Judgment:
S.C. Jain? (Member)
1) The present appeal has been filed against the order dt.25.02.2008 passed by the District Consumer Disputes Redressal Forum-VII, Sheikh Sarai-II, New Delhi in Complaint Case No. DF-VII/434/06.
2) The brief facts of the case are that the respondent/complainant is having a joint saving account No. 011026 with her husband Sh. Kiran Pal Maan in Nangloi, Delhi, Branch of Punjab National Bank.? Since the opening of the account the respondent/complainant got issued only two cheque books in their name from the appellant/OP bank, one cheque book bearing No. 278851 to 278860 and other cheque book bearing No. 658041 to 658060.? The cheque book bearing No. 278851 to 278860 had already been exhausted by the respondent/complainant and the respondent/complainant is using the cheque book containing the serial No. 658041 to 658060 and apart from these cheque books sometimes the complainant used the loose cheque also issued by the OP bank from time to time proper record for the same is kept by the bank and sometimes complainant used withdrawal forms also.? These withdrawal forms could only be used when the customer visits the branch in person and have the pass book of the account with him/her.
3) On 22.03.2004 the complainant was having a credit balance of Rs. 1,20,392.58/- but when on 25.03.2004 complainant went to withdraw Rs. 1,20,000/- from her said account through a withdrawal slip, she was shocked when the official of the appellant/OP bank refused to pay the said amount on the ground that there was no sufficient funds in the account to make the payment.? The respondent/complainant told the official that she had withdrawn Rs. 1,30,000/- on 22.03.2004 and after withdrawal of the amount the left out balance in her account was Rs. 1,20,392.58/-.?? Thereafter? enquiry was made and it was revealed by the official of the appellant/OP bank that some Ms. Bimla have withdrawn the payment of Rs. 1,18,500/- from the account on 23.03.2004 on the strength of a cheque bearing No. 447921 but the complainant explained that she had not given any such cheque to any person with the name of Ms. Bimla neither she had any cheque book bearing leaf No. 447921 because she had never been issued a cheque of this series.? The complainant made many request to the appellant/OP bank to refund the payment of Rs. 1,18,500/- made to some Ms. Bimla because that amount has been withdrawn by someone due to negligence of the bank official but was of no avail.
4)The complainant adopted various course for lodging the FIR and finally succeeded in getting the FIR registered on the basis of directions issued by the Honble High Court of Delhi for lodging the FIR.? Inspite of letters written to the appellant/OP, they never took any steps for getting the matter investigation and lodging the FIR.? On not getting his amount of Rs. 1,18,500/- credited back into their account by the bank the complainant filed the complaint before the District Forum.? The District Forum after completing the pleadings and hearing the parties, observed, that the cheque book bearing leafs No. 447921 to 447940 was never issued to the complainant, because as per the procedure adopted by the banks, customers already having cheque books are issued new cheque book when the account holder submits the requisition slip for obtaining the fresh cheque book contained in the running cheque book or if the requisition slip is lost then the bank issues the cheque book only on written request of the account holder, but in the present case this procedure was not followed and bank only submitted before the District Forum that this cheque book was issued to the joint account holder i.e. Sh. Kiran Pal Maan who is the Husband of the complainant and he had signed in the cheque book receiving register in token of receiving the cheque book, but, respondent/OP bank failed to produce any copy of the requisition slip or the request letter from the complainant.? The copy of the blank requisition slip contained in cheque book having leafs No. 658041 to 658060 was filed by the complainant and complainant also filed photocopies of the left out cheque leafs bearing No. 658053 to 658060.
5)The appellant/OP contended before the District Forum that the signatures of the complainant on the disputed cheque by which an amount of Rs. 1,18,500/- has been withdrawn are same as those of the admitted signatures on the account opening form as per the report of the handwriting expert, but the District Forum had observed that it is a settled principle of law that the report of handwriting Expert is very week type of evidence, therefore, it cannot be taken into the consideration when a person has filed the cogent convincing evidence?.? And the District Forum hold that the officials of the appellant/OP bank had been highly negligent in issuing the cheque book to some person without following due procedure of the bank which resulted into unauthorized withdrawal of Rs. 1,18,500/- from the account of the respondent/complainant account and held that the complainant/respondent had to suffer mental agony as a huge amount has been withdrawn by an unauthorized person on the basis of wrong issuance of the cheque book to that unauthorized person and ordered Punjab National Bank, Nangloi Branch Delhi to pay Rs. 1,18,500/- and damages of Rs. 50,000/- to the complainant for mental and physical agony together with Rs. 5,000/- as litigation charges and further directed to pay interest @ 9% to the complainant from 23.03.2004 to the date of realization on the amount of 1,18,500/-.
6) That is what brought the appellant in appeal before this Commission.
7) Registered notice under AD cover was sent to the respondent who appeared and contested their case.? The respondent filed reply to the appeal and arguments of both the parties heard.
