State Consumer Disputes Redressal Commission
Manager, State Bank Of India vs Sgt Hariom Tiwari & Another on 13 September, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 Case No-FA/127/2010 Date Of Filing: 16.03.2010 Date Of Final Order: 13.09.2010 APPELLANT : Manager, State Bank Of India, IAF Camp, Bagdogra (West Bengal), Pin-734421. RESPONDENTS : 1. Sgt. Hariom Tiwari, 7AFLU, C/o 20 Wing AF, Air Force Station, Bagdogra, West Bengal, Pin-734421. 2. Manager, Punjab National Bank, Baraut, Dist-Baghpat (U.P.), Pin-250611. BEFORE: HONBLE MEMBER :
Smt. Silpi Majumder.
MEMBER : Sri. Shankar Coari.
FOR THE APPELLANT : Sri Surojit Auddy, Advocate.
FOR THE RESPONDENTS : 1.
Sri Tapas Kumar Paul, Advocate.
2. Sri. S.P. Basu, Advocate.
-ORDER-
S. Majumder, Member.
This appeal has been directed against the judgment passed by the Ld. District Forum, Siliguri, on 27.11.2009, in the case no- 37/S/2009, wherein the Ld. Forum below has allowed the compliant on contest against the OP-1 and exparte against the OP-2 with cost of Rs.1,000/-. In the judgment the Ld. Forum below has directed the OPs to pay a sum of Rs.14,000/- to the Complainant jointly and severally and to pay a compensation of to the tune of Rs.2,000/- in favour of the Complainant. The Forum below has further directed the OPs to pay the amount of Rs. 14,000/- to the Complainant jointly and severally within 45 days from the date of passing of the judgment, failing which the amount would carry interest @9% p.a. from the date of institution of the case i.e. on 12.05.2009 till the date of payment of entire amount to the Complainant. The OPs were further directed to pay compensation amount within the stipulated period.
Being aggrieved by the abovementioned judgment the OP-1Appellant has preferred the present appeal before this Commission contending that the Ld. Forum below has failed to appreciate that the Appellant as a banker performed its duty as per the request of the Complainant in respect of ATM transaction on 19.02.2009 and the Appellant had no controlled over the ATM of Punjab National Bank, which the Forum below has also failed to appreciate. It has been stated in the grounds of memorandum of appeal that the Ld. Forum below in spite of holding that the PNB has not come forward to show that on 19.02.2009 how much money was kept in the ATM of PNB for clearance and how much money remained unused has erred in law in imposing the damages on the present Appellant. It has been mentioned by the Appellant that in spite of the pass book of the Complainant showing successful transaction and the same being corroborated by the Appellant through a letter dated 11.05.2009, complaint was not maintainable before the Ld. Forum below as the allegation of non-payment was a mere word of the Complainant against the documentary evidence of the pass book and thus the Complainant has made false allegation of non-receipt of the amount through ATM, while he had already received the said amount. As the Appellant had duly discharged its onus to prove the successful transaction, there was no deficiency in service on the part of the Appellant and the Complainant has miserably failed to substantiate his allegation by adducing cogent evidence. According to the Appellant the judgment passed by the Ld. Forum below being erroneous is not liable to be sustained and the Appellant has prayed for allowing the present appeal.
The case in brief of the Complainant is that the Complainant an employee of Indian Air Force and presently posted at Air Force Station Bagdogra, Darjeeling and he is also a permanent resident of Baraut, Baghpat, and Uttar Pradesh. While he was on leave in the month of February 2009 at his residence Baraut, he used ATM of PNB, Baraut on 19.02.2009 for withdrawal of Rs.14,000/-. But in spite of using the said ATM card he did not get any money from the said ATM machine but got transaction slip in which it was shown as withdrawal of Rs.14,000/-. Immediately he made a written complaint to the Branch Manager, PNB, Baraut as money was not received by using the ATM Card. It has been instructed for receiving the money after reconciles from Bombay within 42 days. Subsequently on 28.02.2009 he made another complaint through Fax to SBI, Bagdogra and ATM office, PNB, Delhi. Again and again the Complainant made several correspondences and lastly he made correspondence with the Senior Manager, ATM, Delhi on 05.05.2009. The Complainant has an account being no- 30424224336 and also holding an ATM card of SBI, Bagdogra.
On 28.02.2009 he had been to PNB, Baraut and made enquiry about the fate of his allegation. But no response was received there from. He repeatedly requested SBI, Bagdogra for persuasion of the application as filed by him. On 11.05.2009 a letter was served by SBI, Manager, IAF Camp, Bagdogra, reporting that the transaction in question was successful on 19.02.2009. But the fact is that the Complainant did not receive any money through the said ATM machine. Thereafter finding no other alternative the Complainant filed the petition of complaint before the Ld. Dist Forum, praying for direction upon the OPs to pay a sum of Rs.14,000/- along with compensation of Rs.10,000/- to him.
Before the Forum below the Appellantthe OP-1 contested the complaint by filing written version wherein the OP-1 has denied all the allegations as made by the Complainant. In the said version the OP-1 has stated that the complaint is not maintainable before the Forum below due to lack of territorial jurisdiction. According to the view of the OP-1 the cause of action arose at Baraut, UP, not within the jurisdiction of Siliguri. It has been further alleged by the OP-1 that the transaction slip has been issued in favour of the Complainant showing that transaction has already been completed even then the Complainant made such allegation, which has no basis at all. Further submission of the OP-1 is that the Complainant punched the savings bank ATM card with PNB ATM machine at Baraut and the report submitted by PNB with regard to the Complainant lodged by the Complainant that operation by using the said ATM card of the SBI ATM card was successful on 19.02.2009. As a result the OP-1-Appellant has no responsibility in this context. Since money has already been withdrawn by punching the ATM card at PNB ATM machine, Baraut, the claim as made by the Complainant is not tenable and the case is liable to be dismissed with cost.
