Haryana

Yamunanagar

CC/137/2013

Sanjeev Kumar S/o Kamal Kishore - Complainant(s)

Versus

Oriental Bank Of Commerce - Opp.Party(s)

Bhanwar Singh

14 Dec 2016

ORDER

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                    Complaint No. 137 of 2013.

                                                                                    Date of Institution: 18.02.2013.

                                                                                    Date of Decision: 14.12.2016

Sanjeev  Kumar aged about 26 years son of Sh. Kamal Kishore, resident of House No. 718/A, Near FIC Godown, Durga Garden, Jagadhri, Distt. Yamuna Nagar.                                                                                                                                                       

                                                                                                             ..Complainant

                   Versus

Oriental Bank of Commerce, Main Branch, Yamuna Nagar through its Branch Manager.

                                                                                                             

                                                                                                             ..Respondent.

BEFORE: SH. ASHOK KUMAR GARG …………….    PRESIDENT

                  SH. S.C. SHARMA  …………………………MEMBER         

 

Present: Sh. Bhanwar Singh, Advocate, counsel for complainant.

               Sh. Rajiv Gupta, Advocate, counsel for respondent.

ORDER   

1.                        The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986.  

2.                     Brief facts of the present complaint, as alleged in the complaint, are that complainant is having his saving bank account No. 00062191009781 with the facility of ATM Card with the respondent Bank (hereinafter referred as OP Bank). On 18.04.201, the complainant operated his ATM card five times to withdraw money but only four times successfully withdrew the money but one time the said ATM did not debouch money and it was jumped. On 03.05.2012, the complainant went to OP Branch to get update his pass book and thereafter when he perused his passbook, he was astonished to see that the OP has wrongly showed five successful withdrawal on 18.04.2012 whereas the complainant withdrew money only four times successfully and has not received the amount of Rs. 5020/- which has been wrongly shown withdrawn by the OP. After coming to know this fact, the complainant immediately approached to Op Bank and requested that he has not withdrawn the amount of Rs. 5020/- on 18.04.2012 which is wrongly shown as withdrawn. On this, the OP assured the complainant that they will look into the matter and will refund him the amount of Rs. 5020/- which has not been withdrawn by the complainant. Feeling assured with the assurance made by OP Bank, the complainant came back but after lapse of sufficient time, the OP Bank did not refund the amount of Rs. 5020/-. On this, the complainant again contacted the OP and then OP Bank got filled up a chargeback form on dated 28.05.2012 from the complainant and again assured that they will soon refund him the amount which has been wrongly shown withdrawn in his account but despite lapse of about more than 10 months, the OP Bank has not refunded his illegally withdrew amount despite repeated requests. Lastly, prayed for directing the Op Bank to refund an amount of Rs. 5020/- alongwith interest and further to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OP Bank appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; no negligence or deficiency in service on the part of Op Bank; the complainant has not come to this Forum with clean hands and has not only misled the Op Bank but is also trying to mislead this Forum. The true facts are that the complainant is a saving bank account holder of OP Bank bearing account No. 00062191009781. On 18.04.2012 the complainant who is ATM Card Holder operated his account through ATM card four times at ATM of Oriental Bank of Commerce Branch Jagadhri and one time from some other bank’s ATM and withdrew a total amount of Rs. 22020/- vide five separate transactions and all four transactions from OBC ATM were successful and complete and this fact is fortified and corroborated by the electronic/ computerized record of the ATM which is maintained in the usual course of business of the bank. The true copy of J.P. Log showing successful transaction is enclosed for kind perusal of this Forum. As far as the fifth transaction from other bank’s ATM is concerned, the complainant did not complained for this transaction, therefore no complaint is lodged for this transaction. On merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence his affidavit as Annexure CX and documents such as Photo copy of passbook as Annexure C-1, Photo copy of Chargeback form as Annexure C-2 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP Bank tendered into evidence affidavit of Om Veer Singh, Manager, OBC as Annexure RW/A and documents such as photo copy of transaction slip as Annexure R-1 and Intimation sent through e-mail as Annexure R-2 and closed the evidence on behalf of OP Bank.  

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very carefully and minutely.

7.                     The only plea of the complainant is that on 18.04.2012, he visited the ATM of the OP No.1 Bank at Jagadhri for withdrawing the amount through his ATM card and swapped his ATM Card for five times to withdraw money but only four times the complainant successfully withdrew the money as one time the said ATM did not debouch money and it was jumped. On 03.05.2012, the complainant went to the OP Branch to get update his pass book and thereafter, when he perused his pass book, he astonished to see that the OP Bank has wrongly showed five successful withdrawal on 18.04.2012 whereas the complainant withdraw money only for four times and has not received the amount of Rs. 5020 which has been wrongly shown withdrawn by the OP Bank. In this regard, complainant contacted the Branch Manager of OP Bank and requested him that has not withdrawn the amount of Rs. 5020/- but till date no action has been taken by the OP Bank.  Learned counsel for the complainant further argued that it is duly evident from Pass Book (Annexure C-1) that an amount of Rs. 5,020/- has been debited from the account of the complainant on 18.04.2012 and referred the case law titled as State Bank of Patiala Versus Sumit Kumar & Another, IV (2013) CPJ page 249 (NC) and State Bank of India Versus Shankar Parshad Yadav and others, 2012(2) CLT page 338 and lastly prayed for acceptance of complaint.

