Haryana

StateCommission

A/266/2017

AXIS BANK - Complainant(s)

Versus

RAVI PARKASH - Opp.Party(s)

MAN MOHAN SAROOP

14 Nov 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.266 of 2017

Date of Institution: 08.03.2017                                                              Date of Decision: 14.11.2017

 

Axis Bank Limited, through its Branch Manager, SCO:-40, Sector-7, Faridabad now represented through its authorized signatory.

Appellant.

Versus

 

1.      Ravi Parkash Jerath S/o Shri Om Parkash Jerath,

2.      Smt.Asha Jerath W/o Shri Ravi Parkash Jerath,

          Both R/o H.No.25, Sector-7 A, Faridabad.

                                      …..Respondents

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:               Shri Manmohan, Advocate counsel for appellants.

Mr.Viranjeet Singh Mahal, Advocate for the   respondent.

                              

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:-

          As per complainants they were having savings bank account bearing No.039010100006840 with opposite party (O.P.).  On 15.08.2008 they came to know that amount was withdrawn from their account fraudulently by using ATM card on the following dates:-

“Sr.No.	Dated	Amount
1	23.07.2008	20,020.00
2	23.07.2008	20,020.00
3	03.04.2008/04.04.2008	1,020.00
4	03.04.2008/04.04.2008	20,020.00
5	03.08.2008/04.04.2008	19,020.00
6	14.08.2008	20,020.00
7	14.08.2008	20,020.00
	Total	1,20,140.00”

 

They immediately approached O.P., but, matter was put off under one pretext or the other. Even their written complaint was not entertained.  Ultimately they  lodged complaint with police station  (P.S.) Sector-7, Faridabad on 16.08.2008.  Thereafter O.P. wrote letter dated 20.08.2008 to complainant No.1 i.e. Ravi Parkash Jerath alleging that  debit card bearing No.4902 5403 9003 6594 was directly sent by their central processing unit Chembur, Mumbai vide AW Bill No.274579874 through Pafex Courier on 06.01.2008 delivered on 11.01.2008 to Mrs. Asha and PIN No. was sent vide AW Bill No.62855649 by Overnite Express courier on 07.01.2008 delivered on 11.01.2008 to Mr.Arpit son of complainant.  They wrote letters to them on 21.08.2008 to supply documents regarding delivery of debit card, PIN card and withdrawal of amount from their account because they did not receive debit cards and PIN cards. They did not withdraw any amount with alleged ATM card. Neither O.Ps. gave any reply nor they took any action in this matter. So, O.Ps. be directed to pay Rs.1,20,140/- besides compensation qua mental harassment etc. cost of litigation as prayed for.

2.      In reply, it was alleged by O.P. that ATM card and PIN No. were sent to them and delivered at their residence on 11.01.2008 and proved by certificate issued by courier company as mentioned in para No.3 of the reply.  No amount was withdrawn  on the dates alleged by complainants.  They already filed complaint before the police about this incident and consumer fora should not entertain this complaint. As matter was to be probed thoroughly so dispute be referred to Civil Court for proper adjudication. Without original ATM card and PIN No. amount could not be withdrawn, so it must be to their notice that who used the same. Objections about maintainability of complaint, jurisdiction of consumer fora, locus standi, accruing cause of action, etc. were also raised and requested to dismiss complaint.

3.      After hearing both the parties, District Consumer Disputes Redressal Forum,  Faridabad (In short ‘District Forum’) accepted the complaint vide order dated 10.01.2017 and directed as under:-

“Opposite party is directed to credit amount of Rs.1,20,140/- alongwith interest @ 9% p.a. from the date of filing of the present complaint till realization of the amount and Rs.5500/- on account of mental agony as well as harassment besides Rs.2100/- as litigation expenses.”

4.      Feeling aggrieved therefrom, appellant/opposite party has filed this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for the complainant vehemently argued that  there is no evidence on the file showing that ATM card  or  PIN No. were issued to complainant No.1 and his wife Smt. Asha.  No document is produced to prove their signatures about receipt of these items. It is no-where proved that they were called to the bank for operating ATM. It shows that the amount was withdrawn from their account in-connivance with O.P.  Learned District forum rightly allowed the complaint and appeal be dismissed.

7.      If we sift the evidence available on the file then it will be clear that complainants are not entitled for the relief granted by District forum.  As per their averments the amount was withdrawn  on 23.07.2008, 03.04.2008, 04.04.2008 and 14.08.2008, whereas according to statement of account no such transaction took place on 03.04.2008 and 04.04.2008.  This fact could not be considered as typographical mistake because both the complainants produced the  separate affidavits about transanction on the said date.  It is specifically mentioned in the affidavits that the contents mentioned therein were true and correct to their knowledge.  This fact falsifies their version about withdrawal of amount in the month of April, July  and August 2008.

8.      Further it appears to be an after thought version because as per statement of account, they were operating this account even after the alleged dates. Huge amount was deposited and withdrawn in between and amount was also deposited in cash.  Had they not used ATM card they would have come to know about withdrawal of amount there and then. Why they kept mum for such a long time is no-where explained.  The account was operated on 26.07.2008, 28.07.2008, 04.08.2008, 09.08.2008 and 13.08.2008 also.  It can not be expected from  them that they were unable to know this fact because both of them are educated persons because application sent to police station was written in English by complainant Sh.  R.P. Jerath.  Asha Jerath is also putting her signatures in English.    Had they been layman then it could have been a different matter.  As per certificate dated 26.03.2010 consignment was delivered on 11.01.2008 at 12.15 p.m. to Mrs. Asha Jerath.  As per certificate dated 08.04.2010 the consignment was delivered on 11.01.2008 at 14.30 hours. These consignments were  sent by the office of O.P.  As per these certificates the record of acknowledgement/copy is kept for three months after delivery. So it was not possible to produce record showing their signatures during proceedings of this complaint, which was filed in the year 2009.  All these facts clearly show that ATM card was delivered to them and they withdrew the amount.  Without knowing PIN No. and using ATM card it was not possible to withdraw the amount.  As per complainants they lodged police report, but, have not informed about the result of the same.  So, in these circumstances it cannot be presumed that there was any deficiency in service  on the part of O.P. or that complainants did not withdraw the amount. Learned District Forum failed to take into consideration this aspect. So impugned order dated  10.01.2017 is set aside.   Appeal is allowed and complaint is dismissed.

8.  The statutory amount of Rs.25,000/-  deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

 

November 14th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.

 

F.A. No.266  of 2017

Present:-    Mr.Manmohan , Advocate counsel for the appellants.

Mr.Viranjeet Singh Mahal, Advocate counsel for the respondent.

 

                   Delay of 11 days in filing the appeal is hereby condoned for the reasons stated in the application for condonation of delay.

 

 

November 14th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.