DATTANI AND CO. vs Union Bank of India

THIS appeal arises from order dated 2.5.1997 rendered by the learned Consumer Disputes Redressal Forum, Rajkot in Complaint No. 328 of 1995, dismissing the complaint with cost of Rs. 300/-.

THE case of the complainant was that the complainant handed over to the opponent Bank bills and documents in the form of invoice and lorry receipt in question with instructions to deliver the same to the consignee against payment of Rs. 18,420/-. It transpired that the documents were lost in transit when the opponent Bank sent the same to its branch at the place where the consignee was to take such documents from the Bank against payment. The complainant however, was not satisfied with the service rendered by the opponent Bank and filed complaint for obtaining claim of Rs. 16,426/-, cost and interest from opponent Bank. The opponent Bank resisted the complaint inter alia on the ground that there was no deficiency in service inasmuch as the documents were sent by R.P.A.D. to its concerned branch and they were lost in transit when they were under the control of the Postal Department and that there was an agreement between the parties that the Bank would not be responsible for any such loss, it, therefore, contended that even if the documents were encashed by some wrong-doer when they were lost in transit, they could not be held responsible for the same.

After hearing the parties, the learned Forum came to the conclusion that the opponent Bank would not be liable for the claim amount inasmuch as it had taken required care in sending the documents by R.P.A.D. to the concerned branch and the loss of documents during transit when they were under the control of the Postal Department could not be attributed to the opponent Bank. It also came to the conclusion that there was a specific contract between the complainant and the opponent Bank that in the event of loss of bill/document in transit, the Bank would not be liable to make over the proceeds to the complainant. The learned Forum, therefore, dismissed the complaint, resulting into filing of this appeal by the complainant.

WE have gone through the memo of appeal and the grounds of challenge against the impugned order taken by the complainant. The complainant has first contended that the condition on which the learned Forum has relied is a condition which operates in case of discounting of bills and not in case of transaction of collection of bills. WE are unable to accept this ground of challenge inasmuch as it is not in dispute that in the very document in question there is a condition No. 13 which reads : "It is understood that you shall not be held responsible in case of any delay or loss of the bill in transit or otherwise or of failure of the collecting agency to make over the proceeds to you". In view of the aforesaid specific contract between the parties, opponent Bank would not be liable to answer the complainant''s claim even if the complainant succeeded in establishing deficiency in service on the part of the opponent Bank.

THE complainant, however, failed to establish deficiency in service on the part of opponent Bank. It is not in dispute that the Bank had sent the documents in question by RPAD through its concerned branch viz. Chitehpur branch, it was the complainant''s case that the documens were wrongfully taken out from the cover when they were in the custody of the Postal Department while in transit. It has however been alleged in the memo of appeal that there is no specific denial or evidence on record to show that its concerned branch did not at all receive the postal cover. However, the complainant has stated in the same para of the memo of appeal that the Manager of the opponent Bank denied to have received such document/cover. In that view of the matter, when the opponent Bank had taken care of sending the documents by R.P.A.D. any deficiency in that regard could be upheld against the opponent Bank. The learned Forum has considered the decisions presented before it and no exception as has been stated in ground (1) can be entertained. Thus, even on merits, this appeal is required to be dismissed. The complainant and/or its learned Advocate has not remained present before this Commission in spite of intimation dated 7.6.2001. No one has remained present on behalf of the opponent also. We have, however, considered the case on merits after going through the impugned order and the grounds taken in the memo of appeal as stated above.

IN the result, this appeal fails and the same is dismissed, however, with no order as to costs. Appeal dismissed.