8.                     On the other hand, counsel for the OP Bank hotly argued at length that the complainant has concealed the true and material facts from this Forum as the transactions remained successful and draw our attention towards the transaction slip (Annexure R-1) and copy of passbook statement (Annexure C-1) from which it is duly evident that complainant used his ATM card for 5 times on the same day i.e. on 18.04.2012 and firstly he withdraw Rs. 5,020/- from some other bank’s ATM and after that he withdraw an amount of Rs. 5000/-, Rs. 2000/-, Rs. 5000/-  and Rs. 5000/- from the account. So, the version of the complainant is totally false and requested for dismissal of the complaint and referred the case law titled as State Bank of India vs. Mangilal Mangal and another, Revision Petition No. 3044 of 2013 decided on 11.04.2016, and further referred the case law titled as State Bank of India Vs. Om Parkash Saini I (2013) CPJ 749 (NC) wherein it has been held that Banking and Financial Institution Services- Withdrawal from ATM-Defect in machine alleged-Amount could not be withdrawn-Slip showing deduction from account-Refund of amount denied- Alleged deficiency in service-District Forum allowed complaint-State Commission dismissed appeal-Hence, revision. Camera is fixed on the face of user and not on the keys of ATM and delivery window-Non supply of video footage had no bearing on claim of complainant- No other person complained for not receiving money on that day-It cannot be presumed that complainant did not receive Rs.5,000/- from ATM machine-Impugned order set aside.

9.                     After hearing both the parties and going through the documents placed on file, it is clearly evident that the complainant swapped his ATM card five (5) times on 18.04.2012 for withdrawing the amount from his account. Firstly, the complainant swapped his ATM card for withdrawing Rs. 5,020/- from the other Bank’s ATM as the complainant was aware about the balance in his account as Rs. 22,793/- and this transaction was successful. After that complainant again swapped ATM card for withdrawing the amount of Rs. 5000/-, Rs.2000/-, Rs. 5000/- and Rs. 5000/- on the same day i.e. on 18.04.2012 as he was having knowledge that now balance remains as Rs. 5793/- in his account and these transactions were also successful. However, again complainant swapped his ATM card on 19.04.2012 for withdrawing Rs. 1000/- & 4000/- and these transactions were also successful but the complainant is totally silent for these facts and has not disclosed in his complaint that on 19.04.2012 he swapped his ATM Card two times. The plea of the complainant that on 03.05.2012, he went to Op Bank to get update his pass book and when he perused his passbook he astonished to see that the OP Bank has wrongly showed five successful withdrawal on 18.04.2012 is not tenable as the complainant was well aware of the balance in his account on 19.04.2012, when an amount of Rs. 4000/- and Rs. 1000/- were withdrawn from his account by the complainant then how it can be presumed that the amount of Rs. 5,000/- was not disbursed to the complainant by the ATM Machine. Further, the complainant has not placed on file any ATM slips to prove the transactions done due to reasons known to him and he has only placed on file photo copy of pass book Annexure C-1 and has not placed on file the copy of ATM slips vide which the amount was disbursed or not to him. Further, the complainant has nowhere mentioned or alleged in his complaint that ATM machine of the OP Bank was not working properly whereas from the perusal of receipts Annexure R-1, it is clearly evident that ATM Machine of the OP Bank was working properly.

10.                    From the other angle also, when the complainant could not succeed to get the amount of Rs. 5,020/- first time then why he again tried to get the amount of Rs. 5000/- Rs.2000/-, Rs.5000/- and Rs. 5000/- from the same ATM Machine of the OP Bank. Normally, machine does not lie but man may do so. Moreover, there is nothing on the file to prove any negligence or deficiency in service on the part of OP Bank and the present complaint deserves dismissal.

11.                   Keeping in view the above mentioned facts and circumstances and going through the citations referred by the parties, we are of the considered opinion that the plea of the complainant is not tenable and law cited by the learned counsel for complaint is not disputed but not applicable to the facts of present case.  Hence, we find no merit in the present complaint and the same is hereby dismissed. The parties are left to bear their own costs.  A copy of this order be sent to the parties concerned free of costs as per rules. File be consigned to record room after due compliance.

Announced in the open court: 14.12.2016

                                                                                    (ASHOK KUMAR GARG)

                                                                                     PRESIDENT,

                                                                                     D.C.D.R.F. Yamuna Nagar.

 

                                                                       

                                                                                    (S.C. SHARMA)

                                                                                      MEMBER