SATISH CHANDRA MISHRA vs Unit Trust of India

THE complainants have filed this complaint for directing the respondents to pay a sum of Rs. 84,989.58 P. to complainant No. 1 and Rs. 85,510.00 to complainant No. 2 towards Unit Link Insurance Plan (hereinafter referred to as ''ULIP'') Scheme. It is further prayed that the respondents be directed to pay interest on the maturity amount from January, 1998 till the date of actual payment. It has further been prayed that the respondents be directed to pay a sum of Rs. 1,00,000/- each to the complainants towards mental harassment and negligence of the opposite party. A sum of Rs. 10,000/- each has been prayed towards expenses incurred in correspondence etc. A further sum of Rs. 5,000/- has been prayed to be paid towards cost of legal proceedings besides a sum of Rs. 1,00,000/- each towards claim of damages.

THE facts of the case stated in brief are that according to complainant No. 1, he is husband of complainant No. 2. Both of them had taken membership in the ULIP in the year 1988 after paying a sum of Rs. 4,000/- each. Copy of the ULIP certificates are Annexures 1 and 2. THEse membership policies matured in the month of January, 1998. On 20.11.1997 the complainants received two letters from respondent No. 1 requesting therein to give bank account particulars, bank branch, type of account (current/saving bank) and account number to enable UTI to print the same on the maturity cheques to avoid any fraudulent encashment. It was further mentioned that ''if there was any change in the address, the new address be given in the format''. THEse informations were asked for latest by 10.12.1997, otherwise the cheques were to be issued according to the details mentioned in their records. Copies of both these letters addressed separately to the complainants are Annexures 3 and 4. According to the complainant, they wrote to respondent No. 1 within the period prescribed about the details of the bank stating therein that the account payee cheque be issued in the name of Sri Satish Chandra Misra, Savings Bank Account No. 502, Bank of Baroda, Narhi Branch, Lucknow and in the name of Smt. Kalpana Misra, S.B. Account No. 103757 of Allahabad Bank, Main Branch, Hazratganj, Lucknow. It has further been alleged that after the maturity period of ULIP was over, the complainant did not receive the maturity amount. Hence they had to issue reminders to respondent No. 1. A fax message was also sent. Photocopies of these communications are Annexure 5 to 10. Letter dated 6.8.1998 was received from respondent No. 1 informing them that as per their record cheques in the name of complainants have been paid on 20.1.1998 in the Zila Sahkari Bank, Basti. The opposite party No. 1 also enclosed photocopies of the cheques alongwith above said letters. The cheques were alleged to have been issued on 20.12.1997 in the name of the complainants, copy of which is Annexure 11 to the complainant. A perusal of photocopies of these cheques go to show that the name of the branch and the District in which the said bank account is situated were not mentioned by the respondent No. 1 in the cheques inspite of the fact that both these details were also intimated to the opposite party No. 1. This act of the opposite party No. 1 amounts to inefficiency and negligence resulting into wrong payment of the amount. It is further alleged that the cheques are said to have been encashed by opening Account Nos. 117 and 118 in the District Cooperative Bank, Basti through the Banks of respondent No. 1 at Delhi. On the reverse side of these cheques there was a caution printed. In the caution it was mentioned that in order to avoid fraudulent encashment of cheques certain precautions are to be taken. Inspite of these precautions, the Bank of respondent No. 1, Central Bank of India, Janpath Branch, New Delhi did not follow the same and got the fraudulent encashment of the cheques.

