A.P. Chowdhri, President:
1. Brief facts of the case are that M/s. India Cine Agencies, complainant for short, had a Current Account with the Chandni Chowk Branch of United Commercial Bank (UCO Bank), arrayed as opposite party 2. According to the complainant they had been asking for a Statement of Account, but the same was not furnished by the said bank. It was only in July, 1993 that the said Statement of Account was furnished. A scrutiny of the same revealed that a sum of Rs.9,80,000/- was not credited in the complainant's account in respect of 19 cheques which were deposited with the bank for collection and the amount thereof was duly released by the said Bank. The complainant obtained certificates from the banks concerned regarding payment having been made to the Chandni Chowk Branch of the UCO Bank for being credited to the account of the complainant. On the asking of the opposite party the complainant also furnished photostat copies of the counterfoils of the pay-in-slips relating to those 19 cheques with the forwarding letter dated 2.9.1993. The Bank, however, failed to give the credit. Accordingly Legal Notice dated 10.6.1994 was served. The Chief Manager Chandni Chowk Branch, vide his letter-dated 13.3.1994 intimated to the complainant that it was not possible for the bank to restore the said sum of Rs. 9,80,000/- as the matter was being investigated by the CBI. The present complaint was filed on 27.5.1994 for restoration of Rs.9,80,000/- together with interest and Rs. 1,00,000/- on account of compensation for mental pain and agony besides costs of the proceedings.
2. In the written version opposite parties stated that the case related to a fraud committed by one or more persons regarding which a First Information Report had already been lodged with the CBI and the matter was under investigation. It was further stated that the facts of the case would require voluminous evidence both oral and documentary including the role played by one V.K. Sharma, employee of the complainant who used to operate the account of the complainant on their behalf. A preliminary probe had revealed that the cheques in question had gone into the personal or related accounts of the said V.K. Sharma. It was stated that the complainant could not take benefit of the fraud committed by their own employee. It was denied that the Statement of Account was not furnished to the complainant. In fact, the practice was that whenever a page of the Ledger was completed a carbon copy of the same was furnished to the Account holder and this practice was followed in the present case as well. The all-important averment that the bank had received payment from the drawee banks and that all the cheques were account payee cheques was not denied.
3. In the replication filed by the complainant, it was stated that for civil liability the pendency of the investigation in the criminal case was not relevant. It was further stated that assuming for the sake of argument that a forgery had been committed, the bank was liable to reimburse the complainant of the amount which the bank failed to credit into complainant's account owing to its negligence. It was further stated that though V.K. Sharma was their employee, but he was never authorised to operate the account. The limited duty of V.K. Sharma was to deposit the cheque on behalf of the complainant or withdraw the amount as distinguished from operating the account on behalf of the complainant. It was further stated that there was no reason to await the final outcome of the investigation or criminal case, which might follow.
4. The complainant produced affidavit of P.J. Marwah Attorney, who was stated to be acquainted with the facts of the case. The opposite party produced affidavit of Mr. M.B. Jain Chief Manager, Chandni Chowk Branch of UCO Bank by way of evidence. The complainant also placed on record a photostat copy of the pay-inslips whereby the 19 cheques in question had been deposited as well as the certificates obtained from the concerned banks having made the payment of the specific cheques to the Chandni Chowk Branch of UCO Bank.
5. We have heard Mr. Rajiv Bhagat, Advocate for the complainant and Mr. S.L. Gupta, Advocate for the opposite party and have gone through the record as well as the notes of arguments submitted by them.
6. The details of various cheques including the name of the drawee bank and the amount with date on which those cheques were cleared by the respective banks may be seen as AnnexureII on the paper book. It is not disputed that all these cheques were account payee and the certificates given by the various banks concerned clearly proves that the Chandni Chowk Branch of UCO Bank had collected the payment relating to these cheques and was under a legal obligation to credit the same to the complainant's account. It cannot further be disputed that these cheques were not credited to the complainant's account and instead they appear to have been credited to some other account. The main contention of Mr. S.L. Gupta, learned Counsel for the opposite party that this was not a case of negligence on the part of the bank but a case of fraud having been practised by V.K. Sharma employee of the complainant possibly in connivance with an employee or employees of the bank. He further submitted that unless and until the investigation brought the true facts to light and the bank's employee were found responsible for diverting the amount of the cheques, the bank could not beheld responsible to pay the amount. Mr. S.L. Gupta also argued that the case involved complicated facts and the proper course for the complainant was to file a Civil Suit. We find no merit in the above contentions. There is hardly any dispute on the material facts. For instance, it is not disputed that all the 19 cheques were account payee cheques drawn on various banks Admittedly, the cheques were deposited with the Chandni Chowk Branch of the UCO Bank. In the pay-in-slips relating to these cheques, the account in which the amount was to be credited was that of the complainant. All cheques had been drawn in favour of the complainant. None of the cheques had been made open. It was dearly the duty of the bank to see that the amount collected from the drawee bank was duly credited to the account of the complainant. Because of lack of supervision, the said fraud became possible and was committed and the bank is, therefore, liable to reimburse the amount to the complainant.
7. No doubt a Criminal case has been registered and the same is pending. On the facts, which have been established, there is a clear deficiency in service on the part of the UCO Bank and accordingly the bank is liable to make good the loss as far as the complainant is concerned in discharge of their obligation to the complainant. It is in altogether a different matter that on true facts coming to light the bank may have its remedy to recover the amounts from the person, who is ultimately held responsible for diverting the amount from the account of the complainant to some other account.
8. In the written note of arguments, it has been stated that the bank charged no fee for maintaining a current account and, therefore, the complainant was not a 'Consumer' availing of services of bank for consideration. The argument is totally misconceived. It is well known that for current account, the bank does not pay any interest. On the contrary, the bank utilises the amount deposited in the current account and that is the consideration on which the banks undertake to maintain current account for various parties. We are quite clear that the complainant was covered under the definition of 'Consumer' as availing services of the bank for consideration. An effort has been made in the written notes to suggest that it was the duty of the complainant to ensure that pay-in-slips contained correct particulars which was not so in the present case. Learned Counsel for the complainant placed on record a photocopy of each of the pay-in-slips. Learned Counsel for the opposite parties failed to show which particulars had been wrongly given in pay-in-slips. We have perused these pay-in-slips and we find that in all of them, the name of complainant is mentioned besides all the particulars of the cheque sought to be deposited. We have no hesitation in rejecting the contention that it is a case of contributory negligence. For these reasons, the complaint is allowed and the opposite parties are directed to pay Rs. 9,80,000/- to the complainant together with the 10% interest per annum to be calculated from the date of receipt of payment under individual cheques upto date of payment to the complainant. In view of the award of considerable amount of interest, we do not think that any further compensation should be awarded. The opposite party shall further pay Rs. 2,500/- on account of costs. These payments shall be made within six weeks of the receipt of a copy of this order failing which it will be open to the complainant to invoke jurisdiction of this Commission under Section 27. A copy of the order be communicated to the parties.
Complaint allowed.