- (1.) THE opposite party in OP 73/2000 on the file of District Forum, Pudukottai is the appellant herein.
(2.) THE case of the complainant is as follows: On 7.4.2000 she deposited a demand draft dated 30.3.2000 for Rs. 55,000 drawn on Bank of Madurai Ltd., Pudukottai with the opposite party for encashment. The opposite party did not encash. After a month, the opposite party stated that the DD had been lost in transit or misplaced. He asked the complainant to get duplicate DD. This was deficiency in service. The complainant caused a notice to be issued to the opposite party on 4.8.2000. The opposite party did not pay the amount. In these circumstances, this complaint came to be filed.
(3.) THE opposite party filed a version as follows: The DD presented by the complainant was sent to Bank of Madurai Ltd., Pudukottai for collection. This was returned by the other Bank on 7.4.2000 with remark "advice not received". On 8.4.2000, the said instrument was despatched to the complainant through courier service. There was no delay or laches on the part of the opposite party. After a lapse of three or four months, the complainant approached the opposite party Bank and said that the DD was not received and wanted a letter from the opposite party that the instrument was lost in transit so as to enable her to get a duplicate draft. In good faith, the opposite party gave a letter on 16.5.2000. Instead of getting a duplicate DD, the complainant had filed the complaint against the opposite party. The opposite party was not responsible for loss of draft in transit. On enquiry, it was found that no payment was made on the strength of the instrument and the same was still outstanding. The complainant had not suffered any loss. The complaint was liable to be dismissed. On the side of the complainant, Ex. A1 to Ex. A3 were marked while on the side of the opposite party, Ex. B1 to Ex. B3 were marked. The District Forum found that there was no document filed by the opposite party to show that the tapal mentioned in Ex. B1 was delivered to the complainant. In such circumstances, it was to be construed that the DD had been misplaced or lost in the office of the opposite party. This amounted to deficiency in service. The opposite party had not pursued the matter further with the foreign bank and had not obtained any instruction or information as to whether the DD was issued by that bank. So holding, by order dated 19.12.2002, the District Forum directed the opposite party to pay the draft amount of Rs. 55,000 with interest @ 12% p.a. from 28.9.2000 till the date of the payment, together with a sum of Rs. 5,000 as compensation for mental agony and Rs. 500 towards costs. It is as against that, the present appeal has been filed. Mr. Rajamanickam, learned Counsel for the opposite party/appellant submitted as follows: The demand draft deposited with the opposite party for encashment was returned by Bank of Madura Ltd., Pudukottai branch to the opposite party on 7.4.2000 itself with endorsement "advice not received'. Immediately on 8.4.2000, the opposite party sent the DD to the complainant through Professional Couriers. There was no delay on the part of the opposite party. After a lapse of three or four months, the complainant approached the opposite party and informed them that the original DD had not been received and wanted a letter from the opposite party that the instrument presented to the opposite party for collection was lost in transit so that the complainant could obtain duplicate DD. With a view to oblige the complainant, the opposite party gave a letter dated 16.5.2000 as required by the complainant. The complainant ought to have used that letter for obtaining a duplicate DD. Instead, she chose to file the complaint. The paying banker i.e., Bank of Madurai Ltd. by letter dated 16.5.2000 and marked as Ex. B2 had admitted that the DD sent by the opposite party was received by them through clearing and that the same was returned by them on 7.4.2000 for reason 'advice not received'. There was a further letter under Ex. B3 dated 22.11.2000 written by Bank of Madura Ltd., to foreign bank in Malaysia requesting them to collect the name and address of the purchaser of the DD to enable the opposite party to approach them to do the needful for obtaining duplicate DD. All these steps had been taken by the opposite party in a bona fide and diligent manner expected of a prudent banker. Though the District Forum had referred to Ex. B2 and Ex. B3, it did not appreciate them nor did it give any reason for not considering them. Even with regard to the courier receipt, Ex. B1, the District Forum was in error in stating that there was nothing to show that the tapal had been received by the complainant. The complainant ought to have ensured that advice was sent to Bank of Madura Ltd., Pudukottai branch well in time. Had that been done, the DD would not have been returned by Bank of Madura Ltd. Having failed to do that, the complainant had no locus standi to file the complaint and claim compensation. The District Forum ought to have dismissed the complaint.;