Haryana

Yamunanagar

CC/441/2012

Anil Kumar age 39 years s/o Sh.Bishna Ram, - Complainant(s)

Versus

Union Bank of India - Opp.Party(s)

K.S.Shakkarwal

06 Dec 2016

ORDER

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                    Complaint No. 441 of 2012.

                                                                                    Date of Institution: 08.05.2012

                                                                                    Date of Decision: 06.12.2016

Anil Kumar aged about 39 years son of Shri Bishna Ram, resident of Kamboj Colony, near Sector-18, Jagadhri, District Yamuna Nagar.                                                                                                                                                                                                        

                                                                                                                     ..Complainant

Versus

 

1. Union Bank of India, Sector 18, HUDA, near Amartax, Jagadhri, District Yamuna Nagar, through its Manager.
2. Punjab National Bank, New Grain Market, Yamuna Nagar, through its Branch Manager.

 

                                                                                                               ..RespondentS.

BEFORE: SH. ASHOK KUMAR GARG …………….    PRESIDENT

                 SH. S.C. SHARMA  …………………………MEMBER         

 

Present: Sh. Karam Chand Shakkarwal, Advocate, counsel for complainant.

              Sh. Nalin Gupta, Advocate, counsel for respondent No.1.

              Sh. G.S. Mehla, Advocate, counsel for Op No.2.

 

ORDER   

1.                     The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986.  

2.                     Brief facts of the present complaint, as alleged in the complaint, are that complainant is having his saving bank account No. 297100040032497 with the facility of ATM Card with the respondent No.2 Bank (hereinafter referred as OP No.2 Bank). On 09.09.2010 the complainant was in need of money and hence he used his ATM card with Union Bank of India, Sector-18, HUDA, Jagadhri for withdrawal of Rs. 5000/- but the amount was not received by the complainant whereas the said amount was deducted from his account as per receipt of ATM. Thereafter, the complainant approached the OP No.1 and disclosed about the fact, upon which the Op No.1 stated to complainant to talk with the OP No.2 and then the complainant moved an application to OP No.2 and moved a complaint to ATM Bombay vide complaint No. 5048842971010001418 but the grievances of the complainant has not been redressed. Thereafter, the complainant also moved an application to the Chief Manager, Union Bank of India, Chandigarh, requesting to redress the grievances of the complainant but till date the Ops have not done the needful.  Lastly, prayed for directing the OPs to refund an amount of Rs. 5000/- alongwith interest and further to pay Rs. 100/- per day penalty from 9.9.2010 till its realization as well as compensation and litigation expenses. Hence, this complaint.

3.                     Upon notice, OPs Bank appeared and filed its written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable; complaint is hopelessly time barred; no deficiency in service on the part of OP No1. The complainant has not come to this Forum with clean hands and has concealed the true and material facts from this Forum. The present complaint has been filed just to harass and harm the OP No.1. The true facts are that the transaction of ATM was successful as per the record of ATM  situated at UBI Jagadhri, therefore, the complainant has no right to claim the said amount again  and again. The transaction of withdrawal by the complainant was successful and he has duly withdrawn the amount of Rs. 5000//- from the ATM. Therefore, the complainant has no right, title or interest to file the present complaint and on merit admitted to the extent that on 09.09.2010 the complainant had used his ATM card for withdrawal of the amount and the same was duly deducted from the account of the complainant. The transaction slip (i.e. J.P.Log) as maintained in the ATM machine is attached herewith for the kind perusal of this Forum and controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint against the OP No.1.

4.                     OP No.2 Bank filed its written statement wherein it has been alleged that when the amount has been withdrawn and received by the account holder, either directly or through ATM then and only then the said amount debited in his account and is deducted accordingly and if the amount has not been received by the account holder, then the amount is not deducted from him. In the present case, it is clear that the amount has been deducted from the complainant as the complainant has withdrawn the said amount from the ATM otherwise the amount would have not been deducted. The ATM in question installed at the premises of Op No.1 Bank and is being managed by the Op No.1 Bank and Op No.2 is not at all liable for any defect, if any, is there in the ATM of Op No.1 Bank. It is the duty of  OP No.1 or its Head Office to remove the grievances, if any, of the complainant and not the OP No.2. It has been submitted that the amount has rightly been deducted by the OP No.2 from the account of complainant as the said amount has been shown to have been withdrawn by the complainant through ATM and the OP No.2 has not acted illegally in any way or manner whatsoever. Lastly, prayed for dismissal of complaint against the OP No.2.

5.                     To prove the case, counsel for the complainant tendered into evidence his affidavit as Annexure CX and documents such as Photo copy of application written to Chief Manager, Union Bank of India, Chandigarh as Annexure C-1, Photo copy of application written to Chief Manager, Punjab National Bank, Chandigarh as Annexure C-2, Photo copy of pass book as Annexure C-3, Photo copies of information sought under RTI as Annexure C-4 and C-5 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for the OP No.1 Bank tendered into evidence photo copy of transaction slip as Annexure R-1 and closed the evidence on behalf of OP No.1 Bank.

7.                     OP No.2 bank failed to adduce any evidence, hence evidence of Op No.2 Bank was closed by court order dated 09.03.2016.

8.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very carefully and minutely.

