Punjab

StateCommission

FA/12/676

PNB - Complainant(s)

Versus

Chandan Kumar - Opp.Party(s)

Arvind Rajotia

13 Mar 2015

ORDER

  2^nd ADDITIONAL BENCH

 

PUNJAB STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 676 of 2012

 

                                                                   Date of institution: 28.05.2012

                                                                 Date of Decision:   13.03.2015 

 

Punjab National Bank, Branch Office Sector 20, Panchkula through its Sr. Manager.

                                                                                                                     …..Appellant/Opposite Party

Versus

 

1.  Chandan Kumar S/o Sh. Dharam Pal, R/o H.No. 12, Shyam Nagar, Baltana.

2. IDBI Bank, Motiaz Royala Estate Block, Chandigarh Ambala Highway, NAC, Zirakpur through its Branch Manager.
3. IDBI Bank, Sector 43, Chandigarh – 160043 through its Branch Manager.

                                                               ....Respondents/Complainants

 

First Appeal against the order dated 17.04.2012 passed by the District Consumer Disputes Redressal Forum, Mohali.

Before:-

 

Sh. Gurcharan Singh Saran, Presiding Judicial Member

Sh. Jasbir Singh Gill, Member

Sh. Harcharan Singh Guram, Member

 

Present:-

 

For the appellant                   :          Sh. Arvind Rajotia, Advocate

For respondent No. 1           :         Sh. K.S. Cheema, Advocate for

                                                          Sh. Hitender Kansal, Advocate

For respondent No. 2 &3      :         Ex-parte

 

Sh. Harcharan Singh Guram, Member

 

 

                                                ORDER

 

                  The appellant/OP No.3 (hereinafter referred as the OP3) has filed the present appeal against the order dated 17.04.2012 passed by the District Consumer Disputes Redressal Forum, Mohali (hereinafter referred as the District Forum) in consumer complaint No. 58 dated 2012 vide which the complaint filed by the complainant was allowed against the OP3 with a direction to pay to the complainant the disputed amount of Rs. 10,000/- with interest their upon @ 10% p.a. w.e.f 14.01.2010 till the date of actual credit along with a compensation to the tune of Rs. 10,000/- and litigation cost to the tune of Rs. 3,000/- to be paid to the complainant.

2.               The complaint was filed by the complainant under the Consumer Protection Act 1986 (in short the Act) against the respondents/OPs (hereinafter referred as the OPs) on the allegations that the complainant was maintaining his savings account No. 4480000100002233 with OP3 and he was provided an ATM card for operating the said account. He went to the ATM of OP1 situated at Kalgidhar Enclave, Baltana now NAC, Zirakpur to withdraw some amount. On swiping his card in the machine in his first attempt he was successful in withdrawing Rs. 10,000/- from the said ATM. Thereafter, he wanted to withdraw more money and swiped his card for the second time, however, due to the failure of electricity the second transaction was not completed and he did not get the amount of Rs.10,000/- entered for the second transaction from the said ATM. From the withdrawal statements he came to know that he did not receive the money for the second transaction but the said amount was deducted from his account. He entered his complaint in the ATM room maintained by the OP1 regarding the incident of non receipt of the amount. Thereafter, he approached OP3 and informed them about the non delivery of the cash but OP3 informed him that they are not at fault as the said ATM machine belongs to OP1 & OP2, it did not belong to them.  He was advised by OP3, to approach OP2 who was the administrative controller of the said ATM and demand for CCTV footage of the said ATM. He was informed by OP3 that a charge back request was raised to OP1 & 2 on the basis of wrong debit made in his account but, this request was declined by OP 1 & 2. He was advised by OP3 that in order to get his money back from OP1 & 2 he was to lodge his complaint on their customer care No. 1800-180-222 and on his complaint the customer care maintained by OP No. 1& 2 generated a Docket no. 21665844. He was informed that he would get the reversal of his amount within 14 working days but he did not receive the amount even after 14 days. On 05.12.2009 he received a SMS message that as per docket No. and as per charge back request, the OPs 1 & 2 had declining his request. On the receipt of this SMS message he approached OP1 & 2 on 14.11.2010 and was informed that the ledger balance of their ATM-1164 was showing an excess balance of Rs. 10,000/- on 10.11.2009, but by mistake they had declined the request of OP3 for the charge back. Now his account would be credited through inter Bank transfer. He made several attempts to get his money back, but he failed to get any relief from the OPs. He filed his consumer complaint in Chandigarh District Forum and upon notice to OPs 1 & 2, they filed written reply in which they stated that his amount was returned to OP3. Thereafter, he submitted amended application in order to implead OP3 as party in his complaint. However, District Forum UT Chandigarh vide their order dated 18.01.2011 allowed the complainant to withdraw his complaint as the same was filed in the consumer Forum who did not have territorial jurisdiction to hear the complaint. He filed his complaint subsequently in the District Forum Mohali, and made a prayer for issuance of directions to OPs to pay back Rs. 10,000/-; To pay Rs. 50,000/- as compensation for loss, harassment and mental agony suffered at the hands of the Ops; To pay the interest @ 18% p.a. from 10.11.2009 to till its realization and to pay costs of litigation amounting to Rs. 11,000/-.

