Punjab

StateCommission

FA/47/2014

Punjab National Bank - Complainant(s)

Versus

Baljinder Singh and another - Opp.Party(s)

Arvind Rajotia

22 Jan 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,     PUNJAB      SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                                      First Appeal No.47 of 2014.

 

                                                          Date of Institution:    15.01.2014.

                                                          Date of Decision:               22.01.2015.

 

Punjab National Bank, Branch Office Industrial Estate Batala, Near Mann Nagar, Batala, District Gurdaspur, through its Senior Manager.

 

                                                          …..Appellant/OP-1     

                                      Versus

 

1.      Baljinder Singh S/o Sh. Satnam Singh, R/o H.No.592, Dera     Baba Nanak Road, Mann Nagar, Batala, District Gurdaspur.

 

 

                                                          ….Respondent/Complainant

 

2.      Syndicate Bank, Jalandhar Road, Batala, District Gurdaspur, through its Manager.

 

                                                          ….Respondent/OP-2

         

First Appeal against order dated 28.11.2013 passed by the District Consumer Disputes Redressal Forum, Gurdaspur.

Quorum:-

 

                    Shri Baldev Singh Sekhon, Presiding Member.

                    Shri Harcharan Singh Guram, Member.     

Present:-

 

          For the appellant         :         Sh. Arvind Rajotia, Advocate.

          For respondent No.1:  None.

          For respondent No.2:  None.

         

BALDEV SINGH SEKHON, PRESIDING MEMBER:-

                                     

                   This appeal has been filed by the appellant/OP-1 against order dated 28.11.2013 passed by the District Consumer Disputes Redressal Forum (in short, “the District Forum”), Gurdaspur, in Consumer Complaint No.19 of 2013, vide which the complaint filed by the respondent No.1/complainant, was allowed and the appellant/OP-1 along with OP-2 were jointly and severally held liable for deficiency in service and they were ordered to reimburse/pay to the complainant, Rs.10,000/-, the amount of the impugned transaction, along with interest @ 9% p.a. from the date of transaction i.e. 05.08.2012, besides Rs.5,000/- as compensation and cost of litigation. The above said amount was to be paid within a period of 30 days, failing which the whole amount was ordered to attract interest @ 11% p.a. from the very next date till it is actually paid.

