DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Consumer Complaint Case No: 434 of 2011] -------------------------------- Date of Institution : 16.09.2011 Date of Decision : 30.07.2012 -------------------------------- Sanjeev Jain, r/o #3450, Sec.27-B, Chandigarh. ---Complainant VERSUS [1] IndusInd Bank, SCO No.52-54, Sector 8-C, Chandigarh, through its Manager. [2] State Bank of Patiala, SCO No. 21-22, Sector 19, Chandigarh, through its Manager. ---Opposite Parties BEFORE: SH. LAKSHMAN SHARMA PRESIDENT SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Raj S. Jumiyal, Counsel for Complainant. Opposite Party No.1 Ex-parte. Sh. Rachit Kaushal, Counsel for Opposite Party No.2. PER JASWINDER SINGH SIDHU, MEMBER 1. Complainant has filed the present complaint, against the Opposite Parties on the grounds that, the Complainant is having a S.B. Account bearing No. 55140471288 with Opposite Party No.2 and a Debit-cum-ATM Card issued by the Opposite Party No.2 is being used by the Complainant. This card also carries an SMS alert facility to enable the Complainant to know about the withdrawal or credit transaction. The Complainant in order to draw money used the ATM machine of Opposite Party No. 1 on 3.7.2010 situated at Sector 8, Chandigarh, outside the office Opposite Party No.1. The Complainant operated the said machine to withdraw Rs.6,000/- from his account, as the Complainant had to operate the said machine, more than once, the said ATM-cum-Debit Card got struck in the machine itself, though Rs.6,000/- were dispensed by the machine; whereas, the Complainant claims that Rs.12,000/- was deducted from his account. The Complainant immediately contacted the Manager of Opposite Party No.1 informing him about the whole episode, who assured that this discrepancy will get removed within 24 hours and the wrong debit entry will be credited. At the same time, the Manager of Opposite Party No.1 showed his inability to return the ATM-cum-Debit Card, citing RBI Guidelines. As per the Complainant, on 3.7.2010, being Saturday, Opposite Party No.1 asked the Complainant to come on Monday i.e. 5.7.2010, with regard to the ATM Card. The Complainant claims that the incident that happened on 3.7.2010 had actually happened at 1:13 PM during the banking hours which were upto 2.00 PM. Complainant also went to his Banker, and requested them to block his ATM-cum-Debit Card, so as to avoid any misuse of the same. The Banker of the Complainant instead of doing the needful itself, asked the Complainant to contact their Customer Care. At around 1:50 PM the Complainant checked his balance from Opposite Party No.2, came to know that the wrong debit entry of Rs.6,000/- had been corrected, and was successful in blocking the ATM-cum-Debit Card only at 1:58 PM, through the Customer Care. The request number of the same is 20100703257702. The Complainant claims that he received two SMS massages from Opposite Party No.2 on 4.7.2010 about the withdrawal of Rs.20,000/-. As it was Sunday on 4.7.2010, the Complainant went to Opposite Party No.2 on 5.7.2010, and enquired about the debit entries. The Complainant came to know that instead of two, there were three different transactions on 3.7.2010 at 2:20 PM, 2:21 PM and 2:22 PM respectively, amounting to Rs.30,000/- from the ATM machine of IDBI Bank installed at Sector 8, Chandigarh near the office of Opposite Party No.1. The Complainant again went to Opposite Party No.1 and informed the Branch Manager about the withdrawal of Rs.30,000/- from his account from the ATM machine of IDBI Bank, installed at Sector 8, Chandigarh. This transaction was done through the same ATM-cum-Debit Card which had got stuck into the ATM machine of Opposite Party No.1 on 3.7.2010 and the same was supposed to be inside the machine, as the same was not removed from the machine on 3.7.2010, in his presence. The Manager of Opposite Party No.1 refused to take the liability of fraudulent withdrawal, despite the fact the ATM-cum-Debit Card remained in the machine of Opposite Party No.1 since 1:13 PM on 3.7.2010. However, on repeated requested of the Complainant, Opposite Party No.1 at 4.00 PM on 5.7.2010 issued a certificate (Annexure C-1) that the ATM –cum- Debit card of the Complainant was found from their ATM machine on 3.7.2010 and the same was destroyed at their end. The Complainant claims that the ATM-cum-Debit card was never destroyed in his presence. The Complainant not having received any favourable response from the side of Opposite Parties, finally, made a formal complaint to the SHO, Police Station, Sector 3, Chandigarh, on 14.7.2010, and the matter is still pending at their end. The Complainant also served a legal notice on the Opposite Parties, of which only Opposite Party No.2 replied back and there was no response from Opposite Party No.1. The Complainant thus, alleging deficiency in service on the part of the Opposite Parties, has prayed for the following relief: - [a] To direct the Opposite Parties to compensate the Complainant for suffer lot of physical and mental harassment and also bearing loss in his work; [b] To pay a sum of Rs.50,000/- for adopting unfair trade practice and deficiency in service; [c] To refund a sum of Rs.30,000/- towards the fraudulent transaction took place in the blockage ATM-cum-Debit Card of the Complainant; [c] To pay Rs.20,000/- on account of litigation charges. The complaint of the complainant is duly supported by his detailed affidavit. 2. On being properly served, Opposite Party No.1 failed to make an appearance and hence, was proceeded against exparte vide order dated 17.11.2011. 