(These appeals are coming up for hearing finally on 18.9.2019, upon hearing both side arguments and perusing the records, this commission made the following common order :-)
S. Tamilvanan President
All the three appeals are arising out of a common order passed in CC.No. 239/2005 dated 25.2.2010 on the file of the District Consumer Disputes Redressal Forum, Chennai(South).
Appeal in FA.No.447/2010, is preferred by the complainant, appeals in FA.No. 6/2013 and in FA.No.7/2013 have been preferred by the 1st and 2nd opposite parties in CC.No.239 of 2005.
For the sake of convenience and brevity, the parties are referred to herein as they were referred before the learned District Forum, Chennai(South).
1. The case of the complainant is that he has been a current account holder of the first opposite party, while so, he had deposited a demand draft (BPO) dated 13.1.2005 that was received by him from his customer with the first opposite party and put the same into the ‘drop box’ stating his account number on the reverse side of instrument. The value of the Demand draft dated 13.1.2005 was for Rs.5,00,000/- drawn on the second opposite party Bank. The security guard of the first opposite party had also witnessed the dropping of the demand draft into the box. However the complainant received only a return memo from the 1st opposite party with a dishonoured cheque bearing number 788374 dated 13.1.2005 relating to Indian Bank, West Mambalam for a sum of Rs.5,00,000/-. It was seen that the cheque had been issued in the name of the complainant from account No.64424 of Indian Bank, West Mambalam Branch. On enquiry the complainant came to understand that someone had tempered with the drop box of the 1st opposite party and took away the demand draft dropped by the complainant and replaced the same with the above cheque through the HDFC Bank, Mylapore Branch to the account of the complainant in the first opposite party bank.
2. The complainant has further stated that the first opposite party had not given adequate protection to the drop box and allowed to be tempered with by unscrupulous elements. The complainant intimated the said facts to the second opposite party and inquired about the status of the demand draft that had been obtained in his favour by the complainant’s customer. The second opposite party informed the complainant that the demand draft was encashed through the Federal Bank, the third opposite party bank in the name of K.R.Constructions using one current account No.1787 of the 3rd opposite party bank. The complainant had not opened any current account in the 3rd opposite party bank and he has not ever opened any other account in the 3rd opposite party bank. All the details furnished for encashing the Demand draft by the third party are false and also forged. On the same day a sum of Rs.4,50,000/- has been withdrawn and remaining amount was transferred to the account of the introducer. On verification it is seen that the account number written by the complainant on the reverse side of the demand draft had been erased by using whitener and the new account number relating to the 3rd opposite party bank, that had been purposely opened for encashing illegally the demand draft, was written by the third party. The second opposite party while passing the demand draft has been negligent in not taking note of the discrepancies found in the demand draft and has mechanically allowed the same to be encashed.
3. The 1st opposite party has admitted the fact that the complainant has current account in their bank and also the ‘drop box’ placed by them. However, the 1st opposite party denied the averments of the complainant that he had put the Demand draft (BPO) into the drop box, on the ground that the complainant has not produced proof for the same.
