Punjab

Faridkot

CC/15/148

Kirandeep Kaur - Complainant(s)

Versus

Ramesh Lal - Opp.Party(s)

Mandeep Chanana

15 Mar 2016

ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :         148

Date of Institution :    20.10.2015

Date of Decision :      15.03.2016

Kirandeep Kaur Bhatti w/o Pawanjit Singh Bhatti, r/o House No. 13, Ward No. 5, Jivan Nagar, Faridkot, Tehsil and District Faridkot.              

  .....Complainant

Versus

1. Sh Ramesh Lal, Branch Manager (responsible person)/authorized person, Indian Bank, Branch Jublee Cinema Chowk, Backside of Canara Bank, Faridkot Tehsil and District Faridkot.

2. Indian Bank, Corporate Office, Pb No. 5555, 254-260, Avvai Shanmugam Salai, royalpettah, Chennai-600014.

3. Manager Axis Bank, Opposite Balbir Enclave, Faridkot.

   ..Ops

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh Ajit Aggarwal, President,

   Smt Parampal Kaur, Member,

   Sh P Singla, Member.

   Present:       Sh Mandeep Chanana, Ld Counsel for Complainant,

    Sh D S Sidhu, Ld Counsel for OP-1,

    Sh Sandeep Tayal, Ld Counsel for OP-3,

    OP-2 Exparte.

   (Ajit Aggarwal, President)

                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to them to reverse the entry of Rs 7,000/-illegally deducted from the account of complainant and for further directing them to pay Rs.50,000/-as compensation for harassment, mental agony and Rs.5000/- as litigation expenses.

   2                               Briefly stated, the case of the complainant is that complainant is having account no. 6253263912 in the bank of OP-1, which is regularly operated by complainant. On 8.09.2015, when complainant was having balance of Rs28,093/-in her account, she went alongwith her husband for walk and withdrew an amount of Rs7000/-from Axis Bank ATM, Opposite Balbir Enclave of OP-3 by inserting the card in that ATM, but neither amount nor withdrawal slip came out of machine and then, husband of complainant cancelled the transaction. Thereafter, they went to ATM of HDFC bank and withdrew Rs7000/-, but to their great surprise, husband of complainant received the message on his mobile for withdrawal of Rs7000/-two times and the account was debited to sum of Rs14,000/-. After this, husband of complainant went to Branch Manager of OP-1 and made oral complaint, but OP-1 did not pay any heed to it and on asking of number of Ombudsman, OP-1 started making lame excuses. After one day, both complainant and her husband went to the office of OP-1 and made written complaint regarding illegal deduction of Rs7000/- and to get the CCTV footage from the Axis Bank regarding withdrawal from her account regarding which reference no. is F0007-494059 was given and Op-1 assured that complaint of complainant is forwarded to OP-2 and their amount of Rs 7000/-would be reversed within a week, but till now, no amount is reversed by OP-1. On 18.09.2015, complainant went to OP-3 for complaint regarding bogus withdrawal of amount through ATM and to check the balance but OP-3 flatly refused to do so. It is submitted that transaction is only between Op-1 and 3, and only OP-3 can take action on complaint of OP-1 and further refused to give CCTV footage. Complainant has made many requests to OP-1, but now, Op-1 have flatly refused to hear the complainant and no response is given by Branch Manager. Despite repeated requests by complainant, OPs have failed to redress her grievance and this act and conduct of the OPs has caused great harassment and mental tension to complainant, which amounts to deficiency in service and unfair trade practice. Counsel for complainant has prayed for seeking directions to Ops to reverse the entry of Rs7000/-illegally deducted from the account of complainant and has also prayed for compensation of Rs.50,000/- besides Rs 5,000/- as costs of the complaint along with main relief. Hence, the complaint.

   3                                           The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 28.10.2015, complaint was admitted and notice was ordered to be issued to the opposite party.

   4                                         On receipt of the notice, OP-1 filed written statement taking objections that complaint is not maintainable and is liable to be dismissed as no cause of action arises against OP-1. Complainant has no locus standi to file the present complaint against OP-1 as they have no fault at all because the complainant made two transactions of Rs.7000/-each on 8.09.2015as per bank record. Complainant approached OP-1 regarding her grievance and answering OP sent her complaint to the head office of the OP-1 i.e OP-2, who sent the copy of transaction of ATM of Axis Bank, Faridkot regarding transaction of Rs7000/-on 8.09.2015 at 5.47 a.m. without any delay and thus, there is no deficiency in service on the part of answering OP. However, on merits, it is averred that complainant withdrew Rs.7000/-through ATM of Axis Bank, Faridkot at 5.47 am and Rs7000/-through ATM of HDFC Bank and complaint of complainant was sent to OP-2 and it is reiterated that there is no deficiency in service on the part of OP-1 and prayed for dismissing the complaint with costs.

   5                                      OP-3 also filed reply taking preliminary objections that complainant is not their consumer and therefore complaint in hand is liable to be dismissed. It involves complex question of law and facts and this Forum has no jurisdiction to hear and try the present complaint. Moreover, complainant has concealed the material facts from complainant and complainant has not come to the Forum with clean hands. It is averred that complainant used his ATM card on 8.09.2015 and withdrew Rs7000/- vide transaction no.6505 and it was successful and moreover, after receiving complaint from OP-1, matter was investigated and Head office of answering OP gave certification that cash successfully dispensed and no excess cash found at the said ATM. However, on merits, OP-3 has denied all the allegations levelled by complainant being wrong and incorrect. It is totally denied that amount did not come out of ATM and averred that transaction made by complainant was successful and cash was successfully dispensed with. It is asserted that for the use of ATM services, human hand is not involved and whenever these services are utilized, the electronic procedure comes into operation and upon completion of same, the cash is dispensed with and accordingly, the account of complainant is debited. Even electronic journal confirms this fact. It is further averred that complainant never approached OP-3 regarding her grievance, rather OP-1 sent letter dt 21.11.2015 to OP-3 and after investigation, Head Office of answering Op gave bank certification that cash successfully dispensed with and no excess cash found at the said ATM. It is further averred that there is no deficiency in service or unfair trade practice on the part of answering opposite party. All other allegations and the allegation with regard to relief sought too were refuted with a prayer that complaint may be dismissed with costs against the answering opposite party no. - 3. Notice containing copy of complaint and summons was sent to OP-2 through registered cover, but RC did not receive back in this Forum undelivered. Statutory period expired. It is presumed that acknowledgment must have been mis-laid or lost in transit and therefore, Op-2 was proceeded against ex-parte vide order dt 17.12.2015.

   6                                     Parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-7 and then, closed her evidence.

   7                                               In order to rebut the evidence of the complainant, Counsel for OP-1 tendered in evidence his affidavit as Ex. OP-1/1 and documents Ex OP-1/2 to OP-1/4 and then, closed the evidence. Ld counsel for OP-3 tendered in evidence affidavit of Manish Kumar as Ex Op-3/1 and documents Ex OP-3/2 to 5 and then, closed the same.

   8                                             Ld Counsel for complainant argued that in order to make a withdrawal, complainant alongwith her husband inserted her ATM card in the Automatic Transaction Machine of Axis Bank of OP-3, situated opposite to Balbir Enclave and filled the amount of Rs7,000/-, but she was shocked to see that neither withdrawal slip nor any amount came out of ATM and thereafter, her husband cancelled the said transaction. Then, they went to ATM of HDFC Bank and withdrew the amount of Rs.7000/-, but they were surprised to see the message on the mobile phone of her husband that amount of Rs7000/-was withdrawn for two times and account of complainant was debited twice showing total amount of Rs.14,000/-as withdrawn. Her husband immediately went to Branch Manager of OP-1 and made oral complaint, but OP-1 did not pay any heed to his complaint and then, when he asked him to provide him the number of Ombudsman, Op-1 started making lame excuses. Next day, husband of complainant made written complaint regarding excess withdrawal from the account of complainant and OP-1 assured to forward the said complaint to OP-2 and also assured her husband that entry of excess withdrawn  amount would be reversed within a week. Copy of complaint is Ex C-3.After a week, her husband again visited OP-1 with request to reverse the said entry and credit the amount of Rs7000/-wrongly debited/deducted from the account of complainant. On 18.09.2015, complainant went to OP-3 for complaining about the false withdrawal by Automatic Transaction Machine and to check the balance, but OP-3 flatly refused saying that said transaction is between OP-1 and OP-3, and OP-3 can take action only on complaint of OP-1 and also refused to give cctv footage. Copy of complaint made on 18.09.2015 is Ex C-2. After that despite repeated requests made by complainant and her husband, Ops did not hear them and refused to give cctv footage to complainant. All these acts of Ops have caused huge financial loss as well and mental agony, inconvenience and harassment to complainant and her family and complainant has prayed for accepting the complaint.

   9                                   The main point urged by ld counsel for complainant is that Ops have not produced cctv footage as it was the only cogent evidence to enable the complainant to prove her case. Ops did not provide the cctv footage to complainant despite repeated requests of complainant and even on directions issued by this Forum and without any reason for not providing cctv footage to complainant and even in not producing the same despite directions of this Forum does not seem appropriate and genuine. Ld Counsel for complainant submitted that Ops have wilfully and intentionally suppressed the cctv footage, which is only documentary evidence to prove the authenticity of case of complainant. In reply Op-1 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that as per record of Bank, on 8.09.2015 two transactions for Rs.7000/-each were made by complainant. She made one transaction through ATM of Axis Bank, Faridkot at 5.47 am and second  transaction from ATM of HDFC Bank and complaint of complainant was sent by them to OP-2. OP-3 has also denied all the allegations made by complainant and asserted that complainant used his ATM card on 8.09.2015 and withdrew Rs7000/-vide transaction no. 6505 and it was successful and on receiving complaint of complainant from Op-1, matter was investigated and Head Office of OP-3 gave bank certification that cash was successfully dispensed and no excess cash was found from the ATM of Axis Bank. Counsel for OP-3 further averred that for using ATM services, human hand is not involved anywhere and when these services are utilized, the electronic procedure comes into operation and on its completion, cash is dispensed with and accordingly the account is debited. In case of complainant, electric journal confirmed that transaction made by complainant was successful. It is denied if complainant ever approached OP-3 for redressal of his grievance. It is reiterated that cash was successfully dispensed and no excess cash found at said ATM.

   10                                    The case of complainant is that she has a bank account with OP-1 Bank and debit card is issued to her. On 8.09.2015, she went to withdraw money from her bank account from ATM of OP-3 Bank, but neither cash nor withdrawal slip came out of the ATM but this amount was debited from her account. She immediately made complaint regarding it with Ops and requested them to reverse this amount in her account but they paid no heed to her request and did not credit the said amount in her account. On the other hand, Ops submitted that amount withdrawn by her duly received by her and the status of her transaction at ATM of OP-3 is as successful. Moreover, they did not find any excess amount in the ATM on that day and transaction of complainant was successful and she has filed this false and frivolous complaint against them. On it, counsel for complainant argued that there was no amount dispensed from the ATM and they immediately made complaint regarding it with Ops and they denied cctv footage of the said ATM, which could clear the picture whether any amount dispensed with from the ATM and received by the complainant or not, but Ops intentionally did not give the cctv footage. Moreover, in her evidence, complainant demanded the cctv footage from Ops, but they withheld the same and adverse inference for withholding the best evidence may be taken against Ops.

   11                                    We have carefully scrutinized the record and have gone through the file and evidence placed on record. There are rival contentions of both the parties and in this case, the cctv footage of the Automatic Transaction Machine is in possession of Ops, but they failed to produce the cctv footage either on the request of complainant immediately after the incident or in this Forum on the application of complainant to produce the same and intentionally withheld the cctv footage which was the best evidence in this case to clear the picture. So in these circumstances, we are of considered opinion that there is a deficiency in service and trade mal practice on the part of Ops and therefore, complainant in hand is hereby allowed. The Ops are ordered to refund the amount of Rs7000/-which are wrongly debited from the account of complainant alongwith interest at the rate of 9% per anum from 8.09.2015 till final realization. Ops are further directed to pay Rs 3000/-as compensation for harassment and mental tension and Rs2000/-as litigation expenses. Ops are directed to comply with the order within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

   Announced in open Forum:

   Dated: 15.03.2016

   Member                Member            President (Parampal Kaur)         (P Singla)             (Ajit Aggarwal)