Punjab

StateCommission

FA/822/2013

Corporation Bank - Complainant(s)

Versus

Gurmit Kaur and another - Opp.Party(s)

Gaurav Goel and Saurav Goyal

09 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 822 of 2013

                                                           

                                     Date of institution: 1.8.2013  

                             Date of Decision:  9.2.2015

 

Corporation Bank, Branch Urban Estate, Ambala City.

…..Appellant/Op No. 3

                                      Versus

1. Gurmail Kaur wife of Sh. Gurnam Singh, Resident of House No. 102, Ward no. 10, Mohalla Pathana Wala, Sanaura, Tehsil and District Patiala.

…Respondent No.1/Complainant

2. State Bank of Patiala, Branch Sanaur, Tehsil and District Patiala through its Branch Manager.
3. Sh. Om Parkash Chugh, Deputy Manager, State Bank of Patiala, Branch Sanaur, son of Sh. Dayal Chand, Resident of House No. 3-C, Ambey Apartment, Sai Market, Patiala.

…..Respondent Nos. 2 & 3/Op Nos. 1 & 2

 

First Appeal against the order dated 25.6.2013 passed by the District Consumer Disputes Redressal Forum, Patiala.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

 

          For the appellant             :         Sh. Saurav Goyal, Advocate

          For respondent No.1        :         Ms. K.K. Ghuman, Advocate

          For respondents No. 2&3:          None.

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/opposite party No. 3 (hereinafter referred as “OP No.3”) has filed the present appeal against the order dated 25.6.2013 passed by the District Consumer Disputes Redressal Forum, Patiala (hereinafter referred as “the District Forum”) in consumer complaint No.77 dated 26.2.2013 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as ‘the complainant’) was accepted and directed to Op No. 3 to deposit the amount withdrawn from the account of the complainant i.e. Rs. 1,21,040/- withdrawn from the account of the complainant alongwith interest @ 8% p.a. from the date of withdrawl till the date of deposit and also to pay cost of Rs. 5,000/-.

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the opposite parties on the allegations that she is maintaining Saving Bank A/c No. 55138790811 with Op No. 1 for the last 25-26 years and was issued ATM Card No. 6038455040700033509 on 25.7.2011 in the said account. The complainant is an illiterate lady. She knows only to sign in Punjabi and do not know the rules of the bank or how to operate an ATM. He asked OP No. 2 to operate the same and he demonstrated how to operate the ATM. Op No. 2 operated the ATM and withdrew Rs. 1,000/- from the ATM. However, on 29.3.2012 when the complainant visited Op No. 1 to withdraw the money, she was informed by the Bank Authorities that she had only a sum of Rs. 12,000/- in her account and when she asked for the details of the withdrawl, she was shocked to find that her account showed debit entries (12 entries of Rs.  10,000/-  each).  Complainant  immediately protested OP Nos. 1 & 2 and other authorities including the Branch Manager regarding the fraudulent withdrawl of her money from her Account but the Bank Authorities were dilly–dallying the matter and did not investigate. They were totally uncooperative and un-responsible towards the plight of the complainant and Ops even fail to retrieve the record from the ATM of Corporation Bank, Ambala from where the money was fraudulently withdrawn and no video of the CCTV Camera of the said ATM/Area was given or shown to the complainant. Instead of restoring the amount of the complainant, OP No. 2 got served a legal notice upon the complainant, which was duly replied. No inquiry was held by the Ops despite approaching the Bank Authorities time and again, which amounts to deficiency in services on the part of the Ops. Hence, the complaint with a direction to the ops to credit a sum of Rs. 1,20,000/- alongwith interest @ 18% p.a. from the date of withdrawl of the amount till its realization, Rs. 1 lac as compensation and Rs. 20,000/- as litigation expenses.

3.                OP No. 1 in its written reply had taken the preliminary objections  that the complainant was not a consumer within the meaning of the Act and that the complaint filed by the complainant was totally false and baseless. On merits, it was admitted that the complainant was having Saving Bank Account with Op No. 1 and ATM Card was issued to her. The complainant was well within the knowledge of the withdrawl of amount through ATM from her account. The complainant had withdrawn the amount w.e.f. 26.7.2011 to 11.10.2011 for 12 times on different dates whereas she approached the Ops only on 2.4.2012. On receipt of the application from the complainant, the matter was referred to OP No. 1 for investigation and during inquiry it was found that the allegations as alleged by the complainant against the Ops were totally false. The detailed facts have been mentioned in letter dated 28.5.2012 and 11.7.2012, the ATM Card was still in the custody of the complainant and it was never handed over by the complainant to OP No. 1, therefore, no question of mis-using the ATM. ATM card was actually used by the complainant and now she is raising a false allegations. In the inquiry no fault of the bank officials was found. Complaint was without merit and it be dismissed.

4.                OP No. 2 in its written reply has taken the same preliminary objections. On merits, the saving bank of the complainant was admitted and the ATM card was issued. It was denied that Op No. 2 operated the ATM of the complainant and withdraw Rs. 1,000/- from the ATM of the complainant for her. The ATM card and Pin were in the custody of the complainant from the very first day and without ATM card and security Pin code, no entry can be made by any person. The complainant withdraw the amount through ATM from 26.7.2011 to 11.10.2011 on 12 times through different dates but filed the complaint only on 2.4.2012. When the ATM and PIN code was in the custody of the complainant then how this ATM can be used by any other person. The false and concocted story has been made by the complainant to extort money from the OP. Complaint was without merit and it be dismissed.