The second opposite party filed counter and contended interalia that the B.P.O (Demand draft) No.824054 dated 13.1.2005 for Rs.5,00,000/- was drawn on the second opposite party in favour of the complainant and the cheque number 788374 dated 13.1.2005 for Rs.5,00,000/- was not related to the 2nd opposite party Bank and he was not aware of the other allegations. It has been admitted by the 2nd opposite party that the B.P.O for Rs.5,00,000/- came up for collection through the Federal Bank of India, Royapettah branch, the third opposite party herein on 17.1.2005 and according to the 2nd opposite party on the face of the said instrument there was no material alteration and hence the B.P.O was duly cleared by the second opposite party. As the instrument came up for collection through another bank and there was no material alteration on the face of it, the second opposite party cleared the said instrument is the defence raised by the 2nd opposite party, however admitted that Minor alterations were made using whitener at the rear side of the BPO (D.D) and that was duly endorsed by the collecting bank, the 3rd opposite party and a seal of “K.R.Constructions” was also seen on the rear side of the BPO. Hence it was the duty of the collecting bank to verify the endorsement made in the reverse side of the instrument and find out whether there was any material alteration on the backside of the instrument. The second opposite party has pleaded that the bank had performed the duty in the normal way as per the usual banking practice adopted to clear instruments. The allegation by the 2nd opposite party is that the third opposite party had not verified the bonafides of the new account holder properly however the third opposite party had sent the demand draft (BPO) for collection. According to the 2nd opposite party, the third opposite party should have followed the norms specified by the Reserve Bank of India while opening the new account. However the third opposite party failed to discharge its duties properly, hence the third opposite party is solely responsible to the complainant and there is no deficiency in service on the part of the second opposite party.
4. As per the impugned order, the District Forum, Chennai(South) has partly allowed the complaint, whereby directed the opposite parties 1 to 3 jointly and severally to pay a sum of Rs.30,000/- to the complainant as compensation for mental agony and Rs.5000/- towards cost. The District Forum has further held that the complainant is not entitled to the value of the demand draft which was dropped by him in the ‘drop box’ of the 1st opposite party that was encashed by a third party since there was police complaint against the illegal act.
5. Having considered the grounds of appeal raised in all the appeals and the impugned order, passed by the District Forum, the following points for determination have been framed:
1. Whether the first opposite party is not liable to pay compensation on the grounds raised by the 1st opposite party/appellant in FA.6/13 ?
2. Whether the second opposite party is not liable to pay any compensation on the grounds raised by the 2nd opposite party appellant in FA.7/13 ?
3. Whether the complainant/Appellant in FA.No.447/2010 is entitled to enhancement of compensation as prayed for against the opposite parties 1 to 3 ?
4. What relief the parties are entitled to?
Point No.1 & 2 : -
6. The case of the complainant is that he has been a current account holder in the HDFC Bank, the first opposite party herein. According to the complainant he had deposited a Demand Draft for a sum of Rs.5,00,000/- dated 13.01.2005, received by him from his customer by way of putting the same into the drop box of the 1st opposite party, stating his account number on the reverse side of instrument. Subsequently he received a communication from the 1st opposite party with a return memo received from the Indian Bank, West Mambalam branch along with a dishonoured cheque bearing no. 788374 dated 13.01.2005 for a sum of Rs.5,00,000/- from account number 64424, of the said Bank.
7. On enquiry, the complainant came to know that somebody had taken away the BPO (Demand Draft) from the ‘Drop box’ of the 1st opposite party and substituted the aforesaid cheque through HDFC bank, Mylapore Branch. Stating the account number of the complainant with the 1st opposite party on the backside of the cheque. It is seen that the said cheque bearing number 788374 of Indian Bank, West Mambalam Branch dated 13.1.2005 was sent to the 1st opposite party bank by the HDFC Bank, Mylapore Branch, in turn the same was forwarded to Indian Bank, West Mambalam Branch for collection. However the cheque was returned with the memo, stating that ‘funds insufficient’, ‘drawers signature differs’, alteration in figures required full signature, in their printed return memo to the 1st opposite party HDFC Bank. Then the same was sent by the 1st opposite party bank to the complainant, being its account holder.
8. It is crystal clear from the pleadings and the evidence adduced by bothsides that a pre-planned fraud has been committed for looting the BPO(Demand Draft) amount payable to the complainant with the help of certain employees of the banks dealing with the demand draft.