It is further mentioned that complainants never visited Basti, opened any account or got the cheques encashed. It is further alleged that in reply to letter dated 6.9.1998 of Unit Trust of India (hereinafter called ''UTI''), the complainants issued a joint notice dated 27.8.1998 to the Deputy General Manager, UTI, New Delhi reiterating and confirming that the said cheques were never delivered to the complainants and, therefore, there was no question of encashing the same. A request was also made in that letter to pay the amount alongwith 18% per annum interest. A photo-copy of this letter is Annexure 12. Inspite of the said notice and enquiry on telephone, the payment was not made. The complainants were advised to make enquiries from Post Office, Lucknow with respect to the delivery of registered letters. On enquiry being made from the Post Office about the registered letters, after a lot of pursuation and repeated requests, the ULIP Section of respondent No. 1 gave the number and date of the registered posts by which the ULIP Section of respondent No. 1 sent the cheques. On the basis of these details furnished by respondent No. 1 enquiries were made from the Post Office and it was informed to the complainants that after booking of the registered letters the same were lost and were never served on the complainants. Photo-copies of these letters are Annexures 13, 14 and 15. Thereafter letters dated 3.9.1998 were received by the complainants from Vigilance Officer on behalf of the Chief Post Master General, U.P. Lucknow confirming that the registered letters addressed to the complainants have been lost after its booking and that the said letter be used for approaching the sender of the article for issuing duplicate share certificates/debentures etc. Photo-copies of these letters are Annexure Nos. 16 and 17. Thereafter efforts were made by the complainants with the respondent No. 1 for making payment, but no payment has been made so far. A reply was sent intimating to the complainants that the cheques were sent and they have been encashed as per their records. Photo-copies of these letters are Annexures 18 to 23.

IT is further alleged that the cheques were presented by some persons to the Bank of opposite party No. 3 Zila Cooperative Bank, Basti which allowed two accounts to be opened and got the encashment of the cheque done to fake parties inspite of the caution printed on the back of the cheques. The action of opposite party No. 3 as well as opposite party No. 2 Central Bank of India, New Delhi amounts to deficiency in service. IT is also alleged that for deficiency of service on behalf of the opposite parties, they be directed to pay the amounts asked for. Written statement was filed on behalf of opposite party No. 1 admitting the issue of ULIP policy and that the complainants were ULIP holders. Before the maturity the complainants have never submitted any details in order to avoid fraudulent encashment of the cheques. It is admitted that the information was sent within time fixed and the cheques were sent against Account No. 502, Bank of Baroda, Narhi Branch, Lucknow in the name of Satish Chandra Misra and another cheque was issued in S.B. Account No. 103757 of Allahabad Bank, Main Branch, Hazratganj, Lucknow in the name of complainant No. 2, Mrs. Kalpana Misra.

RESPONDENT Nos. 1 and 2, Unit Trust of India and Central Bank of India, New Delhi have filed a joint written statement admitting that the complainants were unit holders as alleged. The account payee non-negotiable, non-transferable cheques were issued in the name of complainants mentioning their bank account numbers and bankers'' name of the complainants in the cheques and they were sent to the complainants which have been encashed through Zila Sahkari Bank, Basti. It is further alleged that these cheques were sent through registered post and if these cheques have been credited in the account of the third party in the different accounts, then it is a matter of fraud, forgery, impersonation and criminal breach of trust which is beyond the jurisdiction of this Commission. It was further alleged that the Criminal Courts/Civil Courts have the jurisdiction to adjudicate in the matter and the complaint is not maintainable in the Commission. 7. The registered post is the safest mode of despatch after mentioning the bankers'' names and bank account numbers of the complainants. There is no deficiency of service and hence the complaint is liable to be dismissed. It is further alleged that there is no pecuniary jurisdiction of the State Commission to try this matter. It is further mentioned by the respondents that the Bank of Baroda and Allahabad Bank which were mentioned in the cheques itself were only authorised to collect cheques. No other bank was authorised to collect the cheque. The obligation of the respondents was discharged when the envelope containing the cheques were sent at the registered address of the complainants. Since the cheques have been issued At Par facility, therefore, it takes about 9 months from the date of issue of the cheques to prepare paid/unpaid status of the cheques on the basis of data received from various banks throughout the country. In the absence of any data from the bank, it is not possible for the respondent to come to a conclusion to issue duplicate cheques. It was for the bank to confirm whether the said cheques were credited in the accounts of the complainants or not. As the same were encashed through Zila Sahkari Bank Limited, Basti, the Unit Trust of India or the Central Bank of India are not liable in this regard. It is further alleged that as the bank account numbers and the bankers'' names were provided on the face of the cheques, there is no fault of the respondent. The cheques are printed in computers and it only can take limited fields into consideration. The respondents have taken due care for issuing and sending the cheques and there is no negligence or deficiency involved on their part. Now it is for the collecting bank and the complainants to sort out the matter. Precaution was also printed on the back side of the cheque in order to avoid fraudulent encashment of the cheques. It is alleged that the respondents are not liable for payment of the amount. The complainants can take action against the Zila Sahkari Bank, Basti by lodging FIR etc. There is no deficiency on the part of the opposite party as it is alleged that the amount claimed is on the higher side and the same is less than Rs. 5 lacs and this State Commission has no jurisdiction to try this case. It is further alleged that complicated question of law and facts are involved and hence the matter should be tried at the Civil Court. Lastly it is alleged that the Zila Sahkari Bank, Post Office and three others should be directed to make parties. The parties filed evidence in support of their case. We have heard the learned Counsel for the parties and have gone through the evidence on record.