3.               The OP 1 & 2 submitted their written reply by taking preliminary objections that the complaint filed by the complainant was time barred. He harassed them by filing a complaint against them before Chandigarh Consumer Forum and subsequently withdrew his complaint against them and again filed the present complaint before the District Forum Mohali. It was admitted by them that the complainant lodged his complaint in the complaint register at their Zirakpur Branch and also at their customer care centre. On receipt of this representation from the complainant OPs re-conciled their account and the excess amount was remitted to in favour of PNB (OP3) vide NFET transaction number 1001141M45114 for the credit of account No. 1232002100039203 on 14.01.2010. In this regard a message was duly intimated to PNB at their email address i.e. nfs@pnb.co.in vide their email dated 15.01.2010.  Thus, OP3 was required to give credit of this amount to the account of the complainant. It was stated that the PNB did not bother to reply to their email sent by them on 15.01.2010 but kept the matter as it is. They took another plea that the complainant was not their consumer, and the District Forum was not having jurisdiction to hear the present complaint against them. They submitted that there was no deficiency in service on their part and prayed that the complaint filed by the complainant be dismissed as the same was false and frivolous complaint against them. 

4.               OP3 also filed written reply taking preliminary objections that the complaint filed by the complainant was barred by limitation as there was a delay of 758 days and same cannot be condoned, as the OP3 was not a party in the said complaint no. 1482 of 2009 before the District Consumer Forum UT Chandigarh. It was stated that OP cannot be made a party in the present complaint as he was not made a party in the previous complaint. It was stated that complainant had not approached the District Forum with clean hands and he had concealed material facts from the District Forum. It was further stated that the complaint was not maintainable against them as the same was filed by the complainant with the sole motive to extract money from them. They further stated that OP3 had no role in the circumstances of the case and only OP1 & 2 were responsible for causing deficiency in service to the complainant as he had used their ATM machine. On merits it was stated that the order passed by the District Forum UT dated 23.01.2012 was not applicable to them as in the said complaint only OP1 & 2 were impleaded parties and they were not made a party in that complaint. As such when the fresh complaint had been filed at Mohali, there occurred a delay of 758 days against them and no excuse for ignorance of law could be condoned in favour of the complainant. They took another point that the District Forum Mohali, was not having jurisdiction to hear the complaint against them as the complainant was maintaining his account with their bank situated at Panchkula.

