Punjab

Ludhiana

CC/15/356

Nand Gopal - Complainant(s)

Versus

Indusind Bank - Opp.Party(s)

Kewal Gaurav Adv.

11 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 356 of 03.06.2015

Date of Decision            :   11.04.2016 

Nand Gopal son of Sh.Om Parkash, resident of House No.3359, St. No.6, Chet Singh Nagar, Gill Road, Ludhiana.

….. Complainant

                                                         Versus

1.Indusind Bank Ltd., SCO 12,13, Canal Colony, Near NRI Silk Store, Pakhowal Road, Ludhiana through it’s the Branch Manager/Vice President/ATM Cell Incharge/Authorized Signatory.

2.Indusind Bank Ltd., Regd.Office, 2401, GEN.Thimmayya Road, Pune-411001, India through it’s the CEO/Managing Director.

…Opposite parties 

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

MRS.          VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :          Sh.Kunal Gaurav Bajaj, Advocate

For OPs                          :          Sh.Alok Mohindra, Advocate.        

PER G.K.DHIR, PRESIDENT

 

1.                Complainant, a worker in the Bicycle Parts Firms situate at Dhandari, Ludhiana is holding saving bank account No.20052184816 with Bank of Maharashtra, Branch Office Link Road, Dashmesh Nagar, Ludhiana. On 24.12.2014 at about 4:30 PM (in the evening), the complainant was in need of money at his working place and that is why, he approached the nearby ATM of OPs situate near OPK Woolen Mills, Dhandari Kalan, G.T.Road, Ludhiana for withdrawal of Rs.10,000/- by using his ATM Card. The amount of Rs.10,000/- was received on ATM transaction by the complainant, but when the second ATM transaction for withdrawal of Rs.10,000/- again was made by the complainant, then ATM disbursed Rs.1000/- alone. So, complainant claims to have suffered loss of Rs.9000/-, due to less disbursal of the amount by ATM machine. Complainant got the mini statement/balance enquiry of his amount from the concerned ATM at the same time, but he was astonished to see as if the amount of Rs.20,000/- was withdrawn by him despite the fact that actually he received the amount of Rs.11,000/- only. Complainant approached his banker i.e. Bank of Maharashtra, Link Road, Ludhiana for informing about the said incident. Officials of that bank approached OPs bank branch near Feroze Gandhi Market, Pakhowal Road, Ludhiana. On request of the complainant, his banker, recorded note for calling upon OP1 on 19.1.2015 to resolve the issue. Emails of different dates even were sent, but no reply was received from OP1 by the complainant or by Bank of Maharashtra. Again on 10.2.2015, the Bank of Maharashtra sent letter to OP1 for seeking reply as well as issuance of CCTV Footage, but OPs failed to reply. Despite repeated requests, reminders and personal visits by the complainant, Ops failed to respond the queries qua less disbursal of Rs.9000/- and that is why after serving legal notice dated 11.5.2015 through counsel, this complaint filed by pleading deficiency in service on the part of OPs. Directions sought to OPs to reimburse the amount of Rs.9000/- with interest @18% p.a. Even directions sought to OPs to place on record the Internal General Rolls of ATM Machine of Indusind Bank of 24.12.2014 as well as ATM CCTV Footage of 24.12.2014 of period from 4:00 P.M. to 5:00 P.M. Compensation for mental harassment of Rs.11,000/- and litigation expenses of Rs.11,000/- also claimed.

