P. K. Musahary, President (Oral):
1. By this order we are disposing this appeal after a long gap of over 16 years since it was filed on 15.12.1997. However, we want to put on record, for information of all concerned the reasons, rather circumstances, leading to such undesired inordinate delay in disposing the appeal.
2. On perusal of the records we find that the notice to the sole respondent could not be served inspite of necessary steps taken by the appellant. On 23.02.2002 it was dismissed for non-prosecution and default of the appellant vide order dated 23.02.2002. The appellant then filed an application, being Miscellaneous Case No. 1 (M) 2002, for setting aside the said dismissal order and restoration of the appeal to file. Unfortunately, the notice issued in the said Miscellaneous Case also could not be served and this Commission allowed the appellant to effect the notice on the respondent by publishing in a local newspaper The Shillong Times. The substituted notice was accordingly published in the said newspaper on 4th and 5th April, 2004. Inspite of such substituted notice published in the newspaper, the respondent remained absent and unrepresented on the dates fixed for hearing. When the matter was listed again for further hearing on 13.12.2004, the appellant took adjournment till next sitting of the Commission.
On the next date i.e. 22.07.2005 none appeared for the parties and as a last chance, the Commission fixed 06.08.2005 for further hearing. On the said date the counsel for the appellant, through her colleague advocate, sought for further adjournment. This Commission was not inclined to adjourn the hearing inasmuch as the appellant had already taken 19 adjournments on earlier occasions. So, this Commission, vide order dated 06.08.2005 again dismissed the appeal for non-prosecution and default. 3. On an application made by the appellant in Miscellaneous Case No. 3/05, the aforesaid dismissal order was recalled vide order dated 24.08.2013 restoring the appeal again to file. Notice sent to the sole respondent for hearing of the appeal returned unserved. By an order dated 28.09.2013, the Officer-in-Charge of Laitumkhrah Police Station was directed to enquire the whereabouts of the respondent and submit a report on or before 26.10.2013. As the report as asked for was not submitted, the Officer-in-Charge was directed to appear before this Commission on 09.11.2013. Appearing before this Commission, the Officer-in-Charge informed that the whereabouts of the respondent could not be found inspite of the enquiry made by him. Faced with such situation, the appellant was directed to publish a notice in the local English newspaper The Shillong Times. It was complied with by the appellants. Then the appeal was directed to be listed for hearing on 14.12.2013. The respondent failed to appear. On request of the appellant the hearing was adjourned till today. 4. Today we find the respondent absent and unrepresented. So, we are bound to take up this appeal for hearing exparte. Hence we do so.
5. The appellants have challenged the judgment and order dated 15.11.1997 passed by the learned District Consumer Disputes Redressal Forum, East Khasi Hills, Shillong (District Forum in short) in CP Case No. 19 (S) of 1996.
6. To state the facts in brief:
The respondent/complainant is a holder of a savings bank account bearing SB account number 31/8217 in the Laitumkhrah branch of State Bank of India. His wife Smt. Sutapa Dutta also had a separate savings bank account bearing account number 48/12726. They opened the said accounts with the Laitumkhrah branch of the appellant bank in the year 1982. On 17.10.1995, the respondent sent his wife to deposit in his current account an account payee cheque bearing number B.B1/50-284674 dated 16.10.1995 for Rs. 1512/- only. But while filling up the credit transfer voucher, his wife instead of inserting his account number, inserted her own account number. The respondent had no knowledge about it. On 17.10.1995, the respondent issued one savings bank cheque number 753970 for a sum of Rs. 1100/- only in favour of his wife to be drawn at the State Bank of India Laitumkhrah branch. The respondents wife did not encash the said cheque in the counter, instead she filled in another credit transfer voucher for crediting the cheque to her own account. On 18.10.1995, the respondent issued another savings bank cheque number 753971 for Rs. 335/- only in favour of Don Bosco Technical School, Shillong to be drawn at the said SBI branch. Having noticed the inaccuracy in the account number, the appellant bank dishonoured both the cheques bearing number 753970 dated 17.10.1995 for Rs. 1100/- and 753971 dated 18.10.1995 for Rs. 335/-. The fact of dishonour of cheque was informed by the Don Bosco Technical School which hurt the respondents image and prestige as a respectable member of the society. The respondent asked the appellant to explain their conduct and demanded justice but they did nothing except tendering apology through its Chief Manager on 13.12.1995.
