Delhi

StateCommission

FA/1233/2013

AXIS BANK LTD. - Complainant(s)

Versus

DR. MANISH GULATI - Opp.Party(s)

17 Feb 2017

ORDER

IN THE STATE COMMISSION : DELHI

 

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision :17.02.2017

 

First Appeal No. 1233/2013

 

(Arising out of the order dated 1.10.13 passed in Complaint Case No.1162/09 passed by the District Consumer Dispute Redressal Forum, Janak Puri, New  Delhi.)

 

In the matter of

AXIS Bank Ltd.

Janak Puri Branch

C-3/21, Janak Puri

New Delhi.

 

……Appellant

 

Versus

Dr. Maniush Gulati

S/o Shri Madan lal Gulati

C-3/21, Janak Puri,

New Delhi.

 

…Respondent

 

CORAM

Justice Veena Birbal, President

 

1.     Whether reporters of local newspaper be allowed to see the      judgment?

2.     To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

1.          This is an appeal under Section 15 of the Consumer Protection Act (in short, ‘the Act’) wherein challenge is made to order dated 1.10.13 passed by the Consumer Dispute Redressal Forum, Janak Puri (in short, the District Forum) in CC No. 1162/09 whereby the aforesaid complaint case has been allowed and the appellant/OP has been directed as under:-

         “Hence we hereby direct that all the money withdrawn from the account           of the complainant between 14.05.09 to 30.06.09 through ATM card be       credited in his accunt with interest @ 6% per annum. Complainant is also awarded compensation of Rs.40,000/- for the inconvenience and hardship caused to him which shall be inclusive of litigation expenses.”

2.          Briefly the facts relevant for the disposal of the present appeal are as under:-

         A complaint under section 12 of the Act was filed by the respondent herein i.e. the complainant before the District Forum stating therein that he was maintaining a saving bank account No.207010100025391 with the appellant/OP. He is a doctor by profession. At the relevant time he was  working with Mata Chanan Devi Hospital. On 10.7.09 resondent/complainant had enquired from appellant/OP about the balance amount in his saving account and had come to know that Rs.2,75,000/- had been debited from his account. On enquiry it was revealed that the said amount had been withdrawn through various transactions through the Debit-cum-ATM card between 14.05.09 to 30.06.09.

         The respondent/complainant had alleged that he had lost the Debit Card on 25.02.09 and information about the same was given to the appellant/OP bank on the aforesaid date. Thereafter, the respondent/complainant had applied for a new Debit-cum ATM card which was never delivered to him as such the question of transactions  being made by him for the aforesaid period did not arise. The same was brought to the notice of the appellant/OP bank and it was informed that on his request a new Debit-cum-ATM card was delivered at the aforesaid hospital address on 11.5.09 and PIN of that card was also delivered there on the said date. The respondent/complainant had alleged that he had never received the Debit-cum-ATM card as well as its PIN number as was alleged. It was further alleged that it was the duty of the appellant/OP to have delivered the same at the hands of the customer. It was alleged that the appellant/OP bank was negligent in performing its duties in not handing over the Debit cum ATM card and PIN in the hands of the respondent/complainant as such there was deficiency in service. It was alleged that the respondent/complainant made a complaint at P.S. Janakpur and FIR No.277/09 was also registered. A complaint was also written to the appellant/OP bank on 20.7.09. A complaint was also lodged with the Banking Ombudsman. However, no relief was given to the appellant/OP.  Thereupon a complaint was lodged with the Ld. District Forum seeking direction to the appellant/OP to repay the sum of Rs.2,75,000/- to the respondent/complainant along with interest @18% p.a. and a compensation of Rs.1,00,000/-.

