Haryana

Karnal

CC/142/2021

Narinder Kumar - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

Rajesh Mani Kaushik

26 Apr 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 142 of 2021

                                                        Date of instt.09.03.2021

                                                        Date of Decision:26.04.2022

 

Narinder Kumar Advocate son of Shri Rajbir Singh, resident of house no.2941, Gali no.1, Shiv Colony, Karnal.

                                               …….Complainant.

                                              Versus

 

1.     Punjab National Bank, Mini Secretariat, Sector-12, Karnal through its Branch Manager.

2.     State Bank of India, Shakti Colony, Mall Road, Karnal through its Branch Manager.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

 Argued by: Shri Rajesh Mani, counsel for complainant.

                    Shri Somesh Garg, counsel for OP no.1.

                    Shri Pardeep Gupta, counsel for OP no.2.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that the complainant is having a saving account no.52092010008630 with the OP no.1 from the last so many years. Previously, the abovesaid account of the complainant was with Oriental Bank of Commerce Mini Secretariat, Sector-12, Karnal, however, now the said bank merged into the OP no.1. The complainant is also having an ATM card no.6070 8575 0517 3893, which is valid upto 11/2022. On 12.02.2021, the complainant alongwith his son Amit visited one of the ATMs centre of the OP no.2, then somebody called on his mobile and then the complainant gave his ATM card to his son and instructed him to withdraw the amount. The son of complainant put the ATM card in the ATM machine for withdrawing Rs.10,000/- and said amount of Rs.10,000/- was withdrawn by the son of the complainant. However, when the second time, the son of complainant put the said ATM card in the ATM machine for withdrawing another sum of Rs.10,000/-, no amount was expelled by the ATM machine, however, the complainant at that time, received a text message that Rs.10,000/- have been deducted out of his account. The son of complainant told him in this regard. The complainant immediately contacted the OP no1, who advised him to wait for 24 hours as within this period, the said amount will be credited in the account of complainant. After passing 24 hours, the amount was not credited in the account of the complainant. Thereafter, on the advice of the OP no.1, the complainant made a complaint on the toll free no.18001032222 on 13.02.2021 of the OP no.1 and the officials attending the said toll free number call assured the complainant that within 7 working days, the amount will be credited in the account of complainant, but it did not happen. When after 7 days, the complainant again made telephonic call on the abovesaid toll free, then he stated that his transaction has been successfully completed and the complainant was suggested to make an application with the OP no.1. Thereafter, complainant moved an application on 24.02.2021 to the OP no.1 seeking the refund of his abovesaid amount, but till today, the needful has not been done. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability and cause of action. On merits, it is pleaded that in the present complaint, complainant through his son used the ATM card issued by erstwhile Oriental Bank of Commerce now amalgamated with Punjab National Bank to the complainant in the saving bank account no.52092010008630 to withdraw cash of Rs.10,000/- each (two times) on 12.02.2021 from ATM machine of State Bank of India, Branch at Shakti Colony, Mall Road, Karnal, but no cash was alleged to have been dispensed on the second time. On receipt of complaint, the concerned branch of OP immediately took up the matter with bank’s head office to take up the matter with State Bank of India to inform the factual position about non-dispensing of cash and to credit the alleged amount in the bank’s head office account or in the account of the complainant. Even as per procedure laid down by Reserve Bank of India, after filing of complaint by the complainant with the bank’s head office on toll free number of the bank with whom the complainant has his saving account, the bank forward complainant’s complaint to the bank whose ATM Machine is used by the complainant and that the bank acts as per directions of other bank whose ATM machine is used. In the present case, the bank has not received any message or money from the other bank whose ATM machine is used. The concerned branch can only follow up the matter with the head office of the bank or branch of other bank, but in this case, branch or bank has not received any message or money from other bank i.e. State Bank of India whose ATM machine is used. In the present case, if there is any delay that is on the part of the State Bank of India or the complainant himself, since the complainant has not given any complaint number to branch of OP or in the entire complaint for proper follow up. Moreover, it is OP no.2, who is answerable for dispensing of alleged amount by the said ATM machine of OP no.2 and for rectification of complaint since CCTV footage of the said ATM machine is also available with OP no.2. It is also submitted here that ATM card is operated by third person (son of complainant) instead of repeated instructions given by OP to the ATM card holders. It is further pleaded that on coming of the complainant to the branch, the official of the bank told the complainant to lodge complaint on toll free numbers of the bank, so that the bank can take up the matter with State Bank of India. It is further pleaded that complainant has not provided any complaint number to the branch of OP nor written in the entire complaint for better efforts for refund of alleged amount in communication with head of answering OP or other bank. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version raising preliminary objections with regard to maintainability; locus standi and concealment of true and material facts. On merits, it is pleaded that in the present complaint, it has been alleged by the complainant that on 12.02.2021, his son used the ATM machine of the OP no.2. Firstly, the amount of Rs.10,000/- was dispensed, however, when the ATM machine of the OP no.2 was used for second time for withdrawing amount of Rs.10,000/-, no amount was dispensed by the said machine. As per the own admission of the complainant, firstly, the ATM machine of the OP was used by his son for withdrawing the money, secondly, the complainant is maintaining his account with OP no.1 and not with the OP no.2, therefore, it is clear that neither the complainant nor his son are consumer of OP no.2. The complainant is the consumer of OP no.1 where he is maintaining his account and he is having the ATM card of the OP no.1. It is further pleaded that the amount of Rs.10,000/- has been shown to be debited by the OP no.1 from the account of the complainant and therefore, the complaint is liable to be dismissed. It is further pleaded that the complainant has not approached the OP no.2 even for a single time to redress his complaint regarding non-dispensing of amount from the ATM machine of the OP no.2. It is further pleaded that it is correct that first transaction of Rs.10,000/- was successful, however, second transaction of Rs.10,000/- made from the ATM machine of the OP was unsuccessful. It is further pleaded that complainant never approached the OP with any complaint at any point of time and moreover, the amount was shown to be debited in the account of the complainant by the OP no.1 and as such, the complainant cannot say that there is deficiency in service on the part of the OP no.2.

