PRESIDENT

1)        By this complaint the Complainants has prayed that it be declared that there is deficiency on the part of the Opposite Party in service and unfair trade practices as per the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the Act).  It is also prayed that the Opposite Party be directed to pay Rs.25,000/- as over stay costs caused to the Complainant by virtue of not getting access to his funds to the International Debit Card issued by the Opposite Party.  The Complainant has further prayed Rs.1 Lac being the compensation for mental agony and stress suffered by him and cost of Rs.25,000/- towards this complaint may be awarded against Opposite Party.   

2)        According to the Complainant, he is consumer u/s.2(1)(d)(ii) of the Act.  It is alleged that the Opposite Party is guilty of deficiency in service within the meaning and definition of deficiency and unfair trade practices u/s.2(1)(g) & (r) of the Act.  It is submitted that the Complainant was having Saving Bank A/c.No.2326 at Lala Lajpatrai Extension counter of the Opposite Party.  The Complainant had also opened a Saving Bank A/c. 244784 at the main branch at Fort, Mumbai of the Opposite Party with a view to facilitate  the issue of an International Debit Card to him.  The copy of his Bank Passbook is Annexure ‘C-1’.  It is alleged that the Complainant had availed an ATM Debit Card facility form the Opposite Party since he had to go to Russia and accordingly deposited enough funds in the account for his future issues in Russia as the said account was linked to International Debit Card. 

3)        According to the Complainant for purchasing his ticket to India from Russia and for other sundry expenses he required the amount so he tried to access the International Debit Card but he was not able to access his account and obtain the needed money.  It is submitted that from 12/07/05 till 19/07/05 the Complainant was continuously trying to access the ATM with his International Debit Card but he could not able to get the amount lying in his savings account with the Opposite Party.  The Complainant therefore, called the Mumbai office of the Opposite Party to ascertain the reason for non access of his card.  It is alleged that the Complainant was told that because of technical reason arising from the side of Opposite Party the complaint was unable to access his International Debit Card.  It is submitted that the Opposite Party at the same time represented that the flaw has been corrected and the Complainant shall not face future difficulties in operating his International Debit Card.  According to the Complainant, from 17/07/05 to 19/07/05 the Complainant again tried to operate his International Debit Card but he could not get his money through the said debit card.  It is submitted that the complaint was forced to borrow funds from his friends though having enough funds.  According to the Complainant, the Opposite Party made false representation in respect of International Debit Card and because of that he suffered mental agony and hardship. 

4)        The Complainant on 21/07/05 expressed his dissatisfaction at the attitude of the Opposite Party by his letter and informed the facts about his inability to access the International Debit Card. The copy of the said letter is marked as Annexure ‘C-2’.   It is submitted that the Opposite Party by letter dtd.08/08/05 admitted the facts contend in the Complainant’s letter dtd.21/07/05 and gave reasons for failure of its system.  due to which the Complainant unable to access the International Debit Card. The Opposite Party apologized for the inconvenience caused to the Complainant. The copy of the said letter is marked as Annexure ‘C-3’. The Complainant by letter dtd.26/08/05 informed the Opposite Party that due to non functioning of the Opposite Party’s ATM Services the Opposite Party is liable to pay damages in respect of the direct loss caused to the Complainant.  The Complainant claimed 500$ as overstay costs and 500$ on account of other heads.  The copy of the said letter is marked as Annexure ‘C-4’.  It is submitted that the Opposite Party did not reply to the said letter.  The Complainant therefore, sent letter dtd.21/09/05, 26/06/06 and 10/08/06 and asked the Opposite Party to settle his legitimate claim in respect of deficiency of service of the Opposite Party. The Opposite Party by letter dtd.15/09/06 gave vague reply contradictory to its letter dd.08/08/05.  The copies of the said correspondence are marked as Annexure‘C-5’ colly. The Complainant thereafter, approached Ombudsman and obtained an order dtd.26/09/07.  The copy of which is Annexure ‘C-7’.  It is submitted that the finding of Ombudsman was without proper jurisdiction. The Complainant thereafter, again wrote letters to Banking Ombudsman which are at Annexrue‘C-8’ colly. And sought rehearing of the complaint but till filing of the complaint he did not receive any reply from it.  It is alleged that the Complainant has therefore, filed the present complaint for the reliefs sought in para 1 of this order.   

