Kaladharan K K vs Manager Foreign Department

THIS complaint is filed under Section 12 of the Consumer Protection Act claiming a total compensation of Rs. 19,60,000/ -.

SHORTLY stated, the allegations in the complaint are as follows: The complainant was a repatriate from Kuwait who was on employment there for five years. He was forced to flee from there on account of Gulf war. After the Gulf war he requested the National Bank of Kuwait where he had his earnings deposited (two fixed deposits and one SB account) to transfer it to his Account No. NRE 6270 in Canara Bank, Panampilly Nagar, Cochin - 20. On 2.9.1991 an amount of Rs. 13,716/ - (Equivalent to US dollar 532.111 referred as KAW 8136 in copy No. 3) was credited in his account in Panampilly Nagar Branch of Canara Bank. There was no trace of the amount in the fixed deposits. He made enquiries in NBK, Kuwait, NBK, London and Canara Bank, Panampilly Nagar. But he obtained no information about this. After a spell of four years, he got a message on 8th February, 1995, from London Branch of NBK informing that the amount was transferred on 4.7.1991 via Manufacturers Hanover Trust, New York to credit it in his Account No. 6270 at Panampilly Nagar Branch of Canara Bank. He was also asked to remit 300 U.S. dollars since it was an old case. Accordingly an amount of 300 US dollars was remitted to Chemical Bank of New York, through his relatives staying there. It is only then he came to know that Chemical Bank of New York had transferred the amount on 12.7.1991 to Canara Bank and that Canara Bank was holding the said amount for the last four years without any reasons. At last the capital amount of Rs. 3,18,318/ - was only credited in his account on 22.8.1995. The complainant suffered a lot of financial loss as well as mental constrains during these four years. His proposal to purchase a piece of land measuring 20 cents at Rs. 12,000/ - per cent in the Emakulam City in the year 1991 for construction of a residential building was also shattered due to the delay in crediting the amount in his account. Now the price of land had already increased to ten times than that of the land price prevailed in the year 1991.

THE complainant had requested Canara Bank on several times to compensate the complainant for the delayed payment. But all that was in vain. At last Canara Bank informed the complainant that the delay was due to the absence of connected payment order from the foreign Bank to transfer the funds of his account and the complainantwas compensated to a great extent due to the fluctuation in exchange rate. The complainant prayed that the opposite party may be directed to produce the connected payment orders received from the foreign Bank regarding the transfer of his money to verify the truth in their statement regarding the delayed payment. If at all their averment is true they could very well ask the foreign Bank to give the connected payment order instead of keeping silence for a long period for four years, reserving the money with them. It is on these allegations the complaint was filed.

A version was filed by the opposite party alleging that the complaintis barred by limitation and it is without bona fides. Regarding the transactions referred to in para 2 of the complaint it was contended that the opposite parties have no contractual obligation with the complainant and he is not a consumer. The complainant entrusted the National Bank of Kuwait to transfer the disputed funds in the account of the complainant with 2nd opposite party and the National Bank of Kuwait ought to render the required service. The funds received by the remitter Bank were transferred without proper instructions or payment order and the same remained unapplied for which the remitter Bank alone is responsible. Though the agency arrangements existing between the two Banks have provided mutual flow of business, both the Banks have no drawing arrangements in any of the currencies. In such a situation, the remitter Bank refers to printed directory like Bankers Almanac to know the details of accounts of Banks in India simply transfers the remitted amounts to Banks account. In such cases, the remitter Bank is required to produce authenticated payment order to the Bank in India by telex authorising to apply the funds so remitted to their account and in turn they make paymenttothe ultimate beneficiary. If the funds are received by the Bank in India in their Nostro account without the required payment order, the same will remain unapplied for which the remitter Bank alone can be held responsible. The National Bank of Kuwait simply transferred the funds to the credit of opposite partys account with Chemical Bank, New York, without giving any details of reference and the funds have remained unapplied. It is further alleged since no funds were received to the credit of the account of the complainant with the opposite parties, the complainant could have very well approached the National Bank of Kuwait to trace out the funds during 1991 itself. Surprisingly, efforts have been made only in 1994 by his letter dated 23.1.1994 to National Bank of Kuwait as evident from Ext. P2 letter. On 2 -9.1991 an amount of Rs. 13,716/ - was credited in his account with second opposite party. Regarding the said fund though the particulars are given wrongly, the opposite parties had managed to identify the fund properly and credited to the account of the complainant. The opposite party also produced a true copy of the original payment order and the letter from Reconciliation Section, Canara Bank, Bombay, relating to the said amount which are marked as Exts. R1(b) and R1(c). It is also to be noted that both unidentified funds were transferred by National Bank of Kuwait on 4.7.1991 prior to the transfer of the fund referred in Exts. R1(b) and R1(c) and all the said transfers were effected during the Gulf war when the volume of transfers of such funds were alarmingly high. Due to the said reason the remitter Bank failed to send authenticated payment order with details alongwith the transfer of funds. As happened during Iran and Irac war, the Kuwait people were afraid of their assets in United States and apprehended that the Bank accounts would be freezed during the war period. Probably for the said reason the remitted funds were routed through London Branch of National Bank of Kuwait despite the fact that they have a branch at New York. Being aware of the situation the complainant could have taken up steps with National Bank of Kuwait when the funds were not reached to the credit of his account. Till the receipt of Ext. P3 the complainant was not able to inform the opposite parties the vital particulars such as (i) the amount remitted, (ii) the value date of remittance (iii) the currency of remittance, (iv) to which Nostro account of Canara Bank. Without the said particulars it was impossible for the opposite parties to search the records of 16 Foreign Departments of the Bank which receive credits. The opposite parties also alleged that the funds were settled to the complainant at the prevailing rate of Rs. 31.4350 per U.S. dollar. On 5.7.1991 the rate was Rs. 25.89 per U.S. dollar. In the circumstances there is no deficiency on the part of the opposite parties and the complaint is to be dismissed. On behalf of the complainant, PW 1 was examined. He also filed an affidavit in lieu of the chief -examination. He was cross -examined on behalf of the opposite parties. Exts. PI to P7were also marked on behalf of the complainant. The opposite party filed a version in the form of affidavit and the Senior Manager of the opposite party gave evidence as RW1 and documents Exts. R1(a) to R1(d) were marked on their behalf. The following points arise for consideration: (i) Whether the complainant is a consumer? (ii) Whether the complaint is barred by limitation? (iii) Whether there is deficiency on the part of the opposite party? (iv) If so, what is the relief to which the complainant is entitled? (v) What is the order as to the cost?