LEARNED Counsel for the respondent No. 1, UTI, has alleged that there is no deficiency of service on behalf of UTI because the amounts were sent to the complainants by means of cheques in which all the details which were collected from the complainants were mentioned and the cheques were sent by registered post. The learned Counsel has further contended that when the cheques have been sent by registered post to the complainants it will mean that those cheques have been delivered by the Post Office. Hence it cannot be said that UTI is deficient in its service to the complainants. LEARNED Counsel for the UTI has placed reliance on the case of H.P. Gupta v. Hiralal, (1970) 1 S.C. Cases 437. According to learned Counsel the principle laid down in this case goes to show that when the cheque of dividend or any amount has been posted by the UTI by registered post, it will mean payment to the opposite party. In this connection para 9 of the above case decided by the Supreme Court is relevant. For the sake of convenience this paragraph is re-produced below : "It is clear from Section 205(5) that the Company could pay dividend either in cash or by posting a cheque or a warrant at the registered address of the respondent. Article 132 of the Articles of Association also authorises the company to pay dividend either in cash or by posting a cheque or a warrant to the share-holder at his registered address. The effect of Article 132 is that when a dividend warrant is posted at the registered address of the shareholder that would be equivalent to payment. Once a warrant is so posted, the company is deemed to have paid and discharged its obligation. As aforesaid, the Articles of Association constitute an agreement between the company and the shareholders and the latter are entitled to the payment of dividend in the manner laid down in the Articles and in that manner alone. Article 132 thus not only authorises the company to make the payment in the manner laid down therein but amounts to a request by the shareholders to be paid in the manner so laid down. When, therefore, the company posts the dividend warrant at the registered address of a shareholder, that being done at the shareholder''s request, the Post Office becomes the agent of the shareholder, and the loss of a dividend warrant during transit thereafter is the risk of the shareholder. In Indore Malwa United Mills Ltd. v. Commissioner of Income Tax, this Court, on a question arising whether on the facts their payment was made in taxable territory, held that if by an agreement, express or implied between the creditor and the debtor, or by a request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque and to send the cheques to the creditor by post, the Post Office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. That being the position, the place where a dividend warrant would be posted, the Post Office being the agent of the shareholder, is the place where the company has its registered office. It follows that the offence under Section 207 of the Act would also occur at the place where the failure to discharge that obligation arises, namely the failure to post the dividend warrant within 42 days. The venue of the offence, therefore, would be Delhi, and not Meerut, and the Court competent to try the offence would be that Court within whose jurisdiction the offence takes place, i.e. Delhi. This should be so both in law and common sense, for, if held otherwise, the directors of the companies can be prosecuted at hundred of places on the allegation by shareholders that they have not received the warrant. That cannot be the intention of the Legislature when it enacted Section 207 and made failure to pay or post a dividend warrant within 42 days from the declaration of the dividend an offence."

