Delhi

North East

CC/215/2015

Riyaz Ahmed - Complainant(s)

Versus

Central Bank of India - Opp.Party(s)

10 Jun 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.215/15

 

In the matter of:

 

	ShriRiyaz Ahmed (deceased) Through LRs Mrs. ShahilaParveen (wife of deceased complainant) House no. D-231/3, Gali no. 3 Near Vijay Colony, Third Pusta New UsmanPur, Delhi-110053	Complainant
	Versus
1       2	Central Bank of India Ghonda Branch Delhi-110053    ICICI Bank Ltd. II Floor, NBCC, BhishmPitamahMarg New Delhi	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

22.06.2015 10.06.2020 10.06.2020

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed byMs. Sonica Mehrotra, Member

 

ORDER

1. Brief facts culled out in the present complaint shorn of unnecessary details are that the complainant was an account holder in OP2 bank by virtue of having a saving bank account bearing no. 061001502562 and customer ID 517521691 allotted by the OP2 since 2008. On 30.03.2015, at around 7:00 AM the complainant went to ATM of OP1 located at 3^rdPushtaJagjit Nagar, new Usmanpur, Delhi for withdrawal of sum of Rs. 5,000/-. The ATM machine showed transaction as successful but did not dispense any money. The complainant retried to withdraw of Rs. 5,000/- but met with the same fate. Before leaving he saw another person trying to transact through the ATM machine of OP1 but his transaction failed too and therefore, the complainant afterwaiting in the ATM kiosk for around half an hour, left the premises. But, the amount ofRs. 10,000/- was debited from the complainant’s account maintained with OP2 for which the complainant immediately lodged a complaint with the customer care of OP2 vide complaint no. SR362800475 dated 30.03.2015 but received a message on 07.04.2015 on his mobile from OP2 informing him that the subject transaction of Rs. 10,000/- was successful. Thereafter, complainant and OP2 were engaged in a series of emails correspondences exchanged between them between 07.04.2015 to 04.05.2015 in which the complainant had raised his grievance of the disputed transaction asking for the reversal of the wrongly debited sum of Rs. 10,000/- back in his account and also for CCTV footage for the relevant date and time in response to which OP2 acknowledged the complaint under reference no. SR363802631vide emails dated 08.04.2015 and 13.04.2015 and informed the complainant that the disputed transaction of Rs. 10,000/- was a successful transaction post investigation but a pre arbitration as per NPCI guidelines was raised on OP1 for the said transaction and also requisitioned CCTV footage for the same the turnaround time being 17 days. On the expiry of the said period, the complainant vide email dated 24.04.2015 to OP2 inquired about the status update on its complaint to which the OP2 vide reply emails dated 24.04.2015 and 28.04.2015 informed the complainant that since he has escalated the matter to the Banking Ombudsman, he would receive response for the said office under reference no. SR364806691. The complainant did not receive any response and therefore vide emails dated 30.04.2015 and 02.05.2015 to OP2, again inquired about the resolution of his problem and on what basis the deduction was done by OP1 of the Rs. 10,000/- from his account to which the OP2 vide response email dated 04.05.2015 attached the letter from Banking Ombudsman team. On the same date i.e. 04.05.2015, complainant received a letter dated 28.04.2015 from manager-service quality of OP2 in reference to his grievance raised with the office of Banking Ombudsman on 07.04.2015 and apprised the complainant that on his complaint, OP2 had made a charge back claim on his behalf to OP1 for the disputed transaction on 31.03.2015 but OP1 declined the claim on 04.04.2015claiming transaction to be successful and fully paid one and therefore OP2 had yet again raised the demand for pre arbitration on 08.04.2015 with regard to the deposited transaction with OP1 but the same was declined too as per the Electronic Journal. OP2 informed the complainant that request for CCTV footage was also forwarded by it to OP1 for the disputed transaction but was not received and even otherwise stated that the CCTV does not capture the disbursal of cash / counting of cash for security reason as the angle of the camera can also capture PIN entry and therefore OP2 regretted its inability to reverse the refund in complainant’s account maintained with it. The complainant got a legal notice  dated 21.05.2015 issuedthrough his counsel to the OPs demanding credit reversal of Rs. 10,000/- alongwith compensation but it went un-responded by OPs. Therefore as a last resort, complainant was compelled to file the present complaint praying for issuance of direction against the OPs to refund Rs.10,000/- back in his account alongwith compensation of Rs.30,000/- for harassment, mental agony, deficiency of service, causing financial loss to the complainant and Rs. 10,000/- towards cost of litigation.
