State Consumer Disputes Redressal Commission
Devi Dayal vs State Bank Of India & Another. on 13 July, 2015
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 420 of 2013
Date of institution: 11.04.2013
Date of decision : 13.07.2015
Devi Dayal, son of Ranjit Singh, Resident of Balvir Basti, Street No. 8L,
Faridkot, Tehsil and District Faridkot.
.....Appellant/complainant
Versus
1. State Bank of India, Branch Mochi Bazar, Ferozepur City, through its
Branch Manager.
2. State Bank of Patiala, Branch Old Bus Stand, Faridkot, through its
Branch Manager.
.Respondents/Opposite parties
First Appeal against the order dated 30.11.2012
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Present:-
For the appellant : Sh. Sahil Kaushal, Advocate
For respondent No. 1 : Ex-parte
For respondent No. 2 : Sh. Amish Goyal, Advocate
GURCHARAN SINGH SRAN, PRESIDING JUDICIAL MEMBER
This appeal has been preferred by appellant/complainant (Hereinafter refereed as 'complainant') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 30.11.2012 in C.C. No. 455 of 17.08.2012 passed by the learned District Consumer Disputes Redressal Forum, Ferozepur (in short the 'District Forum') vide which the complaint was dismissed.
2. A consumer complaint was filed by the complainant against the respondents/opposite parties (hereinafter referred as 'OPs') on the grounds that he was having a saving bank account bearing No. 10747306741 with OP First Appeal No.420 of 2013 2 No. 1 and was issued the ATM. On 21.03.2012, the complainant visited the ATM of OP No. 2 for operating his ATM. At 18.03 hours, he checked the balance by Mini Statement. At 18.04 hours the balance available was Rs. 30084.89. Thereafter, he withdraw a sum of Rs. 2000/- and balance come to Rs. 8084.89, then he again withdrew another sum of Rs. 1000/- and the balance came to Rs. 7084.89p. That a sum of Rs. 20,000/- was never withdrawn by the complainant which has been shown to be deducted from his account. He filed the complaint with OP No. 1 where he had the account and ultimately he moved an application with OP No. 1 on 07.04.2012 to give all the details that he had withdrawn a sum of Rs. 20,000/- on 20.03.2012 through ATM from OP No. 2. He had also moved an application before SHO, PS City Faridkot which was forwarded to OP No. 2 to give full details alongwith video CD. But OP No. 2 was unable to supply the video footage showing the withdrawal of the said amount by the complainant on the ground that the hard disc was damaged. The Complainant many times approached the OPs and inquired about his Rs. 20,000/- but no proper reply was given which amounted to deficiency in services on the part of the OPs. Hence, the complaint seeking directions to the OPs to pay a sum of Rs. 20,000/- to the complainant alongwith interest @ 18%, Rs. 50,000/- as compensation and Rs.5,000/- as litigation expenses.
3. The complaint was contested by the OPs. OP No. 1 in its written reply took the preliminary objections that the complaint was false, frivolous and vexatious to the knowledge of the complainant. There was no deficiency in services on the part of OP No. 1 because the complaint had used the ATM Card with OP No.1. Intricate question of law and facts were involved in the complaint which requires voluminous evidence, therefore parties be relegated to the civil court. The complainant had not come to the Forum with First Appeal No.420 of 2013 3 clean hands as he had suppressed the material facts. He had suppressed the fact that a sum of Rs. 20,000/- was withdrawn from ATM Machine bearing ID No. SI0K50051003 on 21.03.2012 vide transaction No. 5709 after inserting the pin number which was only in the knowledge of the complainant. The complaint was filed just to extract the money and that the complaint in the present form was not maintainable. On merits, the saving bank account and issuance of the ATM card to the complainant was admitted. The complainant had used the ATM machine. Firstly he used ATM card in ATM machine bearing No. S10K500051001 and checked the balance and thereafter he used the ATM in machine No. S10K500051003 and had withdrawn a sum of Rs. 20,000/- by transaction No. 5709 and amount was disbursed to the complainant as transaction was successful and the amount was also deducted from his J.P. account. Then he used the ATM in ATM Machine bearing ID No. S10K500051001 and withdrawn a sum of Rs. 2000/- and Rs. 1000/- and his balance was Rs. 7084.89. The complainant had filed the wrong complaint that he did not withdraw a sum of Rs. 20,000/-. The ATM card was used which was in exclusive custody of the complainant and he was knowing the pin code and without the ATM card and pin code number, no transaction in the ATM will be successful. It was submitted that the complaint was without merit and it be dismissed.
4. OP No.2 in its written reply also took the similar preliminary objections and on merits also the same averments were repeated as pleaded by OP No. 1. It was submitted that the complaint was without merit and it be dismissed.
5. Parties were given opportunity to adduce evidence in support of their contentions. The complainant tendered into evidence his affidavit as Ex.C-1 alongwith documents ATM receipts Ex.C-2 to Ex.C-6, Letter dated First Appeal No.420 of 2013 4 17.04.2012 written to the Manager, SBI Ex.C-7, Letter dated 10.04.2012 Ex.C-8, Letter dated10.04.2012 Ex.C-9, Letter dated 19.05.2012 Ex.C-10, Service Report Ex.C-11 and Ex.C-12, Form-A Ex.C-13, Letter dated 03.05.2012 Ex.C-14, Letter dated 23.05.2012 Ex.C-15, Form-A Ex.C-16, Letter dated 25.06.2012 Ex.C-17, Legal Notice Ex.C-18 and closed the evidence. On the other hand OPs tendered into evidence affidavit of Sh. Shishir Kumar, Assistant Manager Ex.R-1, account statement Ex..R-2 to Ex.R-4, reply to the Legal Notice Ex.R-5, affidavit of Sh. Rajesh Tanwar, Branch Manager Ex.R-6, Letter dated 30.07.2012 Ex.R-7, Post Receipt Ex.R-8, Letter dated 17.08.2012 Ex.R-9 and closed the evidence.
6. After going through the allegations as alleged in the complaint, written reply filed by OPs, evidence and documents on the record, the learned District Forum dismissed the complaint.
7. Feeling aggrieved with the order of the District Forum, the appellant/complainant has filed the appeal.
8. We have heard the arguments of the counsel for the parties and have perused the record.
9. In the appeal it has been argued by the counsel for the appellant that the findings so recorded by the District Forum are incorrect without appreciating the evidence. On 21.03.2012, he had visited ATM booth No. S10K500051001 of OP No. 2 and checked his balance at 18:03 hrs and balance was Rs. 30,084.89 and at 18:04 he had withdrawn a sum of Rs. 2000/- and after that a sum of Rs. 1000/- at 18:05 hrs and his balance was just Rs. 7084.89p. Entry of Rs. 20,000/- has been wrongly made in his account. The OPs have failed to prove on the record the CCTV footage. The complainant had not operated the machine bearing ID No. SI0K50051003. First Appeal No.420 of 2013 5 Therefore the order so passed by the Ld. District Forum is incorrect and is liable to be set aside.
10. In case, we go through the version of the OPs, it has been argued by the counsel for the OPs that the complainant had used his ATM in two machines, one bearing ID NO. SI0K50051001 and second bearing ID No. SI0K50051003. Firstly he had checked his balance on ATM Machine bearing No. SI0K50051001 and after that he had withdrawn a sum of Rs. 20,000/- from ATM Machine bearing ID No. SI0K50051003 and transaction was successful as per transaction No. 5709 operated at 18:03:24 and after that he had used the ATM Machine bearing ID No. SI0K50051001 and withdrawn sum of Rs. 2000/- by transaction No.6789 on 21.03.2012 at 18:04:03 whereas the next transaction No. 6790 was done at 18:04:04 by withdrawing Rs. 1000/-. Therefore, within a short period he had exercised three transactions. It is clear that no transaction is possible from the ATM in case one does not have the ATM card and Pin Code which was in exclusive knowledge of the complainant and that ATM code was in his possession as he is admitting two transactions. It has been argued by the counsel for the appellant/complainant that CCTV footage was not provided to him to corroborate the version that a sum of Rs. 20,000/- was disbursed to the complainant from machine No. SI0K50051003. To this extent, it has been argued by the counsel for the OPs that the hard disc was damaged. The counsel for the OPs has also referred the judgment of Hon'ble National Commission reported as "State Bank of India Vs. K.K. Bhalla" 2011 CPJ 106 wherein it was observed that merely CCTV not working on those dates does not mean that money could be withdrawn fraudulently without using ATM card and Pin was not possible. Against this judgment no contrary First Appeal No.420 of 2013 6 judgment has been cited by the counsel for the complainant whether the amount can be withdrawn without using the ATM card and pin code.
11. It was also argued by the counsel for complainant that two machines were located at different places, therefore, within a short span of 1 minute, three transactions were not possible whereas counsel for the OPs stated that both the machines were fitted in one cabin and the complainant used both the machines. We have gone through the allegations as alleged in the complaint in which he pleaded that ne never used ATM Machine No. SI0K50051003. Now in the appeal he cannot take the plea that these machines are located in two different places. Otherwise as stated above without ATM card and its pin code, its operation in the ATM machine is not possible. The ATM card and pin code was in exclusive knowledge of the complainant and he used it, only then the transaction was successful.
12. In view of the above discussion, we are of the opinion that the findings so recorded by the District Forum are correct and we affirm the same. We do not see any merit in the appeal and same is hereby dismissed.
13. The arguments in this appeal were heard on 08.07.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SING GILL) MEMBER July 13, 2015.
Rupinder First Appeal No.420 of 2013 7