(Delivered on  30/03/2022)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.

1.         Appellant- Bank of India has preferred the   present appeal   feeling aggrieved by the impugned order dated 11/04/2016 passed by the learned Additional District Consumer Commission, Nagpur in Consumer Complaint No. RBT/CC/13/733, by which the complaint filed by the complainant came to be partly allowed. (Appellant shall hereinafter be referred as Opposite Party  and respondent as Complainant for the sake of convenience).

2.         Short facts leading to filing of the present complaint may be narrated as under,

            Complainant – Mr. Ganesh  Meshram  claims to be resident of N.I.T. Quarters, Anand Nagar, Nagpur and was having  Saving Account with  the Bank of India, Branch Gandhibagh  bearing account No. 870310110001376 since  the year 2008. The complainant  has alleged that  the O.P- Bank of India, Branch Gandhibagh had also provided  A.T.M. facility. The complainant has further alleged that  in the month of May an amount of Rs. 1,23,303/- was lying  in his Saving Account. The complainant  wanted to withdraw  an amount  of Rs. 500/- and so he made  three to four an attempts  to withdraw the amount from ATM Machine  but on  all the occasions the cash, was not withdrawn  and complainant  received message  regarding  unable to process. The complainant  has alleged that   thereafter he received  message that the  amount  of Rs. 500/- had came to be debited from his  account.  The complainant  then approached  the  Bank of India, Branch Gandhibagh, Nagpur and informed the branch  but the   Branch  Manager of Bank of India, Branch Gandhibagh asked  him to give proper application  in writing. The complainant  then submitted  application  in writing  requesting that  the amount of Rs. 500/- which is debited  may be credited  in his  account. The O.P. gave assurance that the said amount will  be credited in the account of the complainant but  the same did not happen  and no action was taken by the O.Ps. The complainant   therefore,  lodged  several complaints  regarding  the same  with the Bank of India, Branch  Gandhibagh, Nagpur and ultimately  on 04/09/2012 the amount of Rs. 500/- came to be  credited in his account.  Complainant has alleged that since he was having the saving account with the Bank of India, Branch Gandhibagh, Nagpur the O.P. has indulged in deficiency in service  but not crediting the said amount immediately.  The complainant has further alleged that as per Circular issued by the Reserve Bank of India the O.P. namely Bank of India is liable to pay Rs. 100/- per day by way of penalty for default  on their part and so the complainant  lodged the Complaint under Section 12 of the Consumer Protection Act, 1986.

3.         The O.P. Nos. 1&2 appeared and filed their joint written version on record. The O.P. admitted that the complainant was having a saving account with the Bank of India, Branch Gandhibagh, Nagpur and A.T. M. Facility was provided  to the complainant.  The O.P. also admitted that the complainant had made attempt to withdraw an amount of Rs. 500/- but was not successful. The O.P. has also denied that it had not taken any action immediately regarding crediting the amount. The O.P. has admitted that the Reserve Bank of India had issued Circular on 17/07/2009 but has taken the plea that the said Circular will not be applicable in the present case as the transaction with the complainant had taken place in the month of May-2009.  The O.P. has also denied that there was any Deficiency in service on their part and so the complaint deserved to be dismissed.

4.         The learned Additional District Consumer Commission, Nagpur thereafter went through the evidence adduced on record by the complainant as well as O.P. The learned Additional District Consumer Commission, Nagpur also went through the written notes of argument filed by both the parties. After hearing the learned advocate for the complainant and O.P.,  the learned Additional District Consumer Commission, Nagpur allowed the complaint and gave the  findings  that  the Circular  dated 17/07/2009 issued by the Reserved Bank of India was applicable  to the  facts and therefore  the O.P. namely Bank of India had committed  deficiency  in service. The learned Additional District Consumer Commission, Nagpur therefore, directed the O.P. Nos. 1&2 to pay penalty   at the rate  of Rs. 100/- per day for the period from 20/05/2009 to 04/09/2012. The learned Additional District Consumer Commission, Nagpur also directed the O.P. Nos. 1&2 to pay Rs. 1,000/- by way of mental and physical harassment and Rs. 1,000/- towards cost of litigation.  Against this order dated 11/04/2016 passed by the Additional learned District Consumer Commission, Nagpur the present appellants/O.P.Nos. 1&2 have come up in appeal.

5.         We have heard Mr. Kale, learned advocate for the appellant and Mr. Rahate, learned advocate for the respondent No. 1/complainant.  We have also perused the record and the papers filed by both the parties. On the basis of the facts stated above  only point  which  arises  for our determination  is as  under  with  our finding recorded  against same and reasons  to follow: 

Reasons

6.         It is not in dispute that complainant – Ganesh Meshram was holding an account with the Bank of India, Branch Gandhibagh since the year 2008 and complainant was also provided with A.T. M. Facility for withdrawal of cash. It  is also  not in dispute  that   an  amount of Rs. 1,23,303/- was lying  in  balance  in the Saving Account of the complainant at the time  of transaction. The O.P. has also not seriously disputed the fact that the complainant had made attempt to withdraw the amount of Rs. 500/- by making use of A.T.M.  facility on 3 to 4 occasions.  The O.P. has denied the rest of the contentions.  O.P.  has categorically  denied  in the written version  that  complainant – Mr. Ganesh Meshram had made complaints  to the  bank of India, Branch Gandhibagh from time to time.

