Bihar

Muzaffarpur

CC/18/2009

Shashi Shekhar Mishra, - Complainant(s)

Versus

Branch Manager, Axis Bank Ltd. & Others - Opp.Party(s)

Shri Manoj Kumar Jha

17 Jun 2015

ORDER

District Consumer Forum, Muzaffarpur

Complain Case No. -18/2009.

1. Shashi Shekhar Mishra, S/o- Shri- Namonath Mishra, Through Smt.-  Usha Sharma, Mamaji Lane Aghoriya Bajar Chowk, Near Aamgola, P.S- Kazimohammapur Distt.- Muzaffarpur…………….…………..... complainants. 

                          V/s

1.  Branch Manager, Axis Bank Ltd. Club Road  R.D. complex Kalyani, P.S.—Town, District-Muzaffarpur
2.   Chairman, cum Managing Director Axis Bank Limited Post Boss  No.- 27260 main Post office Chemboor Mumbai- 400071 ………………...………………………….……………………….opposite parties.

   

Date of order 17-06-2015

                                                                                                  Present.

1. Shri Govind Prasad Singh

                                                                                           President,

       Consumer Forum Muzaffarpur

2.  Smt. Archana Singh- Member

        Consumer Forum Muzaffarpur

 

for complainant –   Shri Manoj Kumar Jha –Advocate

for opposite party-  Shri Gayan Prakash- Advocate

 

Order

       The complainant has filed this case for recovery of Rs. 42,560/- Missed from his account Rs. 1500/- for convenience, Rs. 5,000/- for mental damage and Rs. 25,000/- losses total Rs. 74,060/- as his claim.

          The case of the complainant appears from his complaint petition supported with an affidavit alleging therein that he had his saving account no.-3090100007009 dated 25-02-2006. He has applied for ATM cum Debit card in September, 2008 for his account. The branch has assured him that he should receive the ATM card within 20-25 days but when the ATM not reached within time prescribed, he contacted the opposite party but he was further assured to get it done as early as possible. Meanwhile on dated 26-12-2008 had issued a cheque of the said account for Rs. 1510/- which was bounced due to non availability of amount, then he became astronished and he came to the branch on 03-01-2009 and taken the statement of account from which he acknowledged that on 08-11-2008 by 3 times Rs. 20,020/-.20,020/- and 2520/- total 42560/- were withdrawn from his account, when he wanted to know alleged debit he was acknowledged that as per his authority letter his ATM cum debit card and PIN were handed over on 07-11-2008 to the holder of authority letter. He has refuse that he had never given any authority letter to any on. The branch office has directed him that by next had they will get it detail to acknowledge him. The complainant  receive Xerox copy of said authority  letter, he continuously running to the opposite party but nothing proper answer was given to him, as such he has served the legal notice dated 13-01-2009. Further having no alternative he has filed this case against the opposite party for their negligent and deficiency in service and claim Rs. 74,060  as total damages.

          He has filed the Xerox copy of statement of account annexure-I, Cheque for Rs. 1510/- annexure-II, reliance mob. bill annexure-II (A), Statement of account dated 03-01-2009-III, authority letter issued by him annexure-IV, legal notice annexure-V, user guide annexure-VI, and notification regarding the guidelines of ATM cum debit card annexure-VII.

          In this case opposite party has filed written statement supported with an affidavit on 13-04-2009 alleging there in that the complainant has got no valid cause of action to present the suit and his case is not tenable in eye of law as well as fact they have accepted that the complainant have saving account in his branch, and applied for ATM debit card facility, as per the rule and procedure of the bank the ATM debit card should be send to the applicant by post/courier  at his address, in case of  non delivery the said card is to deliver to the local branch, of the bank by the post/courier and in all circumstances Pin is available at the branch office, the allegations of the complainant in his complaint petition is wrong, concocted, with malafide intention and manufactured for illegal gain he never met with the opposite party no.-1 for his ATM debit card and PIN. The cheque issued by the complainant was received by the opposite party for clearing on 26-12-2008 and since the available credit balance in his account was only Rs. 1256/- which was not sufficient to honour the cheque as such bank has rightly dishonour the cheque for reasons of funds in sufficient. He has further submitted that the ATM cum  debit card was sent at his address by authorise courier service PAFEX of opposite party bank from its central processing unit at Mumbai. It was return with the reason “Not met” and delivered at the branch, of opposite party on 20-10-2008 which was well known and within the acknowledge of complainant. Further on 07-11-2008 an authority letter address to the opposite party no.-1 was sent by the complainant, showing his inability to collect the ATM cum debit card and PIN, it was delivered to his authorised agent on due verification of signature of complainant kept as spaceman at the bank it is normal procedure of bank, and is one of the terms and conditions. Photocopy of the said authorization letter was given to the complainant on his demand. This fact has been concealed by the complainant  for his obvious reasons as such it appears to say that there is no any action of deficiency in service arises and the complainant is not entitled for any claim. Accordingly he has prayed to dismiss the case. 

          Considering the allegations of the respective parties it is admitted fact that  complainant has opened saving account with the bank of opposite party and applied for ATM debit card facility which was delivered to the authorized person who has produced the authority letter send by the complainant, against which the complainant allegations that he has never authorized any person to receive Pin and ATM on his behalf. In this context the annexure-IV filed by the complainant is relevant to see. After going through the annexure-IV dated 01-11-2008 it appears that the said letter is indorsed to the Branch Manager, over which signature of complainant in English is present. The complainant  mentioned in his letter that he is much busy due to his personal work and he is unable to attend  the bank accordingly he has authorised one Ravi Ranjan whose signature  is attested  by him and requested the bank to handover the ATM and PIN to the authorised person. The opposite party has submitted in this regard after thorough verification of spaceman signature present at the bank with the signature of authority letter and were found same, accordingly as per normal procedure and as per norms  of the bank the opposite party has handed over the ATM card and PIN to the authorised person as such it is necessary to prove by him that the letter has not been signed by the complainant, which he has not done the burden of proof is on him. The annexure-II, cheque issued by the complainant dated 26-12-2008 for Rs. 1510/-bearing his signature, if tallies with the signature of authority letter we found both signature are of same person who is complainant himself.

          It is also relevant to say  for the shake of proof the complainant was required  to sign in English over the complaint petition which he has not done, he has signed  over complaint petition and Vakaltnama in Hindi and his bank account appears to say bears his signature in English, regarding the withdrawal of the money through ATM there is no any dispute that the said withdrawal was made through another ATM or any other process or  personation by any other person. Certainly the said money from his account was withdrawal through the ATM issued to him. In this regard the complainant is also duty bound to produce the person to whom he has authorized to receive the ATM and PIN from the bank.

          Considering the facts circumstances  material available with the  record we are of the constrained  view to say that the complainant is not found able to prove his case with supporting  evidences  and his case is not fit to be maintained.

 Accordingly the case and the same is dismissed with cost.

 

Member                                                                   President.