9. The 1st opposite party has admitted in the counter as well as in the written argument filed for the 1st opposite party that the complainant had current account with the 1st opposite party bank in Account No.0002000001138 and would further state that the drop box facility was provided with an additional value by the 1st opposite party for the sake of convenience of customer. At this juncture it is relevant to refer Ex.A.11 letter of the Deputy General Manager, Reserve Bank dated 9.3.2005 which reads as follows:-
“we have vide our circular dated April 10, 2004 advised banks that both the drop box facility and the facility for acknowledgment of the cheques at the regular collection counters should be available to customers and no branch should refuse to give an acknowledgement if the customer tenders the cheque at the counters”
10. The account holder is not only customer of the bank but also a consumer under the Consumer Protection Act, whose rights should be safe-guarded by following proper procedures with rationalia. Even when a consumer purchases any commodity or pay any amount towards a business transactions, the other party should issue receipt for such payments being made. Merely keeping a drop box for the customers to put the cheque or demand draft without providing any receipt by the Bank is highly improper, since there could be no evidence for the consumer for dropping cheque or demand draft. On the said circumstances, the defence raised by the 1st opposite party that no evidence was produced by the complainant to show that Demand Draft was put by him in the ‘drop box’ is totally improper and irrational and which would be an unfair trade practice followed by the 1st opposite party bank.
11. In the instant case as stated by the complainant, a demand draft drawn at Indian Bank, in the name of the complainant for a sum of Rs.5 lakhs dated 13.1.2005 has been encashed through the said Indian Bank, Teynampet Branch, the 2nd opposite party herein, which has been proved.
12. The averments of the 1st opposite party is that drop box was provided as additional value by the 1st opposite party for the sake of convenience for the customers is totally unacceptable. Even if any cheque or demand draft is missing while sending the same for collection or taken away by somebody the customer who put the demand draft or cheque would not have any evidence for putting the cheque or demand draft into the drop box. It is a mere common sense for any ordinary prudent person that asking proof from the customer who put the demand draft or cheque into the ‘drop box’ without issuing any receipt for the same is an unfair trade practice and also highly unreasonable.
13. In the instant case, the 1st opposite party has stated that there was no proof produced on the side of the complainant for dropping demand draft in the drop box, kept by the 1st opposite party bank. In our considered view it is an irrational defence raised by the 1st opposite party, since no counterfoil of the pay in-slip or any other acknowledgment signed and sealed by the 1st opposite party was given as per the earlier practice of the bank, when a person put a demand draft or cheque in the drop box. Hence it is unsafe for any customer to put any DD or cheque into the drop box without getting any proof for the same. However it has not been realized properly by the bank for the reasons best known to them. The 1st opposite party has simply stated that a cheque for Rs.5 lakhs was deposited in the complainant’s account through HDFC Bank Mylapore Branch which was sent for clearance by the 1st opposite party however the same was returned with the remarks, “insufficient fund’ signature differ’. It has been established on the side of the complainant that the demand draft dated 13.1.2005 issued by the 2nd opposite party in favour of the KR construction for a sum of Rs.5 lakhs was presented before the 2nd opposite party bank through Federal Bank, Royapettah Branch, the 3rd opposite party herein. As per the counter filed by the 2nd opposite party, it is admitted that the demand draft for Rs.5,00,000/- came up for collection before the 2nd opposite party bank on 17.1.2005 and further stated by the 2nd opposite party that there was no material alteration in the B.P.O, hence the BPO (DD)was honoured by the 2nd opposite party. However in the counter, the 2nd opposite party has stated that minor alteration was found using whitener at the back side of the instrument which was duly endorsed by the collecting bank, the 3rd opposite party herein.