2.                OPs appeared and filed their joint written statement by claiming interalia as if the present complaint is not maintainable because complainant has no cause of action against the OPs; complainant has suppressed the material facts; complaint is bad for non-joinder of necessary parties because Bank of Maharashtra is not impleaded as party. Besides, it is claimed that intricate questions of law and facts are involved and as such, this Forum in summary proceedings can’t  adjudicate those questions. Rather, it is claimed that transactions of withdrawal of Rs.20,000/- by the complainant were successfully performed. The documents put forth by the complainant clearly shows that he successfully withdrew the amount of Rs.10,000/- on each of two ATM transactions. Complainant withheld the fact that he made four efforts for withdrawal of the amount, but he pleaded of making two efforts alone. As Bank of Maharashtra has not been impleaded as party and as such, no effective relief can be granted by this Forum. Admittedly, complainant withdraw the amount of Rs.20,000/- through two ATM transactions on 24.12.2014. Details of the four transactions carried out by the complainant mentioned in the written statement. Those transactions alleged to be conducted at 4:49 PM, 4:50 PM, 4:51 PM and 4:53 PM. In fact the complainant  wrongly tried to withdraw more amount than what he can withdraw as per the guidelines and directives of Reserve Bank of India. The Electronic Journal Reports of ATM maintained by OPs clearly shows that four transactions were contemplated by the complainant. Bank of Maharashtra asked for CCTV Footage of transactions at asking of complainant, but such footage is of no avail because camera of CCTV is always directed towards the face of the person who is making the withdrawal and is using the ATM card. The said CCTV Camera never directed towards the point from where the amount is dispensed with. No picture of actual amount withdrawn from the ATM ever snapped and as such, directions of CCTV Footage is of no avail. Each and every other averment of the complaint denied by praying for dismissal of the complaint with costs.

3.                Complainant to prove his case tendered in evidence affidavit Ex.CA along with documents Ex.C1 to Ex.C15 and Ex.C10A and thereafter, his counsel closed the evidence.

4.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Parminder Singh, Deputy Manager of OPs bank along with document Ex.R1 and thereafter, closed the evidence.

5.                          Written arguments not submitted by any of the parties. Oral arguments alone addressed. Records gone through minutely. 

6.                From the contents of complaint and copy of statement of account of complaint Ex.C14, it is made out that complainant used the ATM of OPs because of holding of account with Bank of Mahrashtra, Ludhiana Branch. Bank of Maharashtra has not been impleaded as party. When the bank with whom the complainant holding his saving bank account not impleaded as party, then in view of lack of privity of contract between the complainant and Indusind Bank, whose ATM machine          used, complaint is not maintainable against the bank, whose machine used by the Consumer. In holding this view, we are fortified by law laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Chenaram vs. Oriental Bank of Commerce and another-Revision Petition No.307 of 2016, decided on 11.2.2016. In the reported case, complainant was holding saving bank account with Oriental Bank of Commerce, but the said bank was not impleaded as party. However, State Bank of Bikaner and Jaipur, whose ATM machine was used alone was impleaded as party and as such, it was held that in view of lack of privity of contract between the complainant and State Bank of Bikaner and Jaipur, complaint against said bank is not maintainable, even if there may be less disbursement of the amount through ATM transaction. Same is the position before us because here Bank of Maharashtra with whom complainant holding saving bank account, paving way for ATM transactions through ATM Machine of OPs, has not been impleaded as party. So, this complaint against OPs is not maintainable for lack of privity of contract.

7.                As per law laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as State Bank of India vs. Om Parkash Saini-Revision No.2382 of 2012, decided on 18.1.2013, the video footage has no relevancy at all to the transactions of less disbursal of the amount through ATM machine, because the said CCTV footage will not show as to how much amount dispensed/disbursed at the time of operation of the ATM machine. As per the contents of para no.6 of this cited case, the camera is fixed only on the face of the user and not on the keys of the ATM and the delivery window. In view of that non supply of video footage not going to have any bearing on the claim of the complainant qua deficiency in service on account of alleged less disbursal of amount of Rs.9000/- through ATM transaction. So, submission of counsel for the OPs has force that non-delivery of CCTV Footage is no deficiency in service.

