Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member

          This is an appeal filed by org. complainant whose complaint was partly allowed by judgement and award passed on 31/03/2010 in consumer complaint No.450/2009 by District Consumer Forum, Mumbai Suburban.  Not satisfied with the partial relief granted, the complainant has come up in appeal before us.

          The facts to the extent material may be stated as under :-

          The complainant-Mr.Kundanlal Jayaswal was having Saving Bank Account with O.P./Standard Chartered Bank.  As per rules in force the minimum balance of any customer in his account is required to be Rs.10,000/-.  Complainant pleaded that O.P. never sent quarterly statement of the account to the accountholder.  He further pleaded that O.P. increased the limit of minimum balance of Rs.10,000/- to Rs.25,000/- with effect from 01/01/2009.  Therefore, he opted for another option and opened the account under 3 in 1 system of ‘zero’ balance requirement.  In spite of linking to the original saving bank account on 26/03/2009 one representative of O.P. came to the complainant completed all the formalities of the new account under Three-in-One process and compliance was made and the representative of the Bank informed that no charges would be debited from his Saving Bank account since account was now converted into Three into One and linked with his original saving bank account.  However, when he received statement of account for the period from 01/04/2009 to 29/04/2009 he found that many discrepancies in the statement.  He immediately contacted O.P./Bank and moved an application requesting to reverse the amount of Rs.55.15, Rs.827.25 and Rs.1875.10.  But, O.P. did not reverse the amounts and did not give any response to the grievance made out by the complainant.  According to the complainant, this amounted to deficiency in service by the O.P. and therefore, he suffered mentally and physically and he always remained under tension.  He therefore filed consumer complaint praying for giving direction to the O.P. to credit amount of Rs.55.15, Rs.827.25 and Rs.1875.10 to his Saving Bank account and also prayed that O.P. should be directed to pay Rs.1 Lakh as compensation for mental harassment.  He also prayed for cost of the proceeding.

          O.P./Bank was served with the notice, but O.P. did not contest the matter and hence, ex-parte order came to be passed against the Bank.  Forum below accepted the complainant’s complaint and on finding that after filing of the complaint, amounts wrongfully debited had been credited in the account of the complainant, Forum below simply held the Bank guilty of deficiency in service for the intervening period i.e. from sending notice by the complainant to the O.P. and filing of the consumer complaint to the reversal of entries which O.P. made subsequently after filing of the complaint.  For this purpose, Forum below was pleased to partly allow the complaint and ordered the Bank to pay compensation of Rs.5,000/- with cost of proceeding Rs.2,000/-.  Aggrieved by the order passed by the Forum below, complainant himself has come up in appeal for claiming enhanced compensation.

          We heard appellant in person and Mr.S. Hussain, Advocate for the respondent/Bank. 

          We are finding that the complainant’s grievance about reversal of entries had been made during pendency of the complaint.  So, in fact complainant should have withdrawn the complaint in all fairness, but instead of doing so, complainant had an audacity to file another affidavit.  In second affidavit, complainant made out a case that he had tried to withdraw Rs.9,500/- from Axis ATM on 28/05/2009, but did not get any amount with the remarks ‘Transaction Declined’.  But, still Bank had shown debit amount of Rs.9,500/- in his Saving Bank Account and this amounted to deficiency in service.  In this claim affidavit which is filed by the complainant during pendency of the complaint, he made out a new ground which was not pleaded by the complainant in the original complaint.  If there was wrongful entry in respect of ATM transaction, complainant should have filed separate consumer complaint covering that transaction, but, complainant cannot be permitted to file additional claim affidavit and claim further relief of recovering the amount of Rs.9,500/- from the O.P. when that was not the case pleaded in the original consumer complaint.  In the consumer complaint as noticed earlier, complainant simply requested that Bank should be directed to re-credit the amount of Rs.55.15, Rs.827.25 and Rs.1875.10 with interest.  This was done during pendency of the complaint and even before the claim affidavit filed on 02/02/2010 and on the basis this claim affidavit filed on 02/02/2010 he has claimed further amount of Rs.9,500/- from the respondent/Bank with interest thereof.  We hold that complainant has to restrict himself to the original claim filed by him in his complaint and the claim affidavit, if any has got to be filed in support of the complaint he has filed in the Forum below.  Complainant cannot be permitted to file claim affidavit covering further claim which is not at all pleaded in the original complaint.  If at all he had a separate cause of action for alleged deficiency in service on the part of respondent/Bank on account of deduction of Rs.9,500/- though the ATM had declined the transaction (withdrawal of Rs.9,500/-), complainant should have initially amended the complaint and then should have filed affidavit in question.  But, without seeking amendment, complainant simply mentioned in the new claim affidavit that he should be given further amount of Rs.9,500/- with interest thereon in the pending complaint.  This is not permissible in law.  In fact complainant is guilty of unfairness in prosecuting his complaint.  Forum below rightly allowed the claim in respect of all other three transactions since there was deficiency in service on the part of respondent/Bank.  Forum below, however, rightly discarded claim affidavit filed by the complainant on 02/02/2010 and very rightly refused to entertain his further plea that he should be awarded amount of Rs.9,500/- plus interest plus further damages for alleged deficiency in service on the part of respondent/Bank.  If there is separate cause of action, same person has to file separate complaint or he should have at least sought permission of the Forum below to amend the pending complaint and then he could have been heard about second grievance he had mentioned first time in the claim affidavit filed on 02/02/2010.  In the circumstances, we are finding that the judgement and award passed by the Forum below is just, proper and it is sustainable in law and there is no merit in the appeal preferred by the complainant and same is therefore liable to be dismissed. 

Before parting with this judgement, we place on record the fact that the respondent/Bank has already paid to the complainant an amount of Rs.9,500/- which he has already withdrawn on June 16, 2010.  Therefore, appellant will have to be directed to refund the amount of Rs.2,500/- because the award has been passed only for Rs.7,000/-.  We however hold that appellant had unnecessarily dragged the respondent/Bank by filing this appeal which had no merit.  Therefore, we direct the appellant/complainant to pay further amount of Rs.2,500/- as cost of this appeal to the respondent.  In the circumstances, we pass the following order :-

                             -: ORDER :-

1.       Appeal filed by the complainant stands dismissed.

2.       Appellant is directed to pay a sum of Rs.2,500/- as cost of this appeal to the respondent/Bank and also directed to refund amount of Rs.2,500/- which he had received from the Bank on the order passed by this Commission on 16/06/2010.  Respondent/Bank is permitted to debit this amount if there is any such balance in the account of the appellant.

3.       Copies of the order be furnished to the parties.