State Consumer Disputes Redressal Commission
Punjab National Bank. vs Smt. Rita Devi. & Anr. on 10 July, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 312/2017
Date of Presentation: 13.10.2017
Order Reserved on : 02.05.2018
Date of Order : 10.07.2018
......
Punjab National Bank Kandaghat Tehsil Kandaghat District
Solan H.P through its Branch Manager.
...... Appellant/Opposite Party No.2
Versus
1. Rita Devi daughter of Smt. Radha Devi R/o. Village Domehar
P.O. Cheog Tehsil Theog District Shimla H.P.
......Respondent No.1/Complainant
2. State Bank of India Cheog VPO Cheog Tehsil Theog District
Shimla H.P through its Branch Manager.
......Respondent No.2/opposite party No.1
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Hem Singh Thakur Advocate.
For Respondent No.1 : None.
For Respondent No.2 : Mr. Anil Kumar God vice Mr.
Arvind Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 28.07.2017 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Punjab National Bank Versus Rita Devi & Anr.
(F.A. No.312/2017) complaint No.39/2016 titled Smt. Rita Devi Versus State Bank of India & Anr.
Brief facts of consumer complaint:
2. Complainant Smt. Rita Devi filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is holder of saving bank account No.30648513242 with opposite party No.1. It is pleaded that ATM facility was also provided to complainant by opposite party No.1 and complainant used to withdraw the amount by way of using ATM card. It is further pleaded that on 29.12.2015 complainant was in need of money of Rs.300/-
(Three hundred) and complainant used her ATM card in the ATM machine of PNB Kandaghat but no money was withdrawn. It is pleaded that at about 3.23 P.M complainant see message on her mobile that Rs.10000/-(Ten thousand) was withdrawn and available balance was shown as Rs.21346.58/-(Twenty one thousand three hundred forty six rupee & fifty eight paise). It is pleaded that factually no money was received by complainant from ATM of opposite party No.2. It is further pleaded that written complaint was also filed with the bank authority of PNB. It is further pleaded that criminal complaint was also filed with SHO and SHO demanded CCTV footage from PNB Parag. It is pleaded that as per CCTV footage no transaction took place. It is pleaded 2 Punjab National Bank Versus Rita Devi & Anr.
(F.A. No.312/2017) that complainant is legally entitled to credit the entries in the pass book. Complainant sought relief of credit of sum of Rs.10022.90/-(Ten thousand twenty two rupee & ninety paise) in the account of complainant and complainant also sought additional relief of payment of Rs.50000/-(Fifty thousand) as damage alongwith litigation costs. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that complainant did not approach learned District Forum with clean hands and suppressed the material facts. It is pleaded that complicated question of law and facts are involved in the present consumer complaint. It is pleaded that complainant had used the ATM of PNB Kandaghat and it is denied that no money was withdrawn by complainant from ATM machine. It is further pleaded that opposite party No.1 sought the report from opposite party No.2 and transaction was found to be successful. It is pleaded that complainant was legally competent to withdraw a sum of Rs.40000/-(Forty thousand) from State Bank of India group ATMs and complainant was legally competent to withdraw an amount of Rs.10000/-(Ten thousand) from other banks. Prayer for dismissal of consumer complaint against opposite party No.1 sought.
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Punjab National Bank Versus Rita Devi & Anr.
(F.A. No.312/2017)
4. Per contra separate version filed on behalf of opposite party No.2 pleaded therein that no cause of action exists in favour of complainant and complainant has no locus standi to file the present consumer complaint. It is pleaded that complainant did not approach learned District Forum with clean hands and suppressed the material facts. It is pleaded that opposite party No.2 did not commit any deficiency in service. It is further pleaded that as per ATM slip dated 29.12.2015 an amount of Rs.10000/-(Ten thousand) was withdrawn by complainant. It is pleaded that as per ATM slip amount of Rs.300/-(Three hundred) was withdrawn by complainant on two another dates i.e. 16.12.2015 and 19.12.2015. It is pleaded that complainant has withdrawn an amount of Rs.10000/-(Ten thousand) from ATM of opposite party No.2 on dated 29.12.2015. It is further pleaded that no excess amount was found in electronic journal. It is further pleaded that money was disbursed to complainant on 29.12.2015. It is pleaded that CCTV footage was automatically deleted from system after expiry of ninety days. Prayer for dismissal of consumer complaint against opposite party No.2 sought.