5.                The complainant tendered in evidence in affidavits  Ex CW1/1 copies of ATM slips Ex C1/1 and Ex C-1/2 statement of accounts in the pass book Ex C-2 complaint register of OP Nos. 1 & 2 Ex C-3 complaint dated 02.03.2010 to the PNB regarding non receipt of cash from the ATM Ex C-4 order of the DCT, UT Chandigarh dated 18.01.2012 Ex C-5 complaint of the complainant to the DCF UT, Chandigarh Ex C-6 his affidavit dated 09.12.2009 Ex C-6/1 submitted in the DCT UT, Chandigarh and reply/written statement filed by OP Nos. 1 & 2 in the DCT UT, Chandigarh Ex C-7. OP1 & 2 tendered their evidence affidavit of their Branch Head Jayant Pathak Ex Rw1/1 and emails dated 20.01.2010 and 12.01.2010 Ex R-1 and R-2. Evidence of OP3 was filed by way of affidavits of its Manager Jagjit Singh Tinna Ex RW3/1 emails Ex R-3 to Ex R-11 and closed their evidence.

6.               District Forum perused evidence placed on record and allowed the complaint against OP3 as referred above and dismissed the same against OP1 & 2.

7.               Aggrieved with the order OP3 preferred an appeal against the order of the District Forum on the ground that the order passed by the District Forum    Mohali is illegal erroneous and arbitrary in the eyes of law and deserves to be set aside.  It has been stated that District Forum wrongly came to the conclusion that the amount in dispute Rs. 10,000/- was transferred by the respondent IDBI bank to their bank on 14.01.2010. Further, till date OP3 had not received the aforesaid amount. It was further, submitted that the disputed amount was lying with the OPs No. 1 & 2 and NEFT transaction was reverted by the system and the amount was sent back to the OP No. 1 & 2. District Forum wrongly came to the conclusion that OPs No. 1 & 2 had remitted the funds to OP3 by way of NEFT message and also gave intimation to them vide email message dated 15.01.2010, wherein it was stated that a sum of Rs. 10,000/- was sent to their bank through NEFT message. If the OP3 bank had not received the amount from OPs No. 1 & 2 by NEFT message they should have approached the IDBI bank. As per the norms when an ATM transaction used to fail and the transacted amount will automatically be credited back to the account of a customer. As such the OP3 had no role to provide credit to the account of the complainant. They were held liable by the District Forum that the complainant was maintaining his account with their bank and OPs No. 1 & 2 were agents of OP3 and OP3 being a principal was liable to pay for deficiency of service of their agents. However, on the other hand the District Forum dismissed the complaint against OPs No. 1 & 2. If, the District Forum had held that OPs No. 1 & 2 were their agents then the OP3 in that circumstances should have been granted recovery rights from OPs No. 1 & 2. It has been further stated that they had approached OPs No. 1 & 2 number of times but they failed to pay the amount to them till date. 

8.               Notice of the appeal was sent to all the respondents 1, 2 & 3. Respondent No. 1 appeared and respondents No. 2 & 3 were proceeded ex-parte, as nobody had appeared on their behalf.

9.               We have heard the arguments of the learned counsel of the OP3 and have also perused the documents and the record of the District Forum which was called at the stage of admission.

10.             An objection was raised by OP No. 3 in the written reply and had taken the plea that the District Forum Mohali did not have the jurisdiction. The point was not adjudicated by the District Forum, therefore, we are also to see whether the District Forum had jurisdiction to hear the complaint. As per section 11 of the Consumer Protection Act, deals with jurisdiction of the District Forum which reads as under:-

(1)             Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.

(2)             A complaint shall be instituted in a District Forum which the local limits of whose jurisdiction, the territorial jurisdiction of the District Forum which reads as under:-

                  (a)     the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain.

                  (b)     any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or

                  (c)     the cause of action, wholly or in part, arises.

                  Since in the present case the cause of action of withdrawal of cash by the complainant from ATM of respondents No. 2 & 3 occurred at Zirakpur District Mohali. In view of that a part of cause of action occurred at Zirakpur, within the jurisdiction of District Forum Mohali. Therefore, District Forum Mohali was having jurisdiction to hear the complaint filed by the complainant.