7.         Coming now the contentions raised by the appellant, it is submitted by Mr.  Kale, learned advocate on behalf of the appellant that  the learned Additional District Consumer Commission, Nagpur has not properly  appreciated  the documents  and evidence  in proper perspective  and has therefore arrived   at  findings which were  perverse in  nature.  On the other hand, Mr. Rahate, learned advocate for the  respondent No. 1/complainant  has supported the findings given by the learned Additional District Consumer Commission, Nagpur and has submitted that  there is no reason to  disturb  or  interfere with  the findings.

8.         At the outset, Mr. Kale, learned advocate for the appellant has submitted before us that the learned Additional District Consumer Commission, Nagpur has committed patent    error in applying the Circular dated 17/07/2009 issued by the Reserve Bank of India. It is  argued by the learned advocate for the appellant  that  the learned Additional District Consumer Commission, Nagpur has failed to  appreciate  that  the Circular was issued  by the Reserve Bank of India  on 17/07/2009 and same  was  prospective  in nature  and not retrospective  in application.  Further  the learned advocate for the appellant  has also submitted that  there  was no deficiency in service on the part of the appellant –Bank of India and amount  of  Rs. 500/- debited from the  saving  account of the respondent No. 1 had came to be credited  on 04/09/2012.

9          Mr. Rahate, learned advocate for the respondent No. 1/complainant has rebutted this contention and has drawn our attention to the copies of several complaints made by the complainant via e-mail. Copies of these complaints are  placed on record and they clearly  go to point out that  on 04/05/2009 the complainant  had processed A.T.M. for withdrawal of Rs. 500/- and thereafter had processed four transactions  for  withdrawal  which  resulted  in failed  transactions. The complainant also found that though he did not receive the cash of Rs. 500/- his account was debited by Rs. 500/-. The complainant thereafter on 07/05/2009 after reaching Nagpur immediately lodged the complaint with the Branch office and thereafter continued to pursue his complaint through e-mail, copies of which are on record.  From the papers  and documents  filed on record on behalf of the complainant  it can be easily  seen that the complainant  continue  to  send mails but no action  was taken  by the appellant- Bank of India, Branch Gandhibagh regarding  crediting  his amount.  Mr. Rahate, learned advocate for the complainant /respondent No. 1 has also drawn our attention with the copies   of account regarding the withdrawal of Rs. 500/- from the saving account and so this fact regarding failed transactions cannot be disputed at all.  The complainant – Mr. Ganesh Meshram was therefore left with no other option except to pursue the remedy of filing of Consumer Complaint.

10.       Coming now to the main contention raised by the appellant regarding applicability of the Circular dated 17/07/2009 issued by the Reserve Bank of India. It is submitted by the learned advocate for the appellant that the same was not retrospective in nature. On the other hand, Mr. Rahate, learned advocate for the respondent No. 1/complainant has submitted that the plea taken by the appellant – Bank of India is untenable in law as the Circular dated 17/07/2009 is silent on this aspect. As such we have carefully gone through the contents of the Circular dated 17/07/2009 issued by the Reserve Bank of India. If we go through  the  Circular  dated 17/07/2009. It is seen that  the Reserve Bank of India had taken  a review  of the various  complaints received  in this regard and thereafter  had issued  the following  directives;

i.          It is mandatory for the banks to reimburse the customers, the amount wrongfully debited on account of failed ATM transactions within a maximum period of 12 working days from the date of receipt of the customer complaint.

ii.          For any failure to re-credit the customers account within 12  working  days from the date of receipt of the complaint  the bank shall pay compensation of Rs. 100/- per day, to the  aggrieved customer. This compensation shall be credited to the customer’s account automatically without  any claim  from the customer, on  the same day when the bank affords the credit for the failed  ATM transaction.

            From the aforesaid  directives, it is clear that  it was mandatory  for the Bank to reimburse  the customers the amount  wrongfully   debited on account  of  failed transaction   with in maximum  period of 12 working  days  from the date of  the complaint  and  for  failure  to re-credit the customer, the bank was directed to pay  the compensation  of Rs.100/- per day. The learned advocate for the complainant has strongly relied upon these directions.

11.       Now as stated earlier it is submitted by Mr. Kale, the learned advocate for the appellant that since the transaction of the complainant had taken placed on 04/05/2009 and this Circular was issued on 17/07/2009, the Circular will have no retrospective application to the transaction dated 04/05/2009 which was earlier in time. However, the learned advocate for the appellant was unable to point out any provision of law to support this contention that the Circular dated 17/07/2009 will not be applicable to the transaction of the complainant or that Circular in retrospective in application.  On the contrary, we are of the view that the said Circular was issued by the Reserve Bank of India taking into consideration the previous complaints in banking transactions.  Further a bare  perusal   would  show that  the  Circular  issued by the Reserve Bank of India was  only  in the nature of administrative instructions issued under  Section 18 of Payment and Settlement  Systems  Act, 2007 and  also attracted the penalty as prescribed.  Further  if  that  were the  intention  then Reserve Bank of India  would  have  specifically  made  the  Circular  prospective  in nature and also mentioned  the same. As such we are of the view that  the Circular dated 17/07/2009 issued by the  Reserve Bank of India  cannot be termed as  prospective  in nature and so we are unable  to accept  the contention advanced  by the learned  advocate for the appellant. We further hold that the learned Additional District Consumer Commission, Nagpur has rightly construed the said Circular dated 17/07/2009.

12.       In the light of aforesaid  discussions we are of the view that the learned Additional District Consumer Commission, Nagpur has appreciated evidence  in proper  perspective  and so we do not  find any reason to interfere  with the same and so we answer point No. 1 negative  and by way of sequel  proceed to pass following  order:

ORDER

i.          Appeal is hereby dismissed.

ii.          Appellant to bear their own costs as well as costs of the respondent.

iii.         Copy of order be furnished to both the parties, free of cost.