BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 31^st January 2017

PRESENT

  SRI VISHWESHWARA BHAT D       : HON’BLE PRESIDENT

  SRI T.C. RAJASHEKAR                    : HON’BLE MEMBER

ORDER IN

C.C.No.126/2013

(Admitted on 09.05.2013)

Mr. Aqil Abba Latheef,

S/o Abba Latheef,

Aged about 40 years,

Prop: M/s Paras Sales (Sailana)

C/O Gulam Corporation, 9.12.549,

Doctor Ansari road, Bunder.

                                                          ….. COMPLAINANT

(Advocate for the Complainant: VKR)

VERSUS

The Branch Manager,

Tamilnadu Merchantile Bank Ltd,

Pavoor complex, Nellikai Road,

Mission Street, Bunder,

Mangalore.

                         …...........OPPOSITE PARTY

(Advocate for the Opposite Party: Sri. NS)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

1. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against opposite parties claiming certain reliefs to supply the footage/video clippings free of cost, to pay Rs.1,00,000/ towards damages loss and detriments suffered and cost of the litigation.

2.    In support of the above complainants Mr. Afrose Iqbal filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C4 as detailed in the annexure here below.  On behalf of the opposite party Mr. S Pratheep Kumar (RW1) Manager, Tamilnad Mercantile Bank Ltd. also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R5 as detailed in the annexure here below.

              The brief facts of the case are as under:  

     We have perused the complaint and the version of the parties.  The complaint is with regard to deficiency in service from the opposite party in not providing CCTV camera footage. The complainant alleges that on 01.10.2012 the representative of the complainant went to opposite party bank and deposited the amount with the cashier and waiting of the receipt by the cashier. In the meantime the said representative received an emergency phone call from his house and the representative left the bank premises by asking the cashier to keep ready the receipt. On coming back the representative noticed that the cash is not deposited and the cashier said no cash received. The complainant approached the bank staff and the manager and the public but yield no result. The complainant requested for the CCTV footage with the opposite party but opposite party not provided the copy of the footage. Hence the  deficiency in service on the part of the opposite party. The opposite party in contest denies the visiting of the complainant’s representative and depositing of the cash with the cashier. The opposite party also contends that on request of the complainant they have shown the CCTV footage to the complainant two times and the complainant not noticed the presence of his representative in the bank. The opposite party also states that the CCTV footage is for the purpose of the security of the bank and they are not bound to give copy of the CCTV footage to their customers. Hence claims no deficiency in service from their part. the opposite party has filed an application dated 17.03.2015 under section 26 of the Consumer Protection Act 1986 to dismiss the complainant as frivolous and award cost to the opposite party  and also compensatory cost to the opposite party which is kept in abeyance till the matter finally adjudicated.  These are being the core of the dispute, in resolving it we consider the following

POINTS FOR ADJUDICATION

          On consideration of the evidence produced and the documents on file, the admitted facts are the complainant is the customer of the opposite party bank. It is denied that the complainant’s representative came to bank for depositing the complainant’s cash, the complainant representative had given the cash to the opposite party cashier bank staff. It is also denied that the opposite party is bound to give CCTV footage copy to the complainant and deficiency in service on the part of the opposite party. These being the facts of admissions and the denials we consider the following

POINTS FOR ADJUDICATION

1. Whether the complainant is a consumer under the Consumer Protection Act 1986?
2. Whether the complainant proves the deficiency in service on the part of the opposite party?
3. Whether the complainant is entitled for the relief prayed for?
4. Whether the opposite party entitled for the relief prayed through application under section 26 of the Consumer Protection Act 1986?
5. What order?

        We have closely examined the evidence lead and the documents produced. We heard the submission of the parties and answered the above points as under:

1. In the affirmative.
2. In the negative.
3. In the negative.
4. In the affirmative.
5. As per adjudicated order.

REASONS

POINT NO 1: The complainant claim to be a customer of the opposite party but not produced any documents marked to show the relation with the opposite party. However the opposite party produced EX-R 1 the Account Opening Form which established the relation of customer and  the service provider between the complainant and the opposite party. The opposite party not denied the relation. Hence we hold the complainant is the consumer. Later on the complainant appointed Mr. Afrose S/O Iqbal Noor Ahmad as his attorney to contest the complaint on his behalf through Power of attorney executed on 20.07.2013 and attorney became consumer. Hence we answered the point no 1 in the affirmative.

POINT NO 2 & 3: The allegation of the complainant is that on 01.10.2012 the complainant’s representative went to bank for depositing the cash, the said representative paid the cash to the opposite party cashier and in the meanwhile the representative received an emergency call from his home. After attending the call the representative turn back to bank asked for the receipt for the cash handed over but the cashier said no cash received and hence no receipt. The complainant contends that due to good past relation and trust on the banker the representative gave the cash and went to home to attend the emergency phone call. On return to bank the representative asked for the receipt. But the cashier said the cash not received and no receipt. The complainant on enquiry with other staff and the public, no one cooperated with the complainant. After that he gave a written requisition to opposite party to furnish a copy of the CCTV footage but the opposite party not furnished the CCTV footage and hence there is deficiency in service on the part of the opposite party. In contesting the complaint allegation the opposite party put forth following points as defense. 1) The complainant nowhere in the complaint or chief examination evidence revealed the  amount of the alleged deposit. 2) The complainant not gave any police complainant on being alleged to be cheated by the opposite party. 3) The CCTV footage was shown twice to the complainant and it was confirmed to him that his representative did not visit the bank. 4) CCTV arrangement is for the internal safety arrangement for the bank only but not public use and as such we are not bound to furnish any footage of it to the complainant.

2.      We go with the opposite party for the defense taken on the following grounds. 1. The complainant not given any police complaint to police which was essential in case of alleged cheating by the opposite party by taking cash for depositing but not credited to the complainant Account. 2. The complainant alleges that his representative came to bank and handover the cash to the opposite party but the representative is not examined as witness. It is established rule of law that the person who involved in the incidence directly shall depose which is not done by the complainant. 3 The complainant nowhere stated that what is quantum of cash given for depositing with the representative. The allegation is ambiguous and not acceptable. 4. The CCTV footage is for the personal use for the opposite party for its security purpose and not for public use. 5 the complainant not made any prima facie case for   what has been alleged and hence even on natural justice point of view also the opposite party is not bound to furnish the CCTV footage copy. As such with these findings we conclude the opposite party is not at fault and the complainant not proved the deficiency in service on the part of the opposite party.  Hence the point no 2 in the negative and the point no 3 also in the negative.

POINT NO 4:     There is an application pending for disposal. The opposite party filed this application under section 26 of the Consumer Protection Act 1986, and prayed for the relief of dismissal of the complainant with compensatory cost. The provision of the section is to punish the unscrupulous complainants who abuse the process of law.  The applicant/opposite party contended that the complaint is frivolous and false. The complainant is stranger who has not empowered to file complaint and later produced the GPA holder to continue the proceedings. The signature in the complaint is not tallying with the signature in GPA which is the clear evidence to show that the complainant is a stranger and there is misrepresentation. It is a serious abuse of process of law and the Asst. Registrar shall be directed to lodge a complaint against the complainant and the GPA holder. The opponent/ complainant resist the application on the grounds that the present application is to defeat the complaint at this stage, the opposite party not view the complainant in the positive way, the opposite party fails to understand it responsibility and instead of going through the whole day transactions and help the complainant in solving the problem taken unnecessary stand by filing this application. It can be seen from the naked eye that the complainant is the account holder and transacted for all these years now to drag the proceedings the present contention is raised and hence the application is to be dismissed with cost.

2.     As per discussion made above in point no 2 & 3 the complainant miserably failed in proving his case. In answering a suggestion in the  interrogatory given by the opposite party the complainant states that the amount was alleged to be deposited is  Rs 1,00,000/. For our surprise when such huge amount is involved why the complainant failed to lodge a police complaint is not explained. Also it is evident from the pleadings that the amount involved is not mentioned as  Rs 1,00,000/ and also it is clearly stated that the complainant representative visited the bank for depositing the cash but it is not explained why he is not examined. As opposite party alleged in the affidavit filed with this application there is difference in the signature of the complainant in the complaint and in the GPA. It is a clear case of misrepresentation. By taking into all these facts and the evidence we are of the opinion that this is a false and frivolous complaint and a fit case for attracting the section 26 of the Consumer Protection Act 1986. Hence we hold the complainant liable for the opposite party for filing a false complaint against opposite party without deficiency in service. It unnecessarily caused agony and tarnished the image of the opposite party. This kind of complainant shall be dealt with seriously. And hence in our opinion the opposite party is entitled to get an amount of  Rs 6000/ towards exemplary cost. With this the IA stated above stands disposed. Hence the point no 4 in the affirmative.

POINT NO 5: In the result of the above discussion and adjudicated points we deliver the following

ORDER

      The complaint is dismissed with exemplary cost under the section 26 of the Consumer Protection Act 1986. The complainant shall pay the opposite party an amount of  Rs 6000/ (Rupees Six thousand only) towards exemplary cost.  The order shall be complied within 30 days from the date of the copy of this order received.  

     Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

     (Page No.1 to 9 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31^st January 2017)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Afrose Iqbal

Documents marked on behalf of the Complainant:

Ex.C1: Original Office copy of the Representation dated 22.10.2012

Ex.C2: Original postal receipt for having posted the Representation dated 22.10.2012

Ex.C3: Original acknowledgment card for having delivered the Representation dated 22.10.2012

Ex.C4: True copy of the General Power of Attorney.

   Witnesses examined on behalf of the Opposite Party:

RW1  Mr. S Pratheep Kumar Manager, Tamilnad Mercantile Bank Ltd.

Documents marked on behalf of the Opposite Party:

Ex.R1: Notarised copy of the account opening form

Ex.R2: Notarised copy of the PAN Card

Ex.R3: Notarised copy of the Voters ID

Ex.C4: Notarised copy of the registration certificate,

Ex.C5: Notarised copy of the letter issued by the proprietor of  Paras Sales, i.e.  Complainants firm

Dated:  31.01.2017                                          MEMBER