Haryana

Yamunanagar

CC/604/2012

Hemant Kumar S/o Shiv Ram - Complainant(s)

Versus

State Bank Of Patiala - Opp.Party(s)

Sonia Rohila

04 Apr 2016

ORDER

 

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                                Complaint No. 604 of 2012.

                                                                                                Date of Instt. 08.06.2012.

                                                                                                Date of Decision:04.04.2016

Hemant Kumar aged about 44 years son of Sh. Shiv Ram, resident of House No. 206, Ward No.22, Near Chandpur, Gandhi Nagar Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                                                                                                                                                 ..Complainant

     Versus

State Bank of Patiala, Main Branch Yamuna Nagar, District Yamuna Nagar, Through its Branch Manager.

                                        ..Respondent.

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

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

Present:       Ms. Sonia Rohilla, Advocate counsel for Complainant

                    Sh. Atul Jaiswal,  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 with the respondent Bank (hereinafter referred as OP Bank) i.e. State Bank of Patiala bearing account No. 65004901327 with the ATM facility. On 23.03.2011 complainant went to withdraw some amount at 10 A.M. and used the ATM card in ATM machine of IDBI Bank at Kamani Chowk Yamuna Nagar and withdrew an amount of Rs. 6000/- only one time. On 29.-3.2011, complainant checked his account and it has been revealed that an amount of Rs. 6000/- has been debited two times from the account of the complainant on 23.3.2011 whereas only one time said amount of Rs. 6000/- has been received by the complainant. Accordingly, the complainant approached the OP Bank and requested them to make necessary correction but the OP Bank put off the matter on one pretext or the other. Finding no other alternate the complainant served a legal notice on 10.5.2010 which was duly received by the Op Bank but instead of acceding the contents of legal notice, an evasive reply has been given to the counsel of the complainant. The act of the OP Bank amounts to unfair trade practice and lastly prayed that OP Bank be directed to refund an amount of Rs. 6000/- alongwith interest and compensation and litigation expenses. Hence, this complaint.

3.                     Upon notice OP Bank appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, as the complainant had withdrawn the amount from the ATM of IDBI Yamuna Nagar and the amount debited by the IDBI, so, there is no concern with the OP Bank. However, on the request of the complainant OP Bank had contacted their link office at Bombay and demanded details of the transaction done by the complainant. The link office after consulting the IDBI Bank had revealed that all the transactions made by the complainant on 23.3.2011 were made successfully. As per Electronic Journal Log furnished by the IDBI Bank, the transactions were made by the complainant successfully and on merit it has been submitted that complainant had made two transactions on 23.3.2011 vide transaction No. 108210006990 and again 108210006992 from the IDBI Bank ATM and had withdrawn Rs. 6000/- each respectively. It has been mentioned that when the complainant approached the OP Bank then the OP Bank immediately contacted their link office Bombay and lodged the complaint of the complainant with them who are contacting the IDBI Bank gave their report that transaction made by the complainant are shown successfully and also provided T.P. Log, where the transaction made by the complainant are shown successfully so, recovering the amount of Rs. 6000/- to the complainant does not arise at all. Lastly, prayed for dismissal of complaint.

4.                        To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Carbon copy of application dated 27.7.2011 as Annexure C-1, Carbon copy of letter dated 10.5.2011 as Annexure C-2, Carbon copy of letter dated 29.3.2011 as Annexure C-3, Photo copy of legal notice dated 10.5.2012 as Annexure C-4, Photo copy of reply to the legal notice as Annexure C-5 and closed the evidence on behalf of complainant.  

5.                     On the other hand, counsel for the OP Bank tendered into evidence affidavit of Shri S.R. Ansal, Chief Manager State Bank of Patiala, as Annexure RW/A and documents such as Photo copy of E-mail sent to the Link Office Bombay as Annexure R-1, Photo copy of reply to the legal notice as Annexure R-2, Photo copy of Electronic Journal Log as Annexure R-3 and closed the evidence on behalf of OP Bank.                     

6.                     We have examined the pleadings and documents of the parties placed on file very carefully and minutely. There is no dispute between the parties that complainant is having a saving account with the Op Bank i.e. State Bank of Patiala bearing account No. 65004901327. The moot question is whether the amount of Rs. 6000/- has been drawn by the complainant one time or twice through ATM of the IDBI Bank at Kamani Chowk, Yamuna Nagar or not?  The version of the complainant is that he has withdrawn an amount of Rs. 6000/- only one time on 23.03.2011 whereas as per the version of the Ops complainant had made two transactions on 23.3.2011 vide transaction No. 108210006990 and again 108210006992 from ATM Machine of IDBI Bank which is duly proved from the Electronic Journal Log Annexure R-3. It has been further argued by the counsel for the OP Bank that when the complainant approached the OP Bank then immediately OP Bank contacted their Link Office Bombay and lodged the complaint and link office who after consulting the IDBI Branch and after receiving the details of customer transactions had cleared that both the transactions made by the complainant were successfully and the same version was duly conveyed to the complainant as well as his counsel through reply of the legal notice dated 18.5.2012 (Annexure C-5). So, the complainant has no right to take a plea that the said amount Rs. 6000/- of second transaction has not been disbursed to him.

7.                     We have perused the case law titled as 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.

8                      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. 

9                      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. Further, the complainant has not come to this Forum with clean hands as he has not impleaded the necessary party i.e. IDBI Bank of which he used the ATM Machine. Even, the complainant has failed to file his account statement to prove his version. The complainant has supported his claim only by his affidavit, letters and legal notice, 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.6000/- were not disbursed to him. When many other persons had withdrawn money from that ATM on that day and none complained for not receiving money, it cannot be presumed that the complainant alone did not receive Rs.6000/- from the ATM machine. 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.

10.                  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: 04.04.2016.

                                                                                    ( ASHOK KUMAR GARG)

                                                                                     PRESIDENT

 

                                                                                            

                                                                                      (  S.C. SHARMA)

                                                                                       MEMBER