State Consumer Disputes Redressal Commission
Sh. Parveen Gupta. vs Punjab National Bank. & Anr. on 11 October, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 239/2016
Date of Presentation: 19.07.2016
Order Reserved On : 05.07.2017
Date of Order : 11.10.2017
......
Praveen Gupta resident of Set No.55 Police Line Solan Tehsil
and District Solan H.P.
...... Appellant/Complainant
Versus
1. Punjab National Bank Bye Pass Road Solan District Solan
through its Branch Manager.
......Respondent/opposite party No.1
2. Punjab National Bank Chambaghat Branch District Solan
through its Branch Manager.
......Respondent/opposite party No.2
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Yadvender Thakur Advocate.
For Respondents : Mr. G.S. Rathore Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 08.06.2016 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) complaint No.82/2015 title Parveen Kumar Versus Punjab National Bank & Anr.
Brief facts of Case:
2. Complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is customer of opposite party No.2 and having his account No.0433010100064125 with opposite party No.2. It is pleaded that Opposite party No.2 issued an ATM card to the complainant and opposite parties are providing services of ATM facilities to the complainant being customer. It is pleaded that complainant's son on dated 06.07.2015 went to ATM of opposite parties at Bye Pass Kather for withdrawal of cash amount from his account. It is further pleaded that complainant entered transaction for withdrawal of cash amount two times but cash amount was not withdrawn from the ATM machine. It is pleaded that ATM machine debited cash amount from the account of complainant to the tune of Rs.10000/-(Ten thousand) and Rs.15000/-(Fifteen thousand) respectively. It is further pleaded that son of complainant narrated the said fact to the complainant telephonically and thereafter complainant visited the office of opposite party No.1 and lodged the complaint and complaint was registered as complaint No.M038571208. It is further pleaded that CCTV footage of ATM also clearly shows that no cash was withdrawn from ATM machine. It is further 2 Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) pleaded that Manager of opposite party No.1 has assured the complainant that amount would be reimbursed to complainant within 24 hours. It is pleaded that amount was not reimbursed to complainant and thereafter complainant filed written complaint before opposite party No.1 to reimburse the amount. It is further pleaded that opposite party responded that code of ATM had shown 000 which was considered as clear disbursement of amount to complainant son. It is pleaded that complainant demanded CCTV footage from opposite parties but opposite parties did not supply the CCTV footage of ATM to complainant. Complainant sought relief to the effect that opposite parties be directed to refund the amount of Rs.25000/-(Twenty five thousand). Complainant also sought additional relief of compensation to the tune of Rs.50000/-(Fifty thousand) for pain and agony sustained by complainant.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that complaint is not maintainable and complainant has no cause of action and locus standi to file the present complaint. It is pleaded that complainant has not approached the Forum with clean hands and suppressed the material facts. It is further pleaded that complaint is bad for non-joinder of necessary party. It is pleaded that son of complainant has withdrawn the cash amount from ATM machine to the tune of Rs.25000/-(Twenty five thousand). It 3 Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) is pleaded that opposite party on reconciliation of cash amount found no excess of cash amount in electronic machine. It is pleaded that as per roll of ATM the money was disbursed to son of complainant in both transactions. It is further pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of complaint sought. Opposite party No.2 did not file independent version. Opposite party No.2 adopted version filed by opposite party No.1.
4. Complainant also filed rejoinder and reasserted the allegations mentioned in complaint. Learned District Forum dismissed the complaint. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit Ext.CW-I in evidence.
There is recital in affidavit that deponent is customer of 4 Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) opposite party having account No.0433010100064125. There is recital in affidavit that ATM card was issued to deponent by opposite parties and on 06.07.2015 son of deponent went to ATM machine of opposite parties for withdrawal of cash amount and entered the transaction for withdrawal of cash amount two times. There is further recital in affidavit that cash amount did not come out from ATM machine. There is further recital in affidavit that opposite parties had debited an amount of Rs.25000/-(Twenty five thousand) from the account of complainant. There is recital in affidavit that son of deponent immediately narrated the incident to deponent telephonically and thereafter deponent visited the office of opposite party and filed complaint No.M038571208. There is recital in affidavit that on 08.07.2015 deponent alongwith his son again visited office of opposite party and asked for CCTV footage but CCTV footage not provided by opposite parties despite several requests. There is further recital in affidavit that Manager of bank assured that amount would be credited in the account of complainant within 24 hours. There is recital in affidavit that amount was not credited in the account of complainant despite several requests.
