Haryana

Karnal

352/2012

Gurudutt S/o Tikka Ram - Complainant(s)

Versus

State Bank Of India - Opp.Party(s)

R.K. Sharma

13 Oct 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No. 352 of 2012

                                                             Date of instt. 23.07.2012

                                                               Date of decision:13.10.2016

 

Gurudutt son of Shri Tikka Ram, resident of village and Post Office Uchana, Tehsil and District Karnal.

 

                                                                         ……..Complainant.

                                                Versus

1. State Bank of India, Branch at Jagadhari, Tehsil Jagadhari, District Yamuna Nagar.

2. Tata Finance Motors Ltd. at Karnal Sector-12, Urban Estate, Karnal.

 

                                                                                 …………Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Shri R.K. Sharma Advocate for complainant.

                    Shri Pankaj Mahlotra Advocate for opposite party no.1.

                    Shri Vineet Rathore Advocate for opposite party no.2.

                                      

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act, 1986, on the averments that he was having an account no.10537022419 with the opposite party no.1. The said account was opened by him in the year 2004-2005 while he was posted at Jagadhri/Yamuna Nagar in Forest Department of Haryana Government. In the year 2008 the balance in the account was Rs.50,000/-. He purchased one Indica Car, which was financed by opposite party no.2 and the installments for the said loan were to be paid by opposite party no.1. He had ATM card of opposite party no.1, which was kept by him in his car. On 12.6.2008 the car was stolen and he informed the opposite party no.1 on 13.06.2008 that the ATM Card was lying in dickey of the car at the time of theft of the car. On the demand of the opposite party no.1 he also sent copy of the First Information Report regarding theft of the car. He was assured by opposite party no.1 that ATM account would be stopped immediately. On 21.11.2008 he presented the cheque bearing no.19030821 for an amount of Rs.50000/-, but in the month of December, he received a telephonic message that he had withdrawn Rs.80000/- from his account i.e. an amount of Rs.30,000/- in excess, which he was required to return to opposite party no.1. This act of opposite party no.1 was illegal under the fact and circumstances of the matter. He served a registered legal notice upon the opposite party no.1, but the opposite party no.1 did not pay any heed towards the same, rather started raising demand illegally of Rs.30,000/- allegedly withdrawn in excess. Such acts and conduct on the part of the opposite party no.1 amounted to deficiency in service and unfair trade practice, due to which he suffered mental pain, agony and harassment apart from financial loss.

2.                Notice of the complaint was given to the opposite parties. Opposite party no.1 put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that this Forum has no territorial jurisdiction to entertain and decide the present complaint; that the complaint is bad for mis-joinder of necessary party; that the complainant has not approached this forum with clean hands; that the complaint is time barred and that complicated questions of law and facts are involved, which can be decided by the Civil Court.

                   On merits, it has been submitted that the complainant had deposited an amount of Rs.50,000/-in his account on 25.11.2008 and on that day the balance in the account was Rs.53531/-. Thereafter, he withdrew Rs.40,000/- by means of three transactions of Rs.15,000/-, Rs.15,000/- and Rs.10,000/- respectively on 30.11.2008, leaving a balance of Rs.13,456/-. On 1.12.2008  he withdrew Rs.10,000/- leaving a balance of Rs.3456/-. Thereafter, he was not entitled to withdraw any amount from ATM, but he again on the same day withdrew Rs.30,000/- by means of two transactions, one after the other taking wrongful advantage of the wrong balance shown in ATM Log. Therefore, the complainant was in arrears of Rs.26,544/- as he was not legally entitled to withdraw Rs.30000/- on 1.12.2008. Opposite party no.1 requested the complainant, vide letters dated 6.12.2008 and 24.12.2008 to return the excess amount alongwith interest thereon. Notice dated 21.01.2009 was also served upon the complainant, but to no effect. Instead of discharging his obligation to make the balance payment to the opposite party bank, he sent a legal notice dated 19.12.2011 fabricating a story of theft of his car and the ATM Card lying therein. The legal notice was duly replied on 24.12.2011. The complainant has filed the complaint to conceal his misdeeds and to avoid the payment of the overdue amount to the bank. In this way, complaint is abuse of the process of law.

3.                Opposite party no.2 filed separate written statement. Objections have been raised that the complainant has no cause of action against the opposite party no.2; that the complainant is not a consumer as defined under the Consumer Protection Act and that this Forum has no jurisdiction to entertain and decide the complaint.

