STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

State Bank of India, a body corporate, constituted the State Bank of India Act, 1955, having its Corporate Office at Madaam Cama Road, Nariman Point, Mumbai and having its Administrative Office, Punjab Building, Sector 17, Chandigarh and having branches at different places with one of its Branch situated at Sector 22, Chandigarh, (presently the case is being dealt by, through Sh. Ved Parkash Padarwal, [(Manger Operations)]

……Appellant/Opposite Party No.1

V e r s u s

Tripta Sharma w/o Late Sh. Om Parkash, resident of H.No. 472, Sector 41-A, Chandigarh.

              ....Respondent/complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. Sumeer Bector, Advocate for the appellant.

                    Sh. Nirmal Singh Jagdeva, Advocate for the respondent.

PER  JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 09.05.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint, and directed Opposite Party No.1 (now appellant), as under:-

“Hence relying on the ratio of the aforesaid judgments, and giving the benefit of doubt to the consumer, we decide this case in favour of the Complainant and direct the Opposite Party No.1 to pay `20,000/- to the Complainant. This amount be paid within 45 days of the receipt of this order, failing which Opposite Party No. 1 shall be additionally liable for an interest @12% per annum on the awarded amount of `20,000/- also, till it is paid.   No costs”.

2.             The facts, in brief, are that the complainant is a senior citizen. She checked her account at 10.42 A.M., on 04.06.2010, when balance in her account was Rs.92536/-. She operated her SBI ATM Card, on 04.06.2010, at 10:49 AM, to take out a sum of Rs.20,000/- for ongoing construction of her house. On operating the Automated Teller Machine (hereinafter to be referred as the ATM only), the following receipt came out:-

              “SORRY UNABLE TO PROCESS.

              INCONVENIENCE IS REGRETTED, KINDLY

              CONTACT YOUR BRANCH OR CALL 24 X 7

              HELPLINE AT 1800112211 OR 080 26599990”

Since, there were two machines, in the Booth, the Security Guard, posted there, advised the complainant, to operate the second machine. When the complainant operated the second machine, to withdraw a sum of Rs.20,000/-, the screen of the ATM became blank, and no money or slip came out. The complainant, again operated the same machine, at 10:51 AM, to withdraw Rs.10,000/-. This time, her attempt was successful, but she was surprised to see that in the receipt Annexure C-4, the available balance was shown as Rs.62536.17 Paisa. As the complainant required more money, she again operated the ATM at 11:09 AM, and withdrew Rs.10,000/-, more , receipt whereof is Annexure C-7. It was stated that due to non-receipt of the money, against the first transaction of Rs.20,000/-, the complainant contacted the Cashier of the concerned Bank, who advised her, to submit a complaint to the Bank. The complainant made a complaint, whereafter, she received a letter dated 9.6.2010(Annexure C-9), from the Bank, wherein, it was mentioned as under: -

“On the above subject, we enclose a copy of EJ/JP ROLL and its perusal reveals that Txn No. 8311dated 04/06/10 Id 324634 for Rs.20000/- each is having response code of “000 SUCCESSFUL” and having no compensatory error. Hence no refund is to be made of these Txns.”

When the Bank did not refund Rs.20,000/-, to the complainant, which were not withdrawn by her, but wrongly debited to her account, a legal notice dated 17/07/2010 (Annexure C-11), was served upon Opposite Party No.1, asking for the refund of the amount, in dispute. However, the grievance of the complainant was not redressed. It was further stated that the aforesaid act of Opposite Party No.1, amounted to deficiency, in rendering service. Ultimately, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for directions to Opposite Party No.1, to refund the amount of Rs.20,000/-, alongwith interest @18% P.A.; pay compensation, on account of mental agony and physical harassment, caused to the complainant, to the tune of Rs.70,000/-; and pay Rs.6,600/-, as litigation costs, was filed.

3.             Opposite Party No.1, in its written version, stated that all the ATMs were being used with secret pin code number, which was known only to the account holder(s). It was further stated that, in the instant case, the ATM card, in question, had been used by the complainant herself, as per the entries of  JP Logs/ Roll, carrying the timings and other details of its usage. It was further stated that the transaction, made by the complainant, was successful, as the slip generated from the ATM, showed withdrawal of Rs.20,000/- at 10:49 AM, vide transaction no. 8311. It was further stated that a sum of Rs.10,000/-, was withdrawn by the complainant at 10:51 AM,  through the ATM, vide transaction no. 8312, and a sum of Rs.10,000/-, was again withdrawn by the complainant at 11:09 AM, vide transaction no. 8320. It was further stated that since all the transactions, made by the complainant, through the ATM, used by her, on 04.06.2010, were successful, her complaint, with regard to non-withdrawal of an amount of Rs.20,000/-, was not correct. It was further stated that the legal notice served upon them, was duly replied to. It was further stated that there was no deficiency, in rendering service, on the part of Opposite Party No.1. The remaining averments, were denied, being wrong.