3. The Opposite Party No.2 has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect that the present complaint deserves to be dismissed as there is no deficiency in service on their part and all the allegations and averments of the present complaint, are directed towards Opposite Party No.1. The Opposite Party No.2 has also claimed that the Complainant himself had delayed in informing Opposite Party No.2 about the happening of the incident and as the request received at 13:58:12 was forwarded to the ATM Switch Centre for blocking the same and the ATM was finally blocked at 2:10 PM as per the procedure. Copy of the request sent by Opposite Party No.2 is annexed at Annexure OP/1. The JPT log provided by the IndusInd Bank clearly shows that the card was not retained by the ATM Machine, till 2:53:49. The Opposite Party No.2 has also claimed that as per the standard procedure, a little time is required, so that the communication made with the ATM Switch Center is responded to. Thus, as such, the card was finally blocked at 2:10 PM after updating the status. Whereas, the transactions alleged by the Complainant had already been attempted to before the Card could be finally blocked, for this purpose, Opposite Party No.2 has mentioned the timings as 13:55:29, 13:56:19 and 13:58:33, through which Rs.30,000/- of the Complainant in the denomination of Rs.10,000/- each were withdrawn by using the same ATM-cum-Debit Card. Thus, Opposite Party No.2 claims that there is no deficiency in service on their part, as they were prompt in forwarding the message of the Complainant as soon as it was received by them. Opposite Party No.2 has annexed Annexure OP/1 which shows the Debit Card Management System was requested at 13:58:12 on 3.7.2010. On merits, the Opposite Party No.2 has repeated their preliminary objections, while replying to the each averments of the present complaint, in their para-wise reply. Thus, claiming no deficiency in service or unfair trade practice on their part, the Opposite Party No.2 have prayed for the dismissal of the complaint with heavy costs. The reply of the Opposite Party No.2 is supported by a detailed affidavit of Sh. Paramjit Singh Sra, Branch Manager. 4. Having gone through the entire complaint, version of the Opposite Party No.2, the evidence of the parties and with the able assistance of the learned counsel for the Complainant and Opposite Party No.2, we have come to the following conclusions. 5. As Opposite Party No.1 being duly served has failed to put in its appearance, and was proceeded against ex-parte vide order dated 17.11.2011 of this Forum. In these circumstances, all the averments of the present complaint against Opposite Party No.1 have gone unrebutted. 6. However, the Opposite Party No.2 has not denied its relationship with the Complainant in his capacity as their account holder, as well as the subscriber of the ATM-cum-Debit card in question. Opposite Party No.2 has contested the claim of the Complainant, on the ground that as soon as the loss of the ATM-cum-Debit Card in the machine of Opposite Party No.1 was reported, to their office, they were prompt in forwarding the request of the Complainant for blocking the same, for further transactions, and on this request, the ATM-cum-Debit Card of the Complainant was finally blocked for further transactions, at 12:10 PM, on 3.7.2010. The Opposite Party No.2 has also claimed that it was during this intervening period of processing, of the request of the Complainant, that the three debit entries had happened, thus, there was no fault on their part. 7. The Complainant had produced a certificate from the office of Opposite Party No.1 (Annexure C-1), as well as the same document has been annexed by the Opposite Party No.2 along with their reply (Annexure OP/4), which clearly states “This is to certify that the Debit Card – 6038455101700000730 of Mr. Sanjeev Jain has been retained from our branch ATM Machine on 03-07-2010 at 13:13 PM and the same has been destroyed at our end”. The Opposite Party No.2 has attached this certificate to fortify their claim that the entire episode of the fraudulent withdrawal of the money of the Complainant lay at the door of Opposite Party No.1 alone, as the certificate mentioned above, itself, shows that the ATM-cum-Debit Card of the Complainant was retrieved from the Machine by Opposite Party No.1, and destroyed at their end, at 13:13 PM on 3.7.2010. 8. It is apparently clear that the certificate of Opposite Party No.1 (Annexure C-1) which is dated 5.7.2010, clearly establishes the fact that the ATM-cum-Debit Card of the Complainant after having been stuck in their machine was at their end, till it was destroyed by them. Thus, in these circumstances, if at all, the ATM-cum-Debit Card was being used, for withdrawal of money, from the account of the Complainant, only and only Opposite Party No.1 is answerable on this count. However, when the Complainant had intimated Opposite Party No.1 about the withdrawal of Rs.30,000/- from his account, it was incumbent upon Opposite Party No.1 to at least initiate some inquiry, so as to ascertain as to who was responsible for this withdrawal of money. But as Opposite Party No.1 has failed to put in appearance, and contest the claim of the Complainant, it amounts to admission of their guilt. 9. We feel that in the present circumstances, as Opposite Party No.2 was not found wanting in delaying the matter at their end, about the blocking of the ATM-cum-Debit Card of the Complainant, even though the procedure of blocking the ATM-cum-Debit Card did require some time, thus, the Opposite Party No.2 is not held liable for the time taken by the ATM Switch Center, which is totally independent of Opposite Party No.2. Thus, in these circumstances, the present complaint is dismissed qua Opposite Party No.2. 10. In the light of above observations, we find a definite deficiency in service on the part of the Opposite Party No.1. The present complaint of the Complainant succeeds against the Opposite Party No.1 and the same is allowed qua Opposite Party No.1. Hence, the Opposite Party No.1 is directed:- [a] To pay a sum of Rs.30,000/- withdrawn from the account of the Complainant; [b] Opposite Party No.1 is also saddled with the consolidated amount of compensation to the tune of Rs.15000/- on account of harassment and mental agony suffered by the Complainant; [c] To pay Rs.10,000/- as litigation costs. 11. The above said order shall be complied within 45 days of its receipt by Opposite Party No.1; thereafter, Opposite Party No.1 shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 10 above, besides cost of litigation of Rs.10,000/-, from the date of institution of the complaint, till it is paid. 12. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 30th July, 2012 Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (JASWINDER SINGH SIDHU) MEMBER
| | MR. JASWINDER SINGH SIDHU, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
