Per :- Mr. Deshpande, President Place : BANDRA JUDGMENT The Opposite Party No.1 is the Managing Director of IDBI Bank Ltd., Mumbai; whereas the Opposite Party No.2 is a Manager of the said Bank. However, for the sake of convenience, hereinafter both the Opposite Parties shall be referred to only as ‘the Opposite Party – Bank’. [2] The Complainant was having a joint account with the Opposite Party – Bank; at its Khar Branch. The Complainant’s wife, by name – Mrs. Suman Pandey; was a joint accountholder with the Complainant. On opening an account, besides five cheques, the Opposite Party – Bank; issued two ‘ATM Cards’, one in the name of the Complainant and another in the name of the Complainant’s wife. Validity of the ‘ATM Cards’ was up to the month of Dec-2006. The ATM Card, which was issued in the name of the Complainant’s wife, was replaced by another ATM Card due to malfunctioning of the first ATM Card. Even the second replaced ATM Card was also replaced due to malfunctioning but, this time, instead of issuance of an exclusive ATM Card; an ‘ATM-cum-Debit’ Card was issued in the name of the Complainant’s wife – Smt. Suman Pandey. Thereafter, the Opposite Party – Bank; started to levy fees for the ATM-cum-Debit Card. According to the Complainant, he had never sought or made a demand for ATM-cum-Debit card and without there being any requisition or request on the part of the Complainant, the Opposite Party – Bank; issued an ATM-cum-Debit card. The Complainant made a request to the Opposite Party – Bank; to allot him an exclusive ATM Card, as was earlier issued, but the Opposite Party – Bank; refused to issue him an exclusive ATM Card and confirmed the refusal by stating that the product was out of operation. On receipt of such refusal letter dtd.12/6/2007, the Complainant filed present consumer complaint before this Forum on 23/10/2007, making allegations of deficiency in service on the part of the Opposite Party – Bank; and sought direction as against the Opposite Party – Bank; to refund him an amount in sum of Rs.110/- collected towards Debit Card Charges and to pay compensation in sum of Rs.95,000/-. [3] Pursuant to the notice of appearance issued by this Forum, the Opposite Party – Bank; appeared and contested the complaint by filing its written version of defence and took stand that in the year 2001, a joint account was opened in the name of the Complainant and his wife and ATM cards were issued. Then, the ATM card issued in the name of the Complainant’s wife – Mrs. Suman Pandey; was replaced and this replaced card was again replaced by the Opposite Party – Bank; with an ‘ATM-cum-Debit’ card. The Opposite Party – Bank; offered a justification to the effect that since the year 2002, the Opposite Party – Bank; stopped issuing exclusive ATM cards and ‘ATM-cum-Debit Card’ were only in operation since the year 2003. Since the product of exclusive ATM Card was not available, the Opposite Party – Bank; could not issue the same to the Complainant. [4] As regards, levying charges towards ‘ATM-cum-Debit Card’, the Opposite Party – Bank; stated that annual fees in sum of Rs.110/- was levied but, on the basis of representations made by the Complainant, those entries were reversed from time to time including the Annual Debit Card Charges for the year 2007. [5] The Opposite Party – Bank; took stand that the Complainant has not bothered to return the ATM-cum-Debit Card and the Complainant wants to utilize the same without making payment of necessary charges. Thus, the Opposite Party – Bank; has denied allegations of deficiency in service on its part. [6] The Complainant filed his rejoinder to the written version of defence, as filed by the Opposite Party – Bank. The Complainant also filed his affidavit of evidence and copies of relevant documents. Both the parties have also filed their respective written notes of arguments. [7] We have gone through the pleadings, affidavits & documents as well as written notes of arguments filed by the parties to the complaint proceeding. [8] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Party – Bank; is guilty of deficiency in service on account of issuance of an ‘ATM-cum-Debit Card’ instead of issuing an exclusive ATM Card and levying charges for the same from time to time? | YES | 2. | Whether the Complainant is entitled to recover compensation from the Opposite Party – Bank? | YES. An amount in sum of Rs.25,000/- in lumpsum | 3. | What order? | The complaint stands dismissed. |
