Chandigarh

StateCommission

A/24/2018

General Manager Yes Bank Limited - Complainant(s)

Versus

Miss Nitika Sharma - Opp.Party(s)

D.K.Singal & Ammish Goel, Adv.

19 Jul 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	24 of 2018
Date of Institution	:	23.02.2018
Date of Decision	:	19.07.2018

 

General Manager, Yes Bank, SCO No.179-180, Sector 17C, Chandigarh 160017, through its Assistant Vice President.

……Appellant/Opposite Party No.1

 

V e r s u s

 

1. Miss Nitika Sharma, resident of House No.56, Mannat Enclave 1, Near Vill Pabhat, Zirakpur, Distt. SAS Nagar.
2. Mr. Tanav Bhardwaj, resident of House No.56, Mannat Enclave 1, Near Vill Pabhat, Zirakpur, Distt. SAS Nagar.

Respondents No.1 and 2/Complainants

3. General Manager, HDFC Bank, Golden Tower Airport Road, Kodhihali, Bangalore, Karnataka-560017

….Respondent No.3/Opposite party No.2

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:      JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:-       Sh.Ammish Goel, Advocate for the appellant.

                         Sh.Tanav Bhardwaj, Respondent No.2 in person and also an Authorized Representative on behalf of respondent no.1

                         Sh.Sunil Narang, Advocate for respondent no.3.

                        

PER PADMA PANDEY, MEMBER

                This appeal has been filed by the appellant/opposite party no.1/YES Bank, against the order dated 04.01.2018, rendered by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’), vide which, consumer complaint bearing No.853 of 2016 filed by respondents no.1 and 2/complainants was partly allowed and the appellant and respondent no.3/opposite party no.2/HDFC Bank, were directed as under:_:-

“ In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. The OPs are directed as under:-

1. To immediately reverse the amount of Rs.10,000/- to the account of the complainants.
2. To pay Rs.10,000/- to the complainants as compensation for mental agony and harassment caused to them;
3. To pay to the complainants Rs.8,000/- as costs of litigation.

This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

2.         Facts of the consumer complaint filed by respondents no.1 and 2, noted by the Forum, are as under:-

“The facts of the consumer complaint, in brief, are that complainant No.1 is regular customer of OP-2 and since she shares the account with her mother, therefore, she had been issued two ATM cards by the bank. 

On 5.4.2016 around 8:00 p.m., the complainant’s brother withdrew an amount of Rs.10,000/- from the ATM machine of OP-1.  Though the ATM machine did not release the amount, but, the same was deducted from the account.  Complainant No.1 filed complaint over phone to customer care of OP-2 on 6.4.2016. Thereafter OP-2 raised the dispute with OP-1 for reversal of the transaction, but, it denied the same.  However, no proof was provided to the complainant from OP-1. The complainant also filed an FIR against the incident on 21.6.2016 with the Chandigarh Police and the police raised the dispute to the bank for the CCTV footage, but, it failed to do so. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, the complainants have filed the instant complaint.”

3.         Replies submitted by the appellant and respondent no.3, were noted by the Forum, as under:-

 “OP-1 in its written statement has averred that it was not the ATM of OP-1, but, the ATM of OP-2 which had been used by the complainants for withdrawal of the amount on 5.4.2016.  It has been denied that OP-2 had raised any request with OP-1 and/or that it denied the request for reversal of the said transaction on the ground that the same was successful and the amount was dispensed. It has been denied that the police further raised the dispute to the bank for the CCTV footage. OP-1 has denied having received any notice from the police or any other authority in relation to the alleged transactions. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-1 prayed for dismissal of the complaint.

OP-2 in its written reply has averred that as per information received from OP-1, the ATM machine of OP-1 was used by the complainants and there was successful transaction of withdrawal of Rs.10,000/- from the said machine.  It has been stated that OP-2 promptly attended the complaint of the complainant and took up the matter with OP-1.  Pleading that there is no deficiency in service or unfair trade practice on its part, OP-2 prayed for dismissal of the complaint”.

4.         In the rejoinder filed, respondents no.1 and 2 reiterated all the averments contained in the complaint and repudiated those of the appellant and respondent no.3.
5.         The contesting parties led evidence in support of their case.
6.         The Forum after hearing the contesting parties and also after going through the evidence on record, accepted the complaint, in the manner, referred to, in opening para of this order. Hence this appeal filed by appellant/opposite party no.1 only.
7.         At the time of arguments, Counsel for the appellant while placing reliance upon the EJ Log and Switch Report of the ATM of the appellant, contended with vehemence that since from the said record, it has not been proved that the ATM of the appellant was used by respondents no.1 and 2 for withdrawal of the said amount of Rs.10,000/-, as such, it cannot be said that there was any deficiency in service on the part of the appellant or that they were consumers of it (appellant). It may be stated here that the said EJ Log and Switch Report is not signed by any Officer of the appellant. Name of the person alongwith his supporting  affidavit, who prepared the said EJ Log and Switch Report same, proving authenticity of the same, has not been placed before the Forum or this Commission. As such, the authenticity of the said documents is doubted.

                Secondly, it has also not been clarified by the appellant, as why it failed to provide CCTV Footage of the relevant date and time, to respondents no.1 and 2 or before the Forum or before this Commission, which could have been said to be the best evidence to prove that, as to whether, respondent no.2 entered the premises of the ATM in dispute or not, but the appellant failed to do so. As such, an adverse inference could very well be drawn against the appellant, that the CCTV Footage has deliberately not been produced by it.  On the other hand, the version of respondents no.1 and 2 that they carried out attempt through the ATM in dispute, but could not succeed to get amount of Rs.10,000/- out of it, is further supported by letter dated 18.06.2016 Annexure-II sent to them, by respondent no.3. In the said letter, it was in a very candid manner, informed by respondent no.3 to respondents no.1 and 2 that it requested the appellant for reversal of the transaction in dispute, but it (appellant) denied the request saying that cash withdrawal was successful and the requested amount was dispensed from the ATM. Under above circumstances, the plea taken by the appellant that since from the EJ Log and Switch Report, it has not been proved that the ATM of the appellant was used by respondents no.1 and 2 for withdrawal of the said amount of Rs.10,000/-, and as such, it cannot be said that there was any deficiency in service on the part of the appellant, being devoid of merit, stands rejected.  The findings given by the Forum, to the extent that there was negligence on the part of the appellant, in this regard, are affirmed.   

8.         Furthermore, it has also been observed by this Commission that despite the fact that respondents no.1 and 2 in their complaint have sought cost of Rs.1,000/- only alongwith Rs.10,000/- i.e. the amount in dispute, and at the same time, no compensation for mental agony and physical harassment has been claimed by them, as such, it was not justifiable on the part of the Forum, in granting Rs.10,000/- towards the same (compensation) and Rs.8,000/- towards litigation expenses. As such, findings in this regard, also needs to be quashed.
9.         In view of the above discussion, it is held that the appeal filed by the appellant is partly accepted, in the following manner:-
   1. The appellant/opposite party No.1/Yes Bank and respondent no.3/HDFC Bank shall reverse the amount of Rs.10,000/- to the account of respondents no.1 and 2/complainants.
   2. The appellant/opposite party No.1/Yes Bank and respondent no.3/HDFC Bank shall pay compensation to the tune of Rs.1,000/- (as prayed), to respondents no.1 and 2/complainants.
   3. This order be complied with by the appellant/opposite party No.1/Yes Bank and respondent no.3/HDFC Bank within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, alongwith interest @ 12% per annum from the date of filing of the consumer complaint before the Forum, till realization.
10.         Certified copies of this order, be sent to the parties, free of charge.
11.         The file be consigned to Record Room, after completion.

Pronounced.

19.07.2018

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

Rg