DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 22nd day of December, 2022
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member
Date of Filing: 08.05.2019
CC/153/2019
K.P Mani,
S/o Krishnan,
Residing at Kulavalliyil Puthan House,
Azhiyannur, Parassery post,
Mannarkkad Taluk,
Palakkad District
Pin - 678 631. - Complainant
(By Adv. A.V Ravi and Adv. Sujeesh.G)
Vs
1. M/s HDFC Bank,
Building No.135A. P.C Road
Azhiyannur - 678 633
Palakkad District
Rep. by its Manager
2. M/s State Bank of India,
Peringode Branch, Post Parassery,
Palakkad District 678 631
Rep. by its Manager - Opposite parties
(By Adv. P. Ram Mohan)
O R D E R
By Smt.Vidya A., Member
1. Pleadings of the complainant in brief.
Complainant is having credit card facility with the 1st opposite party bank and the complainant was regularly effecting re-payment to the credit card account and his Credit Card number is 5459648501030754. The complainant is also maintaining savings bank account NO. 50100077203246 with that branch.
On 16.10.2017, the complainant had withdrawn an amount of Rs. 10,000/- through the ATM counter of the 2nd opposite party. On 17.10.2017 also he made an attempt to withdraw an amount of Rs. 10,000/- from the very same ATM counter, but no amount was received. The complainant had intimated about this to the 1st opposite party. But the 1st opposite party considered it as withdrawal from his account and the amount was collected from the complainant.
The complainant filed two complaints before the 1st opposite party on 20.07.2018 and 19.11.2018. But the opposite party did not give any reply and no steps were initiated by the 1st opposite party to refund the amount collected on 17.10.2017.
The complainant preferred a complaint before the banking Ombudsman and it was closed because the records in respect of that transaction were not traceable. The Banking Ombudsman made a remark that the complainant is at liberty to take up the matter before appropriate Forums for Redressal of his grievance.
The action of the 1st opposite party amounts to clear Deficiency in service and unfair trade practice. The 2nd opposite party is made a party inorder to prove that no payment was made to the complainant through their ATM counter at Peringode. So this complaint is filed.
- To direct the opposite parties jointly and severally to refund Rs. 10,000/- along with interest @ 12% per annum from 17.10.2017 till realization.
ii. To direct the 1st opposite party to pay Rs. 25,000/- towards
deficiency in service and Unfair trade Practice committed by them
and to pay the cost of the complaint and such other reliefs which
the Forum finds fit and proper to grant.
2. Complaint was admitted and notices were issued to the opposite parties. Both opposite parties entered appearance and filed their version.
3. First opposite party’s contention in their version
The complainant is not a ‘Consumer’ and dispute raised is not a consumer dispute as per the Consumer Protection Act. They denied the allegations in the complaint that on 17.10.2017, the complainant made an attempt to withdraw an amount of Rs. 10,000/- from the ATM counter of the 2nd opposite party, but no amount was received. As per their knowledge, the complainant had collected an amount of Rs. 10,000/- through the ATM counter of the 2nd opposite party. They admit that the complainant had lodged two complaints before the 1st opposite party on 20.07.2018 and 19.11.2018. Since the disputed transaction is on 17.10.2017 the time limit for reporting the complaint to the bank is 60 days from the date of transaction failing which the issuing bank has no charge –back right to refer the dispute to acquiring bank. In this case, the complainant had given written complaints only on 20.07.2018 and 19.11.2018. An oral submission was made by the complainant on 24.01.2018 and it is also made after 60 days of the disputed transaction.
Eventhough the complaint was given by the complainant after 60 days, the 1st opposite party made a request to the 2nd opposite party on 02.02.2018, but it was rejected by them on 17.02.2018.
The Banking Ombudsman had closed the complaint under clause 13(a) of Banking Ombudsman Scheme and no liberty was granted to the complainant to take up the matter before the appropriate Forum.
There is no Deficiency in service/Unfair trade Practice on the part of this opposite party. The opposite party had not debited Rs. 10,000/- without effecting payment as alleged in the compliant. Since the ATM counter used is that of the 2nd opposite party, whether the amount is collected or not could be traceable if it is checked within 60 days of the disputed transaction. Here the chance of checking the genuineness of the complaint is lost as it is filed beyond the statutory period. This opposite party is not liable to pay any amount to the complainant. If at all the complainant proves that any money is lost, 2nd opposite party is liable to pay the money as the ATM machine used is that of the 2nd opposite party. The complaint is frivolous and vexatious and it has to be dismissed with the cost this opposite party.
4. The main contentions raised by the 2nd opposite party in their version.
No service charges were rendered by the 2nd opposite party from the complainant as such the complaint is not maintainable and they are unnecessary party to this proceedings.
They denied the allegations in the complaint regarding the non- receipt of the amount through this opposite party’s ATM counter on 17.10.2017. The complainant had taken the amount and was making frivolous statement. No cause of action took place on 17.10.2017 against this opposite party.
This opposite party properly maintains its books of account. No relief is claimed against them and they are unnecessary party and the complaint has to be dismissed with their cost.
5. From the pleadings of both parties, the following points arise for consideration.
1. Whether the complainant is a Consumer and the dispute is
Consumer dispute as per the C.P Act?
2. Whether the complainant had succeed in proving that he did not get
money when attempt to withdraw on 17.10.2017?
3. Whether there is any Deficiency in service or unfair trade
practice on the part of Opposite parties?
