STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 19.04.2018
Date of final hearing: 20.11.2023
Date of pronouncement: 04.01.2024
First Appeal No.474 of 2018
IN THE MATTER OF :-
State Bank of India, Circular Road, Main Branch, Rewari, Through its Branch Manager. ....Appellant
Versus
Suraj Bhan S/o Lal Chand, R/o Vikas Nagar, Rewari, Tehsil and Distt. Rewari. …..Respondent
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- Sh. Dheeraj Siwach, proxy counsel for Sh. Mahesh Dheer, counsel for appellant.
Sh. Suraj Bhan-respondent/complainant in person.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Delay of 28 days in filing the present appeal stand condoned for the reasons stated in the application for condonation of delay.
2. Challenge in this appeal No.474 of 2018 of appellant-bank has been invited to the legality of order dated 17.01.2018 passed by District Consumer Disputes Redressal Forum-Rewari (In short “District Consumer Commission”) in complaint case No.507 of 2016, vide which complainant’s complaint has been allowed.
3. Factual matrix: On 04.03.2016, complainant went to ATM at Bass Sitab Rai-Rewari for taking mini statement in order to know status of his account. As soon as, he inserted ATM card in machine; it went off and thus he could not get mini statement. He got back his ATM card; waited for sometime, but screen did not display anything and he went out. On next day i.e. on 05.03.2016, he got mini statement through ATM and on its perusal; it revealed that: Rs.20,000/- has been debited from his account on 04.03.2016, whereas, he never withdrew this amount, nor put command for withdrawal of Rs.20,000/- on 04.03.2016. He lodged complaint with Bank on same day; got lodged DDR No.5 on 28.03.2016 with Police Post, Bharawas Gate-Rewari. He lodged complaint No. A429223416625 on 14.03.2016 but bank did not credit the amount in his account. He filed complaint for directing bank to credit Rs.20,000/- in his account with interest @24% p.a. from date of withdrawal, till its credit and be paid Rs.50,000/- as compensation for mental pain and agony.
4. OP/appellant/bank raised contest. In defence so entered; it is pleaded that: complaint is not maintainable. Complainant has no cause of action. He is stopped by his own act and conduct and has not come with clean hands. He has concealed true and material facts. Complainant made two transactions on 04.03.2016 viz. transaction No. 5345 for balance enquiry and transaction No. 5346 for withdrawal of Rs.20,000/- from his account, which was successful. It is asserted that on alleged date and time; outsource agency i.e. Secure Value India Ltd. found no physical excess cash against transaction No. 5346 in ATM ID BHEF000705017 of complainant. Secret code number is given to customer only and amount has been withdrawn by complainant himself, or by person to whom he told his secret code number. There is no deficiency in bank’s service. It is pleaded as wrong that: Rs.20,000/- is wrongly debited from his account. It is also pleaded that he is not entitled to any amount from bank. Security of ATM is intact at all times and it is wrongly asserted that there is carelessness on the part of bank.
5. Parties to this lis led their respective evidence; oral as well documentary.
6. On critically analyzing the same, learned District Consumer Commission-Rewari vide order dated 17.01.2018 has allowed complaint; directed OP-appellant/bank to refund Rs.20,000/- to complainant within one month from date of receipt of copy of order failing which amount shall fetch interest @ 9% p.a. from the date of decision, till payment. Complainant has also been awarded compensation and litigation expenses amounting Rs.5,500/-.
7. Feeling aggrieved; OP/bank has filed this appeal. Vide order dated 10.05.2018; this Commission has stayed the implementation of impugned order.
8. Learned counsel for appellant and complainant/respondent in person has been heard at length. Record of complaint has also been perused.
9. Learned counsel for the appellant/bank has urged that impugned order dated 17.01.2018 is totally unsustainable on all fronts-legal and factual. Once, complainant has put criminal machinery in motion by lodging DDR No. 05 dated 28.03.2016 by alleging ‘fraud or theft’, then consumer forum ceased to have any jurisdiction over matter in dispute. Learned District Consumer Commission cannot hold bank as accountable and issue direction to against it to refund the amount with interest. It is urged that transaction of withdrawal of amount of Rs.20,000/- was reported successful and same is establish through document Ex.R-2. In wake of this fact, as per contention, there could not be any deficiency in service of appellant/bank, towards complainant. Cash of Rs.20,000/- had been received by person operating ATM, be it be, complainant himself or any other person acting on his instructions and command to operate ATM. Learned District Consumer Commission has wrongfully rejected document Ex.R-3 i.e. no physical excess certificate which reflect that on alleged date and time no physical excess cash against transaction No. 5346 in ATM was found. Through Document Ex.R-4 i.e. ATM Log it has been proved by appellant-bank about exact date and time of transaction. On these submissions; learned counsel has urged for acceptance of appeal.