5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum partly allowed the complaint and ordered opposite 4 Punjab National Bank Versus Rita Devi & Anr.
(F.A. No.312/2017) party No.1 to credit an amount of Rs.10000/-(Ten thousand) in saving bank account of complainant alongwith interest @ 9% per annum from the date of complaint till payment. In addition learned District Forum ordered that opposite party No.1 would be entitled to recover the same amount from Network operator of the opposite party No.2 as per guidelines of RBI. Learned District Forum further ordered that opposite parties would also pay a sum of Rs.3000/-(Three thousand) as compensation for harassment and a sum of Rs.2000/-(Two thousand) as litigation costs to complainant. Feeling aggrieved against order passed by Learned District Forum Punjab National Bank filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of appellant and co-respondent No.2 and we have also perused entire record carefully. None appeared on behalf of co-respondent No.1 at the time of final arguments.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
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Punjab National Bank Versus Rita Devi & Anr.
(F.A. No.312/2017) Findings upon point No.1 with reasons:
8. Complainant filed affidavit Ext.CW-1 in evidence.
There is recital in affidavit that complainant is having saving bank account No.30648513242 in State Bank of India. There is recital in affidavit that deponent also availed ATM facility from State Bank of India. There is recital in affidavit that on dated 29.12.2015 complainant was in need of money and she used ATM card of PNB Kandaghat but no money was withdrawn. It is further pleaded that complainant received message in her phone that amount of Rs.10000/-(Ten thousand) was withdrawn on dated 29.12.2015 from ATM of opposite party No.2. There is further recital in affidavit that matter was also reported to SHO police station Kandaghat and SHO demanded CCTV footage from PNB which was supplied on dated 11.02.2016 in the form of C.D Annexure- C5. There is recital in affidavit that CCTV footage clearly shows that no transaction took place and money was wrongly shown as withdrawn from saving bank account of complainant. There is further recital in affidavit that complainant is legally entitled for credit of amount to the tune of Rs.10000/-(Ten thousand) and is also entitled to reasonable compensation for mental harassment and torture alongwith litigation costs.
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Punjab National Bank Versus Rita Devi & Anr.
(F.A. No.312/2017)
9. Opposite party No.1 filed affidavit Ext.OPW1-I of Laiq Ram Branch Manager of State Bank of India. There is recital in affidavit that factually complainant has received an amount of Rs.10000/-(Ten thousand) from ATM of PNB on dated 29.12.2015. There is recital in affidavit that complainant is not entitled for any compensation and costs of litigation. There is recital in affidavit that opposite party No.1 has inquired the matter from opposite party No.2 and as per report the transaction was found to be successful.
10. Opposite party No.2 PNB filed affidavit of Branch Manager namely Shri B.D. Sharma. There is recital in affidavit that on dated 29.12.2015 an amount of Rs.10000/- (Ten thousand) was paid to complainant as cash withdrawal from ATM of PNB and transaction was successful. There is recital in affidavit that as per ATM slip dated 29.12.2015 transaction of Rs.300/-(Three hundred) was not made. There is further recital in affidavit that complainant effected transaction of Rs.300/-(Three hundred) on another different dates i.e. On 16.12.2015 and 19.12.2015. There is further recital in affidavit that on reconciliation of cash no excess amount in electronic journal was found on 29.12.2015. There is recital in affidavit that CCTV footage more than three months is not available with the deponent. 7
Punjab National Bank Versus Rita Devi & Anr.