POINT Nos. (i)(sic.) : The first question to be dedded is whether the complaint is barred by limitation. Learned Counsel for the opposite party contended the transfer of amounts in his accountwas made on 4.7.1991. But the complaint was filed only on 8.7.1996 and therefore the complaint is barred by limitation. The complainant came to know about the transfer only on receipt of Ext. P3 dated 8.2.1995. This communication was sent pursuant to letter dated 28.1.1995 sent by the complainant. It is also stated that according to their records there had been 3 payments, paid via Manufacturers Hanover Trust, New York, for account of Canara Bank, Bangalore, India, for their Panampilly Nagar Cochin Branch in his favour for account 6270. Details were given therein. It was also stated that if any further details were required the complainant had to pay 100 dollars per item. Ext. P2 also discloses the complainant sent a letter dated February 23rd, 1994, regarding this. In the complaint also he has stated that he made enquiries about this several times with the National Bank of Kuwait Branch, London and Canara Bank, Panampilly Nagar, about this. There is no specific denial of the averments made by the complainant in this regard. We do not find any reason to disbelieve the complainant when he states that he made several enquiries with National Bank of Kuwait Branch, London and Canara Bank, Panampilly Nagar Branch, about this, but he got the information of transfer only on 8.2.1995 as per Ext. P3. The complaint was filed on

7.1996 WITHIN two years from that date and in the circumstances the complaint is not barred by limitation. 8. The next question to be considered is whether the complainant is a consumer. In our view, this question also has to be answered in favour of the complainant because the complainant is an account holder of the Canara Bank, Panampilly Nagar, and therefore the opposite party cannot contend that the complainant is not a consumer. The third and crucial question to be considered is whether any deficiency has been committed by the opposite party. Itisnot disputed that the National Bank of Kuwait Branch transferred the amounts in the account of the complainant as early as 4.7.1991. However the case of the opposite party is that they did not send any payment order and there is no instruction saying that this amount belonged to the complainant or that it should be credited in the account of the complainant. Ext. Rl (a) shows that the National Bank of Kuwait transferred the funds to the credit of opposite partys account with Chemical Bank, New York. It is also stated in the foot note ''please examine statement at once. The maintenance of this account is subject to the provisions of the New York Uniform Commercial Code. The Trust Company disclaims responsibility for any error in or improper change to the account unless informed in writing of it WITHIN fourteen days of the delivery, mailing or availability of any statement and cancelled vouchers. To direct your enquiries to the proper department for prompt action''. It is the case of the opposite party that there was no indication to identify the account in which the amounts were to be credited. However we find it extremely strange that after having received this account the opposite party did not make any enquiries and only kept the amount under suspense. We also find the opposite party has produced Exts. R1(b) and R1(c) which are payment orders similarly issued by the National Bank, Kuwait, Manufacturers Hanoever Trust Company. That also proves transfer of 532 US dollars on the instruction of National Bank, Kuwait, to the credit of the complainant. It is not disputed that this amount is credited to the account of the complainant. We do not find any reason not to credit the deposit amounts transferred. The opposite party would contend that no payment order in the nature of Exts. R1(b) and R1(c) was received by them in regard to deposit amounts that were received. We are unable to accept the contention of the opposite party in this regard. Admittedly pass sheet was received by the opposite party and the transfer of the amount is mentioned therein and still they kept quite without taking any steps to ascertain as to how these amounts are to be dealt with. That itself would amount to deficiency. We are inclined to think that the payment order is received by them as in the other cases but due to some mistake or inadvertence the opposite party failed to credit the amounts to the account of the complainant. In the circumstances, we have no hesitation to hold that there is deficiency in service on the part of the opposite party.

THE next question to be considered is what is the relief to which the complainant is entitled. The complainant has claimed Rs. 19,60,000/ - as compensation which is without any basis. According to him, at that time he could have got land at the rate of Rs. 12,000/ - percent at Ernakulam and really he intended to purchase land and as fund was not available with him he could not do so. No evidence was produced to show that really he intended to purchase land at Ernakulam or he entered any agreement with anybody to purchase land at Ernakulam. However the complainant has sustained financial loss as the amount was NRE account. In the circumstances, the only direction we can give is to treat this amount as having credited in the account of complainant on 12.7.1991 and interest will be paid to the complainant at the rate which was available for the NRE account during this period. We also make it clear that the equivalent Indian currency will be calculated on the basis of exchange rate on date of transfer. The complainant will also be entitled to cost which we fix at Rs. 1,000/ -. Complaint allowed with costs. _