DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALWAL
Consumer Complaint No. 17 of 2013 Date of Institution: 06.03.2013
Date of Decision : 16.2.2015
Lakhan Singh son of Sh. Gopal Singh, resident of Rajiv Nagar, Shamshabad, Palwal, Tehsil & District Palwal.
.. Complainant.
Versus
1. The Manager of Indian Overseas bank, Branch at Palwal, Tehsil & District Palwal.
2. The Manager of Axis Bank, Branch at Palwal, Tehsil & District Palwal.
..Respondents/Opp. Parties.
COMPLAINT UNDER SECTION 12 OF CONSUMER PROTECTION ACT
BEFORE: JAGBIR SINGH: PRESIDENT
KHUSHWINDER KAUR: MEMBER
R. S. DHARIWAL: MEMBER
PRESENT: Sh.Dushyan Sharma Adv. for complainant.
Sh.P.K. Aggarwal, Adv. for opposite parties.
ORDER:
In brief the facts agitated in the complaint are as under:-
The complainant who is account holder with opposite party no. 1 i.e Indian Overseas Bank, Branch at Palwal used his ATM card for withdrawing an amount of Rs.10,000/- on 14.10.2012 from ATM machine of opposite party no. 2 i.e. Axis Bank, located at Minar Gate, Palwal, Tehsil & District Palwal. The complainant started the process of
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the withdrawal by inserting his ATM card into the ATM machine but the ATM machine of opposite party no. 2 declined the transaction i.e the machine did not release the amount in question, though Rs.10,000/- was debited from the account of the complainant which is maintained with opposite party no.1. Though money was not released but a mini-statement was released by the machine on 14.10.2012.
That the complainant made a complaint on 15.10.2012 to opposite party no.1 but all in vain. Thereafter, the complainant visited the office of opposite party no. 1 to enquire pertaining to deduction of amount from his account to the tune of Rs.10,000/- but no satisfactory reply was given to opposite party no.1.
Then again on 6.11.2012 the complainant visited the office of opposite party no.1, at that time and date he was told that his amount which was debited from his account have now been credited in his account, but after verifying his statement of account the complainant came to know that no such amount have been credited in his account which is maintained with opposite party no.1.
Then he made a complaint on 21.12.2012 to the office of opposite party no. 1 and tried to solve the matter but all in vain.
Then complainant sent a legal notice to opposite party no.1 which was not replied. Hence this complaint in which he has requested to direct the opposite party to return Rs.10,000/- with 18% interest per annum and the cost of the petition to the tune of Rs.20,000/- and any other relief which this Hon’ble Forum deems fit and proper.
After registration of the complaint, notice was issued to opposite party no.1. Opposite party no. 1 appeared through Ld. Counsel and filed reply and in preliminary objections raised opposite party no. 1 has pleaded, that the complainant have no locus standi, there is no deficiency of service on the part of opposite party no. 1, complaint is not maintainable under Consumer Protection Act and complaint is bad for
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non joinder of necessary parties i.e Axis Bank located at Palwal.
Further opposite party no.1 have stated in his preliminary objections that he has been dragged into the present complaint unnecessary and the complaint against opposite party no. 1 deserves to be dismissed.
While replying parawise, para no.1 of the complaint is admitted by the opposite party no. 1 to the extent that complainant is an account holder of opposite party no. 1 but it is denied that he is a consumer of the Bank. In para no. 2 of the complaint it is admitted to the extent that complainant has the account as mentioned in para no. 2 of the complaint. it is also admitted that complainant used the ATM of Axis bank and withdrew an amount of Rs.10,000/- and the said amount of Rs.10,000/- have been debited from his account. The opposite party no. 1 have paid the amount to the Axis Bank as per the record of the bank. The allegations that the complainant made in a complaint on 15.10.2012 to the opposite party no. 1 is denied and it is also denied that no satisfactory reply on the part of opposite party no. 1 was not given.
