Kerala

Malappuram

CC/151/2019

VINOD N JOSEPH - Complainant(s)

Versus

MANAGER - Opp.Party(s)

15 Jun 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL
MALAPPURAM
 
Complaint Case No. CC/151/2019
( Date of Filing : 30 Apr 2019 )
 
1. VINOD N JOSEPH
NAMBADAKUNNEL HOUSE MODAPPOIKA PO NARIVALAMUNDA 679331
...........Complainant(s)
Versus
1. MANAGER
NILAMBUR CO OPERATIVE URBAN BANK EDAKKARA 679331
2. BRANCH MANAGER
SOUTH INDIAN BANK EDAKKARA BRANCH EDAKKARA 679331
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. MOHANDASAN K PRESIDENT
 
PRESENT:
 
Dated : 15 Jun 2022
Final Order / Judgement

By Sri. MOHANDASAN.K, PRESIDENT

            The complaint in short is as follows:-

1.         The complainant has got Bank account with first opposite party and his account number is 00701010005394. On 29/06/2017, he purchased certain articles from Malappuram store at Edakkara for Rs.1,988/-. He paid bill amount through POS machine. The transaction was done twice as per TRN – 16-000000426351 and TRN 16-000000426717.  As per both transactions the amount of Rs.1,988/- was debited from his account.  But the second transaction was failure and refunded in to his account.  But it was found no amount was credited to the account of Malappuram store and so the complainant was compelled to pay the amount by cash. The complainant informed the opposite party about the failure of transaction on 24/11/2019 and the opposite party agreed to do for the rectification of mistake at their initiative. But thereafter so far not debited the amount of Rs.1,988/- in to his account. Hence, he prayed for recovery of the same and also to pay compensation of Rs.50,000/- for the defective service and thereby caused inconvenience and hardship to the complainant.

2.         On admission of the complaint notice was issued to the first opposite party and the opposite party No.1 entered appearance and filed version. The first opposite party also filed an application to implead second opposite party as necessary party in the proceedings and accordingly second opposite party also impleaded. The second opposite party not filed version but filed affidavit.

3.            The first opposite party filed version denying the entire averments and allegations in the complaint. But the opposite party admitted that the averment in the contention that while the  complainant purchased articles from the Malappuram store Edakkara, there was transaction of Rs.1,988/- twice through POS machine and both occasions the amount was deducted from the account of the complainant. But it is submitted that the first transaction was returned back to the account of complainant and not the second transaction as claimed by the complainant. The transaction was done through NPCI and Rs.1,988/- has been debited from the account of complainant. The Malappuram store has got account with South Indian Bank and the amount will be in the suspense account of South Indian Bank.  The opposite party submitted that the Manager of South Indian Bank is also to be made party in the proceedings. The true nature of transaction can be revealed from the records of south Indian Bank. There is no deficiency in service on the part of the first opposite party. The first opposite party is not at all responsible for any loss caused to the complainant. It is also submitted that the complainant submitted complaint before the opposite party only on 24/11/2017 i.e.148th day of incident. The opposite party is bound to place charge back request before NPCI within 120 days. The opposite party placed the request even after expiry of 120 days to protect the interest of complainant. If the requested bank is not responding to the request the first opposite party is not able to proceed further. The opposite party cited rule 11.5 regarding Repay Dispute Management Rules and regulations manual that “the good faith receiving institution may respond to the good faith attempt within 120 calendar days”.  The first opposite party submitted that there was no response from the second opposite party towards the request. It is also cited rule 11.5.3 that if the receiving institution does not respond to the good faith attempted within 120 calendar days from good faith attempt date, the case is termed as not accepted. So, the prayer of the first opposite party is that  considering the facts and finding the complaint is not maintainable and also liable to be dismissed U/s 26 of Consumer Protection Act, awarding compensation of Rs.5,000/- to the opposite party.

4.         The contention of the second opposite party is that the complaint is not legally maintainable, devoid of merits and is liable to be dismissed in limine. The submission of the second opposite party is that complainant has not availed any service of the second opposite party for consideration and there is no such service provider- consumer relationship with the complainant and second opposite party. It is submitted that complainant not availed any service for consideration and no service was rendered by the opposite party to the complainant. It is also submitted that the second opposite party is not a necessary party but the shop keeper is a necessary party and without the presence of shop keeper the fact cannot be ascertained and so the complaint is bad for non-jointer and liable to be dismissed with cost of the opposite party.

5.         Complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 and A2. Ext. A1 is statement of account number 00701010005394 from 15-06-2017 to 08-04-2019. Ext. A2 is copy of complaint to the manager NCUB, Edakkara, dated 24/11/2017.  Documents filed by opposite party No.1 marked as Ext. B1 to B3. Ext. B1 is copy of Gmail dated 27/11/2017. Ext. B2 copy of pages 76, 77, 78 from Rupay Dispute Management Rules and Regulations Manual (version 5)(NPCI). Ext. B3 is print out of NPCI transaction log for the transaction.

6.         Heard parties, perused affidavit and documents.

Following points arise for consideration: -

  1. Whether there is deficiency in service on the part of opposite parties?
  2. Relief and cost?

7.         Point No.1 and 2

            It is an admitted fact that the complainant has got an account with the first opposite party and on 29/06/2017 he remitted Rs.1988/- in to the account of Malappuram Store, Edakkara, through POS machine, who is maintaining an account with the second opposite party. The complainant produced Ext. A1 document, the statement of account of the complainant from the period 15/06/2017 to 08/04/2019. Ext. A1 document shows that on 29/06/2017 an amount of Rs.1,988/- debited from his account at about 12:12:28 and again at about 12:13:36.  An amount of Rs.1988/- was credited in to his account on the same day by 12:12:28. So it is proved that the case of the complainant regarding debiting 1988/- rupees twice from his account and crediting once to his account. The complainant submits that the debited 1,988/- rupees was not credited to the account of Malappuram Store, Edakkara. He approached opposite party regarding the issue but there was no redressal for the grievance and resulted filing this complaint.