4. Whether the complainant is entitled to the reliefs claimed?
5. Reliefs as cost and compensation.
6. Complainant filed proof affidavit in evidence and Exhibit A1 to A3 marked. Making of Exhibit A1 is objected to on the ground that it is a photocopy without certification Exhibit A2 and A3 are objected on the ground that they are photocopies and is not accompanied by postal receipt or acknowledgement. Opposite parties also filed proof affidavit and Exhibits B1 and B2 marked from the side of the 2nd opposite party. Opposite parties filed petition to cross examine the complainant and it was allowed. Since the complainant was having difficulty in hearing, to avoid the difficulties, an Advocate commissioner was appointed to record his deposition. Complainant was examined as PW1. Evidence closed. Opposite parties filed notes of argument. Heard.
7. Point No: 1
The 1st opposite party’s contention is that complainant is not a ‘Consumer’ and the dispute is not Consumer dispute as defined in the C.P. Act. The complainant is having credit card facility with the 1st opposite party and also having Savings Bank account with them. Since Banking service is included in the ‘Service’ under the C.P Act, the complainant is a “Consumer” and the dispute is Consumer dispute. Point No: 1 is found in favour of the complainant.
8. Point No: 2
Complainant’s contention is that he is maintaining Savings Bank account No. 50100077203 with the 1st opposite party. On 16.10.2017, he had withdrawn Rs. 10,000/-through the ATM counter of the 2nd opposite party. On 17.10.2017, also he made an attempt to withdraw Rs. 10,000/- from the very same ATM counter. But he did not receive any money and he informed about this to the 1st opposite party. Eventhough he did not get the amount, the 1st opposite party had illegally debited an amount Rs. 10,000/-from his savings bank account.
9. Complainant produced two complaints given by him to the 1st opposite party which were marked as Exhibit A2 and A3. (Marking of Exhibit A2 and A3 is objected on the ground that they are photocopies and is not accompanied by postal receipt or acknowledgement)
Exhibit A2 is dated 20.07.2018 and Exhibit A3 is dated 19.11.2018.
10. According to the 1st opposite party, the complainant collected the amount through the ATM counter of 2nd opposite party. They admit that the complainant lodged 2 complaints before the opposite party on 20.07.2018 and 19.01.2018. Since the disputed transaction is on 17.10.2017, if the complainant having any grievance, it is to be reported to the bank within 60 days from the date of transaction failing which the issuing bank does not have charge –back right to refer the dispute to acquiring bank. Oral submission was made by the complainant on 24.01.2018 ie also 60 days of the disputed transaction.
11. From Exhibit A1 and A2, it is clear that the complainant had lodged complaints with the opposite party on 20.07.2018 and 19.11.2018 ie after a lapse of 9 months, he lodged the 1st complaint. During cross-examination the complainant deposed that “A1 Dw A2 Dw AÃmsX ]cmXn sImSp¯Xn\v thsd sXfnhnÔ. The complainant’s contention can only be proved through the CCTV footage of that ATM counter on that day. Complainant did not file any application to direct the 2nd opposite party to produce the CCTV footage. So the complainant had not succeeded in proving that even though he tried to withdraw money through ATM on 17.10.2017, he did not receive any amount. Point No: 2 is found against the complainant.
12. Points 3to 5
Opposite party 2 produced the Extract of Electronic Journal Log of ATM which is marked as Exhibit B1. In Exhibit B1, as 4th entry complainant’s card no 436303xxxxxx4113 ending with 4113 and A/c 50xxxxxx246 (ending with 246) is shown. Against withdrawal, Rs. 10,000/- is written and the date is 17/10/2017. Exhibit B1 shows that the complainant had withdrawn Rs. 10,000/- through SBI ATM, Peringode on 17.10.2017. Exhibit B2 is their ‘Cash Balance Report’. On perusal of Exhibit B2, no excess amount is outstanding in ATM. So the opposite parties have successfully proved that the complainant had received Rs. 10,000/- on 17.10.2017 through 2nd opposite party’s ATM counter.
13. Further, when the complainant lodged a complaint before the 1st opposite party regarding the non- receipt of amount, it was raised before the 2nd opposite party without any delay and they rejected it as it was made after considerable period.
Since the complaint to the 1st opposite party is made after reasonable time, and no effort is made by the complainant to prove his case, no Deficiency in service can be attributed on the part of the opposite parties. So the complainant is not entitled to the reliefs claimed.
In the result, the complaint is dismissed.
Pronounced this in open court on the 22nd day of December, 2022
Sd/-
Vinay Menon V
President
Sd/-
Vidya A
Member
Sd/-
Krishnankutty N.K
Member
APPENDIX
Exhibits marked on the side of the complainant:
Ext.A1 – Copy of Account statement issued by the
opposite party bank.
Ext. A2 - Copy of complaint issued by the complainant to
the opposite party, dated.20.07.2018.
Ext.A3 - Copy of complaint issued by the complainant to
the opposite party dated.19.11.2018.
Exhibits marked on the side of the opposite party
Ext.B1 – Extract of Electronics Journal Log of ATM issued
by SBI, Peringod Branch dated. 17.10.2017. (Original)
Ext.B2 - Cash Balance Report issued by SBI, Peringode
Branch Dated. 17.10.2017. (Original)
Witness examined on the side of the complainant-
PW1 –Complainant – K.P. Mani
Witness examined on the side of the opposite party: -NIL
Cost: Nil
NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they be weeded out.
