(Delivered on 16/01/2018)

Per Mr. S.B. Sawarkar, Hon’ble Member

1.         The present appeal is filed against the order of the District Forum, Nagpur passed in complaint  No. 599/2009 dated 29/07/2011 granting partly the complaint  with directions  as under ,

 a.         The O.P. (Opposite party) Nos. 1&2 to return  the amount  of Rs. 65,355/- to the  complainant  with interest at the rate of 6% upon it from  02/05/2009 till final payment and also shall not demand Rs. 1,855/- from the complainant.

 b.         The O.P.  to provide  the cost of the complaint  of Rs. 2000/- to the complainant .

 c.         The prayer of the complainant to provide the compensation  is rejected

 d.         The order  to be complied by  the O.P.Nos. 1&2 jointly  or severally in the span of 30 days from the date of the receipt of the order.

 e.         The  rights of the O.P.  to file  a Civil Suit to recover the amount from the complainant  are  protected for which  no points from the present order may be taken  in consideration.

 2.         The complainant herein  filed a complaint in brief  as under,

a.         The complainant  is a holder  of   saving bank account of the O.P. Nos. 1&2 for which he was provided an ATM Card by O.P. in May 2006 vide No. 3016(last digits). However,  as  the branch  giving  the ATM card was not linked with the other banks, he could not use the card. Hence, he returned it.

 b.         In 2008 he was  given  a  new ATM Card vide No. 9465 (last four digits) which  he is using.  On 02/05/2009 he  received a letter from the O.P.  in which  it was informed that  the first card  given  vide No. 3016 was used  for Rs. 65,355/- by him and  the expenditure was  debited from his account and was directed to deposit  additional Rs. 1,855/- of the expenditure  done by him.  

 c..        The complainant  met with  O.P. No. 2 & explained  the entire issue and also requested  to provide the evidence by stating that  he had  never  used ATM card No. 3016. Hence,  requested  to return the amount.  The complainant  claimed that  as  he had returned  the first card there was no  question of maintaining  the receipt. He therefore claiming  deficiency  in service against  O.Ps. filed a complaint with a prayer  to declare  the O.Ps.  to have  committed deficiency in service and  caused  loss to the complainant by  debiting  the above amount. Also to provide him the debited  amount of Rs. 65,355/- with interest at the rate of 18% p.a.  from 02/05/2009 and   not to make demand of Rs. 1,855/-. Further  to provide  severally or together  Rs. 1,00,000/- as compensation  and Rs. 15,000/- as cost of the complaint.

 3.         The O.P.  Nos. 1&2 appeared  on notice and countered the complaint,  stating that the complainant was given the ATM Card No. 3016 which he used  illegally and spent  Rs. 65,355/- out of it and  suppressed the information  from the O.Ps. He was also  given the regular card vide No. 9465 which  he took by suppressing  the previous  card without  returning it.  Therefore, the O.Ps.  gave him a letter, when the expenditure  came to  notice  the O.Ps.  debited the said amount  from his account. It was done as  the  previous ATM card was linked to another  saving  account holder by  name Shri Gupta who had brought these  facts to the notice of the O.Ps.  Hence,  the O.Ps. have not committed any deficiency in service. Hence,  the complaint  deserves to be dismissed.  

 4.         The learned  Forum considered the evidence brought on record  by  both the parties with  the submission made by them. The learned Forum below held that  after getting the caution  letter,  the complainant  informed  to the  O.Ps.  and  asked for  the evidence explaining  his stand. However, the O.Ps.  did not file any evidence like  evidence of the person providing the first card from the DBA extension counter. It indicates that  the  O.Ps. debited the amount without  providing any notice to the complainant.

 5.         Thus relying on the National Commission Judgement passed  in a case between State Bank of Hyderabad Vs.  Jerneil Singh ,  reported at 2010 NCJ 54 (NC) holding  that  if the bank commits a mistake  it cannot  re-correct it unilaterally. Indicating thereby that the bank should have provided proper  notice and evidence to the complainant prior  to  recovery of the amount. Hence,  holding  it unilateral  act,  tantamount to  deficiency in service passed the order supra.

 6.         Aggrieved against the order, advocate Mr. Vandan Gadkari filed an appeal on behalf of original O.P. Nos. 1&2, referred as appellants.  Advocate Shri Vora appeared on behalf of complainant now referred as  respondent.  Both parties filed their  written notes of arguments.

 7.         The advocate for the appellant reiterated the contentions  of the bank the appellants in brief that they had issued  the  ATM Card which  was accepted by signature by the respondent and used it.  But never returned  it.  However,  when  there was expenditure and  no deduction  from his account, he did not bring these facts to the notice of the bank,  the appellants and suppressed it.

 8.         The advocate of the appellant  further submitted that  the respondent  received the regular ATM Card not  linked  to his saving  account and used it.  Hence,  illegally  used the ATM Card linked to another account belonging to Shri Gupta. When Shri Gupta brought it to the notice of the bank, the appellants therefore appropriately gave letter to the respondent and  debited the amount as recovery of the expenditure  done by the respondent.

9.         The advocate for the  appellant also  submitted  that ,  as  the respondent  continued  expenditure  from the previous  ATM Card he is morally bound  to repay the amount. Hence,  the action of the appellant  being  correct. However,  the learned Forum failed to appreciate. Hence, the order  of the  learned Forum deserves  setting aside confirming the  action of the appellant.

 10.       The advocate for the respondent  countered  the contentions  of  the appellant  stating  that  the appellants  cannot unilaterally recover the amount without  conducting  the  proper  enquiry.  The appellants have filed the expenditure  chart of the  ATM Card 3016 without any signature and have not produced the transaction slip which would have identified  the  expending  person.

 11.       The  advocate of  the respondent  has clarified that as the  first ATM Card No. 3016 providing branch which is a extension   counter,  was not  linked with the  core banking,  the respondent  could not use the card and returned it.  He had also submitted that  respondent returned the card,  it was for the appellants to bring a cogent evidence and prove the person responsible for expenditure. Without doing so the appellants  debited the  amount  from the account and  only informed  with a direction  to deposit  the remaining  amount  to the  respondent. He relied on the following  judgments as below.

 i.          National Commission Judgment  passed in  revision  petition No. 3884/2013  in a case between Canara Bank Vs.  M/s. S. Vasudharni. Wherein  the Hon’ble  Commission  held that “ The suo motu deduction of amount  from the  account of  saving bank account is  arbitrary  and capricious. The bank had no courtesy  to inform that  this mistake  was committed by them which  they were  going  to rectify & no show cause notice was given before the amount was debited.  The banking system is based on  trust and faith and are the custodian of the public money and accountable. They cannot  act in  an irresponsible  and negligent  manner. Hence,  the National Commission maintained  the order of the State Commission.

 ii.          The National Commission Judgment passed in a case between State Bank of Hyderabad Vs. Jerneil Singh, reported at 2010 NCJ 54 (NC) holding  that  if the bank commits a mistake  it cannot  re-correct it unilaterally.

 12.       The advocate  for the  respondent  therefore submitted that  by  deduction of   amount  by the  appellants without  notice  and  without  providing  any evidence, the appellants  have  committed  the deficiency  in service  to the  respondent. The learned Forum has  rightly  considered it & hence,  the impugned order being correct, deserves to be confirmed.

 13.       We asked the advocate of the appellants as to whether they conducted  a proper  enquiry to identify the person  who caused  the expenditure, he replied  that no formal enquiry was caused  and  no evidence was  provided  to the respondent  in the form of  notice  and his  contention  was not recorded prior to  debiting the amount  from his account.

 14.       We find that  it was  a duty of the appellant  as responsible  banker to  specifically   prove as to  when  the card was provided,  why was  a wrong  card provided, how long it continued  with the respondent  and  when  it was taken back or was  allowed to  continue with the  respondent.  How the new card was provided without  proper disposal of  the previously provided card.

 15.       It was the contention that  the transaction is controlled  by the  VISA Agency. Then  it was necessary  for the appellants  to verify the bills  of expenditure from the institutions  where  the amount was spent. The  institutions  appear to be  local  and  the expenditure  appears to be  identifiable  to know the spending  person.

 16.       Without  undertaking  a proper formal enquiry and  without  providing  a notice  and recording  the  say of the  respondent  such  deduction of  amount positively  indicates deficiency  in service and callus treatment on the part of the appellant.  

17.       There  is no evidence to prove that the card in question  was  actually used by respondent. We thus find that  in the light of the judgments  relied by the respondent,  the learned Forum has rightly  applied  its consideration  to the  evidence  on record and has passed a correct order which  deserves to be confirmed.  Hence, we confirm it as below. 

ORDER

i.          The appeal is dismissed.

ii.          The order of the learned Forum is confirmed.

iii.         Parties to bear their own cost.

iv.        Copy of the order be provided to both the parties, free of cost.