Shri Som Nath son of Shri Diwan Chand, Resident of Subathu Road, Dharampur, Tehsil and District Solan, H.P.

Versus

1. The Managing Director, State Bank of Patiala, Head Office, The Mall Patiala (Punjab).

2. Regional General Manager, State Bank of Patiala, Regional Office Shimla.

3. State Bank of Patiala, Branch Dharampur, Tehsil and District Solana, H.P. through its branch Manager.

Pritam Singh (District Judge) President: - This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The case of the complainant in brief as set out in the complaint is that he is holder of saving bank account bearing No.55123649550 with the OPs-Bank and he had also been issued A.T.M. card bearing No.6038455612100002467 by the OPs-Bank. It is further alleged that on 23.10.2005 when he went to ATM for withdrawal of Rs.10,000/-, he found that small withdrawals of Rs.3,000/-, Rs.3,000/-, Rs.3,000/-, Rs.2,000/-, Rs.3,000/- and Rs. 1,000/- total amounting to Rs.15,000/- have been shown from his aforesaid account on single day on 01.10.2005, whereas these amounts were never withdrawn by him from his saving bank account by using A.T.M. card on 01.10.2005. It is further alleged that he brought this fact to the notice of the OPs-Bank and also issued legal notice, and that the OPs credited only Rs.11,000/- in his saving bank account, and did not credit remaining amount of Rs.4,000/- in his saving bank illegally despite his repeated request. Hence, feeling dissatisfied and aggrieved by the act of the OPs-Bank, the complainant perforce filed this complaint against the OPs-Bank.

2. The complaint is resisted by OPs-Bank who took some preliminary objection regarding maintainability of complaint, etc. On merits, they alleged that the complainant’s A.T.M. card was used at Panipat on 30.09.2005 and the holder of the ATM Card tried to withdraw Rs.3,000/-, but the ATM machine did not deliver this amount. That the holder of the ATM card made two more attempts to withdraw the amount of Rs.3,000/- and Rs.2,000/- from the same ATM within 2 mnutes and against these attempts the account of the party was debited with three entries of Rs.3,000/- each and one entry of Rs.2,000/- as a result of which Rs.11,000/- was wrongly debited to account of complainant which was shown by the computer in the account on 01.10.2005 as 30.09.2005 being bank holiday.

That the amount intended to be withdrawn by three attempts on 30.09.2005 was not delivered by the ATM machine. As such, after verification from the web site of the ATM at Belapur (Mumbai) where the master computer has made credit entries against the undelivered cash, Dharampur Branch of the OPs-Bank gave credit of Rs.11,000/-. But, as the amount of Rs.4,000/- was withdrawn through the ATM card and stood delivered by machine to holder of ATM card, the OPs-Bank was legally justified in not giving credit entries of this amount in his account. As such there being no deficiency in service, the complaint is sought to be dismissed. Thereafter, the parties led oral and documentary evidence in support of their claim/counter claim.

3. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the complaint.

4. Undisputedly, the complainant was holding saving account No.55123649550 with the State Bank of Patiala Branch Dharampur who had also been issued A.T.M. card by the OPs-Bank bearing No.6038455612100002467. According to the complainant, on 23.10.2005 when he went to ATM for withdrawal of Rs.10,000/-, he found that some withdrawals of Rs.3,000/-, Rs.3,000/-, Rs.3,000/-, Rs.2,000/-, Rs.3,000/- and Rs.1,000/- total amounting to Rs.15,000/- have been shown from his aforesaid account on single day, i.e. on 01.10.2005, whereas these amounts were never withdrawn by him from his saving bank account by using his ATM card. The complainant further alleged that when he brought this fact to the notice of the OPs-Bank and also issued legal notice the OPs-Bank after making necessary enquiries credited Rs.11,000/- in his account but did not credit remaining sum of Rs.4,000/- in his saving bank account despite his repeated request.