3.          The complaint was contested by the appellant/OP bank wherein the allegations of deficiency in service were denied. It was alleged that on the loss being reported by the respondent/complainant, the appellant/OP bank immediately blocked the card on the said date and on his request another Debit-cum-ATM card was issued to the respondent/complainant. It was alleged that the said card was delivered at Mata Chanan Devi Hospital at C-1, Janakpuri, New Delhi vide AFL AW and the same was delivered on 11.5.09. It was alleged that its PIN was dispatched via First Flight Courier and was delivered on 11.5.09. It was alleged that as per policy of the appellant/OP bank both were dispatched through different couriers. It was alleged that the said couriers were received at Mata Chanan Devi Hospital under seal and signatures, as such there was no deficiency in service on its part. It was alleged that all the correspondence was being done with the respondent/complainant at the aforesaid address only. It was further alleged that new Debit-cum-ATM card was also blocked on 25.7.09 and the FIR filed by the respondent/complainant was still under investigations. It was alleged that all the disputed transactions were made by respondent/complainant through the new card. It was alleged that there was no negligence on the part of appellant/OP. It was stated that there is no liability of appellant/OP in these circumstances.
4.          Rejoinder was filed by the respondent/complainant denying having received the card and its PIN number as was alleged by the appellant/OP. The respondent/complainant has reiterated the averments of the complaint case.
5.          Both the parties had filed evidence in the form of affidavits.
6.          After hearing the Counsel for the parties and considering the material on record the Ld. District Forum held that the appellant/OP was negligent and there was deficiency in service on its part in sending the important documents i.e. Debit-cum-ATM card and its PIN number at the correspondence address of the respondent/complainant without ensuring that the documents had been delivered to the addressee only. It was further observed by the Ld. District Forum that when the appellant/OP had received the delivery reports of courier even at that time it had come to know that the Debit cum ATM Card and the PIN were not delivered to the addressee but to the hospital.  Even then no verification was made by the appellant/OP in this regard. Accordingly the District Forum allowed the complaint and directed the appellant/OP to pay the amount as has been stated above.
7.          Aggrieved with the aforesaid order present appeal is filed.
8.          Ld. Counsel for the appellant/OP has contended that immediately on receipt of the complaint of the respondent/complainant of having lost the earlier Debit-cum-ATM card on 25.2.09, the said card was blocked by the appellant/OP bank on aforesaid date itself. It is submitted that on the request of respondent/complainant new Debit-cum-ATM Card.  A new Debit-cum-ATM card was issued and its PIN number also issued. It is submitted that the same were sent by two different couriers at the correspondence address of the respondent/complainant available with the appellant bank. It is submitted that same were received in the office of the Mata Chanan Devi Hospital where the respondent/complainant is working and Ld. Counsel has relied upon courier receipts in this regard. It is stated that the Ld. District Forum has not examined the aforesaid documents properly. It is contended that the Debit-cum-ATM card & its PIN were delivered to the respondent/complainant and if any withdrawal had been made after the delivery of aforesaid Debit-cum-ATM card and its PIN number the appellant/OP is not liable in any matter. It is contended that findings of the Ld. District Forum about deficiency in service are contrary to evidence on record.
9.          Ld. Counsel for the appellant/OP argued into the contrary. It is contended that the Ld. District Forum has considered the entire material on record and thereafter has allowed the complaint and no illegality is there in the impugned order and appeal is liable to be dismissed.
10.          Both the parties have been heard and record is also perused. It is admitted position that the appellant/OP had earlier issued Debit-cum-ATM card to respondent/complainant and the said card was lost and on the request of respondent/complainant, the same was blocked on 25.2.09. It is also admitted position that the respondent/complainant had applied for new Debit-cum-ATM Card. According to appellant/OP, the new Debit-cum-ATM card was dispatched on 27.8.04 through courier at Mata Chanan Devi Hospital i.e. the address given by respondent/complainant at the time of opening of bank account through courier. Further stand of the appellant/OP is that PIN number was dispatched via First Flight Courier Co. and both the couriers were received by the office of the Mata Chanan Devi Hospital under seal and signatures. We have perused the courier receipts. The receipts are very dim and are not legible. The name of the person, who has allegedly received, is also not there. Only initials are there. Even designation of the person, who has received, is also not there. Reading the photocopy of the receipts on record, one can’t make out as to who had received the same. The appellant/OP bank has also not made any enquiries from the aforesaid hospital as to who had received the documents so that truth could have been revealed. The same is also negligence/lack of bonafide on the part of appellant/OP. The alleged misuse of the Debit-cum-ATM card is from 14.5.09 to 30.6.09. It is also not the case of appellant/OP that statement of account of alleged misuse was sent to the respondent/complainant in between aforesaid period or immediately thereafter. There is also nothing on record to show that any separate communication was sent to respondent/complainant for confirming about the receipts of aforesaid documents.  It is not the case of the appellant/OP bank that the Debit-cum-ATM card and its PIN number were personally delivered to the respondent/complainant. The aforesaid documents were secret documents. We have been informed that Mata Chanan Devi Hospital is a 210 bedded multidisciplinary superspeciality hospital. The number of staff runs into few hundreds.  The appellant/OP ought to have taken utmost care as a service provider in sending these documents to the respondent/complainant. It was expected of appellant/OP to have ensured that the aforesaid documents had been personally received by the respondent/complainant. No evidence has been produced on record by the appellant/OP to show that the aforesaid documents were personally received by the respondent/complainant. There is nothing on record to show as to what efforts were made by appellant/OP to ensure that respondent/complainant had received the card/PIN.
11.          The Ld. District Forum has examined the material on record and thereafter has given the findings.  The relevant portion of finding is reproduced as under:

         “The respondent was negligent and deficiency in service in sending the documents at the correspondence address of the complainant without ensuring that the documents must be delivered to the addressee only. When the bank received delivery reports even at that time it came to know that documents were not delivered to the addressee but to the hospital staff. It should have ensured and verified from the complainant that whether he has received the ATM card and the PIN No. or not. Hence in view of above discussion we hold that respondent was completely negligent in delivering these confidential documents at the hospital and is liable to pay the amount whichever was withdrawn through the ATM card by any unauthorized person.”

 

12.          We agree with the reasoning given by the Ld. District Forum whereby it is held that appellant/OP bank was completely negligent in delivering the confidential documents at the hospital.  No error is seen in the impugned order passed by the Ld. District Forum in allowing the complaint. There is no merits in this appeal. The appeal stands dismissed.
13.          A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the District Forum, Janak Puri, New Delhi.

         File be consigned to record room.

 

 (Justice Veena Birbal)

President