Tripura

StateCommission

A/16/2017

Sri. Sambhu Kanti Debnath - Complainant(s)

Versus

The State Bank of India - Opp.Party(s)

Mr. Niharendu Majumder

06 Jun 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.16.2017

 

 

1. Sri Sambhu Kanti Debnath,

S/o Late Jadu Gopal Debnath,

Resident of Ramnagar Road No.3 (3^rd crossing),

P.S. West Agartala,

District - West Tripura.

 

… … … … … Appellant/Complainant.

 

•  

 

1. The State Bank of India,

(Represented by its Regional Manager),

State Bank of India, Tripura Region,

District - West Tripura, Agartala.

 

2. The Assistant General Manager,

State Bank of India, Agartala Branch,

District - West Tripura, Agartala-799001.

 

… … … … … Respondent/Opposite Parties.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

 

For the Appellant:                                           Mr. Niharendu Majumder, Adv.

For the Respondents:                                Mr. Kajal Nandi, Adv.

Date of Hearing & Delivery of Judgment:   06.06.2017.

 

J U D G M E N T [O R A L]

 

U.B. Saha,J,

The instant appeal is filed by the appellant Sri Sambhu Kanti Debnath under Section 15 of the Consumer Protection Act, 1986 against the judgment and order dated 08.02.2016 passed by the Ld. District Consumers Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No. C.C. 15 of 2014 along with an application for condoning the delay of 386 days in preferring the appeal against the aforesaid judgment.    

2. Heard Mr. Niharendu Majumder, Ld. Counsel appearing on behalf of the appellant-complainant (hereinafter referred to as complainant) as well as Mr. Kajal Nandi, Ld. Counsel appearing for the respondents-State Bank of India (hereinafter referred to as opposite parties/Bank/SBI).
3. The case of the complainant as gathered from the record is that the complainant is maintaining a Savings Bank Account No.30532513403 with the opposite parties, State Bank of India, Agartala Branch and the said account is having ATM Card-cum-Debit facilities. On 20.12.2013 at about 07.59 hours, the complainant went to the SBI ATM Counter at Battala for withdrawal of an amount of Rs.3,000/- and accordingly withdrew the aforesaid amount from the ATM counter keeping a balance of Rs.16,806.69/- in his account. On the same day at about 19.49 hours, he again went to the same SBI ATM Counter for withdrawal of some more amount from his account, but he was shocked to find that someone had fraudulently withdrawn Rs.16,000/- from his account. So, due to paucity of fund in his account, he had to satisfy himself by withdrawing a sum of Rs.500/- only by using his ATM card. Since he had kept the ATM card as well as PIN number used on operating the said card very carefully in his personal custody, he suspected that his account was fraudulently manipulated by someone. Then and then, he rushed to the Bank and reported the opposite party no.2 as to the missing of Rs.16,000/- from his account. As the opposite party no.2 was not ready to take any action on his oral complaint, next day i.e. on 21.12.2013, he made a written complaint with the opposite party no.2. He also lodged a written complaint with the Officer-in-Charge of West Agartala Police Station narrating the whole incident which was entered in the GD Book vide West Agartala P.S. G.D. No.1062 dated 21.12.2013. On his complaint, the opposite party no.2 engaged a staff of its branch to examine the CC TV footage to identify the person who committed the mischief, but nothing could be traced. The complainant made repeated requests to the opposite party no.2 to refund the amount fraudulently withdrawn from his account, but no action was taken by the opposite party no.2. It has been alleged that due to fault and defective service of ATM in question there had been fraudulent withdrawal of Rs.16,000/- from his account which amounts to negligence and deficiency in service on the part of the opposite parties-Bank. Being aggrieved by the action of the opposite party, the complainant had submitted an application under Section 12 of the Consumer Protection Act, 1986 before the District Forum.   
4. Upon receipt of the notice from the Ld. District Forum, one Sri Barun Das, Deputy Manager, SBI, Agartala Branch appeared on behalf of the opposite parties-Bank and sought for time to file written objection, which was allowed by the District Forum. But thereafter, the opposite parties-Bank neither appeared, nor filed any written statement. As a result, the District Forum proceeded with the complaint case ex parte against the opposite parties-Bank and finally allowed the complaint case directing the opposite parties-Bank to refund an amount of Rs.16,000/- to the complainant and also to pay of Rs.2,000/- as compensation for mental agony and harassment together with Rs.1,000/- as cost of the litigation.  

Dissatisfied with the aforesaid judgment dated 18.07.2014, the opposite parties-Bank preferred an appeal before this Commission being Appeal Case No.FA/25/2014. After hearing the parties, this Commission had allowed the appeal and set aside the aforesaid judgment dated 18.07.2014 and the matter was remanded to the District Forum to decide afresh after hearing the parties providing opportunity to the opposite parties-State Bank of India to file their written statement and also to produce the evidence.