(F.A. No.312/2017)
11. Submission of the learned Advocate appearing on behalf of Punjab National Bank Kandaghat that complicated question of facts and law are involved in the present consumer complaint and complainant be relegated to civil court is decided accordingly. State Commission is of the opinion that as per section 2(O) of Consumer Protection Act 1986 service provided by bank comes within domain of Consumer Protection Act 1986. In view of section 2(O) of Consumer Protection Act 1986 it is not expedient in the ends of justice and on the principle of natural justice to relegate complainant to civil court for redressal of her grievances. State Commission is of the opinion that present consumer complaint could be disposed of under Consumer Protection Act 1986 in a proper and effective manner.
12. Submission of learned Advocate appearing on behalf of Punjab National Bank that ATM card could be used by any person and Punjab National Bank could not be penalized for the fault of complainant herself because complainant did not take care of her ATM card is decided accordingly. Complainant has filed CCTV Footage annexure- C5. State Commission has played CCTV footage annexure-C5 and as per CCTV footage it is proved on record that complainant did not receive money from ATM of PNB at the time when withdrawal of Rs.10000/-(Ten thousand) has been 8 Punjab National Bank Versus Rita Devi & Anr.
(F.A. No.312/2017) shown in withdrawal receipt. As per CCTV footage annexure- C5 at about 3.23 P.M ATM was operated but no money was withdrawn from ATM machine. Hence plea of PNB is defeated on the concept of ipse dixit (An assertion made without proof).
13. Submission of learned Advocate appearing on behalf of Punjab National Bank that as per affidavit given by Shri B.D Sharma Branch Manager Ext.OPW2-I successful transaction was effected from ATM machine of PNB at 3.23 P.M on dated 29.12.2015 and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that Shri B.D. Sharma Branch Manager was not present in ATM machine on dated 29.12.2015 at 3.23 P.M. State Commission is of the opinion that Shri B.D Sharma has filed affidavit on the basis of derived knowledge. Although written complaint was filed to Punjab National Bank by complainant but inquiry report of Nodal Officer PNB not placed on record. No reasons assigned as to why PNB did not place on record inquiry report of Nodal Officer and why PNB did not file affidavit of Nodal Officer of PNB. Hence adverse inference is drawn against PNB for withholding material evidence i.e. Enquiry report of Nodal Officer. State Commission is of the opinion that it is not expedient in the ends of justice to allow the appeal simply on the affidavit of Shri B.D. Sharma Branch Manager because Shri B.D Sharma 9 Punjab National Bank Versus Rita Devi & Anr.
(F.A. No.312/2017) is not eye witness of incident and his affidavit is filed on the basis of derived knowledge only. Even PNB did not file affidavits of Cashier and Accountant who have personally reconciled the amount of ATM machine of PNB on dated 29.12.2015. Even no Switch Centre report placed on record by PNB Authority.
14. Submission of learned Advocate appearing on behalf of Punjab National Bank that CCTV footage was destroyed after three months and on this ground appeal be allowed is decided accordingly. Complainant has placed on record CCTV footage of ATM machine dated 29.12.2015 at 3.23 P.M. It is proved on record that complainant has also filed FIR in the police station and CCTV footage was supplied by the bank to Investigating Officer in a criminal case. PNB did not file any affidavit of SHO in order to prove that CCTV footage of ATM machine was not produced by the bank to Investigating Officer. Hence plea of Punjab National Bank that CCTV footage was destroyed is defeated on the concept of ipse dixit (An assertion made without proof). Even PNB was under legal obligation to retain CCTV footage of ATM machine dated 29.12.2015 when complaint was pending before Nodal Officer PNB and before District Forum.
15. Submission of learned Advocate appearing on behalf of State Bank of India that on the basis of affidavit filed by Shri Liaq Ram Branch Manager complaint filed by 10 Punjab National Bank Versus Rita Devi & Anr.
(F.A. No.312/2017) complainant be dismissed is decided accordingly. State Commission is of the opinion that Shri Liaq Ram has filed affidavit on the basis of derived knowledge and Shri Liaq Ram was not present in ATM machine at the time of operation of ATM machine by complainant. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
16. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum passed in consumer complaint No.39/2016 dated 28.07.2017 is affirmed. C.D Annexure-C5 will for part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 10.07.2018 KD* 11