9.                     The only plea of the complainant is that on 09.09.2010, he visited the ATM of the OP No.1 Union Bank at Jagadhri for withdrawing the amount of Rs. 5,000/- through his ATM card and swapped his ATM Card for the same but the amount of Rs. 5,000/- was not disbursed to the complainant. In this regard, complainant gave written application to the Chief Manager, Union Bank of India, Chandigarh as well as to the Chief Manager, Punjab National Bank, Chandigarh which is evident from Annexure C-1 & C-2 but till date no action has been taken by the Ops Bank.  Learned counsel for the complainant further argued that it is duly evident from Pass Book (Annexure C-3) that an amount of Rs. 5,000/- has been debited from the account of the complainant on 09.09.2010 and referred the case law titled as State Bank of Patiala Versus Sumit Kumar & Another, IV (2013) CPJ page 249 (NC) and State Bank of India Versus Shankar Parshad Yadav and others, 2012(2) CLT page 338 and lastly prayed for acceptance of complaint.

10.                   On the other hand, counsel for the OP No.1 Bank hotly argued at length that the complainant has concealed the true and material facts from this Forum as the transactions remained successful and draw our attention towards the transaction slip (Annexure R-1) and copy of account statement in the pass book (Annexure C-3) from which it is duly evident that complainant used his ATM card for 3 times on the same day i.e. on 09.09.2010 and firstly, he withdrew Rs. 5,000/- and after that he withdrew an amount of Rs. 4000/-  and Rs. 1000/- from his account. So, the version of the complainant is totally false and requested for dismissal of the complaint and referred the case law titled as State Bank of India vs. Mangilal Mangal and another, Revision Petition No. 3044 of 2013 decided on 11.04.2016, and further referred the case law titled as State Bank of India Vs. Om Parkash Saini I (2013) CPJ 749 (NC) wherein it has been held that Banking and Financial Institution Services- Withdrawal from ATM-Defect in machine alleged-Amount could not be withdrawn-Slip showing deduction from account-Refund of amount denied- Alleged deficiency in service-District Forum allowed complaint-State Commission dismissed appeal-Hence, revision. Camera is fixed on the face of user and not on the keys of ATM and delivery window-Non supply of video footage had no bearing on claim of complainant- No other person complained for not receiving money on that day-It cannot be presumed that complainant did not receive Rs.5,000/- from ATM machine-Impugned order set aside.

11.                   After hearing both the parties and going through the documents placed on file, it is clearly evident that the complainant swapped his ATM card three (3) times on 09.09.2010 for withdrawing the amount from his account. Firstly, the complainant swapped his ATM card for withdrawing Rs. 5,000/- as the complainant was aware about the balance in his account as Rs. 5474/- and this transaction was successful. After that complainant again swapped ATM card for withdrawing the amount of Rs. 4000/- as he was having knowledge that now balance remains as Rs. 1474/- in his account and this transaction was also successful. However, again complainant swapped his ATM card for withdrawing Rs. 1000/- and this transaction was successful but the complainant is totally silent for these facts and has not disclosed in his complaint that on 09.09.2010 he swapped his ATM Card three (3) times. When an amount of Rs. 4000/- and Rs. 1000/- were successfully disbursed to the complainant then how it can be presumed that the amount of Rs. 5,000/- was not disbursed to the complainant by the ATM Machine. Further, if the complainant was having any grievances then he might have informed to the OPs Bank immediately but the complainant has not mentioned in his complaint that as and when he informed the OPs Bank and by which mode he intimated to the OPs Bank as no postal receipt as well as acknowledgement is on the file to prove his version and no explanation has been given by the complainant on this account that why he did not inform the OPs Bank immediately on toll free phone number or by visiting the local branch office of OPs Bank. Even, the complainant has not placed on file any ATM slips to prove the transactions done due to reasons best known to him and he has only placed on file photo copy of pass book Annexure C-3 and has not placed on file the copy of ATM slips vide which the amount was disbursed or not to him. Further, the complainant has nowhere mentioned or alleged in his complaint that ATM machine of the OPs Bank was not working properly whereas from the perusal of receipts Annexure R-1, it is clearly evident that ATM Machine of the OP Bank was working properly.

12.                    From the other angle also, when the complainant could not succeed to get the amount of Rs. 5,000/- first time then why he again tried to get the amount of Rs. 4000/- from the same ATM Machine of the OP Bank. Normally, machine does not lie but man may do so. Moreover, there is nothing on the file to prove any negligence or deficiency in service on the part of OP Bank and the present complaint deserves dismissal. The law cited by the learned counsel for complaint is not disputed but not applicable to the facts of present case.

13                    Resultantly, keeping in view the above mentioned facts and circumstances and going through the citations referred by both the parties, we are of the considered view that the complainant is not entitled to get any relief, hence the present complaint is hereby dismissed with no order as to costs. A copy of this order be sent to the parties concerned free of costs as per rules. File be consigned to record room after due compliance.

Announced in the open court: 06.12.2016.

 

                                                                                    (ASHOK KUMAR GARG)

                                                                                     PRESIDENT,

                                                                                     D.C.D.R.F. Yamuna Nagar.

 

                                                                       

                                                                                    (S.C. SHARMA)

                                                                                      MEMBER