14. The evidence available on record would clearly show that in the said demand draft dated 13.1.2005, the account number of the complainant and other details were written by the complainant. However with the malafide intention the same has been erased by using whitener and the person who fraudulently encashed the demand draft had used whitener to erase, the details of the complainant’s account at the back side of the B.P.O (DD) and put his account number and a bogus rubber stamp stating for R.K.Constructions, Proprietor and also signed the name as Balaji, and cell number was also stated therein. Since whitener was used to erase the important endorsement made on the back side of the demand draft, the 2nd opposite party could have properly verified the genuineness of endorsement made by using whitener to erase the endorsement made on the back side of the B.P.O. However, strangely it was considered by the 2nd opposite party only as minor alteration. A major fraud has been committed by using whitener, hence the view taken by the 2nd opposite party in honouring the BPO(DD) is totally erroneous. A major fraud has been committed by using whitener so as to loot, the DD amount Rs.5 lakhs that was taken so lightly by the 2nd opposite party, the Indian Bank, Teynampet Branch which shows only the non application of mind and also a clear unfair trade practice of the 2nd opposite party as per section 2(2)( r ) of the Consumer Protection Act.
15. It is clear that there is no need for the complainant to put any cheque relating to Indian Bank, West Mambalam stating the very same amount of the B.P.O (DD) Rs.5 lakhs and the same date in the cheque and sent it through the HDFC Bank, Mylapore Branch with his account number in the 1st opposite party for collection, so as to get it returned.
16. The dishonour of the cheque on the ground, “insufficient fund” “signature differ” would show that, in a fraudulent manner, the demand draft put by the complainant into the 1st opposite party ‘drop box’ was taken away and in order to make confusion, the aforesaid cheque relating to Indian Bank, Mambalam had been sent in an illegal manner through HDFC Bank, Mylapore Branch for collection stating the account number of the complainant and that was forwarded by HDFC Bank, Madippakkam, the 1st opposite party to the Indian Bank, West Mambalam, after the dishonour of cheque, the return memo was sent by the Indian Bank, West Mambalam which was forwarded to the complainant by the 1st opposite party.
17. The 1st opposite party has stated in his proof affidavit in para No.5 as follows:-
“A cheque bearing No. 788374 dated 13.1.2005 for a sum of Rs.5 lakhs was deposited in the complainant’s account through Mylapore Branch on 17.4.2005 which was sent for clearance by the 1st opposite party, but the said cheque was returned with the remarks, “insufficient fund” “signature differ”
The averments of the 1st opposite party in his proof affidavit is that BPO was not put into the ‘drop box’ by the complaint, but only a cheque was sent for the same amountwith the same date 13.1.2005. As Ex.B.1 cheque contains the date 13.1.2005 and the memofor return of the cheque dated 18.1.2005, by the Indian Bank, West Mambalam, though the cheque was dishonored on 18.1.2005, the averments of the 1st opposite party made in the proof affidavit has strangely stated that the same was deposited on 17.4.2005 which is totally incorrect and unacceptable. The complainant came up with a return complaint to C.1 Madipakkam police station requesting the police to take appropriate action, the copy of which has been marked as Ex.A.5. On the very same day, the complainant wrote a letter to the 1st opposite party, a copy of the same has been marked as Ex.A.4. wherein he has categorically stated about the dropping of BPO( demand draft ) into the ‘drop box’ on 13.1.2005 evening and also about the illegal withdrawal of the amount relating to demand draft by somebody and requested the police to take proper action against the said person. Subsequently the complainant issued a legal notice to all the opposite parties and also the Branch Manager, Indian Bank, West Mambalam, the copy of the same was marked as Ex.A.7. The reply notice sent by the 3rd opposite party reads as follows :-
“it is true that M/s K.R.consturctions is maintaining a current account with us with the account number, CA 1787. It is also true that a demand draft for Rs.5,00,000/- favouring the said current account holder M/s K.R.Constructions, was collected through the account”
18. In the reply notice sent by the 3rd opposite party, it has been admitted that the amount of the BPO (demand draft) for Rs.5 lakhs was withdrawn by an account holder in account number 1787, of the 3rd opposite party bank. Hence it is crystal clear that the Demand Draft original of Ex.A.8 was encashed only by opening a current account with the 3rd opposite party Bank. However the third opposite party has not contested the matter by disclosing the entire facts about the person opening of account in the name of KR Constructions so as the encash the BPO amount and the account holder who introduced him and other relevant details but the same were not given by the third opposite party Even in the counter filed by the 2nd opposite party, it is stated that there was gross negligence on the part of the 3rd opposite party, however the 3rd opposite party remained absent before the District Forum inspite of the fact that there are serious allegations raised against the officials of the 3rd opposite party bank. Even in the appeals, there was no representation for the 3rd opposite party, however the evidence available on record would clearly show that the fraud of encashing the (B.P.O) DD amount was done only with the assistance of certain employees of the banks, especially the employees of the third opposite party bank.
