CANARA BANK vs RAM SINGH JAISWAL

CASE called out. It was taken in the revised list. Mr. A.K. Jain, Advocate is present on behalf of the appellant. Since the matter relates to the year 1993 and the matter can be decided on merits in view of the arguments and material available on record, we decided to proceed with the hearing of the appeal on merits.

THIS is an appeal against the judgment and order dated 28.1.1993 passed by District Consumer Forum, Aligarh in Complaint Case No. 402/1992. Initially a complaint was filed with the allegation that the complainant opened a S.B. Account No. 5804 in Canara Bank, Ramghat Road Branch, Aligarh by moving an application for opening of the S.B. Account. Consequently the complainant deposited a Cheque No. 82/127818 dated 3.8.1987 for Rs. 2,140/- drawn on State Bank of India, Cantt. Branch, Meerut. Ultimately the amount of the said cheque was not credited in the account of the complainant and when approached no fruitful result had come. Consequently the complaint was filed under Section 12 of the Consumer Protection Act, 1986. In the written statement the appellant Bank took the plea that the opening of the account was there, the cheque in dispute was deposited with the appellant Bank for amount being collected from the State Bank of India, Cantt. Branch, Meerut and the cheque in question was lost in transit.

The learned District Forum after perusing the material available on record came to the conclusion that the complaint is justified and consequently passed the impugned order decreeing the complaint.

AGGRIEVED against the said order, present appeal has been filed under Section 15 of the Consumer Protection Act. We have heard the learned Counsel for the appellant Mr. A.K. Jain and have perused the record. The main argument of Mr. Jain placing reliance on the case law of Mrs. Meera S. Bhal v. Syndicate Bank, the State Consumer Disputes Redressal Commission, Kerala, reported in 1992 (2) CDR 485, has been that in the matter of loss of cheque in transit the Bank cannot be held responsible and it did not commit any deficiency and the agreement term provides that the collection of amount was entirely at the risk and responsibility of the complainant. In the case under reference the conclusion of the State Consumer Disputes Redressal Commission, Kerala has been that the liability on the Bank in case of loss of cheque in transit cannot be fastened. After giving very serious consideration, we are very reluctant to accept such a view taken by the State Consumer Disputes Redressal Commission, Kerala.

IN the instance case the complainant had opened a Saving Bank account which still exists. A Cheque No. 82/127819 dated 3.8.1987 for Rs. 2,140/- was drawn which through pay-in-slip was deposited with the appellant, Canara Bank for encashment. Obviously when the cheque was presented for clearance there existed relationship of hiring service for consideration by consumer. The complainant is a consumer and the Bank concerned becomes service giver, because the Bank charges fees which may be termed as service charges. It is clear that the relationship between the Bank and the depositor/complainant is of consumer and the giver of service. IN view of the above facts that the consumer was under obligation to make payment of commission, for service of collecting the cheque the Bank in turn becomes duty bound and should discharge its duty with all necessary faithful obligations. The cheque in the instant case was dated 3.8.1987. It was sent to the State Bank of INdia, Cantt. Branch, Meerut only on 9.9.1987 which was not sent back and as such it is deficiency of service rendered by the Bank. Once the Bank charges the commission, delaying the matter for such a long period cannot be done. It is expected that within a reasonable time the Bank will send the cheque for clearance so that the consumer may have proceeds of the cheque credited in his account for his personal use. Why such delay it has not been explained. Furthermore, a specific plea has been taken that the cheque was sent through ordinary post which was done under instruction of the consumer. We are not impressed with such argument. There is no instructions by any consumer to send the cheque in the manner it was sent. It is totally the deficiency of the Bank to have sent the cheque due to which delay was obviously there. In the instant case the cheque in question was lost and the reported loss was informed on 9.2.1988. Again there is a delay of 4 to 5 months. This delay has also not been explained. Normally the cheque should have been collected within 15 days or a month. The fate of the cheque which has been sent should be known. Obviously it is clear case of deficiency. Section 2(1)(g) of the Act defines as under: "deficiency means any fault, imperfection, short-coming 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."

TO make out a case of deficiency of service, what is required by the consumer is that the consumer has to prove that there was any fault or shortcoming in the nature and manner of performance which is required to be maintained and which are to be taken in pursuance of the contract. Here in the instant case the Bank entered into a contract with the depositor; by accepting the cheque to be sent to the clearing Bank and to further get the amount credited in case the cheque is cleared. It is not a case in which State Bank of India has ever advised that there was any deficiency of funds or any other reason which may bar him from getting the amount. If the delay was there in view of the contract, the blame was on the appellant Bank.

IT is a clear case of deficiency and the learned District Forum has not committed any error in decreeing the complaint. The appeal has no force and is liable to be dismissed. ORDER The appeal is dismissed. The judgment and order of the learned District Forum are confirmed. In the circumstances there shall be no order as to the costs. Appeal dismissed.