2. Complainant has attached copy of his customer ID held withOP2 Bank, copy of emails exchanged between complainant and OP2 between 07.04.2015 to 04.05.2015, copy of letter dated 28.04.2015 by OP2 to complainant and copy of legal notice dated 21.05.2015 by complainant’s counsel to OPs alongwith postal receipt.
3. Notice was issued to the OPs on 10.07.2015. OPs entered appearance on 21.08.2015. OP1 filed the written statement vide which it took the preliminary objection that the present complaint was a sheer abuse of process of law without any of cause of action or deficiency of service on the part of OP1 in as much as the disputed amount of Rs. 10,000/- which is the subject of this complaint stood already deposited by OP1 on 21.07.2015 in the complainant’s account held with OP2 on the directions issued by the Banking Ombudsmanwith respect to card number 414366061006802, transaction date 30.03.2015 of Rs. 10,000/- Trade ID 736000 and ATM IDF30N127803. Therefore OP1 urged that no cause of action remained against OP1 for which reason OP1 did not sent any reply to the legal notice dated 21.05.2015 issued by complainant’s counsel since the complaint was already before Banking Ombudsman. Therefore OP1 prayed for dismissal of the complaint.
4. OP2 filed its written statement vide which it took the preliminary objection of the sole liability and responsibility of any transaction entered through ATM card is that of the customer and not of the bank and on merits resisted the complaint on grounds that the Banking Ombudsman after goingthrough the replies of both OP1 & OP2 had directed OP1 to refund the amount of Rs. 10,000/- to the complainant which amount was credited in the complainant’s account held with OP2 on 22.07.2015 vide particulars: REV OF TXN 6000 DT 30.03.2015 even before the OPs had entered appearancebefore this Forum in this complaint but this fact of refund of money back in complainant’s account was concealed by the complainant from this Forum in hearing held on 13.08.2015 when he had appearedalongwith his counsel. OP2 further submitted that the complainant had made two transactions on 30.03.2015, first being withdrawal of Rs. 5,000/- from TATA communication ATM which was successful and the second one of Rs. 10,000/- from ATM of OP1 which is the disputed transaction on receipt of the complaint for which from the complainant vide phone banking bearing serial no. SR362800475, OP2 had raised a claim on the acquiring bank i.e. OP1 but the claim was declined by OP1 on 04.04.2015 which was duly informed to the complainant and nonetheless OP2 raised a Pre-arbitration Claim again with OP1 for the disputed amount but the claim was yet again declined. However, now that the amount in the disputed transaction had been reversed, OP2 averred that the present complaint has been filed for unjust enrichment with no case of deficiency of service made out against OP2 and therefore deserves to be dismissed. OP2 has attached copy of summary of account / bank statement of complainant held withit for the period 01.07.2015 to 22.10.2015 highlighting the reversal entry of Rs. 10,000/- dated 22.07.2015.
5. Rejoinder to the written statements of OPs was filed by the complainant in which he admitted the credit reversal of Rs. 10,000/- in his account on 22.07.2015 but prayed for compensation against OPs on grounds that the said sum was credited back in his account only after issuance of legal notice dated 21.05.2015 and filing of the present complaint on 22.06.2015 and that he was a consumer qua both OPs with the relation of consumer and service provided them.
6. Evidence by way of affidavit was filed by all parties exhibiting the respective documents relied upon.
