State Consumer Disputes Redressal Commission
State Bank Of Patiala vs Dalbir Singh on 19 March, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 20 of 2015 Date of Institution : 28.01.2015 Date of Decision : 19.03.2015 State Bank of Patiala, SCO No.84, Sector 46-C, Chandigarh through its Branch Manager Sh. K. S. Ghuman. ......Appellant/Opposite Party No.1. Versus Dalbir Singh son of Sh. Joginder Singh, resident of House No.936, Sector 49A, Chandigarh. ....Respondent/Complainant. State Bank of India, through its Director, SCO No.27, Sector 7, Chandigarh. ....Respondent/Opposite Party No.2. Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Kuldip Singh, Advocate for the appellant. Sh.Deepak Aggarwal, Advocate for respondent No.1. Sh. Mahesh Dheer, Advocate for respondent No.2. First Appeal No. : 28 of 2015 Date of Institution : 05.02.2015 Date of Decision : 19.03.2015 Dalbir Singh son of Sh. Joginder Singh, resident of House No.936, Sector 49A, Chandigarh. ......Appellant/Complainant. Versus State Bank of Patiala, Sector 46-C, Branch Chandigarh through its Branch Manager. State Bank of India, through its Director, SCO No.27, Sector 7, Chandigarh. ....Respondents/Opposite Parties. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh. Deepak Aggarwal, Advocate for the appellant.
Sh. Kuldip Singh, Advocate for respondent No.1.
Sh. Mahesh Dheer, Advocate for respondent No.2.
PER DEV RAJ, MEMBER.
This order shall dispose of two appeals bearing Nos.20 of 2015 filed by the appellant/Opposite Party No.1 and 28 of 2015 filed by the appellant/complainant, against the order dated 19.12.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it partly allowed Consumer Complaint bearing No.485 of 2013, filed by the complainant, qua Opposite Party No.1, and directed it as under: -
"13. For the reasons recorded above, we do not find any merit in the complaint against OP-2. As far as the allegations against OP-1 are concerned, OP-1 is found deficient in service only to this extent that it did not take immediate action to secure the correct CCTV footage of the disputed transaction from OP-2 due to which the complainant had to file this complaint. Hence, the complaint is partly allowed against OP-1 only. OP-1 is directed to make payment of the composite amount of Rs.10,000/- only towards compensation for harassment, mental agony and deficiency in service on its part as well as litigation costs to the complainant. The complaint against OP-2 stands dismissed. However, it is also made clear that the complainant is at liberty to approach the Civil Court/police for getting the issue relating to the fraudulent withdrawal of the amount from his account resolved from them.
14. This order shall be complied with by OP-1 within one month from the date of receipt of its certified copy, failing which it shall be liable to pay the aforesaid awarded amount to the complainant alongwith interest @ 12% per annum from the date of filing of the present complaint till its realization."
2. The facts, in brief, are that the complainant was having a savings bank account No.55116565316 with Opposite Party No.1 and he was also holder of ATM Card issued by it. It was stated that the complainant was a regular user of the ATM facility provided by Opposite Party No.1) and was fully aware of the safety measures/guidelines issued from time to time. It was further stated that the complainant remembered his user password by heart and had never disclosed the same to any other person. It was further stated that on 9.4.2013, the complainant withdrew an amount of Rs.4,000/- from the ATM of the State Bank installed in Sector 47D, Chandigarh, debit entry whereof was duly reflected in his Passbook (Annexure C-1). It was further stated that on 23.4.2013, when the complainant visited Opposite Party No.1 - Bank for getting his passbook entries completed, it transpired that some third person had withdrawn Rs.20,000/- from his account, on 9.4.2013. It was further stated that the complainant immediately brought the matter to the notice of Opposite Party No.1 Bank, police as well as various other authorities. It was further stated that the complainant even went to the Branch Office of Opposite Party No.2, which was dealing with the CCTV footage for redressal of his grievance, but the official sitting there, flatly refused to entertain his request. It was further stated that after herculean efforts, the complainant was shown the CCTV footage (Annexure C-10) by Opposite Party No.1 but the same was totally unclear and reflected the poor quality of cameras installed by the Bank. It was further stated that the Opposite Parties instead of addressing the grievance of the complainant, washed off their hands by writing letter dated 13.5.2013 (Annexure C-12). It was further stated that the two transactions of Rs.4,000/- and Rs.20,000/- on 9.4.2013 were made from two separate/different machines and the complainant brought the said fact to the notice of Opposite Party No.1, vide letter dated 27.5.2013 but all his complaints fell on deaf ears of the Opposite Parties.
3. It was further stated that the act and conduct of the Opposite Parties, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed, directing the Opposite Parties, to refund Rs.20,000/- alongwith interest @18% per annum; pay Rs.50,000/- as compensation for mental agony and physical harassment besides Rs.21,000/- as costs of litigation.
4. Opposite Party No.1, in its written version, took up certain preliminary objections, to the effect, that no cause of action arose to the complainant, to file the complaint; that the State Bank of India, the ATM whereof was used, was not impleaded as a party to the complaint, and that since the disputed questions of facts were involved in the complaint, the same could only be decided by the Civil Court after leading cogent evidence. On merits, it was admitted that the complainant was having account in its Bank and that he was holder of the ATM card issued by it. It was also admitted that the complainant withdrew an amount of Rs.4,000/- from the ATM owned and held by the State Bank of India and installed in Sector 47-D, Chandigarh. It was stated that there were two ATM machines installed in the same premises. It was further stated that as per the ATM log, both the transactions, in question, pertaining to the account of the complainant through the ATMs owned by the State Bank of India installed in Sector 47-D, Chandigarh, were successful and there was a slight difference of only 27 seconds between one transaction and the other transaction. It was further stated that the distance of both the ATMs was a few feet only and both the machines could be used by one and the same person during the gap of a few seconds. It was further stated that immediately upon receipt of complaint from the complainant, Opposite Party No.1 wrote to the State Bank of India, Sector 7-C, Chandigarh, to provide the CCTV footage of the person who withdrew the amount from the ATM machine installed in Sector 47-D, Chandigarh under transaction No.3971. It was further stated that the correct CCTV footage was not provided by the said Bank to Opposite Party No.1. It was further stated that the CCTV footage provided by the State Bank of India and placed, on record, as Annexure C-10, by the complainant, did not pertain to the transaction made by him because the transaction was conducted by him on 9.4.2013 at 9:55:48 AM whereas the CCTV footage related to a transaction made on 9.4.2013 at 08:57 AM and there was a gap of about one hour whereas the gap between the transactions, in question, was only 27 seconds. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.2, in its written version, took up certain preliminary objections, to the effect, that the complainant was not a consumer of Opposite Party No.2; that the complaint was exclusively triable by a Civil Court; that no cause of action accrued to the complainant for filing the complaint; that the complaint was hopelessly barred by limitation; and that there was no locus-standi to file the present complaint. On merits, it was stated that when the complainant or Opposite Party No.1 asked it (Opposite Party No.2) about any information about the withdrawal of Rs.20,000/-, the same was duly provided. It was further stated that since no excess cash was found in the ATM, therefore, there was no reason to believe that the complainant had not received the amount in question. It was further stated that on the asking of Opposite Party No.1, the footage was immediately forwarded to it. It was denied that the CCTV footage was unclear and reflected poor quality. It was further stated that in the case of the complainant, the withdrawal of Rs.20,000/- from the account/ATM card of the complainant took place as per receipt No.3971. It was further stated that both the ATM machines were situated in the same building and hence, the chances of it being used within few seconds of each other were definitely possible. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. The complainant filed replication, wherein he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of Opposite Party No.1.
7. The parties led evidence, in support of their case.
8. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint against Opposite Party No.1, vide the impugned order, as stated above and the complainant was given liberty to approach the Civil Court/Police regarding withdrawal of amount.
9. Feeling aggrieved, both Opposite Party No.1, as well as the complainant, have filed the instant appeals.
10. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
11. The Counsel for the appellant/Opposite Party No.1, in appeal bearing No.20 of 2015, submitted that the amount of respondent No.1/complainant was withdrawn from the ATM of respondent No.2/Opposite Party No.2 and without inserting the Pin Code, withdrawal of amount was not possible, which meant that respondent No.1/complainant handed over his ATM Card by disclosing secret code number to other person who withdrew the amount from the account of respondent No.1/complainant. He further submitted that the District Forum wrongly allowed the complaint of respondent No.1/complainant by awarding compensation of Rs.10,000/- against the appellant/Opposite Party No.1, on the ground that if CCTV footage did not pertain to the transaction done by respondent No.1/complainant did not appear to be correct, the appellant/Opposite Party No.1 ought to have immediately contacted respondent No.2/Opposite Party No.2 to supply the correct CCTV footage and on this ground held that there was deficiency on the part of the appellant/Opposite Party No.1. He further submitted that CCTV footage was to be provided by respondent No.2/Opposite Party No.2. He further submitted that the distance of both the ATMs was a few feet only and both the machines could be used by one and the same person within a gap of few seconds. He further submitted that respondent No.1/complainant, shared his secret password with third person as without inserting of PIN Number, the third person could not withdraw the amount. He further submitted that respondent No.1/complainant, lodged a DDR alleging withdrawal of amount fraudulently and the same was pending with the Police. He further submitted that consumer complaints relating to the commission of fraud could not be decided by resorting to the summary procedure and the same could only be decided by a Civil Court by leading detailed and exhaustive evidence. He further submitted that the District Forum wrongly allowed the complaint.