4.             Parties then led their respective evidence.

5.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of account statement Ex.C1, copy of ATM receipt Ex.C2, copy of ATM statement Ex.C3, copy of application dated 24.02.2021 by complainant to OP Ex.C4 and closed the evidence on 31.08.2021 by suffering separate statement.

6.             On the other hand, learned counsel for OP no.1 has tendered into evidence affidavit of Randhir Singh Jaglan, Senior Manager Ex.OP1/A, copy of email dated 24.09.2021 Ex.OP1/B, copy of email dated 31.08.2021 Ex.OP1/C, copy of transaction dated 12.02.2021 Ex.OP1/D and closed the evidence on behalf of OP no.1 on 10.02.2022 by suffering separate statement.

7.             Learned counsel for OP no.2 has tendered into evidence affidavit of Normal Singh Dhull, Branch Manager Ex.OP2/A and closed the evidence on 10.02.2022 by suffering separate statement.

8.             We have heard the learned counsel for the parties and have perused the case file carefully.

9.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant is having bank account bearing no. 52092010008630 with the OP no.2 Bank. On 12.02.2021 a sum of Rs.10000/- were withdrawn by the complainant from his account. He further argued that the son of complainant second time put the ATM card in the ATM machine for withdrawing of Rs.10,000/-, but no amount was dispensed by the ATM machine. However, the complainant received a text message that Rs.10,000/- have been deducted out of his account. After receiving the withdrawal message complainant approached the OPs and requested to credit the said amount, but he did not receive the said amount from the OPs. Hence, prayed for allowing the complaint.

10.            Learned counsel for OP no.1, while reiterating the contents of the written version, has vehemently argued that complainant through his son used the ATM card issued by the OP no.1 for withdrawing the amount of Rs.10,000/- twicely on 12.02.2021 from ATM machine of OP no.2 but no cash was alleged to have been dispensed on the second time. On receipt of complaint, the concerned branch of OP immediately took up the matter with bank’s head office to take up the matter with State Bank of India to inform the factual position about non-dispensing of cash and to credit the alleged amount in the bank’s head office account or in the account of the complainant. He further argued that the bank has not received any message or money from the other bank whose ATM machine is used. If there is any delay that is on the part of the OP no.2 or the complainant himself, since the complainant has not given any complaint number to branch of OP  in the entire complaint for proper follow up. Hence, prayed for dismissal of the complaint.

