Haryana

Yamunanagar

CC/598/2012

Satish Kumar S/o Nanu Singh - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

Ramesh Kumar Shandilya

05 Apr 2016

ORDER

 

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                                Complaint No. 598 of 2012.

                                                                                                Date of Instt. 08.06.2012.

                                                                                                Date of Decision:05.04.2016

Satish Kumar aged about 35 years son of Shri Nanu Singh, resident of Village Kanipla, Tehsil Bilaspur, District Yamuna Nagar.                                                                                                                                                                                                                                                                                                                                                      ..Complainant

     Versus

Punjab National Bank, Branch Sadhaura, District Yamuna Nagar, through its Branch Manager. 

                                        ..Respondent.

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

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

Present:       None for complainant.

                    Sh. Pardeep Garg,  Advocate counsel for respondent.

ORDER   

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

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant is having saving account bearing No. 1722000100092701 in Punjab National Bank at Sadhaura with the ATM facility. That on 13.02.2012, the complainant went to OP Bank to withdraw an amount of Rs. 13,000/- from his aforesaid account but the complainant was shocked when he came to know that a sum of Rs. 10,000/- and further Rs. 520/- have been withdrawn by someone from his bank account on 26.01.2012 through ATM. In fact complainant never withdrew the aforesaid amount on 26.01.2012. The complainant immediately contacted the Branch Manager and narrated him all the facts. On the same day, complainant moved an application in this regard and also lodged a complaint on toll free number but till date the amount has not been refunded nor any action has been taken in this regard. The act of the OP shows the deficiency in service and unfair trade practice. Hence, the complainant is entitled to get compensation of Rs. 50,000/- besides refund of  amount of Rs. 10520/- withdrawn from his account illegally and wrongly alongwith interest and litigation expenses. Hence, this complaint.

3.                     Upon notice, OP Bank appeared and filed its written statement mentioning therein that in fact as per the record of the OP Bank , the ATM of the OP Bank was not used by the complainant and the aforesaid amount of Rs. 10,000/- has been withdrawn from some other bank’s ATM. Further, it has been mentioned that on 23.01.2012, the amount of Rs. 10,000/- and Rs. 8,000/- was withdrawn by the complainant as per record through ATM and both the transactions were done by the complainant on the same day.  The transactions have been completed and the amount has been withdrawn from the bank account of the complainant through ATM Machine of the other bank ( Axis Bank), as mentioned in the affidavit OP. As such, the OP Bank has no role to play. However, it has been admitted that complainant has moved an application with the Op Bank and the same was referred to the head office and it was found that ATM of the OP Bank was not used in withdrawal of the amount and the transaction has been completed through the ATM machine of other bank. Hence, the OP Bank has no liability in this respect. Lastly, it has been prayed that there is no deficiency in service and the complaint is liable to be dismissed.  

4.                        Complainant failed to adduce any evidence despite so many opportunities including last opportunities and ultimately the evidence of the complainant was closed by court order on 17.02.2016. However, at the time of filing of complaint, complainant filed his affidavit and documents such as Photo copy of Pass book as Annexure-A, Photo copy of ATM Card as Annexure-B,  Application dated 23.22012 as Annexure-C with the complaint in support of his complaint. 

5.                     On the other hand, counsel for the OP Bank tendered into evidence affidavit of Shri V.K.Vohra, Branch Manager, Punjab National Bank as Annexure RX and document such as Photo copy of account statement as Annexure R-1 and closed the evidence on behalf of OP Bank.                      

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

7.                     The moot question is whether the amount of Rs. 10000/-  and Rs 520/- has been drawn by the complainant through ATM Machine or not?

8.                     To prove this version complainant has only tendered into evidence his affidavit, copy of pass book and application moved on 23.2.2012 whereas on the other hand, only account statement alongwith affidavit of the Manager has been filed by the Op to rebut the version of the complainant. During the course of arguments counsel for the OP Bank has also placed on file copy of E-mail dated 2.4.2013 sent to the Axis Bank for demanding J.P. Log /Recon sheet with no excess cash certificate, switch report and CCTV Footage. It has been further argued by the counsel for the OP Bank that when the complainant approached the OP Bank then immediately Op Bank sent the E-mail to the Axis Bank. From the perusal of account statement Annexure R-1 and photo copy of pass book Annexure C-1, it is evident that complainant had also withdrawn an amount of Rs. 10,000/- and Rs. 8000/- respectively on 23.1.2012 and again on 26.1.2012, he has withdrawn an amount of Rs. 10,000/- and Rs. 520/- from the ATM. Thus, the record of the bank positively indicated that an amount of Rs. 10,000/- and Rs. 500/- had been withdrawn either by the complainant  or by someone else by misusing the card of the complainant to whom he may have handed over. The complainant has not led any evidence that he had not withdrawn the amount of Rs. 10,000/- and Rs. 520/- or the ATM system was not in operation on 26.1.2012. Learned counsel for the OP Bank has further stated that according to the ATM withdrawal system, whenever any customer wanted to withdraw some money, the consumer had to use his Pin number ( password) which was a secret number and was known only to the customer and none else and according to the record of the bank the amount had actually been withdrawn and referred the case law titled as Rajeshwar Singh Versus State Bank and Others, 2008(3) CLT page 242  and 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                      Further, we have also perused the case law titled as State Bank of India vs. K.K.Bhalla, 2011(3) CLT page 256 (NC) –in which it has been held that ATM cum Debit Card as well as the PIN numbers was only in his personal custody and knowledge.  Merely because the CCTV was not working on that and footage was not available does not mean that money could be withdrawn frequently without using ATM Card and PIN number and the same view has been  discussed in case law titled as The Branch Manager, State Bank of India Versus Samuel Tirkey & others, 2013(3) CLT page 604. 

10                    From the perusal of the above noted case law, we are of the considered view that there is no deficiency in service on the part of OP Bank. Further, the complainant has not come to this Forum with clean hands as he has not impleaded the necessary party i.e. Axis Bank of which he used the ATM Machine. The complainant has supported his claim only by his affidavit, copy of pass book, photo copy of ATM card and application dated 23.2.2012, without leading any trustworthy and reliable evidence which could show that any lapse or fault has occurred on the part of OP Bank. It is true that normally a person would not tell a lie but in civil matters, complainant was obliged to prove his claim by preponderance of his evidence. Complainant should have called for the statement of the opposite parties showing opening and closing balance in ATM machine on that day alongwith with amount withdrawn  which should have proved that Rs.10520/- were not disbursed to him. 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 counsel for the OP Bank, we are of the considered view that the plea of the complainant is not tenable and law cited by the counsel for the OP is fully applicable to the facts of the present case.  Hence, there is no merit in the complaint and the same is hereby dismissed. The parties are left to bear their own costs.  A copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.

Announced in the open court:

Dated: 05.04.2016.

                                                                                    ( ASHOK KUMAR GARG)

                                                                                     PRESIDENT

 

                                                                                            

                                                                                    (  S.C. SHARMA)

                                                                                      MEMBER