CANARA BANK Vs. B. MURALEEDHARAN NAIR ASWATHI

JUDGEMENT

(1.) THIS revision is directed, against the order dated 9.4.2007 of Consumer Disputes Redressal Commission Orissa, Cuttack modifying the order dated 21.9.2005 of a District Forum and directing the petitioner to pay amount of Rs. 1.00 lakh with interest @ 9% p.a. from 2.2.2005 as also Rs. 5,000 towards compensation for mental agony, to the respondent.

(2.) FACTS giving rise to this revision lie in a narrow compass. Respondent/ complainant was having a savings bank account in petitioner/opposite party's-Bank. One V.M. Harikumar issued a cheque bearing No. 118613 dated 25.1.2005 of a sum of Rs. 1.00 lakh of the State Bank of India, Ramanathukara in the State of Kerala in favour of the respondent. This cheque was deposited for collection in the said account on 2.2.2005 by the respondent. Since the amount of cheque was not credited in the above account, the respondent on 23.3.2005 wrote to the petitioner to credit the amount thereof in his account. Respondent thereafter got a legal notice dated 18.4.2005 served on the petitioner bank. Still amount of the cheque not being credited in the account, complaint alleging deficiency in service was filed by the respondent which was contested by the petitioner-Bank by filing written version. In the written version, maintaining of S.B.A/c, deposit of the cheque in question on 2.2.2005 for collection of the amount thereof by the respondent were not disputed. However, it was alleged that the cheque was not sent to the drawee bank due to non-availability of its address. It was only on 23-3-2005 that the respondent intimated the address of the drawee bank. On account of annual closing period in the month of March and balance sheet audit period in 1st and 2nd week of April, 2005, the bank was unable to send the cheque to the drawee bank. Along with the reminder dated 18.4.2005, the cheque was sent by registered post on 26.4.2005 to the drawee bank. By the letter dated 5.5.2005, the drawee bank informed the petitioner bank that the cheque was not received by it along with the reminder letter. It was stated that the cheque was lost. It was denied that there was any deficiency in service on the part of the petitioner bank as alleged.

(3.) AT the cost of repetition, it may be stated that by the letter dated 5.5.2005, the drawee bank had intimated the petitioner bank of its having not received the cheque. Combined reading of the said para Nos. 5, 6, 7,8 and 9 of the written version would show that the cheque was not sent up to 25.4.2005 to the drawee bank for the reason that the address of the drawee bank was not available with the petitioner which was allegedly supplied by the respondent on 23.3.2005; due to annual closing period and balance sheet audit period of the bank, the cheque was allegedly sent along with reminder letter dated 18.4.2005 by registered post only on 26.4.2005. As proof of despatch the petitioner has filed the postal receipt (copy at page 30) and extract from Tappal/Courier Book and Ledger (copy at page 29). At serial No. 8, a reminder letter of OSC 49/1995 cheque 118613 for Rs. 1,00,000 is shown to have been sent. To be only noted that this entry is conspicuously silent of the cheque in question also having been sent along with the reminder letter. There was absolutely no occasion for the petitioner bank to have issued the reminder letter complaining of non-receipt of realization proceeds of the cheque when as the cheque itself is stated to have been sent on 26.4.2005. In this backdrop, the submission advanced on behalf of respondent in regard to the cheque having been lost in petitioner-bank does not seem to be meritless. Be that as it may, the fact remains that the cheque was lost. It may be stated that the written version was filed on 4.8.2005. Particularly from the averments made in para No. 13 thereof the respondent must have learnt of the cheque having been lost. Remedy of the respondent to file suit based on original consideration of the cheque was within limitation period by then. For recovery of amount of cheque a complaint would not lie under the Consumer Protection Act. It is only on ground of deficiency in service, a bank can be ordered to pay compensation but not the entire amount of the cheque. The ratio of aforesaid two decisions applies on all fours to the facts of present case. It is a case of gross deficiency in service on the part of petitioner Bank. Having reached this conclusion, the point which arises for consideration is as to what should be the amount of compensation to be awarded to the respondent. In the facts and circumstances of case, we quantify the amount of compensation at Rs. 30,000. Order of State Commission, thus, deserves to be modified accordingly.