State Bank Of India vs Soumen Bangal & Anr.

This revision petition has been filed by the petitioner State Bank of India challenging the order dated 3rd March 2017 passed by the State Consumer Disputes Redressal Commission, West Bengal (in short 'the State Commission') in Appeal No. 195 of 2012.

Brief facts of the case are that on 10.06.2008, the respondent no.1 was granted Cash Credit Facility of Rs.3.00 lacs by the petitioner. On 15.01.2009, the respondent no.1 issued cheque No.462911 dated 15.01.2009 bearing amount of Rs.26,250/- drawn in Cash Credit Limit Account in favour of respondent no.2 for buying insurance policy. On 17.01.2009, the cheque was returned unpaid by the petitioner. On 03.02.2009, respondent no.2 intimated the respondent no.1 regarding dishonor of cheque. On 20.8.2009, the respondent no.1 raised the issue of non-payment of cheque with the petitioner. On 29.09.2009, the petitioner responded to letter dated 20.8.2009 of the respondent no.1. In November, 2009, respondent no.1 filed complaint no.288/2009 before District Consumer Forum, Alipore, Kolkata (District Forum). On 03.04.2012, District Forum passed ex-parte judgment against the petitioner awarding compensation of Rs.4,34,407/- to the respondent no.1 along with cost of Rs.5000/- and interest @9% per annum applicable after 30 days of the judgment. On 02.05.2012, the petitioner filed appeal bearing No.FA/195/2012 before the State Commission against the judgment dated 03.04.2012 passed by the District Forum in complaint no.288 of 2009. On 29.10.2013, the State Commission partly allowed FA/195/2012 by reducing the compensation from Rs.4,34,407/- to Rs.2,00,000/-. On 31.01.2014, being aggrieved by the order of the State Commission, R.P/962/2014 was filed by the petitioner bank before this Commission. On 25.07.2016, this Commission allowed the revision petition and further remanded the matter back to the State Commission with directions to decide the appeal afresh. On 21.02.2017, State Commission after hearing both parties, dismissed the appeal.

Hence the present revision petition.

Heard the learned counsel for the parties and perused record. Learned counsel for the petitioner stated that the petitioner was proceeded ex-parte before the District Forum and the District Forum without going into the merits of the compensation demanded by the complainant passed the order accepting the demand of compensation made by the complainant. Even if a party is not present and is proceeded ex-parte, it is the duty of the forum to examine the reliefs claimed by the complainant. In the present case, the District Forum has not examined the relief claimed and has not gone into the details of the compensation of Rs.4,34,407/- as to on what grounds this compensation has been asked by the complainant. The State Commission has also not gone into the question of appropriateness of the compensation.

The cheque given by the complainant in favor of respondent No. 2 was returned unpaid because of two reasons. The first is that the cheque was drawn from the cash credit account of the complainant which was not permissible as the cheque was issued for an insurance cover of the individual and the cash credit account could have only been used for activities related to the project for which the cash credit limit was sanctioned. The second reason was the technical problem which erupted on the day of clearance by which signature of the complainant could not be matched. The learned counsel stated that these two reasons were explained in the letter of branch manager dated 29th September 2009. In fact, the cheque was returned to OP No. 2 and the respondent No. 2 had also cancelled the policy and informed the complainant on 3rd February 2009 which was duly received by the complainant. The complainant could have obtained a different policy without losing much time; however, the complainant chose not to do anything till he started corresponding with the petitioner in August 2009 to which the reply dated 29th September 2009 was given to the complainant.

It was further argued by the learned counsel for the petitioner that in fact, the complainant has not suffered any loss or injury and therefore the complainant is not entitled to any compensation in the present matter. As the complainant did not die during this period, there was no question of asking for even the sum insured which was only Rs.1,50,000/-.

On the other hand, the learned counsel for the respondent No.1/complainant stated that both the fora below have given concurrent finding on facts and the facts cannot be reassessed by this Commission in the revision petition. The fact is that the complainant could not purchase the life insurance cover for himself and particularly under the policy Jeevan ashray as this was a very beneficial policy for the complainant and this policy was discontinued from 21st January 2009 itself. Thus, there was no possibility of purchasing the same again from the respondent No.2. Thus, it was a loss of a lifetime for the complainant and that was why a sum of Rs.4,34,407/- was claimed as compensation which was the estimated amount that could have accrued to the complainant under the policy. The compensation has to be commensurate with the loss or injury suffered by the complainant due to negligence of the opposite party. In the present case, the complainant could not get the attractive life insurance policy for himself and therefore the complainant deserves substantial compensation from the appellant. In the letter dated 29th September 2009, the appellant had informed that though normally individual expenditure is not allowed from the cash credit account, however, keeping long-standing relationship with the complainant the appellant would have considered allowing the passing of the cheque but the same could not be done due to technical problems. This means that there is no such bar that individual expenditure cannot be incurred from the cash credit account. In fact, the cheque was returned for the reason that no signature found. Even the meaning of this objection is not clear because there was a signature on the cheque and there must be some signature with the bank from which it was to be tallied. It may also mean that there was no signature on the cheque but this observation is patently wrong. The other meaning that can be given is that the signature could not match. If this was the meaning, then it does not seem justified because the complainant has filed many cheques where the same signatures were made by the complainant and the same were honored by the bank. Thus, the fact is that the cheque was dishonored without any valid reason and therefore the petitioner was definitely deficient in providing the service to the complainant. Clearly the complainant is entitled to substantial compensation on account of this deficiency in service.