IN our opinion this case does not apply to the facts of the case in hand. The Apex Court has interpreted the provisions of Section 205(v) of the Companies Act and Article 132 of the Articles of Association with reference to the criminal proceedings pending against the appellant who was the Director INcharge of the Company. The Hon''ble Supreme Court held that according to Section 207 of the Companies Act, that the offence is committed at a place where the dividend is not paid or the cheque or warrant in respect of, therefore, has not been posted within the prescribed time. It also came to the conclusion that the section makes the failure to post the cheque of the dividend etc. within the prescribed time it does not make an offence if the other party, to whom it is directed, has not received the same. According to the Hon''ble Supreme Court, the cause of action will arise only at the registered office from where the warrant is to be posted and not at any other place. As mentioned above, the liability in a criminal case is different from the liability in a civil case. The provisions of law are strictly construed in the case of criminal liability where intention is one of the main ingredients. IN the case of civil liability, we have to go by the principles of law which are applicable in such cases. Therefore, the case mentioned above and referred to by the learned Counsel for the respondent which was decided on the basis of provisions of Companies Act and Articles of Association cannot be made applicable in a civil liability. As those provisions are special provisions relating to the offences mentioned in the Companies Act, therefore, this case law does not apply to the facts of this case because it cannot be said that the Post Office is the agent of the addressee unless there is a contract to the contrary. The case of Hanuman Prasad Gupta v. Hiralal (supra), was explained by the Hon''ble Supreme Court in Renusagar Power Company Ltd. v. General Electric Company & Ors., AIR 1985 SC 1156.

Thus this observation of the Hon''ble Supreme Court clears the entire controversy with regard to the service by registered post under the Companies Act and under the normal circumstances.

IN the case of Commissioner of INcome Tax v. Patney and Company, (1959) Vol. 36 INcome Tax Reports page 488, the question arose as to whether the Post Office is the agent of the sender or the addressee. The Hon''ble Supreme Court, after considering the various laws, came to the conclusion that in the case of payment by cheque which is sent by post, the determination of place of payment would depend upon the agreement between the parties or the course of conduct of the parties. If it is shown that the creditor authorised the debtor, either expressly or impliedly, to send the cheque by post the property in the cheque passes to the creditor as soon as it is posted. The Post Office on such cases is an agent of the person to whom the cheque is posted if there is an express or implied agreement to this effect. Referring to the case of C(1954) 25 ITR 529=(1995) 1 SCR 183, it was relied on a passage at para 204 in Ogale case where it was observed as under : "Of course, if there be no such request, express or implied, then the delivery of the letter or the cheque to the Post Office is delivery to the agent of the sender himself."

Learned Counsel for the appellant has further relied on the case of Union of India v. Mohd. Nazeem, (1980) 1 S.C. Cases 284. In this case the question arose whether the Post Office acts as an agent of the sender or addressee/creditor. In that case a registered letter was sent beyond the territorial limits of India. The Hon''ble Supreme Court held that the provisions of Indian Post Office Act did not apply to the places beyond the territorial limits of India. Postal communication between two different parties is established by postal treaties concluded among them. This question was not decided in this case and was left open. Therefore, this case does not lay down any law which is an issue in this case.

THUS on the basis of this case law it can safely be inferred in the present case that the normal course of conduct between the parties was that the cheque was being sent by post by the UTI and it was delivered to the addressee at place where he was residing. In such a case the Post Office will be the agent of the sender in terms of the decision in the case of Commissioner of Income Tax v. Ogale Glass Works Limited (supra). In view of these case laws, it is clear that the UTI cannot escape its liability of sending the cheques to the right person and to see that they have been served on the right person because the Post Office is the agent of UTI. Learned Counsel for the UTI has argued that the service was made through the Post Office and hence there is a presumption that the service would have been effected. Learned Counsel for the complainant has argued that the records go to show that after the registered letters were booked, they were lost from the Post Office. Hence the presumption of service in such a case cannot be made. The complainants have filed papers in order to show that the registered letters were booked but they were misplaced from the Post Office. Annexure 15 is a letter from the Vigilance Officer of the Post Office. This fact will be clear from Annexure 16 which has been written by Vigilance Officer for the Chief Post Master General dated 3.9.1998 indicating that the registered letters addressed to the complainant has been lost after its booking and he should approach the sender of the article to issue duplicate share certificate/debenture etc. This letter was addressed to complainant No. 2, Smt. Kalpana Misra. Annexure No. 17 is addressed to Sri S.C. Misra, complainant No. 1 and is to the same effect. Thus it is clear from the records that these registered letters after they were booked were misplaced from the Post Office and were never delivered to the complainants. Thus we find that the contention of UTI that these registered letters reached the addressees is disproved from these two letters issued by the office of the Post Master General.

