Haryana

Panchkula

CC/150/2022

SUKHBIR SINGH. - Complainant(s)

Versus

INDIAN OVERSEAS BANK. - Opp.Party(s)

IN PERSON

18 Oct 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	150 of 2022
Date of Institution	:	04.05.2022
Date of Decision	:	18.10.2023

 

 

Sukhbir Singh son of Jiya Ram R/o House No.832-B, Amrawati Enclave, Panchkula(Haryana).

    ..….Complainant

Versus                                                                  

1.     Indian Overseas Bank, SCF No.44, Sector-8,   Panchkula (Haryana) through its Manager.

2.     The Haryana State Co-operative Bank, Head Office, Bank Square       Sector-17, Chandigarh through its Managing Director.

                                                                      ……Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

                         Dr. Sushma Garg, Member.

                         Dr. Barhm Parkash Yadav, Member. 

 

For the Parties:   Complainant in person.  

                         Sh. Pawan Kumar Jangra, Advocate, alongwith Sh.                           Sachin Chauhan, Authorised representative of OP                              No.1.

                         Sh. Kapil Kumar Bhardwaj, Advocate for OP No.2.

                       

                       

ORDER

(Satpal, President)

1.The brief facts, as alleged, in the present complaint are that the complainant is having a saving bank account no. 001434027000012 in Haryana State Co-operative Sector-1, Civil Secretariat, Chandigarh (OP No.2) and he is having a ATM card issued by the said bank pertaining  to the said account; on 16.06.2021 the complainant used his ATM card  in the ATM machine of OP No.1 having its ID No.lOBD4970 for withdrawal of Rs.10,000/-; he had entered the requisite details, but no amount was disbursed to him from the ATM machine. The bank officials were informed immediately qua the said incident, who had assured to him that an amount of Rs.10,000/- qua  failed  transaction would be credited back in his account. The OP No.2 was informed telephonically qua the failed transaction as well as the debiting of Rs.10,000/- from his account. The OP No.2 assured the complainant that the amount of Rs.10,000/- would be credited back within a few days. Finding no positive response from the OPs, he was forced to send a written complaint dated 27.07.2021 to the OP No.2 followed by the another complaint on 03.08.2021 but the OPs kept the matter pending on one pretext or the other thereby forcing him to approach the Reserve Bank of India by filing a complaint dated 13.09.2021 and complaint dated 26.11.2021 before RBI Banking Ombudsman. The complaint was transferred to NABARD by RBI Ombudsman with the reasoning that the Cooperative Bank i.e. OP no.2 does not fall under its purview. It is stated that the complainant has been approaching and requesting the bank/OPs for the refund of sum of Rs.10,000/- but nothing has been done by Ops and the matter is still pending without any rhyme and reason. It is stated that despite the availability of CCTV Cameras and Footages, the Ops are dally delaying the matter on one pretext or the other. A legal notice was sent to OPs on 28.01.2022 and 31.01.2022 but to no avail.  Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.Upon notice, the OP No.1 appeared through counsel and filed written statement mentioning therein that the complainant had made a transaction for withdrawal of cash from its ATM on 16.06.2021. It is denied that the complainant had informed the OP No.1 with regard to the non-disbursement of the cash in the transaction made by him on 16.06.2021. It is denied that there were lapses and deficiencies on the part of OP No.1. It is submitted that the transaction made by the complainant on 16.06.2021 was successful as the cash was disbursed to him through its ATM. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint is liable to be dismissed.

                Upon notice, the OPs No.2 appeared through counsel and filed the written statement raising preliminary objections qua complaint is not maintainable; the complainant has not come with clean hands and suppressed the true material facts; the complainant has not approached it in time; no cause of action has arisen in favour of the complainant and against the OP No.2 as the ATM, which was used by the complainant in connection with the withdrawal of the amount in question, was belonging to OP No.1 to which  OP No.2 had no access. It is submitted that the transaction of Rs.10,000/- made by the complainant through ATM card on 16.06.2021 at 12:37:32, as per National Payments of Corporation of India(NPCI), was successful and an amount of Rs.10,000/- was disbursed to him from the ATM machine.