19. In this regard, we are of the considered view that there is deficiency of service in discharging the duty on the part of the 1st and 2nd opposite parties, apart from unfair trade practice and there was gross negligence and also unfair trade practice followed by the 3rd opposite party, for the illegal encashment of the BPO (DD) by a third party through the Bank.
20. On the said circumstances, we hold that the 1st opposite party/appellant in FA.No. 6/2013 and the 2nd opposite party/appellant in FA.No. 7/2013 are liable to pay compensation to the complainant/appellant and both the appeals are to be dismissed. It has been proved that in FA.No. 447/2010 there has been deficiency of service and unfair trade practice as discussed earlier against all the opposite parties, hence the appeal in FA.No.447/2010 filed by the complainant has to be allowed to provide enhancement of compensation.
Point No. 3 and 4:-
21. We have answered for points for determination 1 and 2 that the 1st opposite party has adopted unfair trade practice and caused deficiency of service by simply providing drop box for putting Demand drafts and cheques without providing proper receipts or acknowledgement for the same to the customers, who are consumers, under the Consumer Protection Act. However without providing any acknowledgment or receipt, the 1st opposite party has raised a defence that the complainant has not produced any proof for putting the demand draft(BPO) in the drop box. The documents marked on both sides and the arguments advanced by them would clearly establish that the complainant had put the BPO(DD) in the drop box placed by the 1st opposite party, that was taken away by some unscrupulous elements and encashed the same by opening an account in the 3rd opposite party bank. The endorsement made by the complainant on the back side of the BPO (demand draft) had been deliberately erased by using whitener. Due to the carelessness and negligence of the 2nd opposite party the BPO (demand draft) was encashed, by the unscrupulous elements, by writing the account number and other details, on the erased portion at the back of the instrument and the BPO amount was looted with the help of certain employees of the opposite parties.
22. The non-appearance of the 3rd opposite party bank clearly shows that the 3rd opposite party has not disclosed the facts, but deliberately supported the person who got the money of the DD(BPO) illegally through the 2nd opposite party. without the illegal and improper assistance of the employees of the bank, the DD(BPO) could not have been taken out from the ‘drop box’ of the 1st opposite party and encashed through the 3rd opposite party bank.
23. It is a clear case for investigation since the person who opened the account could be disclosed by the 3rd opposite party and the account holder who had introduced the said person to the bank, could easily be traced out according to law. However the criminal complaint given to police by the complainant in the year 2005, is pending without any progress in the criminal case, for the reasons best known to the police.
The Hon’ble National Consumer Disputes Redressal Commission in Revision petition No. 3014 of 2018 UCO BANK VS MARA RAM & OTHERS has held as follows :-
Para 10 “when the drafts were presented for payment, the bank should have definitely checked the veracity of the drafts from the advice receipt from the issuing branch. If the advice was not received then the bank was expected to take special case and precaution before making the payment. Thus clearly the bank has erred in making wrong payment to some other person and therefore, the complainant is definitely entitled to get the compensation/refund of the amounts of drafts”
And also in the case in Uma Shankar Bhatt Vs Chairman-cum-Managing Director by order dated 11.12.2007 in OP.No. 98/2002, thus:
“The only question which requires consideration in the complaint is whether a bank is liable to reimburse its account holder if the officers of the bank i.e. the Manager or the cashier, commits fraud and transfers the amount lying in the account of the account holder to a third party’s account, without proper check or authorization? In our view, if officers of the bank commit such a fraud and if the bank is held not liable to reimburse the depositor/investor, then a large number of depositors or investors would never be safe. In such a case, the bank has to reimburse the consumer”
24. On the aforesaid circumstances, we direct the concerned police to take appropriate steps to proceed with the criminal case properly so as to dispose the same on merit at an early date, for which the opposite parties should extend proper co-operation.