LEARNED Counsel for UTI has argued that there was no negligence on behalf of the UTI because it took all necessary steps which it was required to fulfill. According to learned Counsel, before maturity date, the complainants were asked to give their bank details and the details of bank were provided on the respective cheques of both the complainants. On the other hand learned Counsel for the complainants has argued that there was negligence and deficiency on behalf of UTI inasmuch as all the details of bank particulars which have been furnished by the complainants were not printed on the cheques. The photostat copies of the cheques which were supplied by UTI have been filed by the complainants. A perusal of these cheques goes to show that only the following entries have been made : "Bank of Baroda, S.B. A/c 50", Sri Satish Chandra Misra." This is in regard to complainant No. 1. With respect to complainant No. 2, the following entries were made : "Allahabad Bank, Saving Bank A/c No. 103757, Smt. Kalpana Misra."

ACCORDING to learned Counsel for the complainant UTI was negligent and deficient in service by not mentioning the entire details given by the complainants on the cheques. The complainants had also given the details of the branch and the city in which these banks are situated. It is needless to mention that the complainants reside at Lucknow and they had mentioned the city as Lucknow. In the present case UTI has not mentioned the place where the branch of the bank is situated and the name of the city. In absence of these two details, these cheques were got encashed at Basti. Had the entire details as furnished by the complainants were given on the cheques, this fraudulent encashment could have been avoided. Learned Counsel for UTI has argued that it is not possible to give all the details because the computers could not accept all the details. This argument, on the face of it, requires rejection straightaway. It is not possible to believe that the computer would not have taken all the bank details which were furnished by the complainants. The computers will mention only those details which are fed into it. No affidavit of any expert in computer programming or any other person having thorough knowledge of computer working has been filed to show that the computer would not have accepted the location of the branch and the city. Thus we find that there is negligence and dereliction of duty on the part of employees of UTI for not printing the complete details on the cheques thus facilitating fraudulent encashment of cheques. In the case of Ravneet Singh Bagga v. K.L.M. Royal Dutch Airlines & Anr., III (1999) CPJ 28 (SC)=IX (1999) SLT 311=(2000) 1 Supreme Court Cases 66, Hon''ble Supreme Court had an opportunity to consider the deficiency in service under the Consumer Protection Act and held as under : "The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service."

The same question about the deficiency in service arose in case of Union Bank of India v. Seppo Rally OY & Ors., III (1999) CPJ 10 (SC). The Hon''ble Supreme Court held as under : "To examine if there is any deficiency in service we have to see whether there has been any fault, imperfection, shortcoming or inadequacy in the performance of the service by the Bank. Further the power and jurisdiction of the Commission is to award compensation under Section 14(1)(d) of the Act as it has been made applicable to the Commission by Sub-rule (b) of Rule 19 of the Rules framed under the Act. Clause (d) of Sub-section (1) of Section 14 is extracted below : ''to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.'' Each of these expressions used in the sub-section are of wide connotation and are fully comprehended both in common and legal sense. Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. But the negligence for which a consumer can claim to be compensated under this sub-section must cause some loss or injury to him. Loss is a generic term. It signifies some detriment or deprivation or damage. Injury too means ''invasion of any legally protected interest of another''. Thus the provisions of Section 14(1)(d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any, must flow from negligence. Mere loss or injury without negligence is not contemplated by this section."

