BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.382 of 2015

Date of Instt. 01.09.2015

Date of Decision: 25.04.2017

Jaspal Singh aged about 41 years son of Sh. Gurmit Singh R/o Village Bambianwal, PO Kukkar Pind, Tehsil & Distt. Jalandhar.

..........Complainant

Versus

1. Axis Bank Ltd., Opp. Mini Secretariat, Jalandhar, through its Branch Manager.

2. HDFC Bank Ltd., Ladowali Road, Near Madan Flour Mills, Jalandhar, through its Branch Manager. .........Opposite parties

Complaint Under Consumer Protection Act.

Before: Sh. Karnail Singh, (President),

Sh. Parminder Sharma (Member)

Present: Sh. MPS Cheema, Adv. Counsel for complainant.

Sh. Akhil Chopra, Adv. Counsel for OP No.1.

Sh. Rahul Pushkarna, Adv. Counsel for OP No.2.

Order

Karnail Singh (President)

1. This complaint filed by complainant Jaspal Singh, wherein alleged that he is having an account bearing No.155010100316248 with Axis Bank Branch, Opp. Mini Secretariat, Jalandhar and the complainant is consumer of Axis Bank Ltd. and the bank issued an ATM Card bearing No.4179170027989845 to the complainant with the said account.

2. That the OP No.2 also providing services to withdraw and deposit cash through ATM Machines and providing services to the customers of other banks also.

3. That the complainant on 11.05.2015 went to ATM situated outside the branch of OP No.2 for withdrawing money of Rs.5500/- but only Rs.500/- had come out from the said ATM machine, whereas complainant has received a message from his bank that Rs.5500/- has been debited to his account. On next day, the complainant went to his bank i.e. OP No.1 and give a complaint on the form of OP No.1, however, the complaint of the complainant to OP No.1 is rejected. The complainant time and again requested the OP's to enquire about the above said matter as there is no fault on the part of the complainant and requested to reimburse the amount of Rs.5000/- but the OPs refused the claim of the complainant without any sufficient cause and reason. The fraud of the OPs can be seen from the refusal letter where the OPs has mentioned date of query as 01.06.2015 whereas the complainant moved a complaint on very next date of the incident. That the fact of cash not dispensed from HDFC ATM can be verified from a CC TV Footage installed in the ATM Cabin. Despite protected follow up by the personal visits and telephonic inquiries, the OP have failed to disburse the claim of the complainant. The act of the OP in repudiating the claim is illegal, unlawful, unjustified, unreasonable, not bonafide, capricious and against the principle of natural justice and not binding upon the complainant. The OPs are guilty of rendering deficient service, negligent and unfair and deceptive trade practice as envisaged under the Act and as such the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs may be directed to pay a sum of Rs.5000/- to the complainant alongwith 18% interest p.a. from the date of filing of claim upto the date of actual payment and Rs.50,000/- as damages/compensation and Rs.22,000/- as cost of litigation.

4. Notice of the complaint was given to opposite parties and accordingly OP No.1 appeared through his counsel and filed its reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable, hence the same deserves to be dismissed and further alleged that the complainant has no locus standi for filing the present complaint against the answering OP and further averred that the complainant has not approached this Forum with clean hands and is concocting one story after the other and is suppressing true and material facts from this Forum, just in order to extract money from the answering OP by putting undue pressure and involving the answering OP in unwarranted litigation and as such the complainant deserves to be dismissed. The true facts are that on 01.06.2015, the complainant approached the answering OP and informed that he has not received the full amount of cash from the ATM machine. However, the statement of account of the complainant shows that Rs.5500/- has been withdrawn from his account on 11.05.2015, the copy of the statement of account of the complainant is attached with the reply. Even then, on the request of the complainant, on that a very day i.e. on 01.06.2015, the answering OP has immediately lodged the complaint with the Central Office CRS,who has raised the said concern/dispute transaction with the HDFC Bank Ltd. The HDFC Bank Ltd. has rejected the disputed transaction and has informed that the transaction/EJ was successful. But the complainant being still not satisfied, the answering OP has lodged pre-arbitration complaint with the HDFC bank Ltd. on 10.06.2015, it has again rejected the pre-arbitration complaint. Even otherwise the statement of accounts also shows that an amount of Rs.5500/- has been withdrawn from the account of the complainant, hence the complaint is not maintainable being false and has been filed with malafide intention. Therefore the same may be dismissed. On merits, in regard to running an account in the bank of OP No.1 and having facility of ATM is admitted but remaining allegations of the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and same may be dismissed.

5. OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that the complainant has concealed true and material facts from the Forum which are quite necessary for the proper adjudication of the present complaint, in fact the complainant has withdrawn amount of Rs.5500/- from the ATM of answering OP on 11.05.2015 and amount of Rs.5500/- was disbursed through ATM and complainant has received the same amount and now complainant has concocted false averments for not disbursal of amount of Rs.5000/- from ATM machine of answering OP. It is further alleged that the disbursement of the said amount of Rs.5500/- is very much evident from the reconciliation statement of answering OP with respect to balance in the ATM Machine of the answering OP and no excess amount come out during calculation of total amount lying in the ATM machine. It is further submitted that the present complaint is liable to be dismissed as the complainant has concocted false story in order to harass the OPs. On merits, all the allegations made in the complaint are categorically denied and lastly prayed that the complaint of the complainant may be dismissed.

6. In order to prove his case, the learned counsel for the complainant tendered into evidence affidavit of complainant Ex.CW1/A alongwith documents Ex.C1 to Ex.C4 and thereafter the evidence of complainant was closed by order vide order dated 29.04.2016.

7. Similarly, the learned counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A alongwith documents Ex.OP1/1 to Ex.OP1/3 and closed the evidence of the OP No.1 and counsel for the OP No.2 also tendered into evidence affidavit Ex.OP2/A alongwith copy of Format of ATM reconciliation of HDFC Bank Ltd. Ex.OP2/1 and copy of Transaction Ex.OP2/2 and closed the evidence of OP No.2.

8. We have heard the learned counsel for the respective party and also gone through the case file very minutely.

9. The case set up by the complainant is only that he is having an account with the Axis Bank Branch, Opp. Mini Secretariat, Jalandhar and bank issued an ATM Card to the complainant and accordingly the complainant availed the services of OP No.2 through ATM Card for withdrawing of an amount of Rs.5500/- on 11.05.2015 but unfortunately only Rs.500/- had come out from the said ATM machine, whereas complainant has received a message from his bank that Rs.5500/- has been debited to his account and as such the complainant has availed the services of both the OP and therefore he is consumer but despite repeated complaints neither OP No.1 nor OP No.2 has paid the remaining amount of Rs.5000/- for which the complainant is entitled alongwith interest compensation and litigation.

10. To the contrary, the plea taken by both the counsel for the opposite party is that the instant complaint filed by complainant just to extract money from the answering OP because as per statement of account a sum of Rs.5500/- has been withdrawn from the account of the complainant on 11.05.2015 and copy of the statement is available on file Ex.OP1/1 and even an enquiry was got conducted but as per report the transaction of the complainant was success as per report Ex.OP1/2 and as such the complaint of the complainant was dismissed twicely vide rejection report Ex.OP1/2 and OP1/3 and as such the complaint of the complainant is without merit and same may be dismissed.

11. We have considered the entire factum as put before us by both the counsel for the parties and find that the complainant claimed that he want to withdraw Rs.5500/- through ATM on 11.05.2015 but on that day only Rs.500/- had come out from the said ATM machine whereas from the account of the complainant, it has been shown that Rs.5500/- has been debited to his account. In realty as per the version of the complainant, he has not received of Rs.5000/-, but this factum is rectified by complainant only submitting on the file statement of account as well as letter of rejection of the claim of the complainant but we think these are not sufficient if the complainant himself alleged that he received only Rs.500/- out of Rs.5500/-, then it is the duty of OP to bring on the file any cogent and convincing evidence i.e. to produce the copy of JP Print of particular date of HDFC Bank, in support of their contention that the transaction was successful. Apart from that it is the duty of OP No.2 HDFC Bank Ltd from whose ATM, the said disputed amount was not came out, to bring on the file CCTV Footage, where from we can easily ascertain whether the complainant has received Rs.5500/- or Rs.500/-. As per guide line of the Supreme Court CCTV Camera is must required to be installed in each ATM but CCTV Footage not bring on the file by OPs, itself shows that there is some Hanky Panky on the part of the OP No.2 and in support of above observation, we like to refer a pronouncement of Hon'ble Haryana State Commission cited in 2017 (1) CLT 156 Punjab National Bank Vs. Deepak Rawat.

12. In view of the above detailed discussion, we find much force in the argument of learned counsel for the complainant and therefore the complaint of the complainant is partly accepted and OP No.2 is directed to deposit a sum of Rs.5000/- with interest @ 9% p.a from 11.05.2015 till the date of deposit of the aforesaid amount in the account of the complainant, running in the Axis Bank i.e. OP No.1 and further OP No.2 is directed to pay a compensation of Rs.3000/- for mental agony and tension to the complainant and Rs.2000/- as litigation expenses. The entire compliance of the order be made within 30 days from the date of receiving copy of order. Complaint could not be decided within stipulated time frame due to rush of work.

13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

25.04.2017 Member President