11.           Learned counsel for OP no.2, while reiterating the contents of the written version, has vehemently argued that on 12.02.2021, son of complainant used the ATM machine of the OP no.2. Firstly, the amount of Rs.10,000/- was dispensed, however, when the ATM machine of the OP no.2 was used for second time for withdrawing amount of Rs.10,000/-, no amount was dispensed by the said machine. He further argued that the amount of Rs.10,000/- has been shown to be debited by the OP no.1 from the account of the complainant. It is admitted that first transaction of Rs.10,000/- was successful, however, second transaction of Rs.10,000/- made from the ATM machine of the OP was unsuccessful. He further argued that complainant has not approached the OP no.2 even for a single time to redress his complaint regarding non-dispensing of amount from the ATM machine of the OP no.2. Hence, prayed for dismissal of the complaint.

12.           We have duly considered the rival contention of the parties

13.           Admittedly, the complainant is having a saving account no. 52092010008630 and ATM card with the Bank of OP no.1. It is also admitted that said ATM card was used on 12.02.2021 at the ATM machine of OP no.2.

14.           As per the version of the complainant on 12.02.2021, the complainant alongwith his son Amit went to the ATM of OP no.2. The son of complainant put the ATM card in ATM machine for withdrawing Rs.10,000/- and the said amount was withdrawn, however, when for the second time, son of complainant put the said ATM card in the ATM machine for withdrawing another Rs.10,000/-, but no amount was dispensed by the ATM machine. However, the amount of Rs.10,000/- was deducted from his account. It is evident from the Ex.C4 that in this regard complainant has moved an application for not withdrawing the amount and supplying the CCTV footage. This fact has also been proved from the emails Ex.OP1/B and Ex.OP1/C.

15.           It is also evident from the bank account statement of complainant Ex.C1, statement of ATM withdrawal Ex.C3 and copy of email Ex.OP1/D, that disputed amount has been deducted from the account of the complainant. Moreover, this fact has not been denied by the OP no.1.

16.           The OP no.2 has taken a plea that complainant is not a consumer of the OP, and complainant is only the consumer of OP no.1 where he is maintaining his account and is having the ATM card. The complainant has used the ATM card at the ATM machine of OP no.2 and generally all the banks charges for using the ATM card as per norms of the Banks. Thus, complainant falls under the definition of consumer and we found no substance in this plea taken by the OP.

17.           OPs no.1 and 2 has tried to shift their liability to each other, but erring party cannot escape from their liability and complainant cannot be made responsible for the wrong acts committed by the erring party.

18.           It has been proved on the record that an amount of Rs.10,000/- has been deducted from the account of the complainant, which was not dispensed by the ATM machine of the OP no.2.  As per the version of the OP no.1, on receipt of the complaint, they immediately took up the matter with the Bank’s Head office to take up the matter with the OP no.2 to inform the factual position about non dispensing of cash, but in the present case OP no.1 has not received any message or money from the Bank of OP no.2 whose the ATM machine was used. OP no.2 has not responded the query of the OP no.1 and has tried to shift its liability to OP no.1. Thus, we are of the considered view that the act of the OP no.2 amounts to deficiency in service and unfair trade practice. Hence, OP no.2 is liable to pay the amount of Rs.10,000/- to the complainant, alongwith interest, compensation for harassment and litigation expenses.

19.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP no.2 to pay Rs.10,000/- to the complainant with interest @ 9% per annum from the date of deduction of the amount from the account of complainant i.e. 12.02.2021 till its realization. We further direct OP no.2 to pay an amount of Rs.10,000/- to the complainant as compensation for harassment suffered by him and Rs.5500/- as litigation expenses. This order shall be complied with within 45 days from the date of receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to record room after due compliance.

Dated:26.04.2022

                                                                       

                                                                 President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

(Vineet Kaushik)           (Dr. Rekha Chaudhary) 

                     Member                        Member