THUS from these cases it is clear that the deficiency has to be seen in the light of the interpretation given to it by the Hon''ble Supreme Court. In the case in hand it has been held above that complete details of the bank, namely the branch of the bank where it was situated and the city in which the payment was to be made as disclosed by the complainants were not printed on the cheques. Had these details been printed/provided on the cheques there would not have been any occasion of encashment of these cheques at any other place except Lucknow. The contention of UTI that the details could not be given in cheques has been rejected as without any basis. THUS there was negligence of the staff of the respondent who had not printed the details on the cheques and which amounts to deficiency in service which had been rendered to the complainants by the UTI inspite of the fact that all the details were required to be printed on the cheques were furnished by the complainants as desired by UTI. THUS there is no escape from the liability of the UTI to pay the amounts of these cheques as there was deficiency on their part. The next contention of the learned Counsel for the respondents is that the dispute raised by the complainants is a complicated one and involves decision of complicated questions of facts and law and thus is not triable under the Consumer Protection Act as it provides summary remedy and the same could have been filed in the Civil Court. On this point, reliance has been placed on the case of M/s. Special Machines, Karnal v. Punjab National Bank & Ors., I (1991) CPJ 78 (NC). Learned Counsel for the respondent has based the arguments that these cases contain elaborate discussion on the complicated law and facts on the ground that the cheques were fraudulently encashed at some other place due to the connivance of the bank and Post Office. According to learned Counsel when it is a case of fraud, it cannot be tried by the Forum and the matter should have been referred to the Civil Court. The position is not so simple as argued by the learned Counsel for the respondent. No doubt if complicated questions of law as well as facts are involved, it will always be desirable to refer the matter to the Civil Court so that elaborate enquiry can be made there and a decision arrived at. In the present case we only have to see whether the cheques have been received by the complainants or not and whether there is any deficiency on the part of the respondent. The complainant is not a consumer of the Post Office or the bank as has been recently held by the National Commission in the case of Gauhati Cooperative Urban Bank Ltd. & Ors. v. Santosh Kumar Tewari & Ors., III (1997) CPJ 68 (NC).

IN the present case we are not to decide as to whether the cheques have been encashed fraudulently by any other person in collusion with the Post Office and bank because the complainant has claimed the amount from the UTI and not from the bank or Post Office. It was the duty of the U.T.I. to have seen that the cheques are delivered to the addressees. The complainant is a consumer of the U.T.I. and not of the Post Office or bank. Hence this case does not involve decisions of complicated questions of law and facts. Thus the case referred to by the learned Counsel for the respondent does not apply. The same is the case of Debashish Mitra v. The Managing Director, Lakshmi Varsha Company & Anr., I (1992) CPJ 30 (NC), in which it was held in para 8 that "Deficiency in service in particular case may be incidental to deception, fraud and cheating and the complainant who has to seek redress for such offences must approach the appropriate Law Courts and not Consumer Disputes Redressal Commission". The next case relied upon by the learned Counsel for the respondent is Aneja Overseas v. Joint Director, General Foreign Trade, III (1998) CPJ 704. In that case the controversy between the parties was whether exim script is to be issued within 48 hours. Complainant alleged that it was not issued. The opposite party contended that script was issued to an authorised person as per authority of the complainant. The allegation of fraud was also made in that case. Therefore, the Commission came to the conclusion that it is not triable by the Consumer Court. This case also does not apply to the facts of the present case. The last case is Life Insurance Corporation of India v. Dodda Sambhaiah & Ors., III (1995) CPJ 61 (NC). In this case a cheque was sent by LIC which was lost in transit and was encashed by someone forging the account. Police investigation was pending and it was held on these facts by the National Commission that the matter should wait till the police investigation is completed. This case also does not apply to the facts of the present case. It has been argued by the learned Counsel for the opposite party that an FIR has already been lodged and the matter is under investigation by the police. No copy of FIR has been filed to show as to what allegations have been made by the respondent against the complainant in this case. As has already been held in the earlier part of the judgment, the complainant is not concerned with the fraudulent acts of the Post Office or bank in collusion with the person who got the cheque encashed. We have merely to see whether the complainant received the amount which was sent by the opposite party to it. We have already come to the conclusion that the Post Office is the agent of the sender, i.e. of the respondent and it cannot shirk its responsibility of being absolved from the liability if the cheque has not been received by the addressee. It is for the opposite party to recover the amount from the Post Office or the bank whoever is responsible.

THE next argument of the learned Counsel is that this complaint is barred by Section 37 of the Unit Trust of India Act, 1963. For the sake of convenience, this section is reproduced below : "Protection of action taken under this Act-No suit or other legal proceeding shall lie against the Trust or the Reserve Bank or any trustee or any officer or other employee of the Trust or the Reserve Bank or any other person authorised by the Trust to discharge any functions under this Act, for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act."