12. The Counsel for respondent No.1/complainant (appellant in appeal bearing No.28 of 2015), submitted that the District Forum in Para 12 of the impugned order held that Opposite Party No.1 was negligent in rendering proper service and also guilty of deficiency in service as Opposite Party No.1, did not use the prudent approach in demanding CCTV footage from Opposite Party No.2, which was necessary to elicit the truth. He further submitted that the compensation needed to be enhanced and the complainant should be adequately compensated. He further submitted that despite coming to a definite conclusion that dispute was in respect of withdrawal of the amount of Rs.20,000/- made from different ATMs though situated in the same premises, and also gap of only 27 seconds in the two transactions, the District Forum concluded that the disputed transaction of Rs.20,000/- was not conducted by the complainant in person but by some other person. He further submitted that it was not possible to complete two transactions, either on the same machine or on different machines, within a period of 27 seconds. He further submitted that the complainant never asked Opposite Party No.1 prior to 19.5.2014 to supply CCTV footage of Rs.4,000/- dated 09.04.2013. He further submitted that when the complainant came to know about the illegal debit of Rs.20,000/- from his account through some transaction, he immediately brought the same to the notice of Bankers by making a complaint. He further submitted that the complainant had personally visited the office of Opposite Party No.2 to demand CCTV footage but he was told that CCTV footage could only be supplied to his Bankers on their request. He further submitted that Opposite Party No.1 was well aware of the Banking Rules regarding deletion of CCTV footage after 90 days and it ought to have procured the CCTV footage of both the transactions to unveil the truth. He further submitted that the National Commission in case Ashok Kumar Rai Vs. Oriental Insurance Company Limited and others, Original Petition No.440 of 2002 decided on 28.07.2009, relying upon the Judgment of Hon'ble Supreme Court of India in Dr. J. J. Merchants and others Vs. Sirinath Chaturvedi (2002) 6 SCC 635, held that Consumer Fora is competent to adjudicate the matter even if complicated questions of law and facts are involved. He further submitted that in the latest judgment of the National Commission in Rashmi Handa & Ors. Vs. OTIS Elevator Company (India) Ltd. & Ors., I (2014) CPJ 345 (in-fact 344) (NC), the above proposition of law has been upheld.
13. Admittedly, the complainant was having the ATM Card issued by Opposite Party No.1, which was used by him for withdrawing a sum of Rs.4,000/- from the State Bank of India's ATM installed in Sector 47-D, Chandigarh on 9.4.2013. Exhibit R-2 is the ATM log, wherefrom it is clear that that on 9.4.2013, withdrawals of Rs.4,000/- and Rs.20,000/- were made through the ATM card of the complainant at 9:55:48 and 9:56:15 respectively. The bone of contention between the parties is with regard to the withdrawal of Rs.20,000/- from the account of the complainant on 9.4.2013 itself through a subsequent transaction at a different ATM machine in the same premises. It is also evident from Exhibits C-3, C-4, C-6, C-8 and C-9 that the complainant alleged withdrawal of Rs.20,000/- fraudulently.
14. According to the written reply/evidence filed by Opposite Party No.1, by way of affidavit of its Branch Manager, both the ATM machines belonging to Opposite Party No.1 were installed in the same premises and the distance of both the ATM machines was a few feet only, which could be used by one and the same person within gap of a few seconds. The District Forum, in Para 11, of its order, observed that when the CD (Exhibit R-2/3) was displayed before it (District Forum), it transpired that the disputed transaction was not conducted by a Sikh gentleman wearing a turban, whereas when the complainant appeared before the District Forum alongwith his advocate, he was found to be a Sikh gentleman and his physical features did not tally with the features of the person withdrawing the amount during the disputed transaction of Rs.20,000/-. The District Forum opined that the complainant did not personally withdraw the disputed amount of Rs.20,000/- and it drew an inference that either the complainant gave his ATM card to some other person and told his password to him and that person withdrew Rs.20,000/- or that person, who was shown to be withdrawing the amount in the CCTV footage, fraudulently withdrew that amount. The District Forum, in the same very para, held "....... At any rate, this Forum, during summary proceedings, is not in a position to record a finding on the question of fraud. Finding relating to fraud can be recorded after having detailed evidence involving cross examination of the witnesses, which can only be done in the Civil Court..." The District Forum further held that "......At the same time, though it is remotely possible, yet it can also be not ruled out that the complainant himself gave his ATM card to somebody else and told the password to him and he withdrew the amount with his consent. Again this question can be decided after having detailed evidence and cross examination of witnesses of both the sides which is beyond the purview of this Forum........".
15. Thus, in the absence of leading of detailed evidence by the parties, examination and cross examination of witnesses, the controversy involved in the complaint could not be completely and effectively adjudicated upon. Once the District Forum came to the conclusion that the dispute, in question, could not be decided in a summary manner before the Consumer Fora and could only be decided by a Civil Court of competent jurisdiction, by leading detailed evidence, by the parties and cross-examination of the witnesses, it (District Forum), ought not to have decided the case on merits with regard to the alleged deficiency attributed to the appellant/Opposite Party No.1 and rather relegated the complainant to avail of his remedy in its entirety before the Civil Court. The deficiency could, thus, be revealed after adjudication of the dispute, in its entirety, by the Civil Court.
16. In Bright Transport Company Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC), it was held by the National Commission that the complaints which are based on the allegations of fraud, forgery, etc. and trial of which would require the leading of voluminous evidence and consideration thereof cannot be entertained by the Consumer Fora. In Oriental Insurance Company Ltd. Vs Munimahesh Patel 2006 (2) CPC 668 (SC), decided by the Hon'ble Apex Court; Reliance Industries Ltd. Vs United India Insurance Co. Ltd.I (1998) CPJ 13, a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi and M/s Singhal Swaroop Ispat Ltd. Vs United Commercial Bank III (1992) CPJ 50, a case decided by a three member Bench of the National Consumer Disputes Redressal Commission, New Delhi, it was held that when there are allegations of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided, by a Consumer Fora, proceedings before which, are summary in nature. In Oriental Insurance Company Ltd.'s case (supra), there was a dispute, about the disclosure of information, incorporated in the proposal form. Two copies of the proposal form were produced. In one copy of the proposal form, the insured stated that she was working as a teacher, whereas, in the other copy of the proposal form, it was stated that she was a housewife. The insured, thus, on the basis of such information, obtained the Policy. The insured died. When the claim was filed by her legal representatives, the same was repudiated, on the ground, of a false disclosure of information, by the insured, in the proposal form. The District Forum accepted the complaint, which was filed by the legal representatives of the deceased insured. The State Commission set aside the order of the District Forum, on the ground that there was dispute of disclosure made, in the proposal form, and the information given and, as such, the facts being disputed and of complicated nature, the complainants should take appropriate proceedings for establishing his claim, and seeking the reliefs in the Court of competent Jurisdiction. Feeling aggrieved, Revision Petition, was filed before the National Consumer Disputes Redressal Commission, which accepted the same, holding that the information disclosed by the insured, had no nexus with her death and, as such, restored the order of the District Forum. Feeling aggrieved, the Oriental Insurance Company Ltd., filed Civil Appeal bearing No.4091 of 2006, in the Hon'ble Supreme Court. The Hon'ble Supreme Court held that the proceedings, before the Commission were essentially summary in nature. It was further held that the factual position was required to be established by documents. It was further held that, in view of the complex factual position, the matter could not be examined, by the Consumer Fora, and the appropriate Forum, was the Civil Court. In Reliance Industries Ltd.'s case (supra), it was held that when the questions of fraud and cheating are involved, in regard to the claim of the complainant, which require thorough scrutiny, including the examination of various documents, and supporting oral evidence, the Consumer Fora cannot adjudicate upon the matter. It was further held that the questions of forgery/fraud, cheating and conspiracy, could be satisfactorily resolved, by the Civil Court. Similar principle of law, was laid down, in M/s Singhal Swaroop Ispat Ltd.'s case (supra) decided by the National Consumer Disputes Redressal Commission, New Delhi. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case.
17. Since, the disputed and complex questions of fact and law, are involved in the instant case, as to the withdrawal of Rs.20,000/- allegedly by playing fraud upon the complainant, or by the complainant himself, for proving such allegations of forgery and fraud, thorough analysis of voluminous documents, and elaborate examination of the witnesses, and their cross-examination, is required. Such disputed and complex questions/facts, therefore, could not be adjudicated upon, by the Consumer Fora, proceedings before which are summary, in nature. Thus, only the Civil Court could decide such disputed and complex questions of fact and law.
18. No other point, was urged, by the Counsel for the parties.
19. For the reasons recorded above, First Appeal bearing No.20 of 2015 filed by the appellant/Opposite Party No.1, is accepted with no order as to costs, and part of the impugned order passed by the District Forum awarding compensation of Rs.10,000/- for harassment, mental agony and litigation costs to the complainant, is set aside. Consequently, the complaint, filed before the District Forum, is dismissed, with no order as to costs. However, the complainant shall be at liberty to approach the Civil Court of competent jurisdiction, for redressal of his grievance.
20. In view of the acceptance of First Appeal No.20 of 2015, in the aforesaid manner, appeal bearing No.28 of 2015 filed by the appellant/complainant, is dismissed with no order as to costs.
21. Certified copy of this order be placed in First Appeal No.28 of 2015.
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion.
Pronounced.
March 19, 2015.
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[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad