Delhi

New Delhi

CC/108/2019

RAJAINDERR JAINA - Complainant(s)

Versus

M/S. HDFC BANK & OTHERS - Opp.Party(s)

22 Aug 2022

ORDER

 

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.108/2019                               

In the matter of:

 

Dr. Er. RajainderJaina

S/o Late  Sh. T.C. Jaina,

R/o TerapanthNiketan, Flat No. ‘P’

First Floor, Sagar Apartments,

6, TilakMarg, New Delhi-110001                         ....COMPLAINANT

 

Versus

 

1. HDFC Bank

         Through its General Manager

         209-214, Kailash Building

        26, Katurba Gandhi Marg

       New Delhi-110001

2. Chief Post Master

           West Patel Nagar

           New Delhi-110008

3. Syndicate Bank

         Through its General Manager

         B-39, Middle Circle

          Near PVR Plaza,

        Connaught Circus

          New Delhi-110001….. OPPOSITE PARTY

 

 

Quorum:

         Ms.PoonamChaudhry, President

          Ms. Adarsh Nain, Member

 

                                                                                                                                                  Dated Institution:22.04.2019                                                                                                                                                                             Date of Order   : 22.08.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complainant has been filed under Section 12 of the Consumer Protection Act, 1986 (in short CP Act) alleging deficiency of service. Briefly stated the facts of the case are:-
2. It is stated that complainant had taken housing loan from the Punjab National Bank and in order to clear the over draft Account attached to this Housing loan, the complainant had issued a cheque in favour of Punjab Naional Bank O.D. account No. 0604009900000165 for an amount of a sum of Rs. 3,90,000/- (Rupees Three lakh Ninety Thousand) drawn on the OP bank, bearing cheque No. 000140, dated 31.01.2019. The said cheque was sent to Punjab National Bank by speed post, but subsequently it was revealed that the said cheque had never reached the addressee i.e. Punjab National Bank, West Patel Nagar, and was misappropriated in the transit by the postal department in connivance with and collusion of postal officials of OP No.2. Subsequently it was revealed that the OP No.1. Bank had cleared the said cheque in favour of Mr. Deepak Kumar, who was having account in Syndicate Bank (OP No. 3). It is prayed that HDFC Bank OP-1 be directed to refund Rs. 3,90,000/- (Rupees Three Lakh ninety thousand) to complainant with interest @ 18% p.a. and OP1 and 2 be directed to compensate the complainant.
3. Reply was filed by OP-1, 2 and 3. OP-1 stated it had no role in this case. OP-2 stated that complainant never booked any speed post article through OP-2. OP-3 states that OP-3 made payment of Rs. 3,90,000/- (Rupees Three Lakh Ninety Thousand) to the complainant and nothing remains due or outstanding.
4. Vide order dated 22.08.2022, the opportunity to file CE was closed as complainant failed to file its evidence despite several opportunities being granted.
5. Complainant has filed the present complaint alleging deficiency in service but evidence was not led by complainant. The onus of proof of deficiency of service was on the complainant only, after complainant was able to discharge its initial onus the burden would shift on OP.
6.  It has been held by Hon’ble Supreme Court in Civil appeal no. 5759/2009 SGS India Ltd. Vs. Dolphin international decided on 06.10.2021 that the initial burden of proof of deficiency in service was on complainant. The burden would shift on OP. The burden would shift on OP only after complainant discharged its initial burden.

It is also to be noted that Hon’ble Supreme Court also held in Indigo Airlines Vs. Kalpana Rani Debbarma and others (2020) 9 SCC 424 that the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. The relevant extract of the judgment is as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondent. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produced any evidence. in law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

For the foregoing reasons the complaint stands dismissed that ascomplainant failed to prove deficiency of service on part of OP, no order as to costs.

Copy of order be uploaded on the website of the Commission.

File be consigned to record room alongwith a copy of the order.

 

 

 

(POONAM CHAUDHRY)

President

 

                                                              

 

     (ADARSH NAIN)                                               

   Member