14th AUGUST 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1586/2007<br /> <br /> <br /> COMPLAINANT Sri. Venkateshappa,<br /> S/o. Muniyappa Reddy,<br /> Major,<br /> Available at Doddathogur Village,<br /> Electronic City Post,<br /> Bangalore – 560 100.<br /> <br /> <br /> Advocate (V. Anand)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. The Chargeback Unit,<br /> HDFC Bank Ltd.,<br /> 26 A, Narayan Properties,<br /> Titanic Building, 2nd Floor,<br /> Andheri East,<br /> Mumbai – 400 072.<br /> <br /> <br /> 2. The Branch Manager,<br /> A/112, KSSIDC Complex,<br /> GF, STPI Block, 3rd Block,<br /> Electronic City Branch,<br /> Bangalore – 560 010.<br /> <br /> Advocate (Prashant Popat)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to credit a sum of Rs.32,485/- in the S.B. account of the complainant and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant is the Savings Account Holder of the OP Bank which he opened on 20.10.2005. Consequent to opening of the said S.B. Account OP issued the cheque slips for the withdrawal of the amount, thereafter OP came forward to issue the debit card to the account holders. Complainant accepted the said offer and shown his inclination to have a debit card of the OP for the withdrawal of the money. Though complainant waited patiently he did not receive the debit card. On the other hand when he counterchecked his accounts he was shocked to know that Rs.32,485/- was debited to his account within a period 07.04.2007 to 23.04.2007, though he has not at all used the said debit card. Immediately complainant contacted the OP and requested to re-credit the same to his S.B. account, it went in vain. Thus complainant felt the deficiency in service on the part of the OP. For no fault of his, he was made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP they have sent the said debit card as well as cheque leaf through Blue Dart Courier Services, which were delivered to the complainant on 27.10.2005. While sending the debit card a particular PIN was also intimated which should be kept confidential. Having received the said debit card complainant has paid Rs.112.24 as annual debit card fee on 27.10.2006. Under the circumstances the contention of the complainant that he has not received the debit card is false. Complainant in all probability divulged the PIN to a third party known to him or he himself used the debit card. There is a negligence on the part of the complainant, for that OP cannot be blamed. If the complainant is cheated it is only by the third party because of his carelessness. Though complainant received the said debit card long back not bothered to approach OP to find out the status of the debit card for a period of more than 1½ years. This again speaks to the negligence on the part of the complainant. The present complaint is devoid of merits. As complainant has used the said debit card, the said amount is debited to his account. There is no deficiency in service on the part of the OP. The question of crediting the said amount does not arise. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Thereafter his Forum was pleased to dismiss the complaint vide order dated 30.11.2007. Being aggrieved by the impugned order complainant preferred an Appeal before the Hon’ble State Consumer Disputes Redressal Commission, Bangalore at Appeal No. 2543/07. The said Appeal came to be allowed vide order dated 28.05.2008 and the matter is remitted back with a direction to dispose of it afresh after due notice to both the parties and after affording opportunity to both the parties to produce evidence. On the receipt of the said kind orders, notices were sent to the litigating parties, both of them have appeared filed the additional evidence and produced some supporting documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant is the S.B. Account Holder at OP Bank which he opened on 20.10.2005. Of course as a good gesture OP came forward to issue debit card to its customer, complainant accepted the said offer. It is contended by the complainant that though he received the cheque leafs and other documents, he did not receive the debit card including the PIN, so he is unable to operate the debit card. It is further contended that when he counterchecked his Bank statements, to his utter shock he came to know that between 07.04.2007 to 23.04.2007 a sum of Rs.32,485/- was debited to his account, though he never used the said debit card. Thus he felt the deficiency in service.<br /> <br /> 7. As against this it is specifically contended by the OP that they have sent the cheque book and debit card containing PIN through Blue Dart Courier Service which is duly delivered to the complainant on 27.10.2005. Of course OP has produced the letter written by Blue Dart at Annexure ‘F’. But basically there is no proof that the said docket containing cheque book, debit card along with the PIN is actually delivered to the complainant. Mere addressing a letter that it has delivered to the complainant to the mailing address is not a proof of actual delivery of the same. OP has not filed the affidavit of the Blue Dart official who alleged to have delivered the said docket containing the above said documents to the complainant to his given and admitted address. So in absence of such basic proof, now it cannot be said that OP has delivered the said debit card to the complainant. Mere payment of the yearly fees with regard to the said debit card by the complainant is no proof by itself with regard to the actual delivery of the said card.<br /> <br /> 8. Of course OP has furnished certain charge slips issued by the retailers wherein the alleged debit card has been used. But those so called charge slips does not bear the admitted signature of the complainant. Complainant has not admitted the said transaction. When that is so, the burden lies on the OP to establish that it is the complainant who actually utilized the said debit card and made some purchases and transacted with a concerned shops. So in absence of such proof that contention of the OP also does not hold much force. <br /> <br /> 9. Of course complainant was eagerly waiting for the receipt of the said debit card, unfortunately he could, receive only cheque book. He was anticipating that OP will deliver the debit card on one or the other day, but so for so good he is unable to receive the same. It is further contended by the complainant neither he issued the cheques nor used the said debit card towards the said transaction, wherein OP has deducted Rs.32,485/- in between 07.04.2007 to 23.04.2007. We find there is a substance in the allegations made by the complainant. <br /> <br /> 10. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. Of course OP has produced certain specimen copy with regard to the issuance of the debit card, PIN number, etc. When complainant has not received the said debit card compliance of the formalities including that of execution of the bond on a stamp paper also does not arise. If OP has really delivered the said credit card along with other relevant documents and PIN number by this time they would have taken required affidavit and undertaking from the complainant. But no such steps are taken.<br /> <br /> 11. Viewed from any angle, we find the action initiated by the OP in deducting Rs.32,485/- at the account of the complainant is arbitrary. There is no proof that complainant has ever utilized the said debit card and operated the same knowing the PIN. Under such circumstances we find there is a proof of deficiency in service on the part of the OP. For no fault of his, complainant is made to suffer both mental agony and financial loss. Hence he is entitled for the relief claimed. Accordingly we answer point nos.1 and 2 and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to credit the sum of Rs.32,485/- along with interest at the rate of 7% p.a. from May 2007 till this day into the savings bank account of the complainant. In view of the nature of dispute no order as to costs. This order is to be complied within 4 weeks from the date of its communication. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 14th day of August 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br />