4.             The name of Opposite Party No. 2, was deleted from the array of the Opposite Parties, vide order dated 22/02/2012, on the statement, made by the Counsel for the complainant.

5.             The District Forum, in paragraph number 5 of the impugned order, recorded that the parties led evidence, in support of their contentions.

6.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, primarily on the ground, that no affidavit was submitted by Opposite Party No.1, in support of the averments, contained in the written statement, filed by it.   

7.             Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.

8.             We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 

9.             This Commission, as an Appellate Authority, is required to ascertain, as to whether, the District Forum, adopted the proper procedure, in accordance with the provisions of the Act, while holding the inquiry, into the complaint or not. It is settled principle of law that the Consumer Fora, is required to observe the principles of natural justice, which require that every party should be afforded a reasonable opportunity, of putting-forth its version, and leading evidence, by way of affidavit(s). In the instant case, no doubt, no affidavit was filed by Opposite Party No.1, in support of the averments, contained in the written statement. Whether, a reasonable opportunity was granted to Opposite Party No.1, to lead its evidence or not, is required to be ascertained. It is evident, from the District Forum file, that on 22.02.2012, the Counsel for Opposite Party No.1, put in appearance, and filed Vakalatnama. On that date the case was adjourned to 14.03.2012, for filing written statement and placing on record evidence, of Opposite Party No.1. On 14.03.2012, written statement, alongwith annexures, on behalf of Opposite Party No.1, was filed. Thereafter, as per the said order sheet, the complaint was adjourned to 07.05.2012, for arguments, and for placing evidence, if any, of the parties. The order sheet dated 14.03.2012, reveals that the cart was put before the horse. The District Forum was required, in the first instance, to afford a reasonable opportunity, to Opposite Party No.1, to lead evidence, and in the event of not leading evidence, by it, it (District Forum) could adjourn the case, with or without costs, or could proceed further, in accordance with the provisions of law. From 14.03.2012, the case was adjourned to 07.05.2012, when the arguments were heard, and the complaint was reserved for orders. Had the District Forum, taken the trouble of ascertaining, on 14.03.2012 or on 07.05.2012, from the Counsel for Opposite Party No.1, as to whether, he wanted to file evidence, by way of affidavit(s), and, had he not filed the same, the matter would have been different. In case, Opposite Party No.1, did not want to lead evidence, by way of affidavit(s), then the District Forum could record that despite affording an opportunity to it (Opposite Party No.1), it did not want to lead evidence, and, thereafter, it could fix the case for arguments. In case, Opposite Party No.1, on being asked, as to whether, it wanted to lead evidence, by way of affidavit(s), and it had sought a date, then in accordance with the provisions of law, the District Forum, could grant the same, subject to payment of costs or otherwise or refuse the same, depending upon the facts and circumstances of the case. It appears that the District Forum, was in a hurry to dispose of the case, without affording an opportunity to Opposite Party No.1, to lead evidence. It is, no doubt, true that according to the provisions of the Act, a complaint is required to be disposed of, within three months, from the date of appearance of the Opposite Party(s), yet, that did not mean that proper procedure should not be followed, while deciding the cases. On account of non-following the proper procedure, according to the provisions of law, miscarriage of justice occasioned, in this case. Under these circumstances, it is a fit case, in which the order of the District Forum, should be set aside, and the complaint should be remanded back, to the District Forum, for fresh decision, in accordance with the provisions of law.

10.           No other point, was urged, by the Counsel for the parties.

11.           For the reasons recorded above, the appeal is accepted, with no order as to costs. The impugned order of the District Forum, is set aside. The complaint is remanded back to the District Forum, with a direction, to afford an opportunity to Opposite Party No.1/appellant, to lead its evidence, by way of affidavit(s) and, if it leads the same, then give an opportunity to the complainant, to rebut the same, if required, and, thereafter, decide the complaint, afresh, on merits, in accordance with the provisions of law.

12.           The parties are directed to appear before the District Forum, on 15.10.2012 at 10.30.a.m.

13.           The District Forum record, be sent back immediately, alongwith a certified copy of this order, so as to reach there, well before the date fixed.     

14.           Certified Copies of this order, be sent to the parties, free of charge.

15.           The appeal file be consigned to Record Room, after compliance.

Pronounced.

October 1, 2012

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg