BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.36/13.
Date of instt.: 09.04.2013.
Date of Decision: 11.09.2015.
Shyam Murari son of Molu Ram, resident of Village Gheer, Tehsil and Distt. Karnal.
……….Complainant.
Versus
1. The Branch Manager, State Bank of India, near Army Canteen, Jind Road, Kaithal.
2. The Branch Manager, State Bank of India, Cheeka, Distt. Kaithal.
3. The Chief Manager, State Bank of India, Karnal.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Sh. H.S.Nain, Advocate for complainant.
Sh. C.S.Gupta, Advocate for the opposite parties.No.1 & 3.
Sh. Amit Jindal, Adv. for Op No.2.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he is consumer of Op No.1 having account No.11318196683 and is having ATM. It is alleged that on 26.07.2010 the complainant went to ATM machine of Op No.2 for withdrawing Rs.20,000/- and he inserted his ATM card in the ATM machine and then inserted his password. It is further alleged that no payment came out from the machine. However, a slip was received by the complainant from that machine in which an amount of Rs.20,000/- were shown to be withdrawn. It is further alleged that the complainant visited the office of Op No.1 and asked for refund of the aforesaid amount of Rs.20,000/- but the Op No.1 refused to do anything in the matter and gave a number i.e. 1800112211 of Bombay Office for making complaint. It is further alleged that the complainant raised complaint to Bombay Office on four occasions and all the four times, complaint Nos.AT-665360292, AT-4292360306, AT-4292360143 and AT-665360139 but no action was taken in this matter. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite parties appeared before this forum and filed written statement separately. Op No.1 filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; jurisdiction; that there involves complicated question of law and facts and for adjudication of which, only the civil court is the best platform; There is no deficiency in service on the part of answering Op. On merits, it is stated that the complainant is not having account No.11318196683 and ATM with the Op No.1, so, the question of consumer of complainant qua Op No.1 does not arise at all. The contents of complaint are denied and so, prayed for dismissal of complaint.
3. Op No.2 filed the written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; jurisdiction; that the present complaint is false and frivolous; that the ATM is being checked on regular interval and if any cash is in excess in the ATM, then bank enter that excess amount in ATM register and prepare a banker cheque/pay order for excessive amount and send that banker cheque to the concerned branch or to the account-holder. The complainant allegedly operated his account through ATM on 26.07.2010 and when the ATM was checked, no amount in excess was found as all the transactions including the transaction of the complainant were successful. Moreover, no complaint was made by the complainant to the answering Op on that day or thereafter; that the complaint is hopelessly time-barred and is liable to be dismissed on this score alone. There is no deficiency in service on the part of answering Op. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
4. Op No.3 filed the written statement on the same line as followed by Op No.1 and so, prayed for dismissal of complaint.
5. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A and documents Ex.C2 to Ex.C7 and closed evidence vide order dt. 12.02.2015. On the other hand, Op No.2 tendered in evidence affidavit Ex.RW1/A and documents Ex.R1 to Ex.R4 and closed evidence on 12.02.2015. Ops No.1 and 3 tendered in evidence affidavit Ex.RW1/A and documents Ex.R1 to R3 and closed evidence on 20.03.2015.
6. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
7. Ld. Counsel for the complainant reiterated all the points mentioned in the complaint. As per version of complainant, on 26.07.2010 at about 3.59 the complainant went to ATM machine of Op No.2 and made transaction for withdrawal of Rs.20,000/- and the said amount was not disbursed to the complainant but as per slip, the said amount of Rs.20,000/- was shown to be withdrawn from the account of complainant. The counsel for complainant also argued that firstly they filed the complaint before the District Consumer Disputes Redressal Forum, Karnal on 21.12.2010 and the same was withdrawn on 30.05.2012 with the observations that the complainant would be at liberty to file the fresh complaint before the Forum having competent jurisdiction. He produced a citation 2007(1) CCC page 382 (P&H) titled as M/s. Upkar Road Lines Vs. M/s. Pfizer Ltd. & others.On the other hand, ld. Counsel for the Ops controverted all the allegations contained in the complaint. To refute the contention of ld. Counsel for the complainant, Ld. Counsel for the Op No.2 vehemently contends that the complainant operated his account through ATM on 26.07.2010 and when the ATM was checked, no amount in excess was found as all the transactions including the transaction of the complainant were successful. The ld. Counsel for Op No.2 further argued that the complaint is hopelessly time-barred as the occurrence is dt. 26.07.2010 and the complainant had filed the present complaint on 09.04.2013.
8. Taking into consideration all the facts and circumstances of the case, evidence available on the file and on appraisal of arguments advanced by both the parties, we are of the view that no doubt, the date of occurrence is of 26.07.2010 and the present complaint has been filed on 09.04.2013 but it is clear from the file that the complainant had firstly filed a complaint before the District Consumer Disputes Redressal Forum, Karnal on 21.12.2010 and the same was withdrawn with the permission of the Forum on 30.05.2012 to file a fresh complaint, so, the complaint is within limitation. Further, we are of the considered view that there are the intricate questions of law and facts, which require elaborate evidence and the same is not possible in this time-bound proceedings. In this context, we are fortified with the observations made in the case titled Love Motels Pvt. Ltd. Vs. Union Territory of Chandigarh 2007(4) CPJ page 305 (NC) wherein it has been observed by Hon’ble National Commission that Complicated issues involved, not adjudicable summarily-Dismissed with liberty to seek remedy in Civil Court and in the case reported as M/s. The Bills through its Proprietor Vs. PNB 1998(1) CPC page 150, Consumer Disputes Redressal Commission, Union Territory, Chandigarh, wherein it has been mentioned that Complicated issues being involved, the matter needs to be decided by Civil Court-Complaint stands dismissed.
9. In view of above discussion, we disposed off the complaint accordingly. However, the complainant is at liberty to approach the civil court or court of competent jurisdiction, if so desired and in that eventuality, complainant will be entitled to the benefit of Section 14(2) of Limitation Act and the time taken during the pendency of this complaint shall be exempted. A copy of this order be sent to both the parties free of cost. File be consigned to the record room after due compliance.
Announced.
Dt.11.09.2015.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