5. Whereas, according to the OPs-Bank, the ATM card of complainant was used and card holder attempted to withdraw a sum of Rs.3,000/- from saving bank account of complainant on 30.09.2005. But, when the ATM card did not deliver the amount, the holder of the ATM made two more attempts to withdraw the amount of Rs.3,000/- and Rs.2,000/- within two minutes and against these attempts, the account of the party was debited with three entries of Rs.3,000/- each and one entry of Rs.2,000/- as a result of which a sum of Rs.11,000/- was wrongly debited to account of complainant and it was shown by the computer in the account on 01.10.2005 as 30.09.2005 was bank holiday.

It is further the case of the OPs-Bank that as the ATM card holder intended to withdraw these amounts, but the amounts were not delivered by the ATM machine and after verification from the web site of the ATM at Belapur (Mumbai) where the master computer had made credit entries against the undelivered cash, Dharampur Branch of the OPs-Bank gave credit of Rs.11,000/- to complainant account. It is further the case of the OPs-Bank that the ATM card holder having failed to get the amount from the ATM, withdrew Rs.4,000/- by two transactions of Rs.3,000/- and Rs.1,000/- after few minutes from the ATM of SBI at Panipat and the amount of the aforesaid attempt was delivered by the ATM machine to card holder. As such, the question of crediting this amount of Rs.4,000/- in the account of complainant does not arise.

6. In this connection, it may be stated that the OPs-Bank has placed on record the copy of statement of transaction Annexure-A dated 30.09.2005 pertaining to the withdrawals of the amount from various accounts through ATM on 30.09.2005 including the saving account of the complainant. The OPs-Bank have also placed on record the copy of statement of the withdrawal Annexure-B issued by SBI Panipat Branch showing the withdrawal of Rs.3,000/- and Rs.1,000/- respectively by the complainant at SBI Panipat through ATM card as the amount was duly delivered to ATM card holder by ATM machine on 30.09.2005 and duly reflected in this statement. These documents remained unrebutted.

7. Therefore, from this document Annexure-B, it stands proved on record that the complainant had also made attempt to withdraw a sum of Rs.3,000/- and Rs.1,000/- respectively through his ATM card at ATM machine SBI Panipat on 30.09.2005 and the amount was duly delivered to him. No doubt, the complainant had also issued legal notice dated 16.12.2005 Annexure C-I to the OPs-Bank which was also duly replied by the OPs-Bank as is evident from the copy of reply Annexure C-3 dated 23.12.2005.

The OPs-Bank intimated the complainant vide this reply of legal notice that the amount of Rs.4,000/- could not be credited to his account as this amount was withdrawn by him through his ATM card at SBI Panipat and this amount was delivered to him by ATM machine. As such, in the given circumstances, we are of the opinion that the aforesaid amount of Rs.3,000/- and Rs.1,000/- respectively had been withdrawn by the complainant through his ATM card at SBI Panipat and amount duly delivered to him by ATM machine. Therefore, the OPs-Bank rightly declined to credit the aforesaid amount of Rs.4,000/- in the saving bank account of the complainant. As such, we do not find any substance in the complaint, and it being merit less is liable to be dismissed.

Ajay Kumar son of Sh. Baldev Sharma aged 21 years resident of village Biddi, Post Office Darwar, Tehsil Sarkaghat, District Mandi, H.P.





…Complainant





V/S

1. Manager, State Bank of Patiala Awaha Devi Tehsil Bhorang, District Hamirpur.

2. Manager State Bank of Patiala Anandpur Gurutwar, District Ropar Punjab.

3. Sh. Vinay Kapoor Dealing Assistant ( ATM) State Bank of Patiala Anandpur Sahib District Ropar Punjab.



…..Opposite parties




ORDER.



This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties .The case of the complainant is that he is the subscriber of State Bank of Patiala by opening his account vide No 65019793074 at Awah Devi and had also got the ATM facility and on 1-9-2008 there was amount of Rs.5201/- in his account . The complainant averred that in the month of May , the account balance was Rs.25,100/-. The complainant alleged that on 30- 8-2008 he wanted to withdraw the amount from his account through ATM but could not withdraw the same as ATM was not responding to the withdrawal of the complainant .


The complainant approached the opposite parties No.2 and 3 and inquired about non functioning of ATM facility then he was told that there was technical defect in the functioning of the ATM and when the complainant later tried to withdraw the amount from his account at Anandpur Sahib Branch of opposite parties Bank, he came to know that his account had been made non- operational by the opposite parties No.2 and 3 . Then the father of the complainant asked the opposite party No.1 why the ATM of his son is not responding then he was told that it is operational and then on his request again he was apprised that the opposite parties No.2 and 3 have frozen the account of the complainant due to withdrawal of the over amount by him. The complainant alleged that on 8-5-2008 he had withdrawn Rs.25100/- from his account .


The complainant further alleged that his father approached the Branch Office Anandpur Sahib and he was told by the opposite party No.3 that he will settle the matter and also asked to show the withdrawal slips which were submitted to the opposite parties No.2 and 3 but till date the account is not made functional which reflects the mischief of the opposite parties. The complainant further alleged that he has represented the matter to the opposite parties on 3-9-2008. The complainant alleged that he is facing financial hardship due to deficiency in service on the part of the opposite parties and also suffered mental agony. With these allegations , the complainant had sought a direction to the opposite parties to make the account of the complainant operational and also to pay Rs. 50,000/- as damages and cost of the litigation.

2. The opposite parties resisted the complaint by raising preliminary objections that the complaint is not maintainable , that the complainant is not a consumer , that the complainant has no enforceable cause of action against the opposite parties and no relief can be claimed against the opposite parties , that there is no deficiency or unfair trade practice and that the complaint involves complex questions of law and facts which requires adjudication by leading the elaborate evidence triable by civil court. On merits , the opposite parties had admitted that the complainant had an account at Awah Devi and also got the facilities of ATM but denied that the complainant is customer of the opposite parties.


The opposite parties have pleaded that the complainant has not disclosed that he has withdrawn the amount of Rs.15,000/- ,Rs.8700/- Rs.1300/- and Rs.100/- in different transactions on 9-5-2008 itself through ATM operation in Anadpur Sahib ( ATM under the supervision of SBP Anandpur Sahib) which have been duly accounted/ debited in his account . The complainant has also collected the cash amounting to Rs.15000/- through ATM in transaction No.272 on 9-5-2008 which was not debited to his account as signified in the coded error: *0272*2*E*3, M-18 R-010000000 and on scrutiny of the JP Roll of the said ATM, it was found that cash of Rs.15,000/- has been disbursed by the ATM machine without debiting the account of the complainant . The print roll of usage of the ATM machine by the complainant on 9-5-2008 clearly indicates that the complainant had given successive commands without giving much space time between the transactions .


The complainant has been telephoned and requested though various letters about excessive disbursal of Rs.15000/- but he has not refunded the same till date and also pleaded that this fact can only be decided by the civil court only . The opposite parties have denied that the complainant ever made any inquiry and denied any technical defect as alleged by the complainant . It has also been denied that any mischief has been done by the opposite party No.3 as alleged. It is contended that Bankers lien upon the complainant’s account to the extent of Rs.15,000/- was marked only after the enquiry and confirmation of the concerned documents of the transactions by concerned departments and authorities and after the failure of the complainant to refund the said amount to the opposite parties .


It has further been pleaded that the complainant cannot enrich himself by taking the cash from the ATM machine to which he is not entitled due to some error on the part of ATM machine due to frantic usage by the complainant The opposite parties have denied that the complainant is entitled to damages of Rs.50,000/- on the alleged grounds. It has further been pleaded that the Bankers lien can be marked upon the account of the complainant till the amount of Rs.15000/- is refunded by him to the opposite parties No.1 and 2 which has been taken by him to which he was not entitled and therefore the account cannot be made operational . The opposite party had sought dismissal of the complaint with a direction to the complainant to refund Rs.15000/- with interest .

3. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.

