1. O.P. (former Branch Manager, S.B.I., Jamui) is the appellant who has preferred the appeal against the order dated 21.7.2003 passed by District Forum, Jamui in Complaint Case No. 4/2003 whereby and whereunder the appellant has been directed to pay the face value of the two demand drafts worth Rs. 40,000/- with interest @ 10% per annum since 29.7.2002 till the date of payment. The appellant has been further directed to compensate the complainant by paying Rs. 10,000/- only from his own pocket together with Rs. 500/- only as cost of litigation.
2. THE brief fact of the case is that he got issued a Bank Draft bearing No. 417625 for Rs. 40,000/- only in the name of Pradeep Narain Singh payable at Rajendra Nagar Branch of Patna on 29.7.2002 from O.P. It is alleged that O.P. issued a defective Bank Draft negligently without putting his signature and S.S. No. on the said draft. On presentation at the drawee Bank of Rajendra Nagar, Patna, the draft was held to be defective and Pradeep Narain Singh was detained for investigation. THE complainant had to rush to Rajendra Nagar, Patna and after much difficulty, the demand draft was returned. THE complainant had given the draft for obtaining a contract from the drawee, which he could not get, and thereby suffered loss of Rs. one lac. THE complainant further alleged that he is entitled for the refund of the amount of the draft as it had not been encashed with interest and compensation for mental harassment and loss in the business.
The O.P. did not appear in spite of notice by registered post and by courier nor any written statement was filed. The District Forum heard the case ex parte.
The complainant produce photocopy of the demand draft for Rs. 40,000/- dated 29.7.2002 which was issued S.B.I., Sikandara Branch in favour of Pradeep Narain Singh drawn on Rajendra Nagar Branch of Patna, Code No. 1667. The complainant also filed affidavit in support of his allegation against the O.P. and mentioned that draft was issued defective by the O.P., which was not encashed, by drawee Bank and he suffered mental and physical harassment and economic loss. On the basis of the facts mentioned above and considering the material on record the District Forum held that the draft issued by the O.P. was defective and allegation of the complainant was found to be true and correct and the impugned order was passed.
3. THE main contention of the appellant before us is that the complaint was not maintainable and the complainant was not a consumer. THE complainant has obtained the draft for commercial purpose as such he is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act. In support of this contention the appellant placed reliance on the decisions reported in (1) I (1996) CPJ 140; (2) I (1996) CPJ 20 (SC), Rajeev Metal Works and Others v. THE Mineral and Metal Trading Corporation of India;and (3) I (1997) CPJ 430.
In reply of this contention the respondent''s Lawyer submitted that the facts of all the above three decisions are not applicable with the facts of this case. Here deficiency has been alleged against the appellant-O.P. in issuance of draft, which could not be encashed by the drawee Bank as it was found to be defective. This amounts to a negligent and deficiency in service of the Bank-appellant because consumer has paid commission for the issuance of the draft. He has issued the draft in favour of one Pradeep Narain Singh at Rajendra Nagar, Patna. The amount of the draft could not be paid to him because the drawee Bank found this draft defective and the Bank on suspicion detained him. The complainant has given the draft for obtaining a contract for his personal gain and employment; therefore, it was not for commercial purpose.
4. WE have considered the submissions of the parties and perused the case law filed on behalf of the appellant. WE are of the view that facts of none of the cases are applicable to the present facts. The draft was admittedly issued by the appellant in favour of one Pradeep Narain Singh payable at Rajendra Nagar, Patna. The draft could not be encashed as it was found to be defective as it was issued without putting the signature and S.S. No. was also not mentioned. As per complainant, he has sent the draft to the drawee for obtaining a contract from the drawee for his own employment and not for any commercial or business purpose. WE accept the contention of the respondent and are of the view that there is no merit in the above contention of the appellant. The complainant comes under the definition of consumer as defined under Section 2(1)(d) of the Consumer Protection Act.
It was contended on behalf of the appellant that inadvertently the appellant could not put his signature at the place where the authorized signatory should sign the draft. It happened due to human error/oversight and not intentionally or deliberately. On the same date, another Bank Draft was purchased by the complainant to be drawn at Ranchi Branch and there was no defect in the said draft. It was further argued that respondent is a Lawyer and he could have pointed out the defect in the draft at the earliest at Sikandara Branch where the defect could have been rectified. Since it was a human error without any intention, therefore, it will not come under the definition of deficiency in service. As the draft was found to be defective, it was subsequently returned to the payee with an advice to obtain the signature of the authorized signatory of Sikandara Branch and present the draft again for payment. The complainant did not get any effort to rectify the defect in the draft rather kept it with himself for about six months and thereafter filed the complaint. This shows as malicious intention. The draft comes under Section 7 of the Negotiable Instruments Act, therefore, the complainant had no locus standi to file the complaint. The order passed by the District Forum is ex parte and no opportunity was given to the appellant to place his case.
The respondent''s Lawyer submitted that it is admitted fact that amount of draft is still lying with the appellant-Bank and it has not been encashed as yet. The appellant as a Branch Manager, Sikandara S.B.I had issued the draft and he admits that due to human error, he could not put his signature at the required place n the draft and due to this mistake the draft could not be encashed. This amounts to negligence in duty, which caused harassment to the complainant and to the person in whose favour, the draft was made. It was further argued by the respondent that there is no merit that Section 7 of the Negotiable Instruments Act is applied in the case. On the other hand, there are several decisions where Bank and its employees have been held deficient in service if they have issued draft wrongly or with mistake.
5. AFTER hearing the parties and considering the submission made on their behalf we are of the view that the appellant has committed mistake in the issuance of the draft due to which the complainant and the drawee Pradeep Narain Singh both have to suffer mental and physical. Therefore, the District Forum has rightly held that appellant (Bank) must make the payment of the amount of the draft of Rs. 40,000/- to the complainant immediately because the appellant also admits that mount of the draft Rs. 40,000/- has not been encashed as yet. The District Forum has rightly allowed 10% interest per annum since 29.7.2002 till the date of payment because this amount remains locked for these period due to negligence on the part of the appellant. However, we agree with this contention of the appellant that in view of the award of interest the District Forum should not have allowed a compensation of Rs. 10,000/- against the appellant-Ex-Branch Manager as it was amounted to double punishment. Therefore, the direction to pay Rs. 10,000/- as compensation by the appellant (Ex-Branch Manager) is set aside. However, the litigation cost to the tune of Rs. 500/- is confirmed.
6. WE agree with this contention of the appellant who is former Branch Manager of Bank (State Bank of India) that it is for the Bank (State Bank of India, Sikandara Branch, Jamui) to return back the above amount of Rs. 40,000/- with interest to the complainant and the appellant who is former Branch Manager is not to return the said amount of Bank Draft prepared by the Bank. The District Forum has awarded Rs. 10,000/- separately to be paid by the appellant from his own pocket as he was found deficient in service. This part of the order has been set aside in appeal. Therefore, the appellant who is former Branch Manager is not to pay this amount (Rs. 10,000/-) from his own pocket. The Bank (State Bank of India, Sikandara Branch, Jamui) is directed to pay the above amount of Rs. 40,000/- of the Bank Draft prepared by the Bank with 10% interest since 29.7.2002 till the date of payment within three months from the date of this order.
With this modification in the impugned order the appeal is allowed in part with Rs. 5,000/- as cost as stated above. Appeal partly allowed.