8.                Counsel for the complainant has placed reliance on law laid down in case titled as Satish Bansal vs. ICICI Bank-I(2010)CPJ-576(U.T.Consumer Disputes Redressal Commission, Chandigarh for arguing that when the matter delayed in respect of grievance of ATM transactions, then there is deficiency in services, due to which, complaint deserve to be allowed. After going through para no.2 of reported case, it is made out that the complainant was having account with OP bank and as such virtually the said complaint was against the bank with whom, the account was held by the complainant. That is not in the position in the case before us because here the bank with whom, saving bank account held by the complainant,is not impleaded as party. So, benefit from ratio of this cited case is not available to the complainant.

9.                Ex.C1 is the copy of Passbook showing that complainant is holding an account with Bank of Maharashtra. Reflection of transactions on 24.12.2014 specifically incorporated in the copy of statement of account  Ex.C14. Perusal of  same reveals that withdrawal of Rs.10,000/- took place through first ATM transaction of 24.12.2014 and further withdrawal of Rs.10,000/- took place on transaction of 24.12.2014 itself. Records of those transactions produced as Ex.C3 & Ex.C4 along with Ex.R1. Perusal of that Ex.R1 reveals as if first transaction through ATM conducted at 16:49 hours of 24.12.2014, second at 16:50 hours on 24.12.2014, the third at 16:51 hours on 24.12.2014 and 4^th at 16:53 hours on 24.12.2014. Available balance after those transactions disclosed as Rs.11,996.19P in the last conducted transaction at 16:53 hours on 24.12.2014. As ATM machine dispensed the slip like Ex.C4 showing the available balance immediately on demand and as such virtually the complainant got the knowledge of left out balance of Rs.11,996.19P on 24.12.2014 at 16:53 hours itself. Date on which, complaint lodged qua the less disbursal of amount is      not mentioned in the complaint Ex.C5. However, as per case of complainant  at his request, Bank of Maharashtra sent written note to OP1 on 19.01.2015 for resolving the issue. Copy of that note is produced as Ex.C6. Perusal of Ex.C6 reveals  as if some letter sent by the OPs to the complainant on 19.1.2015 for informing as if ATM transactions successfully completed on disbursal of amount of Rs.10,000/- on two occasions. Complainant was not satisfied with this explanation received from the OPs by the Bank namely Bank of Maharashtra and that is why complainant was advised to take further action. Ex.C7 is also a letter of 19.01.2015 sent by the authorized officer of Ludhiana Branch of Maharashtra Bank to OPs for complaining as if complaint of the complainant is that due amount through ATM transaction was not disbursed. So, from this produced documentary evidence on record, it is made out  as if report of less received amount was lodged in writing without mentioning the date of complaint, but the matter was taken up by the Bank of Maharashtra with OPs on 19.01.2015.        Late lodging of this claim and looking from all the circumstances that complainant has not disclosed the factum of four attempts made for ATM transactions, leads to the inference as if OPs came in action after receipt of complaint for finding the fault if any. Complainant lodged complaint with police station on 21.7.2015 alone is a fact revealed by Ex.C10 and thereafter, action taken by the police station by contacting the Manager of OPs by writing letter Ex.C10/A. From the produced records, it is not made out that there is a less disbursal of amount. Rather, through Ex.R1 it was specifically made known to the complainant as to what amount withdrawn by him through ATM transactions. Balance of left out amount even mentioned in four transactions reflected in Ex.R1 and as such, complainant himself remained at fault in not taking action at earliest and by not impleading his banker i.e.Bank of Maharashtra  as party in this case.    So, looking from any angle, it does not appear to be a case of deficiency in service on the part of OPs. Complainant is not a consumer of OPs as held above and as such, complaint of the complainant is not maintainable and merits dismissal.

10.              Therefore, as a sequel of the above discussion, complaint dismissed by leaving the parties to bear their own costs. Copies of order be supplied to the parties free of costs as per rules. 

11.                        File be indexed and consigned to record room.

 

                   (Vinod Bala)                                 (G.K. Dhir)

            Member                                        President

Announced in Open Forum

Dated:11.04.2016

Gurpreet Sharma.