KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.742/2015

JUDGEMENT DATED: 26.03.2024

(Against the Order in C.C.No.259/2013 of CDRF, Kannur)

PRESENT:

APPELLANT:

(by Adv. R.S. Mohanan Nair)

Vs.

RESPONDENT:

JUDGEMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

          This is an appeal filed by the 1^st opposite party in C.C.No.259/2013 on the file of the Consumer Disputes Redressal Forum, Kannur (the District Forum for short). 

2.       The District Forum as per the order dated 07.07.2015 had allowed the complaint in part and directed the appellant to refund Rs.40,000/-(Rupees Forty Thousand only) to the complainant along with interest @10% per annum from 17.08.2013 till the date of order.  The District Forum had also directed the appellant to pay Rs.2,000/-(Rupees Two Thousand only) as costs of the proceedings.  A default clause was also incorporated directing the appellant to pay interest @12% per annum in the event of non-compliance of the order.

3.       The recitals in the complaint are:

          The complainant was having a savings bank account with the appellant.  He had also availed the facility of ATM debit card.  Without his knowledge, on 17.08.2013 and 18.08.2013 a total amount of Rs.40,000/-(Rupees Forty Thousand only) was withdrawn from his account through ATM transaction from Bangalore and Mysore.  The complainant had immediately contacted the office of the appellant at Ernakulam and as per their advice he had contacted the Pilathara Branch Manager.  The Branch Manager had informed the complainant that the amount will be refunded within three weeks.  But there was no response.  According to the complainant, he had never shared the ATM card or ATM pin with anybody.  He had visited the office of the opposite party on several occasions, but there was no response.  He would allege deficiency in service against the appellant.

4.       The opposite party had entered appearance and filed version by denying the entire allegations:

The opposite party would admit that the complainant was having an account at the Pilathara Branch and also that on 17.08.2013 and 18.08.2013 Rs.10,000/-(Rupees Ten Thousand only) each was withdrawn from the account of the complainant.  On receipt of the complaint, the opposite party’s department of Information and Communication Technology, Ernakulam had lodged a complaint with the Cyber Cell, Kochi on 28.08.2013.  The above complaint is under investigation.  According to the opposite party this complaint is a premature one as the complainant is not a consumer.  There was no deficiency in service on the part of the opposite party.  Hence the complaint is sought to be dismissed.

5.       The complainant was examined as PW1.  Exhibits A1 to A5 were marked on the side of the complainant.  No oral evidence was let in by the opposite party.

6.       In the appeal memorandum the following contentions are seen raised:

 The District Commission has failed to understand the crux of the matter.  The District Commission ought to have found that there was no merit in the complaint filed by the complainant.  The District Commission ought to have found that the complaint is bad for non-joinder of necessary parties as the complainant had alleged that an amount of Rs.40,000/-(Rupees Forty Thousand only) i.e. Rs.10,000/-(Rupees Ten Thousand only) each on four occasions was withdrawn from his account in ICICI Bank, Bangalore ATM, and South Indian Bank MS Branch Mysore ATM twice. The District Commission ought to have found that the complainant had failed to take steps to cause production of the report from the Cyber Cell and the burden of proof on the part of the complainant was not discharged.  The appellant would seek for setting aside the order passed by the District Commission.

7.       The complainant/respondent though served with notice, remained absent.  The records from the District Commission were called for.

8.       The appeal was heard by the bench which consisted of
Sri. K. Chandradas Nadar, the then Judicial Member and Sri. V.V. Jose, Member.  But finding rendered by the Judicial Member and the Member of the State Commission was divergent.  As per the judgement dated 27.02.2017, the appeal was dismissed by Sri. V.V. Jose, Member of the State Commission.  But the Judicial Member had pronounced an order by allowing the appeal. Thereafter the matter remained pending before the State Commission which came up for final hearing on 30.01.2024. 

9.       On perusing all the case records, we came to know that there was divergent views taken by the Judicial Member and the Member of the State Commission and no follow up action was taken further.  On noticing this fact, the matter was re-opened and placed before the Hon’ble President for appropriate orders.

10.     On 13.02.2024 the Hon’ble President had constituted a bench comprising of myself, the Judicial Member and Sri. K.R. Radhakrishnan, Member to hear the matter and dispose it of.  Subsequently, the matter was further heard.  perused the records from the District Commission.

11.     The complainant had testified before the District Commission as PW1.  Exhibit A1 is the copy of the pass book.  Exhibit A2 is the copy of ATM card issued in favour of the complainant.  Exhibit A3 is the copy of the complaint filed by the complainant to the Branch Manager of the opposite party.  The Branch Manager of the South Indian Bank, Pilathara had forwarded Exhibit A3 to the Cyber Cell, Kannur.  The copy of the said letter is exhibited as Exhibit A4.  Exhibit A5 is the service slip issued by one Mobile City Sales & Services.   Exhibit A5 was admitted with objection.  According to the complainant the withdrawal was unauthorized and while effecting the transaction, the ATM card was in his possession.  Though the disputed transactions were dated 17.08.2013 and 18.08.2013 the complainant had contacted the Branch Manager only on 26.08.2013.  On receiving the complainant, immediately the Branch Manager had forwarded the complaint to its Regional Office and ATM office.  The Branch Manager had also forwarded the complaint to the Cyber Cell.  But it is curious to note that the complainant never made any enquiries with the Bank after preferring the complaint.  He had also approached the Banking Ombudsman but the complainant did not cause production of the order passed by the Banking Ombudsman.  The complainant stated that he came to know that the withdrawals were made from Mysore and Bangalore.  The complainant had enjoyed internet banking facility.  During the cross examination the complainant had conceded that he was receiving SMS through his mobile phone.  His case is that no SMS was received in his mobile phone with respect to the disputed transaction.  But it is strange to note that the complainant had caused production of a receipt from a mobile service centre to the effect that his mobile phone was repaired by the service centre.  But he never made any effort to prove Exhibit A5 to establish that his mobile phone had any complaints as spoken to by him.   The complainant did not mention anything regarding the repair of his mobile phone viz date, time etc of repairs.  ATM card is a document which is always kept with the account holder.  Admittedly, the withdrawals were made from Bangalore and Mysore by using ATM. 

12.     The Cyber Cell has initiated investigation with respect to this complaint.  Deficiency in service could be attributed only if there is any fault on the part of the opposite party.  The only available option for the opposite party is to inform the matter to the Cyber Cell.  It is up to the Cyber Cell to conduct investigation and to unearth the real controversy.  The complainant is fully aware that an investigation is in progress with the Cyber Cell.  So it is obligatory on the part of the complainant to take steps to adduce evidence with respect to the progress of the investigation conducted by the Cyber Cell. No such steps are seen taken by the complainant.  Without ascertaining the real transactions which culminated into the withdrawal of the funds no liability could be fastened upon the opposite party.  It is also significant to note that one of the withdrawals is seen made through the ATM of ICICI Bank, Bangalore.  The complainant did not implead the said Bank for a complete adjudication.  As long as the investigation commenced on the complaint filed by the complainant has not attained finality, it was too early for the District Commission to reach a conclusion that the opposite party was faulty with respect to the alleged unauthorised withdrawals.  The District Commission did not consider the crux of the issue and an order is seen passed without applying its mind. 

13.     On evaluating the entire materials on record, we have no hesitation to reach a conclusion that the complainant has failed to prove any deficiency in service or unfair trade practice on the side of the opposite party.  The complaint lacks merit and hence, the complaint is liable to be dismissed.

In the result, the appeal is allowed and the order passed by the District Commission, Kannur is set aside and C.C.No.259/2013 dismissed.  Parties shall bear their respective costs.

SL