R.BALRAJ vs MANAGER , GRINDLAYS BANK

THESE two appeals namely, First Appeal No. 124/93 and First Appeal No. 128/93 have arisen from the Order dated 8.2.93 of the State Commission, Tamil Nadu at Madras allowing the complaint and directing the opposite parties to pay Rs. 25,000/- as compensation besides costs of Rs. 2,000/- to the complaint.

THE complainant says that he needed a sum of Rs. 30,000/- as capital within April, 1991 to start real estate business alongwith some of his friends. He approached his brother one Shri R. Gowthama Budhar at Tashkent, USSR who agreed to advance some amount. Mr. Budhar has an N .R.E. Account in Grindlays Bank, Bombay Branch. On 4.4.91, he sent a message to the Manager, Grindlays Bank, Bombay the first opposite party and transferred a sum of Rs. 14,000/- and Rs. 8,000/- by "Telegraphic Transfer" to the complainant whose account was in State Bank of India, Kaveripattinam. Similarly, one Ganesh, friend of Budhar sent a message on 14.4.91 to opposite party No. 1 to transfer Rs. 8,000/- by Telegraphic Transfer to the complainant''s account. As the complainant had not received the remittances, he exchanged telex messages with Budhar who in turn contacted the opposite party No. 1. The opposite party No. 1 stated that they have already sent D.D. to the complainant vide No. 103512 for Rs. 14,000/-and No. 103511 for Rs. 8,000/- through the State Bank of India, the third opposite party, as the opposite party No. 1 did not have a branch at Kaveripattinam. It later transpired that the opposite party No. 3 instead of transferring the amount to complainant''s account Kaveripattinam branch sent the amount to Dharmapuri District Branch and consequently the complainant could not get the money in April, 1991. The remittances were later traced and received by the complainant only on 1.7.91. The complainant claimed Rs. 2,25,000/- on various counts alleging negligence and deficiency in service on the part of the opposite parties. On the appreciation of the documentary evidence comprising of the copies of the telegraphic messages and advices received by the opposite party No. 1 and transmitted to opposite party No. 3, the State Commission came to the conclusion that there has been deficiency of service and negligence on the part of both the opposite parties and they are liable to indemnify the complainant. The State Commission awarded a compensation of Rs. 25,000/- for mental pain and agony besides Rs. 2,000/- as costs but rejected the claim for loss of profit, loss of reputation and other expenses incurred. The complainant has filed First Appeal No. 124 of 1993 for the grant of compensation of Rs. 2,25,000/- with interest as against Rs. 25,000/- granted by the State Commission. The first opposite party Grindlays Bank have filed cross objections in F.A. No. 124/93 praying, inter alia, for setting aside the award of compensation of Rs.25,000/-and costs of Rs. 2,000/- and for dismissal of the complaint. The State Bank of India has filed First Appeal No. 128/93 assailing the order of the State Commission, inter alia, that the complainant is not a "consumer" within the mean of Section 2(l)(d)(ii) of the Consumer Protection Act, 1986 qua this appellant as also on merits.

IN our view, the appeal of the State Bank of India is entitled to succeed. "Service" has been defined in Section 2(l)(o) of the Act and has also been referred to in Section 2(l)(d)(ii) and Section 2(1 )(g) of the Act. The complainant''s brother Budhar and his friend Ganesh had hired the services of the Grindlays Bank for remittances of the amounts to the complainant whose account was in the State Bank of India, Kaveripattinam branch. Neither the complainant nor his brother nor the brother''s friend had hired the services of the State Bank of India at any time for any consideration. There was no privity of contract or hiring of the services of the State Bank of India. The State Bank of India acted only as a agent of the Grindlays Bank in "effecting transfers and is thus not responsible to the complainant or his brother or to brother''s friend. A complainant is not a consumer qua the State Bank of India. The consumer means any person who hires or avails of any service for consideration. It cannot be said on the facts established on record that the complainant is a consumer who has hired the services of the State Bank of India for consideration. The complaint against the State Bank of India, therefore fails on this short ground and is hereby dismissed.

THE cross-objections filed by the Grindlays Bank are not maintainable as the provision of the C.P.C. contained in Order 41, Rule 22 have not been made applicable to the appeals a before Consumer Forums. This is the consistent view taken by this Commission. The quantum appeal of the complainant has no merit. No evidence or material has been placed on record as to the alleged expenses for the transportation, communication, lodging and boarding. This item of expenditure remains unsubstantiated and cannot be allowed. The State Commission rightly came to the conclusion that the complainant cannot claim any damages for loss of partnership of real estate business for it is speculative thing of earning any profit out of that partnership. The claim of Rs. 50,000/- for the alleged ill treatment and criticism levelled at the complainant at Kaveripattinam Branch of the State Bank of India is ill founded besides not admissible against Grindlays Bank. The State Commission has in fact been generous in awarding a sum of Rs. 25,000/- for mental pain and agony to the complainant, but since there is no appeal by the Grindlays Bank, the award of compensation of Rs. 25,000/- will stand. In the result, First Appeal No. 128 is allowed and the complaint against the State Bank of India is dismissed. First Appeal No. 124 of 1993 is also dismissed. There will be no order as to costs in the proceedings before (his Commission.