8.         The contention of the first opposite party is that he filed written complaint before the opposite party only on 24/11/2017 and so there was delay from the side of complainant in proceeding with complaint.  According to first opposite party the complainant should have filed the complaint within 120 days, but he filed the complaint after 148 days. Even though there was delay, the first opposite party has taken appropriate steps to approach NPCI to redress the grievance of the complainant. But there was no result. The first opposite party has taken contention that south Indian Bank is also to be party in the proceedings since the disputed amount was transferred to the account which is maintained by the second opposite party. Accordingly he was also impleaded as part of complaint, and the south Indian bank though not filed version, filed counter affidavit.

9.         The second opposite party contented that complaint is barred by limitation and the complainant not availed any service of the second opposite party for consideration and also contended that there is no service provider – consumer relationship with the complainant and second opposite party. So it is contented that the second opposite party is not a necessary party in the complaint. It was also stated that the shop keeper is also a necessary party in the compliant, then only the factum can be ascertained.    

10.       It can be seen that the complainant debited 1,988/- rupees from the account maintained by the first opposite party using POS machine to the account maintained by the second opposite party. Ext. A1 document established the same. The second opposite party who is maintaining   payee account, submitting that the complainant is not a consumer and payee account holder i.e., the shop keeper is to be made a party in the proceedings to ascertain the true fact. It can be seen that the payee account is maintaining by the second opposite party and he is very well able to verify and report whether the payee account holder has received the money or not. Instead of doing the verification the opposite party stated that the shop keeper is to be made a party and the complainant is not a consumer, since they are not providing any service to the complainant on payee consideration.

11.       The Consumer Protection Act has defined who is a consumer very well. As per the definition consumer section 2 (7)(II) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised or under  any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment when such services  are availed of with the approval of the first mentioned person, but does not include a person  who avails of such service or any commercial purpose. In this complaint the payee was maintaining an account with the second opposite party and the complainant paid the amount towards the payee account. The complainant was beneficiary of service provided by second opposite party to the shop keeper. So, it cannot be contended that there was no consumer relationship with complainant and the second opposite party. The opposite party was very well able to ascertain the fact that what happened for the amount debited from the account of complainant and whether it was credited to the account of shop keeper or not. The first opposite party has got specific contention that the debited amount from the account of complaint is with the second opposite party. It is pertinent to not that there is no specific denial that the amount is not with the second opposite party. Instead of ascertaining the same availing the contentions in the affidavit that there is no consumer relationship and non-jointer of shop keeper are not proper and justifiable.

12.       In this complaint it is proved that an amount of Rs.1,988/- has been debited from the account maintained by the first opposite party towards the account maintained by the shop keeper with the second opposite party. So, the complainant is entitled to get refund of the debited amount from where it is. The perusal of documents and facts shows that there was deficiency in service from the side of both the first and second opposite parties. The complainant has submitted that he is not aware of submitting a complaint regarding the loss of money within 120 days and the same was not informed to the complainant by the opposite parities at any point of time. So the contention of the delay of 28 days in presenting a complaint before the opposite party does not take away the legitimate right of the complainant.

13.       In the light of above fact and circumstances the complainant is entitled to get refund of the debited amount of Rs.1,988/- and also reasonable compensation due to deficiency in service from the part of opposite parities and thereby caused inconvenience and hardship to the complainant.

14.       In the light of above fact and circumstances we allow the complaint and direct the opposite parties as follows:

  1. The opposite parties are directed to pay RS.1,988/- (Rupees one thousand nine hundred and  eighty eight only) to the complainant which is debited from the account of the complainant.
  2. The opposite parties are hereby directed to pay Rs.10,000/- (Rupees ten thousand only) as compensation on account of deficiency in service and thereby caused inconvenience and hardship to the complaint.
  3. The opposite parties also directed to pay cost of Rs.5,000/- (Rupees five thousand only) to the complainant.

The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the above said entire amount will carry interest @ 12% per annum from the date of order till realization.

 

Dated this 15th day of June, 2022.

 

Mohandasan . K, President

PreethiSivaraman.C, Member

     Mohamed Ismayil.C.V, Member

 

APPENDIX

Witness examined on the side of the complainant: Nil

Documents marked on the side of the complainant: Ext.A1 and A2

Ext.A1: Statement of account number 00701010005394 from 15-06-2017 to 08-04-

2019.

Ext.A2: Copy of complaint to the manager NCUB, Edakkara, dated 24/11/2017.

Witness examined on the side of the opposite party: Nil

Documents marked on the side of the opposite party: Ext. B1 to B3

Ext.B1: Copy of Gmail dated 27/11/2017.

Ext.B2: Copy of pages 76, 77, 78 from Rupay Dispute Management Rules and

Regulations Manual (version 5)(NPCI).

Ext.B3: Print out of NPCI transaction log for the transaction.

 

 

 

Mohandasan . K, President

PreethiSivaraman.C, Member

     Mohamed Ismayil.C.V, Member

VPH

 
 
[HON'BLE MR. MOHANDASAN K]
PRESIDENT
 

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