                On merits, it is admitted that the complainant is having a saving bank account in its branch and he was issued an ATM card by the bank. It is submitted that the OP no.2, after receiving the telephone intimation/complaint from the complainant on 19.06.2021 qua the non-disbursement of the amount of Rs.10,000/- vide ATM  bearing ID No.lOBD4970, immediately lodged the complaint on the portal of the bank. In response to the complaint lodged by the Branch Manager, the IT cell of OP No.2 raised charge-back(forced reversal of a transaction) on Dispute Management  System (DMS) portal of National Payments Corporation of India(NPCI) with OP No.1, Indian Overseas Bank on 25.06.2021. Thereafter, the OP no.2 waited for the response of OP No.1 with regard to the alleged disputed transaction as OP No.1 only had access to ATM. Thereafter, on 30.06.2021, response of success of alleged transaction was received from OP No.1 and OP No.1 also shared ATM Electronic Journal(EJ) response report, which clearly shows that an amount of Rs.10,000/- was withdrawn and the said response was also communicated to the complainant by OP No.2. It is denied that the complainant was assured by it about the crediting back of the amount of Rs.10,000/- in his account. It is admitted that a complaint was filed by the complainant in the NABARED and till date, the OP no.2 has not received the final out-come of that complaint. It is submitted that the ATM belonged to OP no.1 and CCTV footage were installed and looked after by OP No.1 only to which OP No.2 had no access. It is submitted that it(OP No.2) had demanded CCTV footage from OP No.1 on 15.02.2022 through email followed by reminders dated 29.04.2022 but the same were not provided to it. It is submitted that there were no lapses and deficiencies on the part of the OP No.2 and thus, prayed for dismissal of the present complaint.

3.The complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-8 in evidence and closed the evidence by making a separate statement. On the other hand, the authorized representative of OPs No.1 has tendered affidavit as Annexure R-1/A along with documents as Annexure R-1/1 & R-1/2 and closed the evidence. The learned counsel for the OP No.2 has tendered affidavit as Annexure R-2/A along with documents as Annexure R-2/1 to R-2/4 and closed the evidence.

4. We have heard the complainant and the learned counsel for the OP No.1 associated with authorized representative & the learned counsel for the OP No.2 and gone through the entire record available on file, minutely and carefully.

5. During arguments, the complainant reiterating the averments as made in the complaint as also his affidavit (Annexure C-A) contended that the amount of Rs.10,000/- was not  disbursed to him on 16.06.2021 from the ATM belonging to the OP No.1 having its ID No.lOBD4970, whereas the said amount i.e. Rs.10,000/- was debited from his account no. 001434027000012; thus, the complaint is liable to be accepted by grating the relief as claimed for in the complaint.

6.On the other hand, the learned counsel on behalf of the OP No.1, while refuting the contentions of the complainant qua non disbursement of Rs.10,000/- on 16.06.2021 from its ATM, contended that the transaction was successful as per NPCI report and that there was no technical defects and glitches in the ATM machine on 16.06.2021 at 12:37:32 p.m. and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.

7.The learned counsel on behalf of the OP No.2 reiterating the averments as made in the written statement as also in the affidavit (Annexure R-2/A) contended that OP No.2 had no access to the ATM vide which the complainant had made transaction on 16.06.2021 to withdraw the amount of Rs.10,000/- as the same was owned,  controlled and  supervised  by OP No.1 only. It is contended that the OP No.2  had raised the charge back on Dispute  Management  system (DMC) portal of National Corporation  of India with OP No.1 on 25.06.2021, in response   to which  the OP no.1 had shared  Electronic Journal(EJ) showing that the amount of Rs.10,000/- was withdrawn and the transaction was successful. It is further contended that the CCTV footages were asked by the OP No.2 from OP No.1 qua the transaction in question but the same were not provided to it by OP No.1; thus, the complaint is liable to be dismissed qua OP No.2 being frivolous, baseless and meritless.

8.As per the rival contentions raised by the complainant on one hand and the learned counsels for the Ops on the other hand, the question, that arises before the Commission, for adjudication, is, whether the transaction made by the complainant on 16.06.2021 seeking the withdrawal of Rs.10,000/- by using his ATM card vide ATM of OP No.1 was successful or not.