The learned counsel for the respondent No.2 stated that as no premium was paid to the respondent No.2, the policy was canceled and the complainant was informed vide intimation dated 3rd February 2009. There is no deficiency on the part of the respondent No.2 and no relief has been granted by the fora below to the complainant against respondent No.2.

I have carefully considered the arguments advanced by the parties and examined record. There is no doubt that the cheque was dishonored by the petitioner for not so valid reasons. The reason of not allowing the individual expenditure from the cash credit account has been waived off by the appellant themselves as is clear from the letter dated 29th September 2009 written by the branch manager. The second reason relating to technical problems can also not be accepted because then the cheque should have been put up for clearance again when the technical problems were resolved. Thus, it is clear that there is deficiency in service on the part of the petitioner bank. Now the question has been raised in respect of the appropriateness of the compensation granted by the District Forum and endorsed by the State Commission. A perusal of the complaint shows that the complainant has given the following basis for the compensation claimed:

Total Financial Loss (From LIC)

Risk Coverage

1st year

Rs.1,52,250/-

2nd year

Rs.54,500/-

3rd year

Rs.56,750/-

4th year

Rs.59,000/-

5th year

Rs.63,125/-

Maturity Benefit :

Rs.40,750/-

Total benefit  :

Rs.8,032

Total

Rs.4,34,407/-

First of all, no proof has been filed along with the complaint to substantiate the claim made by the complainant. Even if it is taken to be correct for the time being, then, risk covered for every year cannot be added together as the person may die only once in any of these years and the amount of risk cover will be given to the nominee of the insured. As the premium paid was only Rs.26,250, the maturity benefit is Rs.40,750. Therefore, the insured at the end of the policy would have got this amount and may be another amount of Rs.8,032. Thus, if the complainant would have completed the full policy term, he would have received some amount less than Rs.50,000/- and if the complainant had died during the policy period, then he would have got the amount of risk coverage depending on the year of death. Clearly, the complainant cannot demand compensation equivalent to the risk coverage for any of these years as the complainant has not suffered the loss of life. The complainant is not also entitled to get the maturity amount of the policy as the policy was already cancelled due to non-payment of the premium due to dishonoring of the cheque. The only question remains that there has been deficiency in service on the part of the appellant bank which dishonored the cheque without any valid reasons. The complaint has not suffered any direct loss as the cheque amount has not been debited from his account. Had the cheque been lost by the bank, then, the bank would have been liable to pay the cheque amount at the most. Keeping this analogy in mind, at the most, the complainant may deserve an amount equal to the cheque amount as well as some compensation for mental agony and harassment along with some litigation cost.

It is very surprising to note that the State Commission as well as the District Forum have not examined the amount of compensation to be granted in the complaint case as the opposite party was proceeded ex-perte. It was the duty of the District Forum to have examined the amount of compensation demanded by the complainant as the compensation depends on injury or loss suffered by the complainant due to negligence of the opposite party as per section 14(1)(d) of the Consumer Protection Act 1986. Section 14(1)(d) does not empower a consumer forum to allow the compensation as demanded even if the opposite party is proceeded ex-perte, rather, the forum has to apply its mind to determine the compensation as per section 14(1)(d) of the Consumer Protection Act 1986. It is more surprising to see that the State Commission has also not tried to see the appropriateness of the compensation granted by the District Forum.

Keeping the above discussion in mind, in my view, the complainant does not deserve more than Rs.50,000/- as consolidated compensation for loss of opportunity as well as for mental agony and cost of litigation.

On the basis of the above discussion, the revision petition No.1064 of 2017 is partly allowed and the order of the District Forum is modified to the extent that the petitioner bank will pay a sum of Rs.50,000/- (rupees fifty thousand only) as compensation including cost of litigation to the complainant instead of Rs.4,34,407/- as awarded by the District Forum and endorsed by the State Commission. The amount of Rs.50,000/- shall carry interest @7% per annum from the date of the order of the District Forum i. e. from 03.04.2012 till payment to the complainant. The time for compliance of this order is 30 days from receipt of this order.