::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL FORUM, AT BIDAR::

                                                               C.C. No.49/2017.

                                                            Date of filing: 05.08.2017.

                                                                   Date of disposal: 31.05.2018.

P R E S E N T:-    

                              (1) Shri. Jagannath Prasad Udgata,                                                                                                                                                                                                                         B.A., LL.B.,

                                                                                                President

                             (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

COMPLAINANT/S:    1.   Mr.Omkar S/o Gurunath Biradar,

                                             Age: 35 years, Occ: Business,

                                            R/o Khatak Chincholli

                                            Tq: Bhalki now at Bidar,

                                            Pin: 585429, Karnataka State,.                                     

                                       (By Sri. Sanjay Kumar S. Patil., Adv.)                                 

                                                                 VERSUS

OPPONENT/S:        1)         The Sr.Manager, Axis Bank Ltd,

                                             Seenu Complex, BVB College Road,

                                              Gandhi Gunj Bidar

                                              Pin: 585403 Karnataka State.                                               

                                           (By. Sri.R.K.Ganure., Adv.)

::   J UD G M E N T  ::

By Shri. Jagannath Prasad Udgata, President.

This  is a complaint u/s 12 of the Consumer Protection Act 1986,  alleging deficiency of service in the part of the O.P.. The subject matter of the complaint in a nutshell is as below.

2.           That, the complainant is engrossed in transport business at various places and maintains his Bank A/c No.912010018663568 with the opponent Bank.  Whenever the complainant used to visit the Bank for transmitting money to co-transport owners or to make deposits,  the banks officials used to instruct him to use the ATM for the former purpose and note deposit Machine for the later purpose due to note ban problem and he as per the advice of the Bank officials was doing the same.

3.          On 23.01.2017, the complainant transferred a sum of Rs.81590/- through ATM to A/c No.610505500027 of ICICI Bank Palani Branch, Tamilnadu.  On 25.01.2017, he received a call from the beneficiary M/s Bharathiyar Lorry office at Palani about non receipt of the amount and he appraised the O.P. Bnaks’ officials about such anomaly.  The Bank’s officials on further verification confirmed that, the amount has been credited to A/c No.61050550002 of ICICI Bank Palani branch wrongfully and against his oral complaint, the Manager assured to rectify the wrong crediting within a period of three days.  The complainant further avers that, after lapse of considerable period, when there was no response from the O.P. bank on 17.04.2017, he filed a written complaint (Acknowledgement at annexure-B).  Following the complaint, he got issued another notice on 21.04.2017, which was received on 22.04.2017.  Inspite of the oral and written representations, the O.P. bank did not act on his complaint and therefore he has filed the present complaint alleging deficiency of service and claiming a compensation of Rs.91,590/- with interest.

4.         The O.P. bank upon notice has entered appearance through counsel and has filed written versions.  To our dismay, the W.V. is rather evasive in nature and highly unspecific to the points.  The O.P. claims that, the complainant might have transferred the cash on 23.01.2017 through the ATM which is kept for public use.  That, the Bank officials have never advised him to use the ATM. That, he has not approached Bank Manager on the date of transaction.  Further that, the ATM is functioning regularly and not defective.  Further that, the complainant had dialed the wrong account number and he was negligent himself.  Further that, the AXIS bank authorities had instructed him to contact the ICICI Bank, Palani Branch (No such copy instruction is ever filed by the O.P. bank).  That, the O.P. bank also had taken upon the matter with ICICI Bank, Palani, who revealed to the O.P. that, the A/C was being verified (No such copy or proof of communication) and hence the O.P. claims that, there having been no deficiency of service, the complaint is liable to be rejected with costs against the respondent.  It is further avered by the O.P. that, neither the ICICI Bank, Palani nor the beneficiary of the amount has been arrayed as parties and hence the case suffers from nonjoinder of necessary parties.  At the cost of repetition, as a whole the O.P. prays to dismiss the complaint against heavy cost against the respondent AXIS Bank, Branch Bidar.  Quite an amazing pleading itself.