8. Complainant also filed affidavit of Shri Karan Gupta in evidence. There is recital in affidavit that deponent is son of complainant and on 06.07.2015 on the advise of complainant brother of deponent namely Arjun Gupta visited 5 Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) ATM of opposite parties to withdraw cash amount. There is recital in affidavit that brother of deponent used ATM machine two times and tried to withdraw cash amount of Rs.10000/-(Ten thousand) and Rs.15000/-(Fifteen thousand) but on both occasion cash amount did not come out from ATM machine. There is further recital in affidavit that ATM machine debited the amount from the account of complainant. There is recital in affidavit that thereafter deponent's brother immediately narrated the fact to complainant telephonically and thereafter complainant visited office of opposite parties and filed complaint. There is further recital in affidavit that officials of the opposite parties assured the complainant that amount would be credited in the account of complainant within 24 hours. There is recital in affidavit that opposite parties did not credit the amount in the account of complainant despite several requests.
9. Complainant also filed affidavit of Shri Arjun in evidence. There is recital in affidavit that deponent is son of complainant and on 06.07.2015 on the advise of complainant deponent visited ATM machine of opposite parties situated at Bye pass Kather. There is further recital in affidavit that deponent operated ATM machine two times and tried to withdraw cash amount of Rs.10000/-(Ten thousand) and Rs.15000/-(Fifteen thousand) but on both occasions cash amount did not come out from ATM machine. There is further 6 Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) recital in affidavit that amount of Rs.25000/-(Twenty five thousand) was debited from the account of complainant. There is further recital in affidavit that thereafter deponent immediately narrated the fact to his father telephonically and thereafter complainant and deponent's brother visited the office of opposite parties and filed written complaint. There is recital in affidavit that opposite parties did not credit the amount in the account of complainant despite several requests.
10. Opposite party filed affidavit of Shri S.S. Negi Branch Manager. There is recital in affidavit that allegations mentioned in the complaint are wrong and false. There is further recital in affidavit that no over amount was found in the electronic machine qua extra cash as per reconciliation sheet annexure-R1. There is further recital in affidavit that on checking the ATM Roll both transactions were shown as 000 which means that amount was disbursed to complainant in both transactions. There is recital in affidavit that complainant did not narrate the facts to the opposite party immediately. There is recital in affidavit that record of electronic journal rolls showed disbursement of amount from ATM machine by response code 000 and there was no extra cash found on reconciliation. There is further recital in affidavit that opposite party has forwarded the complaint to higher authority and higher authority rejected the complaint 7 Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) on the ground that response code of ATM was 000 which shows disbursement of amounts from ATM to son of complainant.
11. Opposite party also filed affidavit of Avanish Dwivedi Manager presently posted at Branch Punjab National Bank Bye Pass Road Kather. There is recital in affidavit that deponent is working as Manager in Punjab National Bank Bye Pass Road Kather Tehsil and District Solan. There is further recital in affidavit that on 08.07.2015 neither the complainant Praveen Kumar nor his son visited the branch. There is further recital in affidavit that complainant or his son Karan Gupta did not approach the bank for watching CCTV footage. There is further recital in affidavit that complainant or his son did not watch CCTV footage with the manager of bank on 06.07.2015 or 08.07.2015.
12. Opposite party No.2 filed affidavit of Sharvan Aggarwal Branch Manager. There is recital in affidavit that allegation alleged by complainant are wrong and false. There is further recital in affidavit that complainant has withdrawn the amount to the tune of Rs.25000/-(Twenty five thousand) from ATM machine. There is recital in affidavit that no extra cash was found in the electronic journal. There is further recital in affidavit that on checking ATM Roll both transactions were shown as 000 which means the money was disbursed to complainant in both transactions. There is 8 Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) further recital in affidavit that complainant did not approach opposite party immediately. There is further recital in affidavit that complainant concealed and suppressed material facts. There is further recital in affidavit that opposite party is just a branch office. There is recital in affidavit that registered office of opposite party has not been impleaded as party in the complainant.
13. Submission of learned Advocate appearing on behalf of complainant that opposite parties committed deficiency in service by way of debiting amount of Rs.25000/- (Twenty five thousand) from account of complainant as withdrawal from ATM machine despite factual fact that amount of Rs.25000/-(Twenty five thousand) was not received by son of complainant even after operation of ATM machine is decided accordingly. Shri Arjun eye witness of incident has specifically stated in affidavit Ex.CW-3 that he issued command to ATM machine for withdrawal of cash amount to the tune of Rs.10000/-(Ten thousand) and Rs.15000/-(Fifteen thousand) but on both occasions the cash amount did not come out from ATM machine. Shri Arjun has specifically stated in a positive manner that he immediately narrated the incident to his father telephonically and thereafter complainant and deponent's brother visited the office of opposite parties to file complaint. Affidavit filed by Arjun is corroborated by Shri Karan. Shri Karan has specifically 9 Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) stated that on 06.07.2015 brother of deponent Mr. Arjun operated ATM machine of opposite parties to withdraw cash amount to the tune of Rs.25000/-(Twenty five thousand) but cash amount did not come out from ATM and amount was debited from the account of complainant. Version of Arjun and Karan is further corroborated by Shri Praveen Kumar in affidavit Ext.CW-1. Affidavits filed by Shri Karan, Arjun eye witnesses are trustworthy, reliable and inspire confidence of State Commission.
14. Avanish Dwivedi Manager posted in PNB Kather has specifically mentioned in affidavit that at the time of withdrawal of cash amount CCTV footage was not available due to some technical problems. Shri Avanish Manager has admitted that CCTV was not operational at the time of withdrawal of cash amount from ATM machine. Shri Avanish Manager was not present in ATM machine when the command for withdrawal of Rs.25000/-(Twenty five thousand) was given to ATM machine by Shri Arjun. Shri Avinash Manager has filed affidavit on the basis of derived knowledge only. Similarly S.S. Negi Branch Manager was also not present at the ATM machine at the time of incident and he has also filed affidavit on the basis of derived knowledge. Similarly Shri Sharavan Aggarwal Manager was also not present at ATM machine at the time of incident and he has also filed affidavit on the basis of derived knowledge. 10
Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016)
15. State Commission is of the opinion that in ATM fault cases the bank should provide transactions records of electronic journal log and switch centre report. Opposite party did not place on record switch centre report. Hence adverse inference is drawn against opposite party for not placing on record switch centre report of ATM machine.
16. Even complainant has specifically mentioned in the affidavit that written complaint No.M038571708 was lodged before the opposite parties. Opposite parties did not place on record finding of inquiry officer qua written complaint filed by complainant. Hence adverse inference is drawn against opposite parties for withholding inquiry report of inquiry officer. No reason assigned by opposite parties as to why opposite parties have not placed on record inquiry report submitted by inquiry officer qua written complaint No.M038571208. State Commission vide interim order dated 27.03.2017 sought inquiry report from opposite party but opposite party did not file any report of inquiry officer and simply filed affidavit of bank officials. Hence adverse inference is drawn against bank for non-filing of inquiry officer report despite positive direction of State Commission. Opposite parties only filed affidavits. It is held that inquiry report and affidavits are entirely two different concepts under law. It is held that affidavit could not be treated as inquiry report of inquiry officer under law.
11
Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016)
17. Opposite parties have relied upon reconciliation sheet annexure-R1 but opposite parties did not file affidavit of official who has prepared the reconciliation sheet. No reason assign by opposite parties as to why opposite parties has not produced in evidence affidavit of official who has prepared the reconciliation sheet annexure-R1 placed on record. Evidence of electronic (computer) record is admissible in evidence as per section 13(4)(2) of Consumer Protection Act 1986 if signed certificate is given by person occupying responsible official position in relation to operation of electronic (computer) record. In the present case no certificate is given as per provision cited supra in reconciliation sheet annexure-R1. Even opposite parties also did not file affidavit of accountant and cashier who are relevant persons to disclose true facts. Hence adverse inference is drawn against opposite parties.
18. Facts of ruling relied upon by learned District Forum i.e. Branch Manager SBI Versus Nirmal Kumar Dutta F.A. No.315 of 2011 decided on 30.08.2012, State Bank of India versus Om Prakash Saini RP No.382 of 2012 decided on 18.01.2013 and State Bank of India Versus Om Prakash Sharma F.A. No.273 of 2011 decided on 21.08.2012 and facts of present case are distinguishable. Hence ruling relied upon by learned District Forum are not applicable in the present facts of case. Even opposite parties did not comply 12 Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) instructions of Reserve Bank of India qua placing of inbuilt ATM camera. Entire above stated facts proved deficiency in service on the part of opposite parties.
19. Submission of learned Advocate appearing on behalf of opposite parties that order of learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. State commission is of the opinion that learned District Forum has not properly appreciated affidavits filed by the parties and it is held that learned District Forum has not properly appreciated the annexures filed by parties. It is held that order of learned District Forum is contrary to proved facts and contrary to law and deserves interference by State Commission. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
20. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum is set aside. It is ordered that opposite parties will jointly and severally pay a sum of Rs.25000/-(Twenty five thousand) to complainant alongwith interest @ 9% per annum from the date of complaint till realization. It is further ordered that in addition opposite parties will jointly and severally pay compensation to the tune of Rs.5000/-(Five thousand) for pain and agony sustained by complainant. Other relief sought by complainant is declined in the ends of justice and on the principle of 13 Praveen Gupta Versus Punjab National Bank & Anr.
(F.A. No.239/2016) natural justice. Order of learned District Forum is modified to this extent only. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 11.10.2017.
KD* 14