Delhi

StateCommission

A/439/2017

PUNJAB NATIONAL BANK - Complainant(s)

Versus

ASHA VASUDEV - Opp.Party(s)

BKM & ASSOCIATES

14 Sep 2017

ORDER

 IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

 

Date of Decision: 14.09.2017

 

 

First Appeal No.439/2017

(Arising out of the order dated 09.06.2017 passed in Complaint Case No.951/2013 by the District Consumer Disputes Redressal Forum, (North West) Shalimar Bagh, Delhi)

 

 

Punjab National Bank,

Wazirpur Branch,

B-23, Ashok Vihar, Phase-I,

Delhi -110052.

                                                      ….Appellant

 

 

Versus

 

Smt. Asha Vasudev,

W/o Shri Balraj Vasudev,

R/o C-2/138, Ashok Vihar, Phase-II,

Delhi-110052.

                                                                     ….Respondent

 

 

CORAM

Justice Veena Birbal, President

 

1.  Whether reporters of local newspaper be allowed to see the judgment?

    

2. To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, “the Act”) wherein challenge is made to order dated 09.06.2017 passed by the Consumer Disputes Redressal Forum (North West), (in short, “the District Forum”) in CC No.951/2013 whereby the aforesaid complaint has been allowed.
2. Briefly the facts relevant for the disposal of present appeal are that a complaint under Section 12 of the Act was filed by the respondent herein i.e. the complainant before the District Forum stating therein that she was having a saving bank account No.0637000100383971 with the appellant/OP. It was alleged that on 05.11.2013, respondent/complainant had deposited an amount of Rs.22,000/- in the aforesaid account and balance on that day was Rs.1,03,056.48p. Respondent/complainant had alleged that she had not used her ATM card after 31.10.2013.  On 05.11.2013 she had issued one cheque No.002859 for Rs.7550/- to M/s. Max Life Insurance Co. Ltd. However, she was informed by the aforesaid company that cheque had not been cleared, hence she approached the appellant/OP and found that balance in her saving bank account had been reduced to Rs.7.48/- on 09.11.2013 and to Rs.4,457.48p on 12.11.2013.  It was alleged that an amount of Rs.1,03,049/- had been taken away from her account without her knowledge. Respondent/complainant had alleged that ATM cards always remained with her and none of her family members are aware of PIN as she had never disclosed the same. It was further alleged that she had provided her mobile number to the appellant/OP, however no message of any transaction was received by her till date. Respondent/complainant had alleged that she had never withdrawn amount after 31.10.2013 nor her family members have withdrawn the amount from her bank account. It was alleged that she had given a request for blocking ATM card on 15.11.2013 and was informed that her ATM card was blocked and subsequently the same was also cancelled.  Respondent/complainant had prayed for refund of Rs.1,03,049/- alongwith compensation and litigation costs.
3. Complaint was opposed by the appellant/OP by filing written statement wherein it was admitted that respondent/complainant was having aforesaid account with the appellant/OP and that she was holder of ATM card of the appellant/OP. It was alleged that the complaint had been filed by the respondent/complainant to cover her own wrong and negligence and to thrust liability on the appellant/OP. It was alleged that no transaction was possible without the help of ATM card and its PIN number which was used at the time of transaction. It was alleged that transaction started on 06.11.2013 and continued for four days and ended on 12.11.2013. It was alleged that on each and every transaction SMS had been sent on registered mobile of the respondent/complainant. It was alleged that the transaction limit was Rs.25,000/- on a day and drawing of Rs.40,000/- in a day  was quite above the limit which could never be transacted by the ATM. It was alleged that the respondent/complainant had not kept the secrecy of her ATM PIN as well as ATM card from other people. It was alleged that CCTV footage had been provided to the respondent/complainant and there was no involvement of bank staff. It was alleged that a frivolous complaint was filed by her and the same was liable to be dismissed.
4. Both the parties filed their evidence by way of affidavit.
5. After hearing the parties and considering the material on record, the Ld. District Forum held that the appellant/OP was guilty of deficiency in service and ordered to pay an amount of Rs.1,03,049/- to the complainant and also to pay her Rs.20,000/- towards compensation for causing harassment and mental agony to her.
6. Aggrieved with the aforesaid order, present appeal is filed.
7. Ld. Counsel for the appellant/OP has contended that the impugned order is in complete violation of principal of natural justice in as such as the appellant/OP was not heard by the Ld. District Forum.  It is further contended that FIR had already been lodged by the respondent/complainant and police was investigating the matter. It is contended that there is no involvement of staff of the appellant/OP bank in the alleged withdrawal.  It is contended that the findings given by the Ld. District Forum are wrong and impugned order is liable to be set aside.
8. We have heard the Counsel for the appellant.
9. As regards the contention of the appellant/OP that opportunity of hearing has not been given, perusal of the impugned order shows that both the parties were heard by the Ld. District Forum. In these circumstances, it cannot be said that no opportunity of hearing was given to the appellant/OP.  The contention raised in this regard is rejected.
10. On merits, appellant/OP had opposed the claim by contending in written statement that the limit of withdrawal of amount in a day through ATM transaction is Rs.25,000/- whereas Rs.40,000/- has been drawn from her account in one day in four transactions.  According to appellant/OP, the same could never be transacted by the ATM. The passbook of respondent/complainant shows an amount of Rs.50,000/- has been withdrawn on 6.11.13 by using ATM card 5 times.  The appellant/OP bank ought to have explained as why transaction exceeding the limit had been allowed. Nothing has been stated by the appellant/OP in this regard either before District Forum or in appeal. It has also been noted by the Ld. District Forum that respondent/complainant has given her mobile number for giving her the alert messages.  The stand taken by appellant/OP in the written statement is that SMS messages were sent on the registered mobile number of respondent/complainant whereas before the Ld. District Forum copies of details of delivered messages on landline number of respondent/complainant are placed on record.  The Ld. District Forum has observed that no message can be delivered/read on landline number. No explanation has been stated in this regard in the appeal. Appellant/OP has also not produced the CCTV footage for scrutiny of the forum, though it was alleged in written statement that CCTV footage were provided to the respondent/complainant. However, respondent/complainant has denied the same in the rejoinder as well as in her evidence. Nothing has been placed on record by the appellant/OP to show that CCTV footage were provided to the respondent/complainant as was alleged.
11. Appellant/OP has not been able to point any error in the impugned order.  Ld. District Forum has also observed that appellant/OP has not placed on record the copy of J.P. Log, copy of reconciliation statement and cash balancing transaction report with respect to the ATM transactions which could have proved the proper functioning of the ATM machine. In appeal also no documents in this regard are filed.
12. There are many lapses on the part of appellant/OP as noticed above which have not been explained in any manner.  The benefit of same goes in favour of respondent/complainant and makes the stand of appellant/OP unbelievable.
13. Ld. District Forum has passed a well reasoned order after considering the material on record and after hearing both the parties. No illegality or infirmity is seen in the impugned order.  Accordingly, the appeal stands dismissed in limine.
14. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum.

 

              File be consigned to Record Room.

 

(Justice Veena Birbal)

President