5.         Both sides have filed their respective evidence affidavits ad only the complainant has filed written arguments and documents in substantiation of the case.  Basing on the rival contention of the parties, we fix the following points for consideration.

1. Does the O.P. prove that, the case is bad by misjoinder of necessary parties owing to the fact that, the ICICI Bank, Palani Branch or the beneficiary of the wrong account number 610505500022, therein are not made parties?
2. Does the complainant prove deficiency of service in the part of the O.P.?
3. What orders?

6.         Our answers to points are as following:-

1. In the negative.
2. In the affirmative.
3. As per final orders owing to the following:-

:: REASONS ::

7.         Point (1): The present complaint being filed u/s 12 of the Consumer Protection Act, 1986 against th bank of which, he is a customer, no scope is available to him to either implead another bank (i.e. ICICI) or an unnamed person who was wrongly credited with the amount transmitted.  There is no relationship of the complainant as consumer with the other two, who are not service providers to him.  Rather such a misadventure would have resulted in a misjoinder of parties and we find no basis in the averments of the O.P. on this count and hence answer the point in the negative.

8.         Point (2):       As per the complaint averment, the complainant transmitted the amount on 23.01.2017.  On receipt of the information that, the intended beneficiaries did not receive the amount on 25.01.2017, he claims to have taken up the matter orally with the Bank official who promised to set right the wrong credit within three days.  Countering this assertions, the O.P. claims that, the complainant might have used, the ATM on 23.01.2017, but he has never met the Banks’ officers.  The counter of the O.P. is but conspicuously silent about the complainants’ approach or the officers assurances to him on 25.01.2017.  the O.P. appears to have adopted the principle of “silence is golden”.  Be it whatever, what happened to his written complaint on 17.04.2017 (Annexure-B) and further demand date:21.04.2017 (Annexure-c)?  The bank claims to have taken up the matter with its’ counterpart i.e. ICICI Bank, Palani then why not any such proof led during the trial by the O.P.?  It is therefore crystal clear, the O.P. bank has never taken up the matter to recover the wrong credit which proves deficiency of service.  Fortifying our reasoning’s, we quote the judgement of the Hon’ble National Commission, reported in 2018(2) CPR 86 (NC)- Manager Maharastra State Co.Operative Bank Ltd. v/s Farmar Bank Employees Co-Operative.  Housing society Ltd. in which it has been held that,

            “Financial sufferings would be only because of the deficiency on the appellate Bank that, the bank did not taken the action at the right time and got the matter delayed”.  Hence we infer that, deficiency of service is clearly established.

9.         Point (3):       It is not in the pleadings of the complainant that, after 25.01.2017 and before 17.04.2017, he has been pursuing the matter with the Bank diligently.  Sitting lame duck for a period of about three months, thereafter showing a kneejerk reaction would surely not sing laurels for the complainant.  Therefore, we don’t propose to award ay interest, costs or compensations to him and proceed to pass the following:-

ORDER.

1. The complaint is allowed in part.
2. The O.P. bank is directed to refund the wrongly credited amount of Rs.81,590/- to the complainant:
3. No order as to cost or otherwise;
4. Four weeks time granted to comply this order.

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on  this 31^st day of May 2018).

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                        

Documents produced by the complainant

1. Annexure. A- Account statement.
2. Annexure. B– Acknowledgement of protest letter date: 17.04.2017.
3. Annexure. C– Copy of letter with postal receipt date: 21.04.2017 to
                             the O.P.
4. Annexure.D—Postal acknowledgement.
5. Annexure. E– Photo copy AADHAR CARD.

 Document produced by the Opponents.

-Nil-

Witness examined.

Complainant.

1. P.W.1- Mr.Omkar S/o Gurunath Biradar (complainant).

Opponent No.1

1. R.W.1- Sri Kalpesh .N. Nagar S/o Nand Kumar Nagar 
                   Manager, AXIS Bank Bidar.

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.