In para no. 4 of the complaint is totally wrong and denied as replied by opposite party no. 1. However it is admitted by the opposite party no. 1 that the matter was taken with the Central Office and Central Office took the matter with the Axis Bank but the Axis Bank declined the claim of the complainant regarding the amount in question. The amount of Rs.10,000/- have been received by the complainant. Rest of the allegations of the complaint are denied and it is submitted that the alleged amount was withdrawn from the ATM machine of Axis bank through the opposite party no.1 is not liable to pay any amount or compensation to the complainant and prayed that complaint being false and frivolous and deserves dismissal.
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On 09.12.2013 an application was moved by complainant to array opposite party no. 2 ( Axis Bank, Palwal ) as party being necessary party which was replied by the Ld. Counsel who appeared on behalf of opposite party no. 2 i.e. Axis Bank but on 24.3.2014 “ No objection was given as it is endorsed on the application dated 9.12.2013 itself and as such the application to array Axis Bank as opposite party no.2 was allowed on 24.3.2014.
On being arrayed opposite party no. 2, the opposite party no. 2 also filed his reply, while filing the reply, in preliminary objections the opposite party no. 2 have raised objection that complainant have no locus standi to file the present complaint, no cause of action have accrued, there is no deficiency of service on the part of opposite party no.2 and further there is no relationship of consumer between complainant and opposite party no. 2 and as such present complaint is not maintainable and deserves to be dismissed.
In parawise reply of the complaint in para no. 2 of the reply the opposite party no. 2 have admitted that complainant used his ATM machine, but at the same time his plea is that the complainant has received the amount in question as the transaction was successful. The complainant received Rs.10,000/- vide transaction no. 690 and record no. 9274 dated 14.10.2012. Further he has pleaded in this paragraph that there was no overage or shortage in the statement of account tallied by the opposite party no. 2. In addition to it the opposite party no. 2 have also submitted the relevant documents i.e J.P. Log with 3 previous and succeeding transactions, switch log, cash balancing receipts etc. to opposite party no. 1 and further proper reply alongwith documents have been submitted to the bank of the complainant. Rest of the allegations has made by the complainant have been denied and opposite party no. 2 have prayed that there was no deficiency on their
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part and prayed for dismissal of the complaint.
To substantiate his case the complainant have submitted his affidavit in the form of evidence which is Ex.CW1/A in which he has reasserted the facts which were mentioned in the complaint and in addition to it he has also produced three other documents i.e Ex.CW2 to Ex.CW4. Ex.CW2 is the legal notice dated 2.1.2013, Ex.CW3 is the postal receipt of legal notice, Ex.CW4 is the complaint made by the complainant to opposite party no. 1 as showing two dates on the complaint which are 6.11.2012 and 3.11.2012 and a note is also there on this application that claim rejected.
Similarly, opposite party no. 1 have also filed the affidavit of Senior Manager of opposite party no. 1 which is Ex.RW1/A in which he has reasserted the facts as mentioned in the reply. In addition to it he has also placed on file certain documents Ex.R-1 to Ex.R-6. Ex.R-1 is representation made to Ombudsman and his observation report, Ex.R-2 copy of transaction running into 3 pages and on page 1 transaction as done by the complainant bearing no. SD690 Axis Bank by the complainant ATM card and with the machine of opposite party no. 2, Ex.R-3 is ATM balancing report of 13th, 15th and 16th October 2012 showing no excess amount found while tallying the account, Ex.R-4 ATM Reconciliation of 15.10.2012 no difference found, Ex.R-5 non receipt of cash –Axis Bank ATM-sb2881, Notice issued running into 7 pages and Ex.R-6 is document showing that claim was rejected by Axis Bank.
Similarly, opposite party no. 2 has filed the affidavit of authorized signatory i.e Lalit Kumar on behalf of Axis Bank which is Ex.RW2/A in which he as reasserted all the facts as mentioned in the reply filed by opposite party no. 2 and in the affidavit also he has asserted that transaction of opposite party no. 1 was successful.
