BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Sh.Pritpal Singh, r/o H.No.1495/1, Sector 43-B, Chandigarh-160022.

…..Complainant

                                      V E R S U S

1.       M/s HSBC, Sector 9-D, Madhya Marg, Chandigarh, through its Branch Manager.

2.       M/s J.M.Financial Asset Reconstruction Company Private Limited, through its Director, 141, Makers Chamber-III, Narimon Point, Mumbai – 400021.

                                                ……Opposite Parties

CORAM:     SH.P.D.GOEL                                    PRESIDENT

                   SH.RAJINDER SINGH GILL               MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA  MEMBER

Argued by:    Sh.Mrigank Sharma, Counsel for the complainant.

                        Sh.Sandeep Suri, Counsel for OP No.1.

                        Sh.C.S.Pasricha, Counsel for OP No.2.

PER P.D.GOEL,PRESIDENT

1.           Briefly stated, the facts of the case are that the complainant was having an account bearing A/c No.4476 9254 9702 8030 with OP No.1. On 27.3.2008, he operated the ATM machine installed in Sector 9, Chandigarh.

              It is the allegation of the complainant that the said transaction was incomplete as no money came out. The complainant under panic repeated the transaction thrice but the transaction remained unsuccessful. On 28.3.2008, the complainant once again checked the ATM machine for account statement and he was shocked to know that a sum of Rs.13,000/- had been deducted from his account. The complainant approached the OP No.1 on 28.3.2008, who assured that the amount would be transferred back to his account within 48 hours but the same was not done. The complainant lodged a complaint with Customer Care Cell on 1.4.2008 and also sent representation dated 8.4.2008 to OP No.1 but to no avail.

              It has been further stated that the complainant requested the OP No.1 to check the CCTV footage to clear the position but all in vain. It has been further stated that he was shocked to receive the credit card statement for the month of August, 2011 showing an outstanding balance of Rs.78,579/-. The complainant approached the OP No.1 and asked it as to how this amount had been arrived as he had not used the credit card/ATM card since 28.3.2008.

              The complainant was further shocked to receive a letter dated 1.8.2011, qua which, it had been mentioned that he is a defaulter. Hence, this complaint.

2.           OP No.1 filed the reply and took preliminary objection with regard to limitation. On merits, it has been pleaded that as per the bank record, the money was disbursed by the machine. The machine was installed in bank premises and in case the money was not disbursed, the same would have been reported there and then to the bank officers but no such complaint was made by the complainant. It has been further pleaded that the complainant was asked to fill in the customer dispute form which he did not do so. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service on its part and prayer for dismissal of the complaint with costs has been made.

3.           OP No.2 filed the reply, wherein, it has been pleaded that the outstanding dues of the complainant were assigned by OP No.1 to the replying OP. That OP No.2 is collecting amounts from the respective customers. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service on its part.  

4.           Parties led evidence in support of their contentions.

5.           We have heard the learned Counsel for the parties and have also perused the record. 

6.           The learned Counsel for the complainant contended that on 27.3.2008, the complainant operated the ATM machine installed in Sector 9, Chandigarh and the said transaction was incomplete, as no money came out. The complainant repeated the transaction thrice but the transaction remained unsuccessful. It was further contended that on 28.3.2008, the complainant once again checked the ATM machine for his account statement and he was shocked to know that a sum of Rs.13,000/- had been deducted from his account and as such he approached the OP No.1 on 28.3.2008 (Page No.18) and also lodged a complaint with Customer Care Cell on 1.4.2008 and also sent representation dated 8.4.2008 (Page No.19) to OP No.1 but to no avail. The complainant was shocked to receive the credit card statement for the month of August, 2011 showing an outstanding balance of Rs.78,579/- and also shocked to receive a letter dated 1.8.2011, qua which, it has been mentioned that he is a defaulter.

7.           The learned Counsel for OP No.1 raised the arguments that the present complaint has not been filed within the period of limitation and besides this he also argued that as per the bank record, the money was disbursed by the ATM machine. It was further argued that the ATM machine was installed in bank premises and in case the money was not disbursed, the same would have been reported there and then to the bank officers but no such complaint was made by the complainant. It was lastly argued that the complainant was asked to fill in the customer dispute form, which he did not do so.

8.           The learned Counsel for OP No.2 argued that the outstanding dues of the complainant were assigned by OP No.1 to OP No.2 and the OP No.2 is collecting amounts from the respective customers.

9.           To succeed in the complaint, it is upon the complainant to prove the allegations contained in the complaint and also to prove that the amount of Rs.13,000/- had been wrongly debited to his saving account No. 4476 9254 9702 8030.

10.         Admittedly, the JP log book is an important & authenticated document as in it (JP log book) the time and other details of usage are recorded.

11.         The OP No.1 has produced on record the JP log book along with the reply, wherein, it has been recorded that on 27.3.2008 at 15:37:05, the amount of Rs.13,000/- had been withdrawn from the account of the complainant.

12.         Now, it is proved on record that on 27.3.2008, the amount of Rs.13,000/- has been withdrawn by the complainant from his account bearing No. 4476 9254 9702 8030, by operating ATM card. The entry contained in the JP log book has also gone unrebutted and uncontroverted. Reliance placed on the case titled as Partap Singh Mehra Vs. Branch Manager, SBI decided on 22.07.2010 by our own Hon’ble State Commission in appeal No.69/2010. 

13.         It is not the case of the complainant that his ATM Card had been lost or the same had been handed over to any person. The PIN No. is only in his knowledge and none else. Thus, it is not in dispute that the complainant has kept the card in his safe custody and no one had access to it nor it was ever misplaced. Further only, the complainant was aware of the PIN number which is essential to operate the ATM Card. Therefore, it is not possible to make unauthorized withdrawal of Rs.13000/- from the ATM machine. Reliance has been placed on State Bank of India Vs. K.K.Bhalla, decided in Revision Petition No.3182 of 2008 on 7.4.2011 by the Hon'ble National Commission.

14.         The matter does not rest here. The learned Counsel for OP No.1 vehemently argued that the present complaint has not been filed within the period of limitation. The complainant has alleged vide para No.6 of the complaint that on 27.3.2008, he operated the ATM machine of OP No.1 in Sector 9, Chandigarh at around 3.00 PM. Thus, it is proved that the cause of action arose to the complainant on 27.3.2008, whereas, the present complaint has been filed on 15.12.2011. The limitation period to file the complaint as per Section 24-A (1) of the Consumer Protection Act, 1986 is two years. Thus, we are of the considered opinion that the complaint had not been filed within a period of limitation. Therefore, on this count also, this complaint is liable to be dismissed.

15.         Consequently, it is held that the complainant has failed to prove any deficiency in service on the part of OPs as it is proved on record that the amount of Rs.13,000/- has been withdrawn by the complainant by using his ATM card.

16.         As a result of the above discussion, the complaint is dismissed, with no order as to costs.

17.         Certified copies of this order be sent to the parties free of charge. The file be consigned.