5.  After receipt of the judgment of this Commission in Appeal Case No. FA/25/2014, both the appellant-complainant and respondent-opposite parties, Bank appeared before the Ld. District Forum and adduced their respective evidence. After hearing afresh, the Ld. District Forum vide impugned judgment dated 08.02.2016 dismissed the complaint petition. Hence, the instant appeal along with a petition for condoning the delay of 386 days.
6. In the condonation petition, particularly in Paragraph-3 & 4, it is stated that after receipt of the certified copy, the appellant consulted the Ld. Advocate, Mr. N. Mujumder for filing the appeal and fixed the date 28.02.2016 for drafting of the appeal petition for filing immediately, but the appeal could not be filed as the appellant fell ill and was under medical treatment of different registered doctors for a period from 01.03.2016 to 28.02.2017. After recovery from the illness, the appellant met the Ld. Advocate in his chamber on 1^st March, 2017 and accordingly the appeal petition was drafted and the same was filed on 3^rd April, 2017.
7. The opposite parties-Bank has filed the written objection contending that in the condonation petition, nothing has been stated specifically regarding his illness except producing some medical illness certificates issued by the Homeopathic practitioners, namely, Dr. Anirban Hore, Dr. Sushmita Deb and Dr. Pranab Kr. Nandi.
8. Mr. Majumder, Ld. Counsel appearing for the appellant-complainant while urging for condoning the delay of 386 days and admission of the appeal would contend that the appellant-complainant has explained the reasons for delay in details and also in support of his illness, he has submitted the medical illness certificates from various registered homeopathic doctors.
9. Mr. Nandi, Ld. Counsel appearing on behalf of the opposite parties-Bank has seriously objected to the prayer for condonation of delay and submitted that in the condonation petition, nowhere the appellant-complainant stated regarding nature of his illness. He has further contended that the medical certificates produced by the appellant-complainant would show that those certificates were obtained only for the purpose of filing the appeal as Dr. Anirban Hore issued the illness certificate on 01.03.2016 wherein it is mentioned that the appellant-complainant was suffered from 01.03.2016 to 30.07.2016 from viral meningitis and other certificates are relating to back pain, leg pain and stomach pain etc. According to him, none of these illness is serious in nature and more so, admittedly, the appellant-complainant never visited hospital and/or admitted himself to any hospital for his treatment.
10.  We have gone through the condonation petition as well as the medical illness certificates submitted by the appellant-complainant. From the medical illness certificates, it appears that the nature of illness of the petitioner was not so serious for which he had to wait for 386 days for preferring the appeal.
11. ‘Sufficient cause’ is the cause for which the opposite parties could not be blamed for their filing of appeal in time. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. In other way, it can be said that "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". In the instant case, admittedly, there is no explanation for the period from 27.10.2016 to 03.11.2016 and 05.11.2016 to 19.12.2016.
12. As per settled law, culled out from various judicial decisions, the above expression, 'sufficient cause' though deserves to receive a liberal construction, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellants of adjudication of their grievances on the merits of their appeal for causes beyond their reasonable control, which means the cause is bona fide and beyond the control of the appellants. There is no hard and fast rules, what should be the 'sufficient cause' in a given case.
13. In Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC), the Hon’ble Apex Court while dealing with the issue pertaining to condonation of delay observed as follows:-

 “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.”

Again in Cicily Kallarackal Vs Vehicle Factory, IV (2012) CPJ 1(SC) 1, the Hon'ble Supreme Court observed:-

“4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC), has explained the scope of condonation of delay in a matter where the special Courts /Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute(s).

5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay”.

In the aforesaid judgment, Hon’ble Supreme Court has highlighted that while dealing with an application for condonation of delay, the Court must bear in mind the object of expeditious disposal of consumer disputes which would get defeated if the Court was to entertain highly belated petitions.

14. The appellant-complainant has failed to explain the delay properly in filing the appeal and he has filed some illness certificates, which show that he suffered from back pain, stomach pain, amoebic dysentery etc. for 31 days with effect from 01.08.2016 except one occasion for viral meningitis. In none of these certificates, the doctors said that the appellant-complainant was supposed to be bed ridden and not only that, though the appellant-complainant annexed some medical illness certificates, but no such prescription for those deceases has been annexed with the condonation petition. Therefore, we are unable to accept the explanation given by the appellant-complainant in the delay condonation petition.
15. We have also gone through the impugned judgment. According to us, the impugned judgment of the Ld. District Forum is fully covered by the judgment of this Commission (Appeal Case No.A/24/2015 in Shri Aditya Sankar Sengupta and another Vs The State Bank of India), wherein almost a similar case was decided by this Commission and the appeal was dismissed affirming the impugned judgment therein whereby and whereunder the Ld. District Forum dismissed the complaint petition. Facts of that case were as follows:-

“2. The case of the appellants, in brief, is that the appellant- complainants are the holder of a Joint Account No. 30383020051 standing at Agartala Branch of the State Bank of India and an amount of Rs.40,000/- has been shown withdrawn from the said account in three phases which did not come to the notice of the complainants until they received three messages in the Cell Phone on 12.11.2013. It is also the case of the appellants that the said amount was withdrawn using SBI ATM-cum-Debit Card bearing No.6220180000200252377 issued in the name of the complainant No.1 by someone from the ATM counter at BARISHA BIREN ROY ROAD(E). It is also stated that they have never used the said SBI ATM card after issuance of the same in favour of the complainant No.1 and the said ATM-cum-Debit Card is still in their custody in unused condition. It is further asserted that the complainants never visited Kolkata for the last eight years and as such, the question of any use of the said ATM card by the complainants does not arise at all. It is also stated that on receipt of the messages dated 12.11.2013, the complainants by a letter dated 13.11.2013 requested the respondent-O.P. to block the above account so that no further unauthorized withdrawal from the said account could take place.

3. It is also the case of the appellant-complainants that they are the consumers of the O.P., but due to faulty services of the O.P., an amount of Rs.40,000/- was debited from their account when no money was withdrawn by them by using the ATM card. It is further stated that the complainants by several letters requested the respondent-O.P. to credit the said amount of Rs.40,000/- to their account which was wrongly debited from the said account, but the respondent-O.P. made no response to their correspondences nor credited the said amount of Rs.40,000/- to their account and hence, the complainants filed the complaint.”

16. So, for the reasons and discussion made above, we are of the opinion that the delay in filing the instant appeal has not been properly explained as required and the same is also not bona fide. Accordingly, the condonation petition is dismissed and in consequent thereto, the appeal also stands dismissed.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura