State Consumer Disputes Redressal Commission
State Bank Of India vs Paresh Kumar @ Parkash Kumar & Anr. on 14 January, 2014
` FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1550 of 2009.
Date of Institution: 03.11.2009.
Date of Decision: 14.01.2014.
State Bank of India, Ferozepur Cantt., through its Chief Manager.
.....Appellant.
Versus
1. Paresh Kumar @ Parkash Kumar S/o Sh. Vishwanath Parasad,
R/o Village Post Fuluwaria, Bhaya Giaspur, District Muzaffarpur
(Bihar), at present, posted at 7 Bihar Regt. C/o 56 APO,
Ferozepur Cantt.
2. ICICI Bank, Ferozepur Cantt., through its Branch Manager.
...Respondents.
First Appeal against the order dated
11.09.2009 passed by the District
Consumer Disputes Redressal Forum,
Ferozepur.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
...................................
Present:- None for the appellant.
Sh. Mrigank Sharma, Advocate for Sh. Parvez Chugh, Advocate, counsel for respondent no.1.
Respondent No.2 Exparte.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
This order will dispose of the two (2) appeals i.e. F.A. No.1550 of 2009 (State Bank of India, Ferozepur Cantt. Vs. Paresh Kumar & Anr.) and F.A. No.101 of 2010 (Paresh Kumar Vs State First Appeal No.1550 of 2009 2 Bank of India & Anr.) as both the appeals are directed against the same order dated 11.09.2009 passed by the learned District Consumer Disputes Redressal Forum, Ferozepur (in short "the District Forum"). Facts are taken from F.A. No.1550 of 2009 and the parties would be referred by their status in this appeal.
2. Facts in brief are that Sh. Paresh Kumar, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant and respondent no.2/opposite party no.2 (hereinafter called "respondent no.2"), on the grounds that he is serving in army and is having an account with the appellant, bearing No.30325228957.
3. On 04.10.2008, respondent no.1 was in need of money and he went to the ATM machine of respondent no.2 ICICI Bank, Ferozepur Cantt, to withdraw Rs.7,000/-. Respondent no.1 used his ATM card and operated the machine to receive the payment of Rs.7,000/-, but neither any amount was received nor any slip came out from the said machine. Respondent no.1 then went to the ATM machine of AXIS Bank and inquired about the balance amount in his account from the ATM machine and he was shocked to know that a sum of Rs.7,020/- i.e. Rs.7,000/- along with Rs.20/- as service charges were deducted from his account. Respondent no.1 went to the appellant and made a written request to the Branch Manager to look into the matter and to re-deposit the amount of Rs.7,020/- in his account, but no heed was paid. Later on, respondent no.1 visited the appellant bank a number of times and requested to handover the amount of Rs.7,020/- illegally deducted from his account, but to no effect. The appellant and respondent no.2 are guilty of unfair trade First Appeal No.1550 of 2009 3 practice and deficient in service and they are liable to compensate respondent no.1 to the tune of Rs.7,020/- along with litigation expenses of Rs.5,000/-. The prayer was accordingly made.
4. In the written version filed on behalf of the appellant, preliminary objections were raised that the complaint is not maintainable in the present form and there is no deficiency in service on the part of the appellant. Respondent no.1 himself is at fault and the alleged dispute, if any, has arisen only on account of improper handling and use of the ATM card in question. Intricate questions of law and facts are involved and the civil court is competent.
5. On merits, it was admitted that respondent no.1 is maintaining the account with the appellant. The record of the appellant bank shows that on 04.10.2008, a sum of Rs.7,000/- was withdrawn from the account of respondent no.1 by using the ATM installed by ICICI Bank branch at Ferozepur City, but the appellant has no knowledge whether respondent no.1 himself or somebody else used the said ATM machine for making the withdrawal vide transaction No.9563. A sum of Rs.7,000/- was withdrawn on 04.10.2008. It appears that the person, who was handling the ATM machine, was at fault and he might have not waited for the amount to come out of the machine and removed the card and left the place without waiting for the amount which might have fallen in the hands of next person, using the ATM machine. Respondent no.1 apprised the appellant about the dispute only on 18.12.2008 and accordingly, the appellant made a request for recovery of funds from ICICI Bank, Ferozepur vide Request Detail:1945652 and thereafter, made request vide Request Detail:2389269 for early settlement of the claim. The delay in lodging the claim raises a suspicion about the genuineness of the complaint. If First Appeal No.1550 of 2009 4 the amount was not received, then the complaint should have been made on the same day or the next day, but the delay remained unexplained. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
6. In the written version filed on behalf of respondent no.2, preliminary objections were raised that respondent no.1 is not a consumer. No amount was charged by the ICICI Bank from SBI bank as no amount was paid to respondent no.1 and the said amount was not collected from SBI. Till date, no payment has been made by SBI to ICICI Bank regarding the transaction of respondent no.1 and it is for the appellant to explain regarding the debit of the amount from the account of respondent no.1, if any. Respondent no.1 has concealed the material facts and the complaint is liable to be dismissed. Elaborate evidence is required and the civil court is competent.
7. On merits, it was admitted that ATM card can be used in any other bank ATM machine. It was also admitted that no amount was received by respondent no.1 because as per the record available with ICICI Bank, no amount was withdrawn by respondent no.1 and no amount was charged by ICICI Bank from SBI Bank. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the amount of Rs.7,020/- has been debited from the account of respondent no.1 by the appellant out of which First Appeal No.1550 of 2009 5 Rs.7,000/- have been shown as withdrawal and Rs.20/- as service charges charged by respondent no.2 for using their ATM machine for withdrawal of the amount. When any amount is withdrawn by a customer, the same is automatically charged from the bank in which the customer has the account and the banker of that customer automatically debits that amount from the account of the consumer. There is no question of lodging a claim by the payer bank with the bank of the payee. No document as to lodging of claim by the appellant with respondent no.2 has been produced on file. Both the parties are grossly deficient in services and are guilty of unfair trade practice. It is proved that no amount has been paid to respondent no.1, but an amount of Rs.7,020/- has been wrongly debited from the account of respondent no.1. After lodging of the claim by respondent no.1, both the parties failed to act and redress the grievances of respondent no.1. Respondent no.1 is an army person, who is moving from pillar to post for recovering the amount, but none of the parties paid any heed to his genuine request and it is a fit case where the appellant and respondents are liable to be burdened with exemplary costs. The complaint was allowed and the appellant was directed to credit the amount of Rs.7,000/- along with interest @ 7.5% p.a. from the date of transaction i.e. 04.10.2008 till realization. The appellant is liberty to raise claim of said amount from respondent no.2. Both the appellant and respondent no.2 are directed to pay a sum of Rs.10,000/- each out of which Rs.5,000/- each will be paid to respondent no.1 and Rs.5,000/- each will be deposited in Consumer Legal Aid Account maintained by the Forum.
First Appeal No.1550 of 2009 6
10. Aggrieved by the impugned order dated 11.09.2009, the appellant has come up in the present appeal, with a prayer to set aside the impugned order.
11. Whereas respondent no.1/complainant has filed cross appeal i.e. F.A. No.101 of 2010 (Paresh Kumar Vs State Bank of India & Anr.), for enhancement of compensation.
12. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the respondent no.1.
13. Neither the counsel for the appellant nor anybody else appeared at the time of arguments.
14. Respondent no.2 has not contested the appeal and was proceeded against exparte.
15. The appeal was filed on the grounds that the order dated 11.09.2009 is against the facts and circumstances of the case. The stand of respondent no.2 ICICI Bank before the District Forum that no amount has been delivered and paid from ICICI Bank's ATM, is un- substantiated and without any proof. Respondent no.2 has withheld the material evidence. Respondent no.1 has not made any representation nor any such communication has been appended with the complaint. Respondent no.1 had used the ATM machine of ICICI Bank, Ferozepur City and as per banking procedure, the said transaction was shown to be successful vide transaction No.9563. The said amount was duly set off in the account with ICICI Bank by the appellant and the appellant made the request to settle the case and follow-up was being done in this regard. As per the system maintained throughout India by the Central Office at Bombay, the transaction was shown to be successful and in the absence of any documentary evidence, the District Forum First Appeal No.1550 of 2009 7 has based the entire order on presumptions and assumptions. The disputed questions of facts and evidence are involved and the civil court is competent. The order under appeal is liable to be set aside.
16. In the cross appeal filed by respondent no.1/complainant, he sought the enhancement of compensation as per the relief claimed and learned counsel for respondent no.1 has contended that the impugned order is required to be modified and the compensation is required to be enhanced as per the relief claimed.
17. We have considered the respective version/submissions of the parties and have minutely scrutinized the entire record.
18. Respondent no.1 was having the account with the appellant bank and he was also issued the ATM-cum-Debit card, copy of which is Ex.C-3 on record. The copy of the first page of the saving bank passbook is Ex.C-4. Respondent no.2-ICICI Bank has taken a clear-cut stand that as per record available with ICICI Bank, no amount was withdrawn by respondent no.1 nor any amount was charged. Since no amount was paid to respondent no.1, as such, the said amount was not collected from the bank. Till date, no demand has been made by the appellant from respondent no.2 regarding the transaction of respondent no.1 and it is for the appellant to explain regarding the debit of amount from the account of respondent no.1. Respondent no.1 has tendered his affidavit Ex.C-1 and Sh. Bhagwan Singh, Branch Manager of respondent no.2 has tendered his affidavit Ex.R-1 and reiterated the above facts on oath.
19. To rebut this evidence, the appellant has tendered the affidavit of Sh. Gurchain Singh, Chief Manager of appellant Ex.R-2 and the procedure Ex.R-3. The appellant bank has not placed on record any document to prove that it entered into any correspondence with First Appeal No.1550 of 2009 8 respondent no.2 nor has come forward with any other documentary evidence to prove that the amount deducted from the account of respondent no.1 was paid to respondent no.2 on account of withdrawal from the ATM machine of respondent no.2. Respondent no.1 made representation Ex.C-2 to the Branch Manager of the appellant bank and narrated the entire facts, but no action was taken by the appellant bank. Respondent no.1 is serving in army and has to depute his father to pursue the complaint. The District Forum has passed the detailed and speaking order and there is no ground to interfere with the same, except that the amount of Rs.5,000/- to be deposited by the appellant as well as respondent no.2 bank in Consumer Legal Aid Account maintained by the District Forum, is required to be paid as compensation to respondent no.1/complainant.
20. In view of above discussion, the appeal filed by the appellant Bank (F.A. No.1550 of 2009) is dismissed and the appeal filed by respondent no.1/complainant (F.A. no.101 of 2010) is accepted and the impugned order under appeal dated 11.09.2009 passed by the District Forum is modified to the extent that the appellant and respondent no.2 shall pay Rs.10,000/- each to respondent no.1/complainant as compensation and they need not deposit any amount in the Consumer Legal Account. With this modification, both the appeals are disposed of.
21. The appellant-SBI in F.A. No.1550 of 2009 had deposited an amount of Rs.9,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
First Appeal No.1550 of 2009 9
22. Remaining amount as per this order shall be paid by the appellant and respondent no.2 to respondent no.1/complainant within 45 days of the receipt of copy of the order.
23. The arguments in this appeal were heard on 09.01.2014 and the order was reserved. Now the order be communicated to the parties.
24. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member January 14, 2014.
(Gurmeet S)