5)        The Opposite Party filed its written statement and contested the complaint.  It is contended that there is no cause of action for filing the present complaint and therefore, the present complaint is liable to be dismissed.  It is submitted that the Complainant has suppressed some material facts that he had opened saving bank account with the Opposite Party on 15/07/03.  The Opposite Party issued ATM Card to the Complainant and it was expired in June, 2005 and renewed card was picked up by the Complainant in September, 2006 and fresh PIN was picked up on 31/10/06.  According to the Opposite Party, the Complainant tried to use the expired ATM Card during the period 12/07/05 to 19/07/05 i.e. after expiry of the ATM Card.  It is submitted that therefore, the access was not permitted by the Opposite Party as the card was expired.  It is alleged that the renewed card was not picked up by the Complainant and therefore, the Opposite Party had sent intimation dtd.27/10/05 to the Complainant.  The xerox copy of the Opposite Party’s letter dtd.27/10/05 and record book copies are marked as Annexure ‘Q-1’ colly.  It is submitted that the Complainant picked up the renewed card in September, 2006 and requested for fresh PIN for usage of card on 31/10/06 as per the xerox copies of record book marked as Annexure ‘Q-2’.  The Banking Ombudsman already decided the case filed by the Complainant on 26/09/07.  It is thus, submitted that there is no deficiency on the part of the Opposite Party.  It is denied that there is deficiency of service and unfair trade practice on the part of the Opposite Party.  The other allegations made in the complaint are denied by the Opposite Party and prayed that the complaint be dismissed with cost. 

6)        The Complainant has filed his affidavit in support of his complaint.  The Opposite Party has filed affidavit of S.V. Harankhedkar, Sr. Manager in support of written statement.   The Complainant has filed written arguments.  The Opposite Party has also filed written arguments.  We heard Shri. Vidur Dhawan, Ld.Advocate for Shri. Anand Patwardhan, Advocate for the Complainant and Shri. Sunil Gole, Ld.Advocate for the Opposite Party.    

7)        While considering the case made out by the Complainant and the rival contention raised by the Opposite Party that the ATM Card issued in favour of the Complainant was expired in June, 2005 and the amount which was tried to be withdrawn at St. Peters Burg Russia in between 15/07/05 to 19/07/05 could not be withdrawn due to expiry of ATM Card in our view the Complainant is required to prove that his ATM Card was valid till July, 2005 or thereafter also.  In the present complaint the Complainant has not placed on record the ATM Card which was valid till July, 2005 or thereafter.  The Complainant has received new ATM Card as per the contention of the Bank from 01/07/2005 in September, 2006 and requested for fresh PIN on 31/10/06.  Thus, it appears that the Complainant had tried to use an expired ATM Card.  It also appears that the Complainant did not keep the minimum balance on 24/06/05 and the Opposite Party had to charge an amount of Rs.20/- for not maintaining the minimum balance for 2 months.  Thus, in our view as the Complainant did not collect the new ATM Card on 01/07/05 the access to the usage in between 15/07/05 to 19/07/05 was rightly not permitted by the Opposite Party as the ATM Card which the Complainant was having was expired in June, 2005.  Thus, the submission made by the advocate for the Complainant that the Complainant’s ATM Card was valid upto July, 2005 cannot be said proved by the Complainant.  We hold that the burden which is lying on the Complainant that till July 2007 or thereafter, the ATM Card which the Complainant was using was valid is not discharged by him by producing supporting prima facie record.  We therefore, hold that the case made out by the Complainant that the Opposite Party is liable to pay the claim mentioned in para 1 of this order is not proved by the Complainant.  In the result we pass the following order – 

O R D E R 

i.                    Complaint No.45/2009 is dismissed with no order as to cost. 

ii.                 Certified copies of this order be furnished to the parties.