on the cheques amount from 17.6.2016 to till its realization.
b.) To pay Rs. 10,000/- as compensation for mental agony and harassment.
c.) To pay Rs. 5,000/- as cost of litigation.
A copy of this order be sent to the parties free of costs. File be consigned to record room after due compliance.
Announced
22.12.2017 ANITA KAPOOR DHARAM PAL
MEMBER PRESIDENT
Note: Each and every page of this order has been duly signed by me.
DHARAM PAL
PRESIDENT