10. On the other hand, complainant/respondent, while appearing in person has urged that: after successful decision of his complaint through impugned order dated 17.01.2018; bank/appellant has given him Bankers Cheque dated 17.04.2023 of Rs.34,950/-. He has urged that his justifiable dues have been paid to him and he does not have any subsisting and surviving grievance against appellant-bank. He has also filed his own affidavit in this regard on 20.11.2023 and submitted photocopy of Bankers Cheque dated 17.04.2023 as well.
11. On analyzing above facts and submissions of rival parties; this Commission is of opinion that: despite having been non-suited by learned District Consumer Commission-Rewari through impugned order dated 17.01.2018 and despite having obtained the relief of interim stay regarding implementation of impugned order from this Commission; appellant-bank in its own wisdom, had thought it appropriate to implement impugned order by issuing Bankers Cheque No. 006414 dated 17.04.2023 favouring Suraj Bhan-complainant/respondent of the amount of Rs.34,950/- thereby redressing his substantive grievance. Obviously, this circumstance has precluded and effectively foreclosed the appellant-bank to still go ahead with genesis of its appeal.
12. Even otherwise, if the integral part of complaint is touched, viz-a-viz the submissions raised by learned counsel for appellant-bank and the evidence so led, then also, the appellant-bank has no legs to stand. Reasons are obvious. Relevant date is 04.03.2016, when complainant went at ATM for taking mini statement of his account. As per his case, he did not go there to conduct any withdrawal. He could not get mini statement from ATM on 04.03.2016 for the reason that screen of ATM allegedly went off. On following day (i.e. on 05.03.2016); he allegedly went there for same purpose and came to know from mini statement of his account that Rs.20,000/- has been withdrawn from his account on 04.03.2016. Promptly, he approached appellant-bank. He informed police also and DDR No. 05 dated 08.03.2016 got light of its day. Filing of DDR-Ex.C-3 will neither impede any other legal remedy available to complainant, nor would it oust the jurisdiction of learned District Consumer Commission. Complainant submitted written complaint dated 09.03.2016-Ex.C-2 to bank which has admittedly been received by bank as it is visible from its glance, then bank should have be prompt in taking remedial action. Complainant also raised his grievance through another complaint dated 18.06.2016-Ex.C-4 addressed to bank. It implies from documents Ex.C-2 and Ex.C-4 that: till 18.06.2016 complainant had been kept aloof and in dark about any remedial action from appellant-bank aimed at redressal of his grievance. Palpably, the attitude of appellant-bank was inept towards complainant.
13. Appellant-bank has tried to outscore the projected cause of complainant on pedestal that through document Ex.R-3; no physical excess cash was found against transaction No. 5346 in ATM and through document Ex.R-4 it is proved that transaction of Rs.20,000/- was successful. Curiously enough, no CCTV footage has been provided to complainant of date 04.03.2016. It is really painful from perusal of text of document Ex.C-5 on the context of CCTV footage of ATM ID BHEF000705017 dated 04.03.2016 which recites, “machine camera working but old image are not available in the ATM.” Why old image of 04.03.2016 could not be retrieved/procured on 28.04.2016 (date mentioned atop at document Ex.C-5) is quite mysterious and mystifying circumstance. Appellant-bank was required to unveil this mystery through cogent and credible evidence but no evidence in that arena has been led by it. Legal implication which would flow would thus be: that there is absolutely no evidence available on record in order to prove, as to whether or not, any CCTV footage was secured or preserved of date 04.03.2016. Evidence of above quality would have strengthened the pleaded case of appellant-bank that alleged transaction of Rs.20,000/- was in fact successfully conducted on 04.03.2016. Having failed to lead the basic evidence in form of CCTV footage of 04.03.2016, the appellant-bank has been rightly non-suited through impugned order dated 17.01.2018. Thus, the inescapable conclusion of this Commission in scenario of available facts and evidence is that; learned District Consumer Commission did not err, while observing that cause projected by complainant/respondent is not accentuated with any false assertion. This Commission does not find any justifiable ground to upset the well reasoned finding recorded by learned District Consumer Commission-Rewari through its order dated 17.01.2018 and to interfere in same. Resultantly, impugned order dated 17.01.2018 is maintained, affirmed and upheld. Present appeal, being devoid of any substance is dismissed on merits as well.
14. Statutory amount of Rs.13,080/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
15. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
16. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
17. File be consigned to record room.
Date of pronouncement: 04th January, 2024.
Naresh Katyal
Judicial Member
Addl. Bench-II