7. Written arguments were filed by the complainant in reassertion of his grievance against the OPs. In the written arguments filed by OP1, OP1 attached copy of email correspondence exchanged between OPs on 20.07.2015 pertaining to the subject transaction and Banking Ombudsman advisory email dated 20.07.2015 to OPs to pay back the disputed sum of Rs. 10,000/- to complainant on good faith basis through OP2.  Further reliance was placed on email dated 22.07.2015 from OP1 to OP2 informing remittance of Rs. 10,000/- through NEFT with URT no. CBINH15202135497.
8. OP2 did not wish to file written arguments as per statement by its counsel in hearing held on 17.01.2018 and the matter was posted for oral arguments for 30.05.2018 on which date the wife of the complainant informed this Forum of the demise of complainant on 31.03.2018 and filed application for substitution of LRs on 22.08.2019alongwith the copy of death certificate and FIR no. 0086/2018 u/s 279/304A of IPC for accidental death of the complainant caused by unknown person(s) alongwith copy of postmortem examination report no. 269/2018 dated 01.04.2018 conducted by Maulana Azad Medical College, Department of Forensic Medicine, Delhi on the complainant’s body.
9. For oral arguments, due to COVID-19 pandemic all parties telephonically informed office of this Forum to consider their pleadings as arguments and adjudicate the complaint case as per documents submitted by all parties. We have keenly perused the pleadings and documents placed on record by all parties.
10. It is an undisputed fact that the amount of Rs. 10,000/- which was the disputed ATM debit by the complainant for the date 30.03.2015 was remitted back by OP1 in complainant’s account held with OP2 on 22.07.2015 even before the OPs had entered appearance before this Forum in the present complaint filed on 22.06.2015 and listed on 10.07.2015 when the same was admitted and notice was issued to the OPs for appearance on 13.08.2015 on which date the complainant had appearedalongwith counsel but as per the order sheet, no statement came forth from the complainant either on 13.08.2015 or on the following date of hearing i.e.21.08.2015 that the disputed amount had been credited back in his account and it was only on 22.09.2015 that OP1 apprised this Forum of the said refund which was then verified by the complainant but he prayed for compensation and therefore the complaint was limited to the adjudication of whether compensation, if any, and what amount was the complainant entitled to as observed by this Forum’s erstwhile bench in hearing held on 23.10.2015.
11. Compensation is for vindicating the strength of law and acts as a check on arbitrary and capricious exercise of power. It helps in curing social evil and aims at improving work culture and changing the outlook of officer/public servant and discourages arrogation of power in arbitrary manner. Hon'ble National Commission in Ghaziabad Development Authority VsYogesh Chandragupta in RP No. 128/2000 decided on 06.12.2004 held that where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the commission / Forum has a statutory obligation to award compensation. The Hon'ble Supreme Court in Indochem Electronic Vs Addl. Collector of Customs (2006) 3 SCC 721 held that deficiency in service is must to award compensation and such deficiency must manifest itself for entitling complainant to compensation.  
12.  In the present case however, after due appreciation of the evidence on record we do not find any element of deficiency of service or negligence on the part of the OPs with respect to the disputed transaction in as much as the debit of Rs. 10,000/- made through ATM of OP1 on 30.03.2015 was duly credited back in complainant’s account held with OP2 on 22.07.2015 even before the appearance of the OPs before this Forum as can be seen from the documentary evidence placed on records by OPs viz email from Banking Ombudsman and statement of account.However, complainant willfully concealed the factum of credit reversal given to him by OPs from this Forum for three consecutive hearing which in our opinion and considered view is amounting to coming to Forum with unclean hand and pursuing a motivated and vexatious complaint as misuse of legal machinery. We therefore have no hesitation in disallowing the prayer for compensation made by the complainant as vexatious and frivolous and dismiss the same as devoid of merits as also the complaint. No order as to cost.
13. Let the copy of this order be sent to all parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
14.   File be consigned to record room.
15.   Announced on  10.06.2020

 

(N.K. Sharma) President

(Sonica Mehrotra)  Member