SENIOR MANAGER, CANARA BANK vs A.RAJESH KUMAR

THE opposite party in O.P. No. 544 of 1994 of Kasaragode District Forum, Kasaragode, is the appellant. THE appeal is against the revised order of the Forum dated 23.10.1996.

THE complainant''s case is that he entrusted a draft drawn in his name for Rs. 9,972/- dated 1.7.1994 by the Hindustan Motors Limited, Calcutta, for collection on 30.7.1994 and crediting to his account in the opposite party Bank. Even after a long time it was not credited and he made enquiries with the Bank, when it came out that instead of forwarding the draft for collection to Calcutta, it was wrongly sent to the Calicut Branch of the Bank through courier and the draft could not be traced. Hence alleging deficiency he filed the complaint praying for return of the amount of Rs. 9,972/- with interest @ 18% from 30.7.1994 and compensation of Rs. one lakh towards mental and physical agony. The opposite party appeared and filed version. They admitted receipt of the draft which according to them was drawn by Hindustan Motors, Calicut, which was forwarded through courier for collection. As the amount was not realised the opposite party made enquiry with the Calicut Branch. The Calicut Branch said that they did not seem to have received any such draft. Enquiring with the Calcutta Branch also had the same result. Before the Forum the first opposite party contended that as per the agreement the complainant had agreed that the draft was forwarded for collection at the risk and responsibility of the complainant and the Bank is completely exonerated from any loss and will not be liable to pay any amount to the complainant. On the face of the said undertaking by the complainant there is no right to file the complaint.

The Forum by its order dated 14.8.1995 allowed the complaint directing the opposite party to pay Rs. 9,972 /- with interest at 16% from 30.8.1994 alongwith a sum of Rs. 2,500/- as compensation. The opposite party filed an appeal from this order. We remitted the case back to the District Forum for fresh disposal after allowing parties to adduce further evidence.

THE District Forum after remand examined one more witness for the complainant and considering the whole matter afresh granted the same relief to the complainant granting two months'' time from the date of the order, namely, 23.10.1996 to make payment. Being aggrieved by the above order this appeal has been preferred.

MAINLY two points were stressed before us by the learned Counsel for the appellant. The first point was that the District Forum erred in holding that there was deficiency and negligence on the part of the appellant. As soon as the instrument was received it was sent through their approved courier for collection. There was no response for twenty days and the appellant made all efforts by contacting the Calcutta Office repeatedly and later called on their courier to find out whereabouts of the instrument. The courier confirmed that it was delivered to the Bank''s Calicut Branch. The Calicut office of the Bank denied having received any such cheque or draft. The appellant requested the complainant to furnish the address of the drawer to get a duplicate as per the practice prevailing in banking transactions, but the complainant did not co- operate inspite of repeated personal contacts and requests. Thus the appellant has taken every possible action and hence no negligence or deficiency can be attributed. The second point argued was on the basis of provisions in Ext. B.18, namely, the contract entered into between the parties. As per the said contract the complainant had agreed as follows: "I authorise you (Bank) to collect them (cheque, draft, etc.) through any Bank entirely at my risk and responsibility, where drafts or cheques are negotiated by you and the same are lost in transit or otherwise, thereby agree to reimburse to you the full amount of such Draft/Cheques on demand. It is distinctly understood by me that you shall not be liable to pay the amount until they are realised in cash by you."

In the face of such an undertaking by the complainant he has no right to approach the Forum claiming the amount covered by the instrument or for damages or loss. It was also submitted that the complainant is not a consumer. We went in detail to the factual and legal aspects of the above arguments. Negotiable instruments are accepted by the Banks for collection for which a commission is charged by them. The appellant has no case that the service for the complainant was done free of charges. Hence the complainant comes under the definition of consumer in Section 2(1)(d).

IT was admitted that the draft was received by the Bank for collection on behalf of the complainant from the drawee Bank. The appellant is not sure whether they transmitted it to their Calcutta Office or to their Calicut Office for collection through the courier. IT is not clear to which place the draft was sent for collection. We examined the photocopy of the relevant page of the Tappal/Courier Book and Ledger produced before the Forum. There are columns to be filled up by the appellant, namely, date, description of the item sent, address with destination, mode of despatch, courier''s name, signature of the person through whom despatched for courier, etc. We note that none of these columns have been properly filled up by the appellant. If the column''s were properly filled up the appellant could have been able to identify the instrument, the address with destination and other details. In the column address with destination what is filled up is "A/C Section" courier''s name is given as "Calicutta". As could be seen from names of places, such as, Thiruvananthapuram, Emakulam, Kannur, etc. any of the above places may be considered as of destination of the article. Thus "Calicutta" can either be Calcutta or Calicut (Kozhikode) the courier cannot be found fault with if they delivered instrument at Calicut as stated by them. We have no hesitation to find that the loss of the instrument is due to the negligence of the appellant.

WITH respect to the next point, namely, the agreement B.18, we note that it is a printed document of the Banks and the customers have per force to sign the document agreeing to these conditions. These types of contracts are termed as adhesion contracts where the weaker party has no say. Either they have to accept or reject the contract as a whole. They have no choice. Every Bank will have uniform condition like this. In L.I.C of India v. Consumer Education and Research Centre, AIR 1995 SC 1811, the Court held that in a contract of Government or its instrumentality with private person on the basis of its standard terms and conditions, it would be open to the Court by judicial review to examine, whether the terms are unfair, unreasonable or irrational. In dotted line contracts there would be no occasion for a weaker party to bargain or to assurance to have equal bargaining power. In the present case even though the terms of the contract are widely cast we are of opinion that it cannot shell responsibility banking on the clause for its negligence. The clause can only save them if without any of their fault the instrument was lost in transit, destroyed or mis-delivered. We are aware that it is not possible to release parties from their obligations merely because it is just and reasonable to do so and no Court has an absolving power. But even if the contract is absolute in intent it will not be held absolute in effect. We cannot excuse an injustice to the sufferer caused by the default of the appellant Bank. We are supported in our decision by the observation of the Supreme Court in the case cited above. We hold that there is deficiency of service and negligence on the appellant Bank because of which the complainant was not able to realise the amount due on the cheque. In the circumstances we hold that there are no grounds for disagreeing with the findings of the District Forum that there is deficiency of service. At the same time we also note that a suggestion made by the opposite party to get a duplicate of the draft with the help of the complainant was not carried out because of the non-cooperation of the complainant. We feel that it is just and proper to obtain a duplicate draft from the concerned institution. Hence we direct the complainant to furnish necessary details to the opposite party so that they may adopt the usual procedure for realising the amount in similar cases. If any problem arises in the matter the parties are free to move this Commission by filing a petition for the purpose of resolving the problem.

The District Forum has granted a sum of Rs. 2,500/- as compensation. The learned Counsel for the appellant brought to our notice that many requests were made to the complainant both personally and through correspondence to provide the address of the drawee of the instrument or to obtain a duplicate as is usual in Banking Practice, so as to enable them to take further action and see that the amount is realised. But the complainant did not respond or co- operate. Hence we feel that the complainant is not eligible for a compensation of Rs. 2,500/- awarded by the District Forum. We reduce the amount to Rs. 1,000/-.

HENCE we direct the appellant/opposite party to pay Rs. l,000/- by way of compensation to the complainant. We also direct the parties to make a joint effort to obtain a duplicate draft for the amount of Rs. 9,972/- from the concerned party. The parties will bear their respective costs throughout. The appeal is disposed of as above. Appeal disposed of.