9.As per the complainant, the transaction was not successful and the matter was reported to OP’s bank.  In this regard, the OP No.2, who had issued the ATM card to the complainant, has admittedly raised a charge back (forced reversal of a transaction) on 19.06.2021 on the DMS portal of NPCI with OP No.1. With regard to raising of the said charge back by OP No.2 on 19.06.2021, the OP no.1 has merely stated that the transaction was successful, whereas no evidence, much less cogent and adequate, has been placed on record in order to prove that the transaction was successful on 16.06.2021. The OP no.2 had sought the CCTV footage from OP No.1 vide email dated 15.02.2022 followed by its email dated 19.04.2022 but the same were not provided. The OP No.1 has not uttered ever a single word in written submission or its affidavit Annexure R/1/A qua its failure to provide the CCTV footages to the complainant as well as OP No.2. The OP No.1 has preferred to keep its silence qua the availability or non-availability of CCTV footages.

10.Needless to mention here that CCTV footage was the best piece of evidence with OP No.1 to disprove and falsify the contentions of the complainant qua the non disbursement of sum of Rs.10,000/- to him on 19.06.2021 through its ATM machine but it has preferred to withhold the CCTV footage for the reasons best known to it. Therefore, it was deficient while rendering services to the complainant qua the transaction made by him on 16.06.2021. We may, safely, place reliance upon the order passed by the Hon’ble SCDRC, Haryana  in F.A.No.224 of  decided on 02.12.2016, which is reproduced as under:-

          Consumer Protection Act, 1986, Section 2(1)(g)- Banking-ATM –Complainant used ATM machine-As per  complainant  on account of some  technical fault  though  the amount was not disbursed, however,  it was debited  from his account- Plea  of OP is that as per log book the transaction was successful- OP did not produce  copy of JP print roll of the particular date of Axis Bank in support of their contention that the transaction was successful- OP did not ever produce the CCTV footage- Held- Non-production of best  evidence by the OP raise an inference  against them and therefore, an adverse interference has to drawn against the OP- The non-production of record which was lying  with the OP was itself sufficient to allow the complaint- Appeal dismissed.

11.Regarding the liability of OP No.2 in the matter, it has been found that it had lodged the complaint on the relevant portal immediately after the receipt of the intimation from the complainant. Moreover, it had asked the OP No.1 to furnish the CCTV footage to it qua the transaction in question vide its email dated 15.02.2022 and 19.04.2022(Annexure R-2/3). Further, the ATM vide which the transaction in question was made by the complainant did not belong to it and it had no control or supervision over it; hence, no deficiency can be attributed on its part.

12.Coming to relief, the complainant has prayed for refunding of Rs.10,000/- along with compensation of Rs.50,000/- on account of adoption of unfair trade practice by OPs and a sum of Rs.10,000/- towards compensation on account of mental agony and harassment and Rs.33,000/- towards litigation charges.

13.As a sequel to above discussion, we partly allow the present complaint with the following directions to the OP No.1:-

1. To pay a sum of Rs.10,000/- along with interest @9% per annum(simple interest) to the complainant w.e.f. 31.01.2022 i.e. the date when the legal notice sent by the complainant, through his counsel was received by it, till its actual realization.
2. To pay a lump sum amount of Rs.5,000/- to complainant on account of mental agony, harassment and litigations charges.

 

 14.The OP No.1 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainants shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OP No.1. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 18.10.2023

 

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President

 

 

CC.150 of 2022

Present:             Complainant in person. 

                         Sh. Pawan Kumar Jangra, Advocate, alongwith Sh.                           Sachin Chauhan, Authorised representative of OP                              No.1.

                         Sh. Kapil Kumar Bhardwaj, Advocate for OP No.2.

                               

 

                       Arguments heard. Now, to come upon 18.10.2023 for orders.

Dt.05.10.2023

 

 

 

        Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                       Member                            Member                         President

 

Present:             Complainant in person. 

                         Sh. Pawan Kumar Jangra, Advocate, alongwith Sh.                           Sachin Chauhan, Authorised representative of OP                              No.1.

                         Sh. Kapil Kumar Bhardwaj, Advocate for OP No.2.

                               

                                Vide a separate order of even date, the present complaint is hereby dismissed against OP No.2 and is hereby partly allowed against OP No.1 with costs.

                         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.18.10.2023

 

 

       Dr.Barhm Parkash Yadav       Dr.Sushma Garg             Satpal

                       Member                            Member                         President