Perusal of this section goes to show that in certain cases protection has been given to the officers, trustees or employees for any damage which is caused or likely to cause to any person on account of any act done by the company under good faith. This section speaks of "good faith". If there is any negligence or lack of good faith on the part of the trustees, officers or any other employees of UTI, then the protection given by Section 37 will not be available in those cases. As we have seen in the earlier part of the judgment, there was negligence on the part of the employees of UTI who had not got printed the entire details of the bank as given by the complainants. Had these details been printed on the cheques, then the encashment of cheques at Basti could have been avoided, and the payment would have been made to the real person who owns those units. THErefore, in such cases where there is negligence, deficiency in service or want of good faith, protection given by Section 37 of the UTI Act will not be available. Moreover, Section 3 of the Consumer Protection Act is in addition to and not in derogation to any other law. Thus we find that in the present case the remedy for the complainants was available under the Consumer Protection Act and they could have filed the complaint in the State Commission as they have rightly done.

THUS we find that the cases which had been relied upon by the respondent do not apply to the facts of this case and as such the respondent shall have the legal liability to pay the amounts to the complainants if the cheques have been lost during transit or they have been encashed fraudulently by the bank in collusion with some person, then the complainants are not to suffer for the lapses on the part of the respondent. The liability of the respondent does not cease merely by saying that it posted the cheques by registered post. It may also be mentioned here that the sending of letter by registered post does not mean that it has been delivered to the addressee. No doubt there is a presumption under Section 114 of the Evidence Act. This presumption is rebuttable and has been rebutted by the complainant. The opposite party has failed to prove that the cheques were delivered to the complainants and the liability of the opposite party does not cease and the opposite party is not absolved from making the payment. The complainants have claimed the maturity amount of the ULIPs. Complainant No. 1 has claimed a sum of Rs. 84,989.58 p. and complainant No. 2 has claimed a sum of Rs. 85,510.00 as maturity amounts. The complainants are entitled to this much amount. Interest at the rate of 24% per annum has been asked for by the complainants on the maturity value of the units till the date of payment. In the earlier part of the the judgment we have found that the cheques were not delivered to the complainants, hence they could not encash the same. Even on demand and reminders issued by the complainants, the maturity amount of ULIPs has not been paid to the complainants. The complainants are, therefore, entitled to get interest in the form of damages on that amount. In our opinion, the interest at the rate of 18% per annum will be payable from the date of maturity till the date of payment. The complainants have also claimed separately a sum of Rs. 1,00,000/- on account of mental agony and harassment which they had to suffer due to negligence on the part of the opposite party. It is true that the maturity amount was not paid to the complainants inspite of their furnishing complete details of the bank. They had suffered mental agony and harassment on account of non-payment of the amount by the opposite party. Therefore, the complainants are entitled to get Rs. 25,000/- each under this head. The complainants have further prayed for a sum of Rs. 10,000/- each towards expenses incurred on correspondence and trips to Delhi to get the maturity amount. In our opinion, a sum of Rs. 3,000/-, each of the complainants will serve the ends of justice.

Costs of Rs. 5,000/- have been claimed towards legal proceedings. In our opinion this much amount can be safely granted to the complainants.

THE complainants have also prayed for a sum of Rs. 1.00 lac to each of the complainants as damages towards the losses suffered by them due to negligence and deficiency of opposite party in not paying the maturity amount. We have already granted interest at the rate of 18% per annum from the date of maturity till the date of payment. This amount covers the damages which were suffered by the complainants. Thus we find that complainant No. 1 is entitled to get a sum of Rs. 92,989.58 and complainant No. 2 a sum of Rs. 93,510/-. Complainant No. 1 is also entitled to get interest in the form of damages at the rate of 18% per annum on Rs. 84,990/- (rounded figure) and complainant No. 2 shall get interest in the form of damages at the rate of 18% per annum on Rs. 85,510/- from the date of maturity till the date of actual payment.

HOWEVER, it is made clear that the Unit Trust of India may recover the amounts of damages, cost etc. which have been awarded to the complainants from the employees found responsible. Order The complaint is partly allowed to the extent that complainant No. 1 will get a sum of Rs. 1,15,489.58 and complainant No. 2 a sum of Rs. 1,16,010/-. Further they will get interest in the form of damages on the maturity amount at the rate of 18% per annum from the date of maturity till the date of payment. This amount shall be paid by opposite party Nos. 1 and 4. Compliance of the order be made within a period of two months from the date of this order. Let copy as per rules be made available to the parties. Complaint partly allowed with costs.