Kishan Lal vs BANK MARYADIT

-THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 10.4.2003 in Complaint No. 671/2002, by District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''District Forum'' for short) holding that there was deficiency in service by the respondents and awarding compensation of Rs. 500/- for the inconvenience and mental torture of the complainant/appellant. Cost of Rs. 500/- was also awarded by the District Forum.

UNDISPUTABLY, the complainant/appellant deposited a cheque of Rs. 5,000/- drawn on Bank of Baroda, Delhi. The said cheque was deposited with respondent No. 2, by the complainant/appellant for collection. Respondent No. 2 sent the said cheque for collection to the drawee Bank-Bank of Baroda, Delhi. The amount of the said cheque, however, was not credited in the account of the complainant/appellant. Later in the month of October, the appellant was intimated by respondent No. 2 that the cheque has been lost in transit. According to the complainant/appellant he did not receive the amount of the cheque on account of negligence and deficiency in service on the part of the respondent. He, therefore, claimed that respondents be directed to pay the amount of cheque i.e., Rs. 5,000/- with interest and compensation, etc.

The complaint was resisted by the respondents. According to them the cheque was returned by Bank of Baroda, Delhi, by their letter dated 28.5.2002 intimating that the cheque could not be honoured as the amount in the account of the drawer of the cheque was not sufficient. It was further averred that the cheque was thereafter sent by respondent No. 1 to its branch at Simga-respondent No. 2. However, the said cheque got misplaced in transit and, therefore, could not be returned to the complainant/appellant.

LEARNED District Forum held that since the respondents failed to intimate the complainant that the cheque has been dishonoured and returned back on account of insufficient funds. Hence, there was deficiency in service on the part of respondents. Accordingly, compensation of Rs. 500/- was awarded besides cost of the complaint. Learned Counsel for the complainant/appellant submitted an application for amendment in the complaint, in this appeal, seeking to raise averments that the amount of cheque could not be received by him and the cheque was belatedly returned to him as a result of which, he could not take any action against the drawer of the cheque under Section 138 of Negotiable Instruments Act. It was submitted by the learned Counsel for complainant/appellant that the compensation awarded is inadequate and that he is entitled to refund of the amount of cheque from the respondents.

AS against the above, learned Counsel for respondents supported the impugned order and submitted that as the cheque was dishonoured on account of insufficient funds, the amount thereof cold not be paid to the complainant/appellant. It was further submitted that learned District Forum granted inadequate compensation for the deficiency in service on the part of the respondents inasmuch as there was belated communication about the return of cheque without being honoured, and also due to loss of cheque by the respondents. It may be noticed in the above context that the cheque was returned by Bank of Baroda, Delhi by their letter dated 28.5.2002 with the remarks that funds available in the account of the drawer of the cheque was insufficient. It is, therefore, clear that the cheque could not be encashed on account of want of funds in the account of the person issuing the cheque. In the circumstances the complainant cannot claim refund of the amount of the cheque from the respondent Bank. It would appear from the averments in the application for amendment filed by the complainant/appellant in this appeal, that the complainant is unable to trace out the drawer of the said cheque. He is also not sure about the correct name of the drawer. Thus, it was not possible for the complainant to proceed against the drawer of the cheque under Section 138 of Negotiable Instruments Act. Moreover, if he wished to do so, he would obtain the certificate to the effect that the cheque was lost and that it was dishonoured on account of want of funds in the account of the drawer of the cheque. Hence no grievance in that regard can be raised at this belated stage. Hence, application for amendment is rejected. However, it is clear that respondents were under an obligation to intimate the complainant about the fact that the cheque was not honoured and has been returned back. This has not been done. Moreover, since the cheque was also lost by the respondents in transit, the learned District Forum was justified in holding that there was deficiency in service on the part of the respondents.

THE next question that arises for consideration is: what would be the quantum of compensation to be awarded for the deficiency in service as above by the respondents?

IN the circumstances of the case we consider that amount of Rs. 500/- awarded by the District Forum as compensation is rather insufficient. It is just and proper to award a sum of Rs. 1,500/- (Rupees one thousand five hundred) as compensation to the complainant/appellant. Accordingly, this appeal is allowed. The impugned order of the District Forum is modified as follows: "The respondent shall pay to the complainant/appellant a sum of Rs. 1,500/- (one thousand five hundred) as compensation, besides cost of this litigation which is quantified at Rs. 500/- (five hundred). Thus, total Rs. 2,000/- (Rupees two thousand) shall be paid by the respondent to the complaint/appellant." Appeal allowed.