S.C.SEGARAM vs ANZ Grindlays Bank

THIS is a complaint under Section 17 read with Sec. 12 of the Consumer Protection Ac

THE Complainant purchased M/s Thomas Cook Travellers Cheques to the value of 24,550 US $ from the first Opposite Party ANZ Grindlays Bank. THE complainant spent 50 travellers cheque worth about 1550 US $ and lost the balance traveller cheques to the value of 23,000 US $ on 4.11.91 when he was travelling in an auto-rickshaw. On 5.11.91 the first Opposite Party ANZ Grindlays Bank was duly informed and the complaint was given to the police. He approached M/s. Thomas Cook (India) Ltd., Madras Office for refund but in vain. He therefore filed O.P. 191/93 on the file of this Commission against M/s. Thomas Cook (India) Ltd., Madras for refund of the amount alleging deficiency in service. M/s. Thomas Cook (India) Ltd., Madras contended that these travellers cheques were not issued by it but by M/s. Thomas Cook (INC) New York and it was not in any way responsible for refund of the amount. This contention was accepted by this Commission and O.P. 191/93 was dismissed by its order dated 31.12.93. THE complainant has now filed a fresh complaint against (1) ANZ Grindlays Bank, Madras (2) M/s. Thomas Cook (India) Ltd., Madras (3) M/s. Thomas Cook Traveller Cheque Ltd., Great Britain (4) M/s. Thomas Cook (INC) New York and (5) M/s. Thomas Cook (India) Ltd., Bombay. THE second opposite party which was the sole opposite party in the earlier O.P. 191/93 was given up and the Opposite Parties were re-numbered. THE complainant has alleged deficiency in service on the part of all the present 4 opposite parties in not refunding the amount due in respect of the lost travellers cheques and claimed the value in Indian rupee with interest, loss of income, mental suffering etc., totalling Rs. 19,99,400/-. The first Opposite Party ANZ Grindlays Bank contended that it has sold the travellers cheques to the complainant to the value of 24,550 US $ and issued remittance advice to the ANZ Bank, New York to the credit of M/s Thomas Cook (INC) New York. There was no deficiency on its part. There is no responsibility on the part of the first Opposite Party to refund the amount of the lost travellers cheques. The claim against the first opposite party must, therefore, fail.

The second opposite party M/s Thomas Cook Travellers Cheques Ltd., Great Britain and the third opposite party M/s. Thomas Cook (INC) New York have filed separate but identical counters. It is contended that the complainant is not a consumer and the complaint is not maintainable as the cheques have been purchased for commercial purpose. The claim is barred by time. The cause of action arose on 5.11.91 when the cheques were lost and the complaint filed on 11.2.94 is out of time . These opposite parties are not liable to refund the amount of the lost travellers cheques on the mere asking. These travellers cheques could be encashed anywhere by mere delivery. These cheques may pass from hand to hand for valuable consideration and these opposite parties will be liable to make payment to any bona fide holder. It was necessary for the complainant to take necessary care. The complainant has failed to take necessary steps to retrieve or recovery for the lost travellers cheques. It is also contended that there is no privity of contract between the complainant and the opposite parties 2 & 3.

THE fourth opposite party M/s. Thomas Cook (India) Ltd., Bombay contended that it is a company incorporated under the Indian Companies Act of 1956 and is an entirely different and independent entity. It has nothing to do with M/s. Thomas Cook (INC) New York which has issued these travellers cheques. No liability can, therefore, be attached to the fourth opposite party. Exhs. A1 to A10 and B1 to B23 are marked by consent. Proof affidavits are filed. No oral evidence has been let in.

THE points that arise for determination are: (1) Whether the complaint is not maintainable against the opposite parties l and 4? (2) Whether the complainant is a consumer as regards the opposite parties 2 and 3? (3) Whether the claim is barred by time? (4) Whether there has been any deficiency in service on the part of the opposite parties 2 & 3 and to what relief, if any, is the complainant entitled?

Point No. 1: The first opposite party is M/s. ANZ Grindlays Bank, Madras. The complainant has purchased travellers cheques issued by M/s. Thomas Cook (INC) New York from the first opposite party to the value of 24,550 US $. The complainant has utilised 50 cheques worth about 1,550 US $ and lost the balance to the value of 23,000 US$ on 4.11.91 when he was travelling in an auto-rickshaw. This claim in respect of the refund of the amount for these lost travellers cheques. The first opposite party is the seller of these cheques! It is not the case of the complainant that there was any defect in the cheques sold by the first opposite party who cannot be accused of selling any defective cheques. The first opposite party has sold the cheques issued by M/s. Thomas Cook (INC) New York to whom the monies have been credited. The responsibility for refund of the value of the lost cheques is only that of issuing company namely M/s. Thomas Cook (INC) New York and no that of ANZ Grindlays Bank which has sold these cheques as agent of M/s. Thomas Cook (INC) New York. The first opposite party is not therefore liable to render any service in respect of the refund of the value of the lost cheques and the complainant can have no grievance against the first opposite party. The claim against the first opposite party ANZ Grindlays Bank must, therefore, fail. The fourth opposite party is M/s. Thomas Cook (India) Ltd., Bombay. It is the contention of the 4th opposite party that it is a company incorporated under the Indian Companies Act, it is an independent entity and totally different from M/s. Thomas Cook (INC) New York, and M/s. Thomas Cook Travellers Cheques Ltd., Great Britain. This was the stand taken by the opposite party in the earlier O.P. 191/93 viz. M/s. Thomas Cook (India) Ltd., Madras. These are two branches of M/s. Thomas Cook (India) Ltd. The memorandum of articles of association, Thomas Cook (India) Ltd., has been filed in O.P. 191/93 as Exh. B4 and it is marked here as Exh. B23. It shows that M/s. Thomas Cook (India) Ltd., is an entirely different entity, having its head office at Bombay and branch in Madras. It may be that M/s. Thomas Cook (India) Ltd. Thomas Cook (INC) New York, Thomas Cook Travellers Cheques Ltd., Great Britain are sister concerns. But in the lye of law there are separate independent entities and one is not liable for the deficiencies on the part of the other. The travellers cheques purchased by the complainant are not those issued by the 4th opposite party but by M/s. Thomas Cook (INC) New York. It is exactly on this ground the earlier O.P. 191/93 was dismissed against M/s. Thomas Cook (India) Ltd., Madras office. On the same ground this complaint against the 4th opposite party which is M/s. Thomas Cook (India) Ltd., Bombay office must fail. Point No.1 is found against the complainant.