8)The appellant assailed the order of the District Forum mainly on the ground that the cheque book can also be issued keeping in view the urgent requirement of the customer, in case the customer make a request for issue of loose cheque or a fresh cheque book when the requisition slip contained in the previous cheque book is not readily available and the branch manager may get a written request from the customer then loose cheque book or new cheque book are issued, and in the present case the District Forum had erred in appreciating the fact that the Husband of the respondent/complainant who is also a joint holder made such request and the cheque book was issued against his signature in the cheque book issue register.
The appellant had further stated that the District Forum ought to have believed the hand writing expert report which was the conclusive evidence and there was no reason to disbelieve the same.? And if at all the District Forum has observed that some forgery has been committed in the account of the respondent/complainant then they should have not entertained the compliant and should have dismissed the same only on this very ground because matter relating to forgery cannot be decided in summary manner.? The appellant/OP? further stated that the District Forum cannot order for payment of the entire cheque amount alongwith interest because Forums can only award damages/compensation for such negligence and apart from ordering for the payment of the cheque amount the District Forum has very excessively granted the damages for the alleged negligence to the tune of Rs. 50,000/-.
10) We have heard the submissions made by the respondent/complainant to the ground of appeal raised by the appellant.11) As to the first ground raised by the appellant/OP that in urgent case the branch manager also issues the cheque book to the customer on the written request from the customer.? We specifically ask the counsel for the appellant/OP regarding producing any requisition slip or written request from the customer to issue the cheque book in which he had mentioned that the requisition slip has been lost and kindly issue him the cheque book urgently, to this, the counsel for the appellant/OP remained silent and only submitted that signatures of the Husband of the complainant who is the joint holder are there in the cheque book receipt register.? Apart from the fact that the appellant/OP issued the cheque book to some unauthorized person without requisition slip or without any request letter and respondent/complainant went up to the High Court for obtaining directions to the police authorizes for lodging FIR shows to a greater extent bonafide of the complainant/respondent that some fraud has been committed in his account with the connivance of the bank staff and these are the cogent and convincing evidence? not to rely on the report of handwriting expert.
12) It is also been held by Honble S.C. in Canara Bank Vs Canara Sales Co-Operation and Ors. reported as AIR 1987 SC 1603 that œwhenever the cheque purporting to by a customer is presented before a bank, carries a mandate to the bank to pay and if cheque is forged there is no such mandate.? Bank can escape liability only if it can establish knowledge to the customer of the forgery in the cheque.? Inaction for a continuously long period cannot be itself afford satisfactory grounds for the bank to escape the liability.?
This Commission in several cases had held that report of the handwriting expert could not be taken as conclusive evidence.? In Vijaya Bank V/s Arya Central? Transport Ltd. IV (2005) CPJ 363 this Commission had already held that œif there is any unauthorized withdrawal from the account, it proved the lack of due diligence and conspiracy on the part of the bank and such complainant is entitled to the amount alongwith interest similarly in the case of State Bank of Bikaner and Jaipur Vs Ajeet Singh I (2005) CPJ 270 this Commission had held that if there is any unauthorized withdrawal from the saving bank account and adequate and sufficient care not taken in comparing signature there is deficiency in service.
13) So issuing of the cheque book without any requisition slip or without any request in writing and passing of the cheque without adequate and sufficient care in comparing the signatures amounts to rendering deficient services by the appellant/OP bank.As far as the ground of the appellant/OP that the matter of forgery cannot be decided in summary proceedings also does not hold good because apart from forgery question of providing deficient services by the service provider is also involved and Foras are well within their jurisdiction to decide the complaint.?? Further Foras are also well competent to award damages/compensation for such negligence and for unauthorized withdrawal from the account due to lack of due diligence and absence of adequate and sufficient care in not comparing the signatures and complainants are also entitled to the amount alongwith interest as provided? under Section 14 of the Consumer Protection Act 1986.
The word compensation has a wide connotation as has been provided by the Supreme Court in Ghaziabad Development Authority V/s Balbir Singh (2004) 7 CLD 861(SC).? The word compensation appearing in section 14(i) (d) of the Act has been explained by the Supreme Court as under:-
œThe word compensation is of a very wide connotation.? It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss.?? The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done.? The commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him.? The commission/forum must determine that such sufferance is due to malafide or capricious or oppressive act.? It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers.? Such compensation is for vindicating the strength of law?.
12) On the basis of submissions made by both the parties and case law referred and above discussions, we find no irregularity or illegality in the order passed by the District Forum and the order passed by the District Forum needs no interference and is accordingly upheld, the appeal is dismissed.
13) No order as to cost.
14) Copy of the order be made available to the parties as per rules and case file be consigned to record room.
15) FDR if any deposited by the appellant be returned to the appellant as per rules. 16) Announced today on 8th day of January, 2014.