REASONS FOR FINDINGS [9] The Opposite Party – Bank; in its written version of defence as well as in the written notes of arguments has stated that the product – ‘Exclusive ATM Card’, was not in circulation from the year 2002 and from the year 2003 onwards, there is ‘ATM-cum-Debit’ card in circulation, which has been issued to its customers. This has been reflected in the letter dtd.9/6/2007, issued by the Opposite Party – Bank; to the Complainant, which has been produced on the record by the Complainant himself. [10] There is no dispute between the parties to the complaint proceeding as regards the fact that an exclusive ATM Card was issued in the name of the Complainant’s wife in respect of their joint account and it was replaced, first being found to be malfunctioning. This replaced exclusive ATM Card was again replaced, not by an exclusive ATM Card, but it was replaced by an ‘ATM-cum-Debit Card’. A dispute erupted between the parties to the complaint proceeding on issuance of an ATM-cum-Debit Card. It is the case of the Complainant that he had never sought ATM-cum-Debit card and was insisting for an exclusive ATM Card, but the Opposite Party – Bank; vide its letter dtd.9/6/2007, refused to issue exclusive ATM card on the ground that said product was not in circulation since the year 2003. It is the contention of the Complainant that ATM-cum-Debit Card was issued to him without the same being sought by him. In paragraph (4-d) of the complaint, the Complainant has made a specific statement to the effect that the second exclusive ATM Card also malfunctioned and was replaced by ATM-cum-Debit Card. No request was ever made by the Complainant’s wife, by name – Mrs. Suman Pandey; for issuance of an ‘ATM-cum-Debit Card’. In paragraph (04) of the written version of defence as filed by the Opposite Party – Bank; the Opposite Party – Bank; has replied these averments by making a statement to the effect that as there was no policy for issue of an exclusive ATM Card from the year 2003 and since, there was no request from the Complainant’s wife – Mrs. Suman Pandey; to cancellation of ATM card facility, said ATM-cum-Debit Card facility, which was available with the Opposite Party – Bank; was provided to the Complainant’s wife. In paragraph (4-f) of the complaint, the Complainant has again made an averment to the effect that in the month of Dec-2006, second exclusive ATM card was replaced by an ATM-cum-Debit Card without request for the same. This card has never been put to use by the Complainant or his wife and has been returned to Khar Branch of the Opposite Party – Bank. In paragraph (06) of the written version of defence, as filed by the Opposite Party – Bank; there is no denial to these averments. Thus, the Opposite Party – Bank; has admitted the fact that an ATM-cum-Debit Card was issued to the Complainant without the same being sought as if it was in continuation of the exclusive ATM Card facility. In this regard, it be noted that features of an exclusive ATM Card and features of an ATM-cum-Debit Card are different and those features have been explained by the Complainant, by producing a table at the bottom of his written notes of arguments filed before this Forum. In case of an exclusive ATM Card, risk of the customer is up to an amount in sum of Rs.20,000/- to Rs.25,000/-, whereas in case of an ATM-cum-Debit Card, the entire balance at the account could be utilized. Thus, the risk relates to entire balance. Then, in case of an exclusive ATM Card, there was no fee chargeable to the customer, but in case of an ATM-cum-Debit card, there was a fee chargeable and in the instant case, it was an amount in sum of Rs.110/- per year. In the written notes of arguments as filed by the Opposite Party – Bank; it is stated that as compared to the benefits of an ATM-cum-Debit Card, the amount of fee was negligible. This statement is made by the Opposite Party – Bank; from the view point of a ‘service provider’, but from the view point of a customer, it is an additional burden and the customer is subjected to make payment of a particular sum per year to the service provider. Thus, the second facility of an ATM-cum-Debit Card having contained different features & facilities was altogether different product. Before selling a product to a prospective customer, the Opposite Party – Bank; should have secured his willingness, but without asking for such willingness, the Opposite Party – Bank; foisted that facility upon the Complainant, as a customer and then, made a statement to the effect that the customer was entitled to cancel or return the same. In this regard, it is seen that since beginning, the customer started making grievance about the non-sought facility of an ATM-cum-Debit Card provided to him, but the ATM-cum-Debit card was never cancelled and the Opposite Party – Bank; continued to levy yearly charges. This is seen from a statement produced on the record by the Opposite Party – Bank; itself, below its