Not being satisfied with it, the respondent, by way of filing the complaint, demanded payment of compensation of Rs. 4, 75, 000/- only on account of loss of remuneration, loss of business, loss of credit, reputation, medical attention and mental torture and harassment and cost of suit plus any other benefit for wrongful dishonour of cheque. 7. The appellants, as opposite parties filed showcause reply stating interalia that on the start of the business on 17.10.1995, the respondent had a balance of Rs. 144.53 only which was much below the minimum balance required to be maintained in the cheque operating accounts. The respondents wife Smt. S. Dutta also had a balance of Rs. 126.30p only in her account. It is further stated that since Smt. Dutta delivered two cheques of Rs. 1512/- and Rs. 1100/- at the branch at the same time, the cheque of Rs. 1512/-, being a current account cheque, had to first go to the current account section for payment. However, the cheque of Rs. 1100/- went directly to the savings bank section for debiting from the respondents account. Being unaware of the cheque of Rs. 1512/- and having noticed that the respondent does not have sufficient balance in his account to pay the amount of Rs. 1100/-, the section returned the cheque of Rs. 1100/- deposited by Smt. Dutta on presumption that the cheque of Rs. 1512/- would be duly credited to her husbands account and that the cheque of Rs. 1100/- issued in her favour and deposited by her for credit in her account would also be duly credited to her account. But the respondents wife Smt. S. Dutta did not wait for the above process to take place and immediately withdrew a sum of Rs. 800/- from the teller counter vide cheque number 125571. In the showcause, the appellants had stated that the respondent on several occasions in the past deposited cheques through his wife Mrs. S. Dutta and she used to withdraw amounts immediately from the teller counter much before her account was actually credited with the amount deposited.
Some instances have been cited with some supporting documents annexed to the complaint which have been proved in the trial before the District Forum. 8. We have heard Mrs. T. Yangi, learned counsel for the appellants. None appeared for the respondent. We have also perused the records as received from the District Forum and considered the pleadings of the parties.
9. The respondent filed no rejoinder to the showcause reply of the appellants controverting or denying the said averments/allegations. No evidence was adduced by the respondent to disprove the allegations brought against him by the appellants. 10. From the pleadings of the respondent/complainant it is clear to us that his wife deposited the cheques in question in her account by inserting her account number and then again immediately withdrew an amount of Rs. 800/- without informing her husband (complainant). Action of the respondents wife is not at all bonafide. It is on record that the respondent came to know about this action of his wife only when he was intimated by the Don Bosco Technical School that his cheque issued in favour of the said school towards his sons school fee was dishonoured due to insufficient fund in his account. The appellants have denied that there was deficiency in service and disowned liability to compensate any loss sustained by the respondent inasmuch as the incident arose mainly from a mistake committed by his wife (Ref: Paragraph 10 of the showcause reply).
11. Having considered the conduct of the respondents wife in depositing the cheques in question and withdrawal of the amount in an unauthorized manner and without knowledge of the respondent, we are also of the view that the entire unfortunate incident took place due only to role played committed by the respondents wife. The only negligence found in respect of the appellants is that the bank official did not take due care and diligence in crediting the cheque amounts and debiting the amounts from the respondents account. It is observed that the bank officials took the incident lightly since both the respondent and his wife were regular customers and acted bonafide and in good faith, otherwise the appellant bank could have initiated criminal proceedings against her for her questionable actions.
12. We find no reason and basis for the respondent/complainant for claiming compensation to the tune of Rs. 4, 75, 000/- and fixing the liability on the appellant bank for the loss, if any, caused to him wrongful actions of his wife. We even do not consider it justifiable to pay an amount of Rs. 5000/- as compensation to the respondent with cost of Rs. 500/- as ordered by the learned District Forum in the impugned judgment order, on the face of the admitted position that the respondent/complainant had a balance of Rs. 144.53 only at the relevant point of time. We are, therefore, not inclined to saddle the appellants with any liability to pay compensation to the respondent/complainant.
13. In view of the above we set aside the impugned judgment and order dated 15.11.1997 and allow this appeal.
14. Appeal stands allowed and disposed of.
15. The records be returned to the Forum below along with a copy of this order. The statutory deposit, if any, may also be returned to the appellant.