25. We are of the considered view on the facts and circumstances to hold that there is no difficulty in disposing this appeal inspite of the pendency of the said criminal case, to meet the ends of justice and dispose the appeals. Accordingly we hold that it has been established that there is deficiency of service on the part of all the opposite parties and also unfair trade practice, however the compensation has to be ordered based on the gravity of the unfair trade practice of each opposite parties, which contributed the looting of the demand draft (BPO) amount.
26. In order to meet the ends of justice, we are of the considered view, to direct the 1st and 2nd opposite parties to pay Rs.15,000/- each for mental agony and sufferings and Rs. 5000/- each towards litigation expenses to the complainant. The gravity of unfair trade practice of the 3rd opposite party is highly condemnable, and hence we direct the 3rd opposite party to pay the entire Demand draft (BPO) amount with 9% interest from the date of DD(B.P.O)till the date of payment, apart from Rs.20,000/- to be paid by the 3rd opposite party, towards litigation expenses to the complainant. Accordingly points for determination 3 and 4 are answered in favour of the complainant and against the opposite parties.
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>It is crystal clear that Section 35A of the Banking Registration Act, 1949, empowers the Reserve Bank of India to give suitable directions, to all the banks and financial institutions to safeguard the rights of the account holders and the general public, who are dealing with the banking transactions as consumers. As per the Tamilnadu State Consumer Disputes Redressal Commission, we direct all the banks and financial institutions, in the state to issue receipts for the persons entrusting DD or cheque either by way of providing the counterfoil of the pay in slip with seal and signature of concerned bank employee, as the same was mandatory under the Consumer Protection Act. The Registry of the Commission is directed to communicate this order to the Chief Executive of the Reserve Bank of India, Chennai to circulate the direction of this order to all the banks under the control of the Reserve Bank of India, Chennai, to follow the mandatory procedure of providing proper receipt or counter foil of the pay-in-slip duly signed and sealed by an official of the bank for entrusting cheque or Demand Draft without fail and deprecate the unhealthy practice of directing the account holders or the general public to put the DD or cheque in the ‘Drop box’ without realizing the responsibility of the Bank in safeguarding their rights, otherwise the same would be construed as a violation and unfair trade practice followed by the Banks subject to the penal provisions under the Consumer Protection Act. In the result, the appeal preferred by the complainant in FA.No.447/2010 is allowed and the appeals in FA.No. 6/2013 & FA.No. 7/2013 preferred by the opposite parties 1 and 2 are dismissed. Accordingly the order passed by the District Forum, Chennai(South) in CC.No. 239/2005 dated 25.2.2010 is modified whereby the opposite parties 1 and 2 are directed to pay a sum of Rs.15,000/- each to the complainant as compensation for deficiency in service, mental agony and sufferings and also Rs.5000/- each towards litigation expenses. The 3rd opposite party Federal Bank, Royapettah Branch is directed to pay the BPO(DD) amount , a sum of Rs.5 lakhs with 9% interest p.a from the date of the BPO, i.e 13.1.2015 till the date of payment as compensation for the highly condemnable unfair trade practice in not following the guideline of the Reserve Bank of India and also Rs.20,000/- towards litigation expenses to the complainant. The amount awarded shall be paid within one month from the date of receipt of copy of this order by the respective opposite parties, failing which the amount shall carry interest at the rate of 12% p.a. from the date of this order till the date of payment of the award amount. Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us on this the 4th day of October 2019.