written notes of arguments. It is seen from the said table that in the year 2002 and 2003, an amount in sum of Rs.99/- per year was levied, which was subsequently refunded or rather credited to the account of the Complainant. For the years 2004 to 2009, an amount in sum of Rs.100/- per year was levied, which was also subsequently refunded or credited to the account of the Complainant. This shows that throughout these years from the year 2002 to 2009, charges of the ATM-cum-Debit Card were imposed and subsequently refunded to the Complainant. This must have been done by the Opposite Party – Bank; in response to the grievance-cum-objection raised by the Complainant. Thus, not only a non-sought product was foisted upon the Complainant but, also a particular yearly fee was levied. [11] No doubt, the Opposite Party – Bank; has refunded the yearly charges/fees debited to the account of the Complainant but, that had been done after lot of persuasions on the part of the Complainant. In some cases, there was a gross delay in refunding the amount inasmuch as an amount in sum of Rs.110/- that was debited to the Complainant’s account on 28/12/2006 was refunded on 30/1/2008 and thus, this amount was utilized by the Opposite Party – Bank; almost for a period of 13 months. Same can be said about yearly charges in sum of 110/- for the year 2005, which was debited on 26/12/2005, was refunded on 14/11/2007 and thus, this amount was utilized by the Opposite Party – Bank; virtually for a period of two years. There had been a delay in refund of yearly charges for rest of the years. Thus, there was supply of non-sought product and in addition to that, levy of yearly charges and retaining the same for quite a long period despite objection on the part of the customer. [12] The Opposite Party – Bank; took stand that the Complainant wants to utilize the facility without making payment, but the Complainant has made an empathetic statement to the effect that he never availed this facility as a debit card to make the purchases and the Opposite Party – Bank; could not produce a single instance of availing this facility by the Complainant at any time in the past by making purchase of any product or commodity. Ultimately, the Complainant deposited this ATM-cum-Debit card with the Khar Branch of the Opposite Party – Bank; on 25/9/2007 viz. well before filing of present consumer complaint. [13] Having considered all these facts, we find that in the matter of issuance of an ATM-cum-Debit card to the Complainant instead of an exclusive ATM card, the Opposite Party – Bank; is guilty of deficiency in service. [14] The Complainant has sought refund of charges in sum of Rs.110/-, levied by the Opposite Party – Bank; but the statement as produced on the record by the Opposite Party – Bank; below its written notes of arguments show that the amount of the yearly fees till the year 2009 has been refunded to the Complainant. Thus, no direction in this regard is warranted. [15] The Complainant has also sought direction, as against the Opposite Party – Bank; to pay him an amount in sum of Rs.95,000/- by way of compensation towards mental agony and harassment. Facts, which have emerged on the record, show that the Opposite Party – Bank; persisted with its stand and was dogged on the issue, which culminated into continued correspondence and persuasion on the part of the Complainant and ultimately, the Complainant landed himself as a litigant before this Forum for which, contribution of the Opposite Party – Bank; is substantial. In view of the mental agony that might have been sustained by the Complainant, time & energy, which he was required to devote for entering into correspondence with the Opposite Party – Bank; and having considered totality of the circumstances, we find that compensation in sum of Rs.25,000/-, inclusive of costs, would meet the ends of justice. With this, we proceed to pass the following order:- ORDER The complaint is partly allowed. The Opposite Parties Nos.1 & 2 shall jointly & severally pay to the Complainant, an amount in sum of Rs.25,000/- towards compensation and costs of the proceeding. The Opposite Parties shall comply with the foregoing order within a period of six weeks from the date of receipt of copy of this order failing which, they shall also be liable to pay to the Complainant, interest @ 9% p.a., on the principal amount in sum of Rs.25,000/- as from the date of expiry of stipulated period of six weeks till realization of entire amount by the Complainant. Rest of the claims of the Complainant stands rejected. Parties shall be informed accordingly by sending certified copies of this order by registered post.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