                   On merits it has been submitted that the opposite party no.1 had provided financial facility to the complainant for an amount of Rs.2,00,000/- for purchase of Indica DLS vehicle bearing registration no.HR-05-T-7830. The complainant had no grievance against the opposite party no.2 and no relief has been claimed against it, therefore, complaint is not maintainable against it.

3.                In evidence of the complainant, his affidavit Ex. CW1/A and documents Ex.C1  to Ex.C6 have been tendered.

4.                On the other hand, in evidence of the opposite parties, affidavit of Mahipal Singh Ex.OP2/A and documents Ex.O1/A and Ex.O1 to Ex.O12 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                The complainant was having an account with the opposite party no.1. It has been alleged that he was having Rs.50,000/- in his account. His car bearing no.HR-05-T-7830 was stolen on 12.06.2008 and he informed opposite party no.1 on 13.6.2008 that his ATM car was lying in the dickey of the car at the time of theft. He also sent the copy of First Information Report to the opposite party no.1. It has further been alleged that on 25.11.2008 he presented a cheque of Rs.50,000/- for encashment, but in December 2008  he got telephonic message that he had withdrawn Rs.80,000/- from the opposite party i.e. Rs.30,000/- in excess, therefore, he was liable to return the amount withdrawn in excess. Opposite party no.1 has put up a difference story that the complainant was having an amount of Rs.53531/-in his account on 25.11.2008, but he withdrew Rs.40,000/- by means of three transactions on 30.11.2008 leaving the balance of Rs.13,456/- in his account and thereafter on 1.12.2008 he withdrew Rs.10,000/-leaving the balance of Rs.3456/-, but taking wrong advantage of the ATM log he withdrew Rs.30,000/- in excess by means of two transactions one after the other, therefore, he was liable to return the amount of Rs.26,544/- to opposite party no.1.

7.                It is worth pointing out at the very outset that the complainant has not produced any documentary evidence, which may show that he had informed the opposite party no.1 for blocking his ATM card after theft of his car in which the ATM card was allegedly lying at the time of theft. Without written request of the complainant, the opposite party no.1 could not block his ATM card. The opposite party no.1 has produced the copies of JP log Ex.O1, regarding withdrawal of the amounts from the account of the complainant through his ATM card. A perusal of the same reveals that on 30.11.2008 an amount of Rs.53,456/- was balance in the account of the complainant. He had done three transactions on that day and withdrew Rs.15,000/-, Rs.15,000/- and Rs.10,000/- respectively and available balance was shown as Rs.13,456/-. On 1.12.2008 while doing transaction for withdrawal of Rs.10,000/- available balance was shown as Rs.43,456/- and thereafter two transactions of Rs.15,000/- each were made by the complainant and that time the available balance was shown as Rs.13,456/-. When the available balance after three transactions on 30.11.2008 was left as Rs.13,456/- only, therefore, there could be no question of available balance of Rs.43,456/- on 1.12.2008, because it is not the case of the complainant that he had deposited Rs.30,000/- in his account after the transactions on 30.11.2008. This fact lends support to the version of the opposite party no.1 that the available balance of Rs.43,456/- was wrongly shown in the system of opposite party no.1 on 1.12.2008, whereas in fact only an amount of Rs.13,456/- was balance in the account of the complainant. Now the question arises whether the complainant had done all the transactions on 30.11.2008 and 1.12.2008 or some other person misused his ATM card.

8.                There is no dispute regarding the fact that no transaction can be completed with the help of any ATM card only, until and unless the PIN number is known to the person using the ATM card. PIN number is the secret code, which can be known only by the concerned person in whose name the ATM card has been issued. Until and unless the said PIN number is disclosed to any person no transaction can be made by such person with the help of ATM card. The complainant could only know the PIN number of his ATM card. Under such circumstances, the version of the complainant cannot be believed that somebody else had misused his ATM card and he had not done the transactions as shown in the JP Log of the opposite party no.1. It is also worthwhile to add that the opposite party no.1 had written letter to the Region-1 Administrative Office at Panchkula regarding verification of the record and on the basis of the record it was reported by Chief Branch Manager, vide letter dated 13.01.2010 Ex.O4 that the transaction were successful and no excess cash was found and no compensatory error was detected in the JP log. Looking into all these facts and circumstances, we have no hesitation in concluding that the complainant has altogether failed to establish that there was any deficiency in service and unfair trade practice on the part of the opposite parties.

9.                As a sequel to the foregoing reasons, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 13.10.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member