2.           Briefly stated, the facts of the case of the complainant are that he was holding a saving bank account No.1055000101004948 with OP-1 Bank, who also issued him an ATM-cum-Debit Card to operate the said account through any ATM. However, when on 05.08.2012, he attempted to withdraw the cash of Rs.10,000/- by using the said ATM card from the ATM Dispenser of OP-2 bank, it did not dispense him any cash, nor any slip confirming the transaction was produced. The ATM, rather, displayed that “cash was not available”. Thereafter, he was startled, when he got an SMS on his mobile phone, conveying that Rs.10,000/- stood withdrawn from his saving bank account, whereupon he contacted official of OP-1 bank, who told him that his ATM cash withdrawal transaction, done on 05.08.2012 was successful. Complainant stressed upon OP-1 bank that it should have asked for the video clipping from OP-2 bank. It was then conveyed that OP-2 bank was not supplying the video clipping of the transactions in question, on the plea that these were not available as the CCTV camera was out of order on that day on account of roof collapse of the ATM cabin. Labeling the incidence as deficiency in service on the part of both the banks,  the complainant filed the complaint before the District Forum, seeking directions to them for the return of Rs.10,000/-. Cost and compensation were also prayed.
3.           Upon notice, OP-1 filed its written reply, taking preliminary objections that the complaint filed by respondent no.1 was not maintainable under the Consumer Protection Act, because he has no locus standi and cause of action to file the same against it, as his grievance was only against OP-2 bank, upon whose ATM, he conducted the impugned transaction. It was pleaded that the said transaction was successful and, therefore, Rs.10,000/- were debited to his account automatically through VSAT/Satellite Media. It was further pleaded that OP-2 bank was not in a position to provide the CCTV footage of the impugned transaction, as the CCTV camera was out of order. As there was no deficiency in service on its part, dismissal of the complaint was prayed.
4.           OP-2 bank also filed its written reply and took preliminary objections that the complainant had not filed the complaint with clean hands, since he, in his application, first alleged non-dispensation of cash at HDFC Bank ATM and then he disputed the transaction at the ATM of OP-2 Syndicate Bank. Moreover, the reported display “Cash is not available” is not programmed for display and that proves the malafides on the part of the complainant. Although, the CCTV footage coverage was not available, but supportive evidence was produced, duly proving that the impugned transaction was successful and the cash of Rs.10,000/- was actually dispensed to the complainant.  There was no fault/imperfection, shortcoming or inadequacy in the quality/nature and manner of performance in the service rendered by it.
5.           Parties led their evidence by way of affidavits and documents before the District Forum, which after going through the same, allowed the complaint, in aforesaid terms.
6.           Aggrieved by this order, OP-1 has come up in the appeal on the grounds that there was no deficiency in service on the part of OP-1. Initially, the complainant approached the appellant bank, disputing the transaction done at HDFC Bank ATM machine, whereas the dispute related to the transaction done at OP-2 bank.  Complainant was not entitled to refund of Rs.10,000/-, as the said transaction was successful. It was further submitted that the appellant bank duly verified regarding the transaction of Syndicate Bank ATM carried out on 05.08.2012 and it was found that the aforesaid transaction was, in fact, successful. Since the ATM machine belongs to OP-2 bank, therefore, in case due to fault of ATM Machine, if the complainant was not able to get the amount of Rs.10,000/-, the appellant bank cannot be held liable. Even the CCTV footage issue also related to OP-2 bank. The appellant bank has unnecessarily been penalized for the reason that OP-2 bank was working as its agent. It was further submitted that appellant bank is entitled to recover the said amount from OP-2 bank, as there was no fault on its part. Acceptance of the appeal and setting aside of the impugned order was prayed.
7.           We have thoroughly gone through the pleadings of the parties and have carefully perused the evidence proved on record.
8.           Admittedly, the disputed transaction took place at the ATM machine of OP-2 bank. OP-2 bank has placed on record, the record of the transaction as Ex.OP-2/4 and Ex.OP-2/5 that shows that the transaction was successful, but it has not produced the cash balance report of 05.08.2012 to prove that no excess cash was found. In the absence of the said report and in the absence of the video footage, it cannot be confirmed that the cash was actually disbursed to the complainant because sometimes, cash is not released by ATM due to some technical fault inspite of command having been given for the same.  The appellant bank asked OP-2 to supply video footage of the relevant time, but OP-2 bank replied, vide letter dated 18.11.2012, that the said video footage was not available due to technical reasons. But no reason is given for withholding the cash balance report. It is, thus, proved that the cash might not have been actually disbursed to the complainant and OP-2 was directly responsible. Even though OP-2 was the agent of appellant/OP-1, with which the complainant has the saving bank account. The appellant bank was also responsible, as OP-2 bank was working as an agent for and on behalf of appellant bank under an arrangement made between them as per the guidelines of Reserve Bank of India. However, the appellant bank is held entitled to get the amount awarded by the District Forum reimbursed from OP-2 bank.
9.           In view of above discussion, the appeal of the appellant/OP-1 is partly allowed and the impugned order of the District Forum is modified to that extent. No order as to costs.
10.           The appellant had deposited the amount of Rs.8,200/- with this Commission at the time of filing the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of order to it.
11.           Arguments in this appeal were heard on 16.01.2015 and the order was reserved. Now the order be communicated to the parties.
12.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

 

                                                               (BALDEV SINGH SEKHON)

                                                                    PRESIDING MEMBER

                       

                                                          (HARCHARAN SINGH GURAM)

                                                                              MEMBER

 

January 22, 2015.                                                               

(Gurmeet S)