4. We have heard ld. counsel for the parties and have carefully gone through the entire case file. From the perusal of the record it is revealed that the case of the complainant is that when he tried to withdraw the amount from his account at Anadpur Sahib, branch of State Bank of Patiala ATM through his ATM card , the ATM was not responding. On inquiry he came to know that his account was made non- operational by the opposite parties. Conversely, the case of the opposite parties is that the complainant had collected the cash amount of Rs.15,000/- through ATM in transaction No.272 on 9-5-2008 which was not debited to his account as signified in the coded error: *0272*2*E*3, M-18 R-010000000 and on scrutiny of the JP Roll of the said ATM, it was found that cash of Rs.15,000/- had been disbursed by the ATM machine without debiting the account of the complainant .


According to the opposite parties error on the part of the ATM machine occurred due to the fact that the complainant had given successive commands without giving much space time between the transactions . The opposite parties had also placed on record ATM transaction slips to show that there was a error in the transaction No.272. As per the opposite parties since the complainant has failed to refund the amount of Rs.15000/- despite repeated requests in this behalf , Banker’s lien upon the complainant’s account to the extent of Rs.15000/- was marked and till the time this amount is not refunded , his account cannot be made operational .


After hearing the ld. counsel for the parties ,we are clearly of the opinion that that the dispute and issues raised in the complaint are intricate issues which require elaborate evidence as is apparent from the copies of the documents filed by the parties . The complainant had filed ATM transaction slips which are computer generated . The opposite parties have also filed computer generated record i.e. Print roll of usage of ATM machine , transaction on ATM . The opposite parties have also filed Customer Engineer Call Report Annexure R-5 issued by NCR Corporation India Pvt Ltd Mumbai wherein it has been mentioned as under:-

Analyzed the J.P.role and error against transaction No.272. error generated after successful presentation of cash

The perusal of the aforesaid documents filed by the parties show that the entire record is computer generated and without assistant of an expert , it is not possible for us to decide such claim in summary proceedings of the Consumer Forum .On the basis of the documents filed by the parties , we cannot come to the conclusion as to whether the amount of Rs.15,000/- was disbursed to the complainant without debiting his account as it is not possible for us to give such findings without getting expert evidence .


The case of the opposite parties is that the error occurred on account of the fact that the complainant had given successive commands without giving much space time between the transactions . This fact also requires evidence of an expert as to whether giving of successive commands without giving much space time between the transactions can result into an error . Therefore such disputes which are technical in nature and which require detailed oral as well as documentary evidence including the evidence of experts cannot be gone into in detail in the summary proceedings before the Consumer Forum. In our considered opinion, the dispute involves complicated questions of facts and the same cannot be tried and determined in the summary proceedings before the Consumer Forum.

5 In the light of above discussion, the complaint fails and the same is hereby dismissed with no order as to costs. However, we have not expressed any opinion on the merits of the case, and the complainant is at liberty to approach the competent court of jurisdiction for redressal of his grievance , if so advised and the dismissal of the complaint shall have no bearing on the merits of the case.

6 Copy of this order be supplied to the parties free of cost as per Rules.

7 File, after due completion be consigned to the Record Room.

Shri Surinder Kumar S/O Shri Medh Ram Bhardwaj,

R/O Village Sanjari, P.O. Dargi, Tehsil Sunni,

District Shimla, H.P.



… Complainant.

Versus





1. United Commercial Bank,

Dhalli, through its Branch Manager.



2. State Bank of Patiala,

Branch at Kandaghat,

Tehsil and District Solan, H.P.



…Opposite Parties








O R D E R:




This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he deposited a cheque bearing No.2289 amounting to Rs.15,000/- dated 30.07.2007 with his banker UCO Bank, Dhalli in his account, which was to be sent to the OP No.2 for collection. After depositing the cheque, with his banker, the complainant visited the office of the OP-Bank to know the fate of the said cheque, but to no avail. Hence, it is averred that there is apparent deficiency in service on the part of the OPs-Bank in not crediting the proceeds of the said cheque in his account, and accordingly relief to the extent as detailed in the relief clause be awarded in his favour.