Before the Forum, below the OP-2 did not appear to contest the petition of complaint.
For adjudication of the present appeal the LCR has been called for from the Ld. Forum below.
On careful perusal of the record, documents, and the LCR it is seen by us that though at the very outset before this Commission at the time of hearing of this Appeal the Ld. Counsel of the Appellant has advanced argument in respect of lack of territorial jurisdiction in filing the complaint before the Ld. District Forum, but from the LCR it is evident that regarding maintainability in respect of lack of territorial jurisdiction separate application was filed by the OP-1 on 01.09.2009 and after going through the said application as well as hearing the parties the Ld. Forum below has already disposed the said maintainability application on contest and the said plea as taken by the OP-1 was discarded being not entertainable and holding that the Ld. Forum below has jurisdiction to try with the said complaint. We have noticed that on 22.09.2009 the Ld. Forum below was pleased to pass the abovementioned order. As against the said order the OP-1 did not prefer any revision before this Commission, the order dated 22.09.2009 became binding on the parties and at this juncture i.e. at the time of hearing of this appeal the OP-1-the Appellant cannot raise the said dispute further before this Commission. So, such argument advanced by the Appellant in our opinion cannot be entertained before this Commission.
We have noticed that the sole contentions of the Complainant is that during his leave in the month of February 2009 he used ATM card through the machine of PNB on 19.02.2009 for a sum of Rs.14,000/-, but he did not receive any money there form on the basis of the said transactions and the matter was brought to the notice of the OP-2 by issuance of the written complaint followed by several correspondences made not only before the OP-2 but also the OP-1 and it was reported that the transaction was completed by successful operation. The Complainant in support of his argument filed Xerox copy of the savings bank passbook from where it is evident that the Complainant has a savings bank account bearing no. 30424224336 at SBI, Bagdogra. The copy of the letter-dated 19.02.2009 issued by the Complainant reveals that when the Complainant did not receive the said money by way of punching the ATM card at Baraut through PNB ATM machine, he lodged a complaint on the said day to the Manager, PNB Baraut, who received the said complaint by putting official seal and signature. The Complainant lodged another complaint to the PNB ATM Baraut and the same was also acknowledged by the OP-2. The Complainant also lodged complaint on 20.02.2009 to SBI, Bagdogra and the same was received by the OP-1. From these documents it is reveal to us that a series of application were made by the Complainant for Redressal of his grievance in respect of non receipt and non withdrawal of the money through the ATM machine, Baraut, PNB by using his valid ATM Card. But unfortunately it has been shown as withdrawal of Rs.14,000/- despite not receiving the money from the said ATM. The Complainant laid evidence by way of affidavit in chief and he was cross examined by OP-1 by putting specific questions and the same was replied by the Complainant by way of affidavit in reply. In this context the Complainant has specifically stated that he operated the ATM machine on 19.2.2009 for withdrawal of Rs.14,000/- but no money was received there form and the balance was confirmed as Rs. 5,104/-. The Complainant has further replied that he withdrew a sum of Rs. 3,000/- from ICICI bank ATM, Baraut when previous transaction became failed with PNB. He has categorically replied that it was not within his knowledge regarding any fault in the machine in question but when he was in need of money, he did not get the same and was compelled to use the ATM card through ICICI bank ATM. In spite of repeated requests with the OP-1 & 2 he did get any positive response from the OPs especially from the OP-2 as the OP-1 intimated him that the operation was successfully completed.
From the statement of account relating to the savings bank account it is evident that transaction were made and on 19.2.2009 a sum of Rs.14,000/- has been withdrawn but neither the OP-1 nor the OP-2 furnished any document to show that despite having possession of transaction register relating to the date of occurrence on 19.02.2009, the OPs did not submit any document that how much money was kept in the ATM machine of PNB , Baraut were clearance and how much money remains unused through the said ATM machine, Baraut PNB . In this context the Forum below has rightly held that the bank is the public utility service and when ATM machine is running under the control of the concerned bank originated from the main office at Mumbai or Delhi obviously they have to maintain separate register in this regard and if the said register dated 19.02.2009 maintained and controlled by the OP-2 be placed for appreciation the truth would come out whether actually the amount in quest6ion was withdrawn by the Complainant after punching his ATM card and if not function properly due to the fault of the machinery or any kind of reason thereof , there must be report to maintain by the PNB ATM machine, Baraut and Delhi Division or Mumbai Division. It is pertinent to mention that the OP-2 did not come forward to contest the case denying the allegation as made by the Complainant. We have also noticed that the OP-2 did not feel to make any reply against the Complainant as raised by the Complainant on the date of occurrence and even on receiving several correspondence from the end of Complainant, the OP-2 did not bother to make any enquiry and to report about the fate of transaction as alleged by the Complainant.
Going by the foregoing discussion we are of the view that the Ld. Forum below has passed a very well reasoned judgment, in which we are not at all inclined to interfere. Thus it is ordered that the appeal be dismissed on contest without any cost ands the judgment passed by the Forum below is hereby affirmed. The office is directed to send down the LCR along with a copy of this judgment to the Ld. Forum below forthwith.
Sri. Shankar Coari.
Smt. Silpi Majumder.
(Member) (Member)