After adducing the evidence Ld. Counsel for the complainant have raised arguments and has stressed that he used ATM machine of
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opposite party no. 2 on 14.10.2012 to withdraw Rs.10,000/- from his account with opposite party no. 1 but the transaction was not successful. He argued that the money did not ooze out/received by the complainant from the ATM machine, only mini-statement came out showing Rs.10,000/- as debited from the account of the complainant. The Ld. Counsel for the complainant have further argued that the complainant went from pillar to post but all in vain. The Ld. Counsel further argued that he also issued legal notice which gone unreplied and in addition to it Ld. Counsel for complainant have prayed for refund of Rs.10,000/- with interest and litigation expenses.
On the contrary, the Ld. Counsel for opposite parties were represented by same Ld. Counsel and Ld. Counsel have argued that opposite parties are not at all liable for any kind of deficiency as claimed by the complainant and opposite parties have provided the needy and required services to the complainant and present complaint is not maintainable as the complainant used the ATM machine of opposite party no. 2 and the transaction was successful and the amount to the tune of Rs.10,000/- have been received by the complainant and as such Rs.10,000/- have been rightly debited from the account of the complainant on 14.10.2012. Ld. Counsel have further argued that when the complainant visited the office of opposite party no. 1 he represented the matter with opposite party no. 2 and opposite party no. 2 produced all the relevant documents regarding the transaction as being successful and further opposite party no. 2 also produced documents which shows that no difference was found after tallying of the statement of 13th ,15th and 16th October 2012. So keeping in view the facts both the opposite parties have provided the needy and required services to the complainant and the Ld. Counsel for the opposite parties have argued that they are not liable for any deficiency of service and prayed for dismissal of the complaint. Further the Ld. Counsel have argued that
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opposite party no. 1 has got nothing to do with the present complaint at all, rather as the curtsy demand the complainant represented the complaint of the complainant to the opposite party no. 2 and acted as per banks rules and regulations. Thus both the parties have denied all the allegations levelled against them and they have further prayed that exemplary punishment should be provided to the complainant for filing the false and frivolous complaint.
Though it is hard to digest that why any person will file a false complaint against any particular bank with which even he is not having relations and he is quite and stranger to him i.e. ( ATM machine holder) and why he will admit that he used the ATM machine of a particular bank and money did not ooze out and he only received a slip/mini statement and his amount in question was debited from the bank in which he was holding account.
But taking into account all the facts if every second person is believed to be true it can cause hue and cry and chows in the banking circle so this Forum is also bound by the banking rules and regulations and law of land as all the laws should be respected at all costs. But at the same time it is high time for the banks to make soul-searching process why so many cases of ATM failure/transaction not successful or is only in pipe line in one way or the other and the banks have to be vigil why such cases are on the rise.
Keeping in view above facts and circumstances and the evidence adduced by both the parties, this Forum is resultantly of the view that the complainant has failed to prove his case as the allegations levelled in the complaint have not been proved by the complainant and he has not been able to prove that opposite parties have been negligent in providing him the needy, required and sufficient services. Rather the opposite party no. 2 have proved that the transaction in question was complete and after checking the record no difference in the amount was
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found while tallying the statement of previous and succeeding days of transaction in question. Similarly opposite party no. 1 have also represented the case of the complainant with opposite party no. 2 as soon as the complaint was made to him and representation to the opposite party no. 2 is in itself is providing services which was required to be provided by the opposite party no. 1 and as such opposite parties cannot be held liable and the complaint of the complainant is hereby dismissed. The parties are left to bear their own costs. Copy of this order be given to the parties free of costs and file be consigned to the record room. This order of the Forum is running into 8 pages and each page of this order has been signed by this Forum.
Announced on:16.02.2015 (JAGBIR SINGH)
President
District Consumer Disputes Redressal Forum, Palwal.
(KHUSHWINDER KAUR)
Member
District Consumer Disputes Redressal Forum, Palwal.
(R. S. DHARIWAL)
Member
District Consumer Disputes Redressal Forum, Palwal.