2. The OP-Bank, in its written version, to the complaint, raised preliminary objection vis-à-vis maintainability of the complaint, lack of cause of action, non-impleadment of Courier Company as a party and status of the complainant, as a consumer. On merits, it is contended that the cheque presented by the complainant was returned unpaid by the OP No.2, for want of funds and the OP No.1 on presentation of the cheque on 30.07.2007, promptly sent it to its branch at Kandaghat for clearance, who returned it with memo on 02.08.2007 and thereafter it was handed over to agent of the courier company for onward transmission to UCO Bank Dhalli. It is further contended that the courier company failed to deliver the same to OP No.1, instead forged the signatures of the bank official. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties led evidence, by way of affidavits, and, documents in support of their respective, rival contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The complainant, is aggrieved by the act of the OPs-Bank in their failure to credit the sum of Rs.50,000/- comprised, in, cheque bearing No.2289, in, his account with the OP No.1. The cheque comprising a sum of Rs.50,000/- , was sent, by, the OP No.1, to, the OP No.2, as, the same was drawn upon the bank of OP No.2 situated at, Kandaghat. The OP No.2, had, as borne by Annexure R-5, made an endorsement in the memorandum, accompanying the cheque, that, for insufficient funds, the cheque, is, required to be referred to the drawer.


The complainant has not filed any rejoinder, to, the contention as raised by the OPs-Bank in its reply, that, the cheque, as, was delivered by the complainant to it on being subsequently sent by it for collection to the Bank of the OP No.2 situated, at, Kandaghat had been endorsed, by the later, in, the memorandum accompanying the cheque, that, owing to insufficient funds, the, cheque is required to be referred to drawer, as such, their was no omission on their part to, hence, not to credit the sum of money comprised in the cheque, in his account maintained by OP No.1. Therefore for failure, of, the complainant having not repulsed the said contention of the OPs, as, existing in its reply, the, contention attains finality. Obviously, then no deficiency in service can be attributed to the OP-Bank.


Therefore, when the amount as comprised in the cheque could, not, for reasons as referred in the memorandum furnished by the OP No.2 to the OP No.1, which fact of the memorandum having been issued by the OP No2, and its revealing, the fact of non-existence of the funds in his account, hence, is, not in controversy, the same can be construed to have precluded, OP No.1 from crediting the amount comprised in it, in, the account of the complainant, with it. Resultantly, also, the OP No.1, cannot be faulted for, not, hence, having encashed the amount of the sums comprised in the cheque presented by the complainant to the OP No.1, who , is, his banker.

6. Since, the cheque as presented by the complainant to the OP No.1, could not be credited to the account of the complainant, with the OP No.1, as the cheque sent by it for collection to OP No.2, could not be for reasons detailed above, credited, by, the OP No.2 in the account of the complainant with OP No.1, hence, failure if any on the part of the OP No.1, to, return the cheque to the complainant, cannot be said to be of consequence, especially, in the light of the pointed averment, in, the reply of the OP No.1, that, the cheque has been sent for delivery by OP No.1, to, OP No.1, through Blaze Flash Courier Limited, and had not been delivered by the courier company to the OP No.2, rather, its purported delivery had been reflected in Annexure R-1 by forging the signatures of the bank official.

7. With sufficient and plausible explanation afforded by the OP No.1 for the cheque, as, presented by the complainant to it having come to be misplaced and with the explanation as existing in reply furnished by the OP No.1, to the complaint, the, complainant having omitted to implead the courier company as a necessary party so as to unravel the truth of the matter, in, our considered view, then, on its being considered in conjunction, with the fact of the complainant, also, not having filed rejoinder to the said fact, as, contained in the reply of the OP No.1, he, can be said to have acquiesced to the said contention, as such, also barring from claiming relief against the OPs for their not having returned the cheque to the complainant, so as, to, enable him to initiate appropriate action against the person who had issued it. Hence, it cannot be said by any stretch of imagination, that the OPs-Bank has committed deficiency in service, as also, indulged in an unfair trade practice.

8. In the light of the above discussion, we are constrained to hold that there is no substance in the complaint and the complaint being without any merit, deserves dismissal and hence, we order accordingly. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.