UNITED COMMERCIAL BANK vs KAMALESH KAJRIWAL

THIS appeal is directed against the order dated 1.11.1996 in O.P. No. 34/96 on the file of the District Consumer Disputes Redressal Forum, Nilgiris Udhagamandalam.

THE opposite party is the appellant while the respondent is the complainant. Succint facts may be related in order to understand the crux of the issue arising for consideration in this action.

The complainant is doing business in tea machinery spares. The opposite party is United Commercial Bank, represented by its Manager of Gudalur Branch, Gudalur Bazar, P.O. Nilgiris. On 18.8.1995, the opposite party issued a Draft bearing No. 980824 date 18.8.1995 in favour of the complainant for Rs. 29,450/- payable at their Calcutta branch. When the draft was put for collection with the complainant bankers, the same was returned by the Calcutta branch of the opposite party on the ground that the draft was not signed by a person who is the authorised signatory recorded in the bankers books.

THE dishonoured draft with the endorsement was returned to the opposite party''s branch for the issue of a fresh draft in lieu of the returned one. THE opposite party Bank branch issued a fresh draft bearing No. 980838 dated 18.8.1995 drawn in favour of the complainant payable at Calcutta branch. This time also the draft was returned on the ground that due formalities were not observed. Left out with no other alternative, the complainant issued a lawyer''s notice complaining of deficiency in service on the part of the opposite party, Bank, calling upon the Bank to pay the sum covered by the draft namely Rs. 29,450/- with interest thereon @ 24% p.a. from 18.8.1995 till date of payment apart from paying Rs. 1,00,000/- as compensation for mental agony and damages, etc., plus a sum of Rs. 300/- towards cost of the notice. To the notice so issued, there was no response from the opposite party.

ALLEGING the factors as above, the complainant knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint. The opposite party in pith and substance would contend that the dishonour of the drafts by the Calcutta branch were not due to any fault of the Gudalur branch. The claim of interest @ 24% p.a. on Rs. 29,450/- is exorbitant. The claim of compensation as prayed for is also exorbitant. The complaint as such is liable to be dismissed. The Forum below after taking into consideration the materials placed on record, however, recorded a finding that there was deficiency in service on the part of the opposite party, Bank, and ultimately directed them to pay to the complainant a sum of Rs.29,450/- with interest thereon @ 20% p.a. from 18.8.1995 till date of payment and a sum of Rs. 4,000/- as compensation for the mental agony and hardship and damages in the business caused to the complainant and a sum of Rs. 400/- as costs, within a period of two months from the date of receipt of its order failing which suitable action will be taken against the opposite party as per the provisions of law.

AGGRIEVED by the order as above, the opposite party resorted to the present action by engaging a Counsel of their choice namely learned Counsel Mr. R. Balachander.

ON service of process, the respondent/complainant virtually remained absent. When the matter came up for hearing today before us, the respondent/complainant is not present to project his hues of views. The fact that he is so absent does not mean that we cannot dispose of the appeal on merits, of course, after hearing the arguments of learned Counsel Mr. B.S. Sundaramoorthi, representing learned Counsel Mr. R. Balachander, appearing for the appellant/opposite party. That is exactly what we have done in this case.

There is no pale of controversy that the draft in question had been issued by the opposite party Bank in favour of the complainant payable at their Calcutta branch. Yet another fact about which there cannot be any dispute is that the draft in question was dishonoured by the Calcutta branch on the ground that the draft was not signed by a person who is the authorised signatory recorded in the bankers book. Yet another fact about which there is no dispute is that the returned draft with the endorsement of the Calcutta branch had again been submitted by the complainant to the opposite party Bank for the issuance of a fresh draft and they in turn also issued a fresh draft in favour of the complainant payable at Calcutta by their branch. Again the draft so issued was also dishonoured in the sense of making no payment on the ground that due formalities in issuing the fresh demand draft had not been observed. No materials worth the name had been placed on record to substantiate the falsity of the claim as made by the Calcutta branch in returning the drafts issued by the opposite party Bank on two occasions. Such being the case, to say, as has been said by the opposite party Bank that if there is any fault in the dishonour of the drafts, the fault lies only on the Calcutta branch, cannot at all be acceded to, on the facts and in the circumstances of the case. The fault, in such a situation, must squarely lie on the opposite party Bank. Such sort of an act on the part of the opposite party Bank would definitely amount to deficiency in service on their part . In this view of the matter, the finding of the Forum below recording deficiency in service on the part of the opposite party Bank cannot at all be stated to be not sustainable in law. The corollary consequence to flow from such a finding is that it is incumbent upon the opposite party Bank to pay to the complainant the sum payable under the dishonoured draft namely Rs. 29,450/- to the complainant with reasonable interest from the date of issuance of the draft. The Forum below, of course, issued a direction to the opposite party to pay to the complainant a sum of Rs. 29,450/- with interest @ 20% p.a. This sort of a finding cannot at all be stated to be suffering from any sort of infirmity calling for the interference. Therefore, we confirm such a finding.

THE Forum below also awarded com-pensation quantified in a sum of Rs. 4,000/- to be paid by the opposite party Bank to the complainant for mental agony and anguish he had suffered. This sort of a grant of compensation in addition to the grant of interest @ 20% p.a. is not at all permissible in law. Either one of the two things namely payment of compensation or grant of interest is permissible for the mental agony and anguish, if any, suffered by the complainant. In this view of the matter, we order deletion of the payment of compensation quantified in a sum of Rs. 4,000/- as ordered by the Forum below. The Forum below awarded cost in a sum of Rs. 1,000/- which we feel on the facts and in the circumstances of the case is reasonable not calling for interference. We also confirm this portion of the award.

IN fine, the order of the Forum below is modified to the extent as indicated above and the appeal is thus disposed of. We however make no order as to costs on the facts and in the circumstances of the case. We shall make it clear that the modified order of ours is to be complied with by the opposite party Bank within a period of one month from the date of receipt of our order or otherwise the complainant will be at liberty to invoke the provisions of Section 27 of the Consumer Protection Act 1986. Order modified.