5.                OP No. 3 in its reply had stated that as per the record of Op No. 3 various transactions of two different dates i.e. 26.7.2011 and 27.7.2011 happened whereby a sum of Rs. 10,000/- each was withdrawn from the ATM Kiosk to Op No. 3 totalling Rs. 80,000/-. Again some transactions were done on 11.10.2011 from the same ATM Booth amounting to Rs. 40,000/-. It is alleged that as per the understanding between the various banks, the ATM of one Bank can be used in the ATM Machine of other banks. The transactions were made by the complainant, which does not have any liability of OP No. 3. As per the directions given by the Ombudsman, the details of the transactions as well as video recording of the CCTV was installed but these were not available because the complaint was made after the expiry of 90 days. Complaint was without merit and it be dismissed. On merits also, same averments were reiterated. It was submitted that the complaint was without merit and it be dismissed.

6.                The parties were allowed by the learned District Forum to lead their evidence.

7.                In support of his allegations, the complainant had tendered into evidence her affidavit Ex. CW-1/A, copy of passbook Ex. CW-1, letter dt. 2.4.12 Ex. CW-2, letter of SBI dt. 28.5.12 & 11.7.12 Exs. C-3 & 4, DDR No. 15 Ex. C-5, letter dt. 14.9.12 Ex.  C-6, complaint of complainant Ex. C-7, legal notice Ex. C-8, reply to legal notice Ex. C-9. On the other hand, the opposite parties had tendered into evidence affidavit of R. Murugesan of OP No. 3 Ex. OP-A, affidavit of Ajay Singh Kamdi of SBOP Ex. Op-B, affidavit of Om Parkash Chugh of SBOP Ex. OP-C, transaction slips Exs. Op-1 & 2, copy of ATM Card Ex. OP-3, Bank transaction details Ex. Op-4, letter dt. 9.5.12 Ex. Op-5, letter dt. 11.7.12 Ex. Op-6, letter dt. 19.9.12 Ex. Op-7.

8.                After going through the allegations in the complaint, written replies filed by the OPs, evidence and documents brought on the record, the complaint was allowed as stated above.

9.                It has been argued by the counsel for the appellant(OP No.3) that the complainant was issued 19 digit ATM card. This fact has not been denied because in the complaint it has been mentioned that the complainant was issued ATM Card having No. 6038155040700033509, which contains 19 figures and his account number is 55138790811 and that a sum of Rs. 1,20,000/- was withdrawn from the account of the complainant within the period of 26.7.2011  to 27.7.2011 and 11.10.2011. Whereas in the withdrawl slips, the ATM Card Number has been mentioned as 6038455040700033(16 digits) and account number is 00000055138790811 is that of the complainant. There is no problem of the account number because it is admitted fact that amount was withdrawn from the account of the complainant but the dispute is only with regard to use of ATM card issued to the complainant. Certainly, 19 digits ATM Card was issued to the complainant but the details of the withdrawn placed on the record as OP Nos. 1 & OP No. 2 shows the 16 digit number, which are dated 26.7.2011 and 27.7.2011. Whereas ATM Card number used for withdrawl of amount on 11.10.2011, the ATM card number is that of 19 digit number, which was issued to the complainant. In case the ATM Card was issued and PIN code was with the complainant and she was in the exclusive knowledge of the said number and it was also in her exclusive knowledge, who used the ATM Card specifically when the complaint was lodged after a gap of about six months i.e. 2.4.2012 and by that CCTV footage was also not available, therefore, so far as the transactions dated 11.10.2011, the bank cannot be held liable but so far as the transaction dated 26.7.2011 and 27.7.2011 vide which a sum of Rs. 80,000/- was withdrawn, ATM Card Number is not complete and it was for the bank to explain that in case the ATM Card number of the complainant was not used then how this amount was withdrawn from the account of the complainant. The amount was withdrawn from the ATM Kiosk of OP No. 3. Apart from these slips, no other document has been placed on the record by the Ops that amount withdrawn on 26 & 27.7.2011 was withdrawn with the help of ATM Card issued to the complainant. Therefore, the order so passed by the learned District Forum requires modification.

10.              In view of the above discussion, we partly accept the appeal. Instead of Rs. 1,20,040/-, the appellant/OP No. 3 will be liable to pay to the complainant/respondent No. 1 a sum of Rs. 80,000/-. Other part of the order will remain as it is. No order as to costs in the appeal.

11.              The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 50,000/- in compliance with the order dated 7.10.2013. These amounts with interest accrued thereon, if any, be remitted by the registry to respondent No. 1  by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

12.              Remaining amount shall be paid by the appellant to respondent No. 1 within 30 days from the receipt of the copy of the order.

13.              The arguments in this appeal were heard on 27.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

14.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

                                                               (Gurcharan Singh Saran)

                                                             Presiding Judicial Member

                                         

February 9, 2015.                                                                                                                      (Jasbir Singh Gill)

as                                                                                                                                                        Member