BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

                                                                   Complaint  No.239 of 2018

                                                                   Date of Instt. 05.06.2018

                                                                   Date of Decision: 15.07.2019

Bharat Kumar C/o Jupiter Tanning Co. 113 Leather Complex, Jalandhar.

                                                                             ..........Complainant

Versus

1.       Punjab National Bank, Basti Danishmanda, Jalandhar through its Branch Manager.

2.       State Bank of India, Main Branch Building, Civil Lines, Jalandhar, Punjab through its Branch Manager.

                                                                           ….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh              (President)

                              Smt. Jyotsna                      (Member)

 Present:        Sh. Robin Budhiraja, Adv Counsel for the Complainant.

                              Sh. Sandeep Kalia, Adv Counsel for the OP No.1.

                    Sh. Ravinder Manuja, Adv Counsel for the OP No.2.

Order

                             Karnail Singh (President)

1.                The instant complaint has been filed by the complainant, wherein alleged that the complainant having a Saving Bank Account No.2991000100060664 in Punjab National Bank, Basti Danishmanda, Jalandhar. The complainant have attempted to withdraw cash from SBI ATM Model House i.e. ATM of OP No.2 on 09.10.2017 at 6:38 PM, but cash was not received by complainant at that time. The receipt of the ATM shows unable to process and same time a mobile SMS has received on complainant’s mobile that Rs.7000/- has been withdrawn. In reality complainant has not received any amount from the ATM machine. The complainant has made a complaint to customer care on very next day and till today, complainant has got no response from customer care. Moreover, at that time executive of customer care said to wait for next 10 to 15 days for refund. Then on 18.11.2017, the matter was reported to the concerned Branch Manager i.e. OP No.1 in the form of application. The OP No.1 has said to complainant that he has emailed the matter to Sr. Manager Head Office, New Delhi many times, but no result or reply has been received till today. The complainant has visited numbers of time to bank, but OP No.1 till today made no solution of his complaint, moreover now OP No.1 not attending him properly and insulted complainant.

2.                That on 01.02.2018, the complainant sent one legal notice to OP No.1 regarding this matter, but no reply has been given yet. The OP has committed great negligence, deficiency and unfair trade practice with the complainant. The above mentioned acts of OPs have caused mental tension, pain, agony, harassment, loss of precious time of complainant for which the complainant is entitled to recover an amount of Rs.20,000/- from OPs as damages, compensation under the provisions of Consumer Protection Act, 1986, Rs.7000/- as amount refund with Rs.10,000/- as legal expenses, total amounting to Rs.37,000/-. The compensation claimed by complainant is neither improper nor boosted rather is reasonable, just appropriate and justified in the above circumstances and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to compensate an amount of Rs.20,000/- from OPs as damages/compensation under the provisions of Consumer Protection Act, 1986, Rs.7000/- as amount refund with Rs.10,000/- as legal expenses, total amounting to Rs.37,000/-.

3.                Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form, as the same is based upon wrong, false and frivolous facts, as the complainant is guilty of materially concealing and suppressing material facts and has approached this Forum with unclean hands with sole intention of deceiving this Forum. It is further specifically submitted that the complainant’s suppression and concealment is evident from the fact that complainant has no where stated that he had requested the OP No.2 for providing videography of  dated 09.10.2017 so to prove his claim. The complainant has not attached any receipt of the ATM alongwith present complaint to prove his contention. Moreover, the instant complaint has been devised to mislead the Forum. It is further averred that the complainant has failed to disclose the true facts, whereas the real facts are that as per the information and record available with the OP No.1, an amount of Rs.7000/- is debited from the saving account of the complainant bearing account No.2991000100060664 on 09.10.2017. Copy of the statement of account is attached. Moreover, as per Electronic Journal Log-Electronic Journal is a record of all ATM transactions captured inside the ATM machine shows successful transaction. Electronic Journal Log is attached as Annexure B. Moreover, the complainant after the alleged incident, as alleged by him, has never made any complaint regarding the same with the answering OP on the same day. The complainant has made a complaint with the answering OP No.1 on 18.11.2017 that too after the period of 40 days, which falsify the claim of the complainant. It is further submitted that on receiving the compliant of the complainant the matter was referred to higher authorities and as per the report received from higher authorities the transaction, the matter has been taken up with the concerned bank and other bank, proof of successful transaction was also provided to the answering OP No.1. On merits, the factum in regard to transaction through ATM as well as having account in the said bank is not denied, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that the complaint of the complainant is without any cause of action against the OP No.2, as such, the same is liable to be dismissed on this score alone. It is further averred that OP No.2 has been unnecessary dragged into the litigation knowingly well that no cause of action has ever arisen against the OP No.2 and further alleged that the complaint is false and frivolous to the knowledge of the complainant and as such, the same is liable to be dismissed. On merits, it is submitted that the Card No.607098XXXXXX3584, TXN No.3931, Reference No.728218000996 was used at SBI ATM, Model House on 09.10.2017 at 18:34 i.e. 06:34 PM and not at 06:38 PM and an amount of Rs.7000/- was withdrawn from account of the complainant as per electronic statement generated instantly, when the ATM machine is used/operated for any purpose. As per response code i.e. ‘000’, the transaction was a successful transaction. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

5.                In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA along with some documents Ex.C-1 Application, Ex.C-2 Copy of Passbook, Ex.C-3 Email, Ex.C-4 Legal Notice, Ex.C-5 Postal Receipt and then closed the evidence.

6.                Similarly, counsel for the OP No.1 Sh. Sandeep Kalia, Adv. tendered into evidence affidavit Ex.RW2 along with some documents i.e. Electronic Journal Log as Ex.RW2/A, Account Statement Ex.RW2/B and Copy of complaint as Ex.RW2/C and then closed the evidence.

7.                Similarly, counsel for the OP No.2 Sh. Ravinder Manuja, Adv. tendered into evidence affidavit Ex.RW1/A along with some documents i.e. EJ Log taken from the ATM Switch Centre is Ex.R-1, Response Code along with description is Ex.R-2, No excess cash certificate is Ex.R-3 and then closed the evidence.

8.              We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

9.                After considering the over all circumstances as put before us by the respective parties and find that the factum in regard to operating a saving bank account by the complainant, bearing No.2991000100060664 with Punjab National Bank, Basti Danishmanda, Jalandhar, is not in dispute and further it is also not controverted by both the OPs that on 09.10.2017, the complainant operated the ATM of OP No.2/State Bank of India for withdrawing of an amount of Rs.7000/-, though it was at 06:38 PM or 06:34 PM that does not deny, but it is clearly admitted that ATM was operated by the complainant on 09.10.2017 for withdrawing of some amount and as per version of the complainant, he operated the ATM, but the amount was not came out from the ATM and as per ATM receipts, it is shown thereon that ATM is unable to process, but in the mean while, the complainant received a SMS from his banker i.e. OP No.1 that Rs.7000/- has been withdrawn from his account and accordingly, the complainant admittedly made a complaint to the customer care as well as to his banker on 18.11.2017 in writing. Admittedly, there is a delay of 40 days for reporting the matter to the banker of the complainant, but in the mean while, the matter was pending before the customer care i.e. not denied by the OPs and under these circumstances, if the matter has been reported to the OP No.1 after 40 days delay that will no effect on the right of the complainant.

10.              Now, directly we come to the plea of the OP, both the OPs alleged that the transaction was success and in support of this version, the OP No.1 brought on the file Electronic Journal Log as Ex.RW2/A and Account Statement Ex.RW2/B. Similarly, the OP No.2/SBI brought on the file EJ Log taken from ATM, which is Ex.R-1 and Response Code alongwith description is Ex.R-2 and No Excess Cash Certificate is Ex.R-3.

11.              We have carefully scan the plea taken by both the OPs and find that the OP No.2 whose ATM was operated by the complainant categorically alleged that there are code number showing successful transaction or un-successful transaction, for that purpose, the OP No.2 has brought on the file a document i.e. Response Code Ex.R-2 and similar plea has been taken by the OP No.1 by placing on the file a document Ex.RW2/A showing successful transaction and same document has been also produced on the file by OP No.2 as Ex.R-1, showing successful withdrawn of Rs.7000/-. Now coming back to the document of Response Codes Ex.R-2, wherein the code number ‘00’ and ‘01’ are denoting the successful transaction and if we go through the EJ Log Ex.R-1, wherein the response code is mentioned ‘000’, means that does not tally with the code mentioned in document Ex.R-1 meant for successful transaction i.e. ‘00’ and ‘01’. So, from this angle, the OPs itself failed to establish that the transaction of the complainant was successful or not rather the code ‘000’ does not show a successful transaction in the list of Response Codes Ex.R-2. So, from this document, the version of the complainant is established that he has not received the amount from the ATM.

12.              Further, the OP alleged that the complainant did not produce the ATM receipt, no doubt the complainant has not produced the ATM receipt as alleged in Para No.3 of the complaint, but the operation of the ATM by the complainant on 09.10.2017 is not denied by the OPs and as such, if receipt of ATM not produced by the complainant having no legal aspect in this complaint. Further, OP took a plea that the complainant never asked for CCTV footage, which itself falsified the case of the complainant. We do not agree with this version of the OP that the complainant has not demanded the CCTV footage rather when the complainant filed the instant complaint, then duty casted upon the OP No.2 to produce the said CCTV footage in the Forum, but for the best known reason the OP has miserably failed to produce the said CCTV footage in the Forum and moreover, the OP No.2 whose ATM was used by the complainant, also failed to produce copy of JP print roll of the particular date of the bank and as such, the OP No.2 is liable to pay the said amount to the complainant and in support of this observation, we like to refer a pronouncement of Hon’ble Haryana State Commission, cited in 2017(1) CLT, titled as “Punjab National Bank Vs. Deepak Rawat, wherein his Lordship held as under:-

“ Banking-ATM- Complainant used ATM Machine- As per complainant on account of some technical fault though the amount was not disbursed, however, it was debited from his account-Plea of OP is that as per log book the transaction was successful-OP did not produce copy of JP print roll of the particular date of Axis Bank in support of their contention that the transaction was successful-OP did not ever produce the CCTV Footage-Held-Non-production of best evidence by the OP raises an inference against them and therefore an adverse interference has to drawn against the OP-The non-production of record which was lying with the OP was listed sufficient to allow the complaint.”  

13.              In view of the above detailed discussion, the complaint of the complainant is partly accepted and OP No.2/State Bank of India is directed to reimburse the said amount of Rs.7000/- to the complainant alongwith compensation for causing mental tension to the complainant, to the tune of Rs.5000/- and litigation expenses of Rs.2000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.  

14.               Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                             Jyotsna                                Karnail Singh

15.07.2019                          Member                              President