11.             From the perusal of the documents, it is an admitted fact that the ATM machine of OPs No. 1 & 2 was used by the complainant to take out cash on 10.11.2009. The complainant was not able to withdraw the cash from the ATM due to electricity failure but the amount of this transaction was wrongly debited in his account. The District Forum while passing the order had exonerated OPs No. 1 & 2, from where complainant had tried to withdraw cash and allowed the complaint of complainant against OP3 on the ground that OPs No. 1 & 2 were their agents and as such OP3 being principal was to reimburse the disputed amount to the complainant and had not given any right to OP3 to recover the same from respondents No. 2 & 3.

12.             During the course of arguments it has been stated by the counsel of OP3 that OP No. 1 & 2 were treated as their agents by District Forum then, they should be given a right to recover the same and made a prayer that the order of the District Forum be modified to that extent.

13.             From the perusal of the documents it is correct that there was an excess cash in the ATM machines of OPs No. 1 & 2. When the OP3 sent a charge back request to OPs No. 1 & 2, initially this request was declined and they also sent a message to complainant declining his request to reimburse the cash.

14.             When the complainant who was the customer of OP3 approached his bank regarding non delivery of cash to him, his case was not pursued with vigour by OP3 bank. Rather, they advised the complainant to make his own efforts with OPs No. 1 & 2 in order to get back his amount from them. As per banking practice it is primarily the duty of the bank where a customer is having his account and rightly made a request to his banker to help him in getting back his amount which was not disbursed to him while operating an ATM machine of another bank. If, OP bank had no agreement with OPs No. 1 & 2 then no amount can be debited from OP3 bank’s, customer account by another bank. In view of above OP3 was rightly held liable to reimburse the amount to be paid to his customer i.e. complainant by OP3 as it was the primary duty of OP3 bank to look into the grievances of his customer so as to get the matter amicably settled within a period of 12 days from the date of getting a written request from their customer as per RBI guidelines.

15.             In the instant case, OP3 bank had failed in their duties to safeguard the interests of their customers in getting back his amount which was not disbursed from the ATM machine owned by OPs No. 1 & 2. However, at the same time the District Forum was not correct to appreciate the OPs No. 1 & 2 failed to transfer the amount of Rs. 10,000/- to OP No.3 as no document has been placed on the record by OPs No. 1 & 2 for showing that the payment was made to OP No.3.

16.             In view of the above facts the order of the District Forum not holding Ops No. 1 & 2 liable for deficiency in services was not a proper order. All the Ops were to be held equally liable for reimbursement of the amount to be paid to respondent No. 1. In our opinion the order of the District Forum needs to be modified. Accordingly, the appeal of the OP3 is partly accepted and the order of the District Forum is modified that OP No. 3 will have a right to recover the amount to be paid as per District Forum order in equal shares from OPs No. 1 & 2.

17.                   The appellants/OP3 had deposited a sum of Rs. 12,672 at the time of filing the appeal of this Commission, registry is here by directed to remit this amount to the complainant/respondent No. 1 along with interest, if any, after 45 days from the date of this order. The Op No.3 is further directed to pay the remaining amount as per the order of the District Forum. However, they will have a right to recover the same from Ops No. 1 & 2 to the extent of Rs. 10,000/- along with interest @ 10% from the date of withdrawal i.e. 10.11.2009 upto the date of payment as per District Forums orders.

 18.             The arguments in this appeal were heard on 03.03.2015 and order was reserved. Now the order be communicated to the parties as per rules.

19.              This appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

        (GURCHARAN SINGHSARAN)

                                                         PRESIDING JUDICIAL MEMBER

 

 

      (JASBIR SINGH GILL)

                   MEMBER

   

 

(HARCHARAN SINGHGURAM)

March 13 , 2015                                                                                                                                                          MEMBER               

Surinder