POINT No. 2 opposite party No. 3 is M/s. Thomas Cook (INC) New York which has issued Travellers Cheques sold by the opposite party ANZ Grind lays Bank to the complainant. The second opposite party M/s. Thomas Cook Travellers Cheques Ltd., is an associate of M/s. Thomas Cook (INC) New York dealing with cheques losses and claims. Both these concerns are responsible for the travellers cheques issued for their encashment, refund etc. The first opposite party ANZ Grindlays Bank is only an agent of opposite parties 2 and 3 for the sale of these cheques. The credibility of these cheques, their value, their encashment are all matters with which the opposite parties 2 &3 alone are concerned. The complainant who has purchased these cheques have hired or availed of the services of the opposite parties 2 & 3 in respect of these cheques issued by the third opposite party M/s. Thomas Cook (INC) New York and the services of the opposite party M/s. Thomas Cook Travellers Cheques Ltd., which deals with the losses and claims. It is futile on the part of the opposite parties 2 & 3 to contend that there is no privity of contract between them and the complainant. We hold, therefore, that the complainant is a consumer so far as the opposite parties 2 & 3 are concerned.

POINT No. 3 : It is contended that the claim is barred by time. The case of the opposite parties 2 & 3 is that the cause of action for the complaint arose on 4/11/91 when the travellers cheques were lost and the complaint filed on 11 / 2/94 is out of time under Section 24-A(1) of the Consumer Protection Act. Sub-section 2 of Section 24-A empowrs the Forum to entertain the complaint if there had been sufficient cause for not filing the complaint within the period of limitation, for reasons to be recorded. The complainant in the case has filed an earlier O.P. in O.P. 191/93 on the file of this Commission against M/s. Thomas Cook (India) Ltd., Madras on the assumption that the travellers cheques purchased by him were issued by M/s. Thomas Cook (India) Ltd., Madras. This O.P. was filed on 1/4/92 and disposed of on 31/12/93 on the ground that these cheques were not issued by M/s. Thomas Cook (India) Ltd., Madras. Thereafter the complainant has filed this present complaint, against M/s. Thomas Cook (INC) New York and M/s. Thomas Cook Travellers Cheques Ltd., Great Britain. This is in our view is a valid reason for condoning the delay. Point No. 4: Out of the travellers cheques to the value of 24,550 US $ the complainant utilised dollars to the value of 1,550 and lost cheques to the value of 23,000 US $. The entire amount has been credited to the account of M/s. Thomas Cook (INC) New York which has issued these travellers cheques. When the cheques are not utilised and are lost the purchase is entitled to get back the money as otherwise the issuer of these travellers cheques will be making an unjust enrichment, and the purchaser will be illegally damnified. The main objection raised on behalf of the opposite parties 2 & 3 is that these travellers cheques are like currency notes; they are encashed by mere delivery, they may pass from hand to hand and the 3rd opposite party M/s. Thomas Cook (INC) New York and its constituents will be liable to honour the cheques when presented. The complainant cannot claim refund for the alleged loss on the mere asking. There is no doubt some substance in this contention but it must be remembered that those cheques were lost by the complainant on 4/11/91. It is admitted that to this day nobody has presented these cheques at any of the over 2000 offices and constituents of M/s. Thomas Cook (INC) New York for encashment of any of these cheques. Further in this age of computerisation the constituents of M/s. Thomas Cook (Inc) New York would have been informed about the number of these lost travellers cheques and anybody presenting these cheques for encashment can be held liable for using the lost cheques. In the circumstances the refusal of the opposite parties 2 & 3 to meet their obligations to refund the cheque amount, amounts to deficiency in service.

The learned Counsel for the opposite parties 2 & 3 contended that the complainant may be asked to give bank guarantee for the value of the cheque amount at least for a period of 3 years from now so that the opposite parties 2 & 3 may be indemnified in case the cheques are presented and encashed by any unscrupu lous person. The learned Counsel for the complainant is ready and willing to do the same.

THE complainant is entitled to refund of the sum of 23,000 US $ or its equivalent in Indian currency at the exchange rate prevailing today. But the claim for interest and loss of income and the claim for mental and physical suffering are totally untenable and we are not inclined to accept the same particularly because the whole problem has arisen on account of the carelessness of the complainant. In the result, we direct the opposite parties 2 & 3 to pay to the complainant the sum of 23,000 US, $ or their equivalent in Indian currency at the exchange rate prevailing today on the complainant executing a bank guarantee in favour of the opposite parties 2 & 3 for the said sum, for a period of three years. (1) The opposite parties Nos. 2 and 3 shall pay costs of Rs. 1,000/- to the complainant (2) The claim fails and is dismissed as against the opposite parties 1 & 4 but without costs. Complaint allowed.