State Consumer Disputes Redressal Commission
Branch Manager, Union Bank Of India, ... vs Nurul Hoda on 10 November, 2008
1 JHARKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RANCHI First Appeal no.150 of 2008 Against order dated 19.03.2008, passed by District Consumer Disputes Redressal Forum, Ranchi, in Consumer Complaint no.30 of 2007. Branch Manager, Union Bank of India, Doranda, Ranchi - Appellant Versus Nurul Hoda - Respondent. For Appellant : M/s P.A.S.Pati, Rishav Dev and R.Kumar, Advocates. For Respondent : M/s A.Hussain, R.Kumar, R.Satender and Shweta Singh, Advocates. Before: - Justice Gurusharan Sharma, President. Mrs. Kalyani Kar Roy, Member. And Mr. Satyendera Kumar Gupta, Member. J U D G M E N T
S.K.Gupta, Member:- This appeal is directed against order dated 19.03.2008, passed by District Consumer Disputes Redressal Forum, Ranchi, in Consumer Complaint no.30 of 2007. By the impugned judgment opposite party-appellant was directed to pay Rs.5,000/- as compensation towards harassment and Rs.500/- as litigation cost to the complainant-respondent, within two months from the date of order.
2. The appeal has been filed on 25.4.2008 after expiry of the limitation period. In a separate petition filed under Rule 8(4) of the State Rules, for condonation of delay, it is stated that the appellant came to know about the impugned order first time when the complainant-respondent served the copy of the order vide his letter dated 07.4.2008 on the appellant. Thereafter sometime was consumed in official procedures and formalities. And, having obtained the free copy of the order on 22.4.2008 and true copy of the entire order sheet on 24.4.2008, the appeal could be preferred on 25.4.2008, after 5 days delay, which was not intentional. The limitation for filing appeal expired on 18.4.2008. Thus, there has been seven days delay in filing the appeal. However, sufficient cause appears to have been shown for the delay. Hence, delay is condoned.
3. According to the case of the complainant-respondent, he was having a Savings bank account and an ATM card of Union Bank of India, the appellant. On 22.10.2008, he operated the ATM machine using his card, to withdraw money, the transaction was declined by displaying Unauthorised Card Usage on the slip. On 22.10.2006, it was Sunday and on 23.10.2006, there was strike of Bank employees, therefore, he had to borrow money to make purchases for Eid festival. He could approach the Bank officials on 25.10.2006 who after checking his ATM card told that the card was valid and there would be no problem in withdrawing money. But even thereafter on 28.10.2006 and 31.10.2006, the ATM slip displayed the same remark Unauthorised Card Usage.
4. Then the respondent made complaint in writing on 07.11.2006, in response to which, the Bank official vide his letter dated 13.11.2006 stated that due to change in the Computer System to Core Banking Solution at the branch, respondents ATM card became on line from off line and for that reason the card could not be used for some days and that the card thereafter would be used. But again on 21.11.2006, on use of the card, the ATM machine displayed the same result. Thereafter the respondent served a legal notice on the appellant, but it remained unresponded.
5. The respondent, in the circumstances, had to suffer mentally, physically and financially. He claimed Rs.50,000/- as compensation for mental agony and harassment and Rs.10,000/- towards cost of litigation.
6. In the written statement filed on behalf of the opposite parties (1.The Branch Manager and 2.Assistant General Manager of the Bank) it was stated that both were one and the same person and the appeal has been preferred by opposite party no.2 only. Actually the complaint should have been filed against the Union Bank of India through the official concerned by designation instead of against any individual Bank Officer and the appeal should have also been filed, accordingly. However, this is not vital.
7. It was also the case of the appellant-Bank that the respondent was not a Consumer under the Section 2(1) (d) of the Consumer Protection Act, 1986, as ATM facility was provided to him free of cost. Further as the Bank was going under the Core Banking Solution as such a notice to that effect was displayed in the Bank as well as the ATM premises. It was also said that on 21.11.2006, non working of the respondents ATM card could be due to the following reasons:-
I. Torn or mutilated card.
II.
Use of wrong password by the respondent.
III.
Expiry of ATM card.
IV.
Damage of magnetic strips of ATM card.
And, it was not so due to any fault on the part of the opposite parties.
8. The appeal has been preferred on the ground, interalia, that the Doranda Branch of the Bank was undergoing core banking solution and a notice to this effect was displayed in the bank as well as in ATM premises and all the ATM holders of the Bank could not utilize the ATM card during that period, evidence for which was given before the District Forum and that on 21.11.2006 due to several reasons the ATM card might not have worked, as there was no problem with the ATM machine and same was functional on that date, there were 40-50 hits on 21.11.2006.
9. It has also been argued by the Counsel for the appellant that under Section 14(2A) of the Consumer Protection Act, 1986 order passed by District Forum has to be signed by its President and the Member or two Members, who conducted the proceeding, but in the impugned order the President has not signed. Hence, the impugned order is not valid in the eye of law.
10. As it appears from the true copy of the order sheets of Consumer Complaint no.30 of 2007 filed, the argument of both sides was heard on 03.3.2008 by the President and two Members and judgment was fixed on 12.3.2008, but in the meantime new President joined and on 12.3.2008 it was decided to put up before the two Members for judgment, by Bench presided over by the new President with those two Members. And, accordingly, on the next date, the judgment was delivered by the two Members, which is under challenge.
11. In this regard provisions of Section 14(2) and (2A) of the 1986 Act may be referred to, which provides as under:
2 Every proceeding referred to in sub-section (1) shall be conducted by the President of the District Forum and at least one member thereof sitting together:
[Provided that where a member, for any reason, is unable to conduct a proceeding till it is completed, the President and the other member shall continue the proceeding from the stage at which it was last heard by the previous member.
2A Every order made by the District Forum under sub-section (1) shall be signed by its President and the member or members who conducted the proceeding: Provided that where the proceeding is conducted by the President and one member and they differ on any point or points, they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and the opinion of the majority shall be the order of the District Forum.
We find that if two members of the District Forum passed an order without the junction of the President, that order is null and void because Sub Section (2A) mandates that every order made by the District Forum under Sub Section (1) shall be signed by its President and the member or members, who conducted the proceeding. In the present case three members, including the President conducted the proceedings and only two members signed the order, hence the impugned order suffers from illegality. A failure to comply with the requirement (Presence of President) of Sub-section (2A) would invalidate the order. The President has to conduct the proceedings sitting with at least one member. The impugned order passed by two members without the junction of President and not signed by him (President) is not valid.
12. We have, therefore, no option, but to set aside the impugned order as it suffered from illegality. Accordingly, the order dated 19.3.08 passed by District Consumer Disputes Redressal Forum, Ranchi passed in Consumer Complaint no.30 of 2007 is set aside and the matter is remanded to the District Forum for deciding afresh on merit and in accordance with law after giving opportunity for hearing to the parties. It is made clear that we have not entered into the merit of the complaint. The parties undertake to be present before the District Forum on 24.11.08, when in their presence a date of final disposal shall be fixed by the District Forum. No cost.
The 10th November, 2008.
Ranchi.
Member Member President