BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.58 of 2015

Date of Instt. 23.2.2015

Date of Decision :21.09.2015

Dr.Ranju Thakkar aged about 41 years wife of Vidya Sagar, R/o H.No.7, New Raja Garden, Jalandhar City.

..........Complainant Versus

1. ICICI Bank Limited, ICICI Bank Towers, Bandra Kurla Complex, Mumbai-400051, through its Managing Director/Chairman.

2. ICICI bank Limited, New Grain Market, Jalandhar-144008 through its Branch Manager.

.........Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Manish Sidana Adv., counsel for complainant.

Sh.YV Rishi Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that on 10.10.2014 she through her husband Dr.Vidya Sagar tried to withdraw an amount of Rs.10,000/- from the ATM of the opposite party bank but during process of transaction, the security guard of the above said bank came inside in the ATM cabin and told her husband that ATM was out of order and transaction was not possible. According to the instructions of the bank guard, her husband came out from the ATM cabin without obtaining any cash or any slip from the ATM but at the same time Rs.10,000/- were debited from her account for this transaction which was not successfully as the ATM was out of order. She approached the bank but the bank sent message on her mobile stating that it is unable to reverse the transaction as it has been paid completely. She through her husband also gave the written complaint to the Commissioner of Police who took immediate action and recorded the statement of authorized bank guard who stated that ATM was out of order. The bank was again approached to refund the amount and bank agreed to refund the amount with some conditions to which she add her own conditions. On such like averments, alleging deficiency in service, the complainant has prayed for compensation and apology letter from the bank.

2. Upon notice, opposite parties appeared and filed a written reply pleading that the present complaint is neither maintainable in law nor on facts and same is liable to be dismissed in limine. The complainant can not adopt double standards, on the one hand she alleges that security guard of opposite party duly informed her husband for not to use the card as it is alleged ATM is out of order and on the other hand at the same time her husband uses the card in the said ATM even after getting alleged information from guard on the site. The complainant can not make the opposite party liable for the fault or mistakes on the part of her husband. The complainant can not make the opposite party liable for their own acts of omission and commission. The complaint is absolutely false and frivolous. As the complainant has referred the matter not only to police but also to the banking Ombudsman where entered into settlement and further filed the present complaint and thereby with malafide intentions is trying to put un-necessary and unlawful pressure on the opposite party. Further she has led to multifarious litigation against the opposite party in which the police investigation is still pending. Under the said circumstances the present complaint deserves to be dismissed since it would lead to controversial consequence which are against the interest of equity, justice and fair play. Even otherwise, once the matter is under investigation before the police authorities this Forum does not have jurisdiction to entertain, try and adjudicate upon the said matter. The opposite party has made thorough investigation upon the complaint filed by the complainant and duly found opening and closing cash balances in said ATM as tallied as per available records. The alleged transaction was found to be successful and as such the complainant was informed accordingly. There is no negligence or deficiency in service or unfair trade practice whatsoever, on the part of the opposite party in dealing with the matter of complainant. The opposite party through and through have fully co-operated with complainant and even gone to the extent of paying her extra Rs.10,000/- to settle the issue without owing any liability towards the complainant as a gesture of good customer service. The complainant instead of appreciating co-operative attitude of opposite party with malafide intentions to make unlawfully pecuniary gains has fabricated and twisted the facts and filed an absolutely a false complaint which deserves to be dismissed. They denied other material averments of the complainant.

3. In support of her complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C11 and closed evidence.

4. On the other hand, learned counsel for the opposite parties has tendered affidavit Ex.OPA alongwith copies of documents Ex.OP1 to Ex.OP3 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. The facts involved in the present case are not much disputed. The complainant through her husband operated the ATM of opposite party bank for withdrawing Rs.10,000/- but according to the complainant, the transaction was un-successful as the guard during the processing of the transaction came inside the cabin and told that ATM was out of order. According to the complainant, although transaction was un-successful but Rs.10,000/- were debited from her account. She made complaint to the bank as well as police. The parties entered into some settlement with certain conditions. Opposite party bank has refunded the disputed amount of Rs.10,000/- to the complainant. The complainant has prayed for compensation for deficiency in service. Ex.C8 is letter of settlement wherein it is mentioned that basic amount which was not received from ATM, is now agreed by the bank to refund her but she has right to file the case for deficiency in service and harassment by the bank. So we are to see, if there was any deficiency in service on part of the opposite party bank. Ex.C9 is statement of Deepak Khanna Manager of opposite party bank wherein he has stated that missing of Rs.10,000/- from the ATM was due to defect in ATM and he or his staff is not responsible for it. So in this statement, the manager of the opposite party bank has admitted that there was defect in the ATM. Counsel for the opposite party contended that this statement was taken under pressure before the police and is not voluntary in nature. The statement was made by Deepak Khanna but opposite parties have not filed his affidavit in this regard. Only Deepak Khanna Manager who had made statement Ex.C8 could say that it was made by him under police pressure and not voluntarily. So in absence of any affidavit of Deepak Khanna, this plea can not be accepted. So from the above statement of the manager Deepak Khanna, it is clear that there was some defect in the ATM. It constitute deficiency in service on part of the opposite party bank. In case ATM machine was defective, the opposite parties should have displayed notice regarding it so that no consumer may operate it but it did not do so.

7. In view of above discussion, the present complaint is partly accepted and opposite party bank is directed to pay Rs.5000/- as compensation and further Rs.2000/- as litigation expenses to the complainant. Compliance be made within one month. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

21.09.2015 Member Member President