Haryana

Karnal

CC/139/2016

Surinder Kumar S/o Hari Kishan - Complainant(s)

Versus

Union Bank Of India - Opp.Party(s)

Surjit Narwal

04 Jul 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                      Complaint No.139 of 2016

                                                      Date of instt. 03.05.2016

                                                      Date of decision:04.07.2018

 

Surinder Kumar son of Shri Hari Krishan resident of House no.40, Aggarsain Colony, Panipat.

                                                                                                                                                                        …….Complainant.

                                        Versus

 

1. Union Bank of India, Sector-12 HUDA Complex Karnal.

2. ICICI Bank, Ram Lal Chowk Panipat.

3. HDFC Bank Ram Lal Chowk Panipat.

                                                                     …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act.          

 

Before    Sh. Jagmal Singh……President    

                Sh. Anil Sharma…….Member

               

 

 Present   Shri Surjit Narwal Advocate for complainant.

                  Shri Virender Sharma Advocate for OP no.1.

                   Shri D.P. Kharab Advocate for OP no.2.

                   Shri Vineet Rathore Advocate for OP no.3.

 

ORDER:                    

 

                         (JAGMAL SINGH, PRESIDENT)

 

                         This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant is the account holder of account no.379902011065014 with Union Bank of India, Sector-12 HUDA complex Karnal. Complainant is a Government employee in prosecution department as ADA posted in Karnal now at Assandh. The complainant is regular saving account holder of OP no.1. On 27.11.2015 the complainant need for money of Rs.25,000/- on that day the complainant present in the Panipat. The complainant went to ATM booth of the OPs no.2 and 3 and apply for the transaction 1^st transaction apply for Rs.10,000/-, but the money was not came out from the ATM machine, then the complainant apply 11nd time transaction for Rs.5000/- but again this money also not come out from the ATM machine. The complainant 3^rd time again apply the Rs.10,000/- transaction from the ATM machine, but the same not came out from the ATM machine in the booth of ICICI and HDFC Bank. Then after sometime Rs.10,000/- come back in our account and came to the message on mobile then the complainant apply for the Rs.10,000/- this transaction is success again Rs.10,000/- applied transaction but this transaction not success, then again Rs.10,000/- come back on our account and again complainant applied for Rs.10,000/- transaction this transaction success and again Rs.5000/- apply for transaction this transaction are success in this process Rs.25,000/- received by the complainant in all these transactions, but the bank account show Rs.50,000/- in our accounts. 1^st two transaction are not success but Rs.50,000/- deducted in the account and fourth transaction of Rs.10,000/- are not success and not came to our account. The complainant on that day request to the bank Manager and moved an application on the same day i.e.27.11.2015 but no result come out. Then complainant moved an application to the Bank Manager of HDFC and ICICI Bank Panipat at Ramlal Chowk in this regard but no amount come in his account. It is further alleged that the limit of the complainant only Rs.25,000/- for one day, so on 27.11.2015 transaction show by the Rs.50,000/- by the OP no.1. It is against the rules of the Bank, it is clearly show that the complainant received only Rs.25,000/-. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs. OP no.1 appeared and filed written statement raising preliminary objections with regard to locus standi and cause of action; mis-joinder and non-joinder of parties; maintainability and concealment of true and material facts.  On merits, it is submitted that on 27.11.2015 the complainant made his transaction by using ICICI and HDFC Bank ATM machine at the same time the amount for which the complainant applied ATM deducted from his UBI Bank account. The OP no.1 is not liable to pay the deducted amount to the complainant which was deducted by HDFC Bank and ICICI Bank from his UBI account. It is liability of HDFC Bank and ICICI Bank to prove through footage that complainant has received the transaction amount from the ATM machine of the above mentioned bank. It is further submitted that according to Switch Report form Mumbai the record of three ATM transaction operated by the complainant are following:

a) That the first transaction operated at 22:50:00:00 p.m on 26.11.2015 for Rs.10,000/-.

b) The second transaction operated at 22:51:56:00 p.m. on 26.11.2015 for Rs.10,000/-.

c)  The third transaction operated 22:53:16:00 p.m. on 26.11.2015 for Rs.5000/-

 All the these transactions were operated near about or 1& ½ hours before midnight (12.00 p.m.) and all these transactions were operated by the ATM machine of HDFC and ICICI Banks. Sometime is taken by Switch (ATM Reconciliation Department) in Mumbai to show the transaction time (for the ATM transactions which were operated by other bank ATM).   So all these transactions were operated at near about 11.00 p.m. on 26.11.2015, were shown on 27.11.2015 at 02:04:20 a.m., 02:04:34 a.m. and 02:04:35 a.m. respectively instead of 26.11.2015 due to sometime taken by Switch Report Mumbai for completion the record of ATM transaction which were operated at one or one and half hour before 12 p.m., which were operated from other bank ATM machine except the customer account holder bank. It is further submitted that the next three ATM transactions that were operated by the complainant on 27.11.2015 is as follows:

a) The first transaction operated at 07:55:38:00 a.m. on 27.11.2015 for Rs.10,000/-.

b) The second transaction operated at 07:56:38:00 a.m. on 27.11.2015 for Rs.5000/-.

c) The third transaction operated at 07:50:26:00 a.m. on 27.11.2015 for Rs.10,000/-.

The above three transaction were shown on 27.11.2015. So, out of above mentioned six transactions, three transactions were operated on 26.11.2015 and next three transactions were operated on 27.11.2015. Hence there is no deficiency in service on the part of the OP no.1. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written statement raising preliminary objections with regard to locus standi and cause of action; mis-joinder and non-joinder of parties and maintainability. On merits, it is submitted that as per record of OP no.2 on 27.11.2015 the complainant had done 4 transactions vide transactions reference no.8617, 8618,6300 amounting to Rs.10,000/- each and reference no.6301 amounting to Rs.5000/-. Transaction no.8618 of Rs.10,000/- had been auto reversed to his account. The OP has received the charge back from the banker of the complainant for transaction no.8617, 6300 and 6301 on 5.1.2016. However, on verification of the record of OP no.2, the said transactions were found to be successful and fully paid one. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.3 in its reply raising preliminary objections with regard to locus standi and cause of action; mis-joinder and non-joinder of parties; maintainability and territorial jurisdiction. On merits, it is submitted that complainant operated ATM being run and maintained by OP no.2 on 27.11.2015 at Ram Lal Chowk, Panipat for withdrawal an amount of Rs.10,000/- through ATM card no.421363799030794 issued by Union Bank of India. At that time it was a unsuccessful transaction due to technical shortcoming beyond the control of OP no.3 and debit of Rs.10,000/- was shown in ATM receipt. Thereafter, as a automatic process of system same was shown reversed for Rs.10,000/- on same day. The reversal entry is clearly depicting in bank ATM log and also in complainant statement of account. Even in this regard no complaint has so far been received from OP no.1 from issuing bank i.e. union bank of India. There is no deficiency in service on the part of the OP no.3 and prayed for dismissal of the complaint.

5.             Complainant tendered into evidence his affidavit Ex.PW1/A and documents Ex.P-1 to Ex.P5 and closed the evidence on 22.3.2018.

6.             On the other hand, OP no.1 tendered into evidence affidavit of Priya Malik Ex.RW1/A and documents Ex.R1 to Ex.R6. OP no.3 tendered into evidence affidavit of Ishelly Tiwari Ex.OP3/A and documents Ex.OP3/B  and Ex.OP3/C and closed their evidence on 8.6.2018. OP no.2 tendered into evidence affidavit Ex.D1 and documents Ex.D2 to Ex.D6 and closed the evidence on 4.6.2018.

7.             We have heard the learned counsel for both the parties and have also gone through the record available on the file carefully.

8.             The learned counsel for complainant reiterated all the points mentioned in the complaint. He argued that on 27.11.2015 the complainant was in need of Rs.25000/- and he was in Panipat. The complainant went to ATM booth of OPs no.2 and 3 and operated 1^st transaction for Rs.10,000/- but the money did not come from the ATM machine. Similarly, 2^nd time transaction for Rs.5000/- and 3^rd time transaction for Rs.10,000/- failed and no money was received by the complainant. He further argued that after some time Rs.10,000/- came back in the account of complainant as per message in his mobile phone. The complainant then again operated transaction for Rs.10,000/- and this transaction was successful and the complainant received the amount of Rs.10,000/-. He further argued that the complainant again applied transaction for Rs.10,000/- but this transaction was failed. Then again Rs.10,000/-came back in his account, so the complainant again operated transaction for Rs.10,000/- and this transaction was successful. The complainant again applied transaction for Rs.5000/- which was also successful. In this way the complainant received Rs.25000/- total from the ATM machine of OPs no.2 and 3, but the account statement of the complainant shows that the bank had deducted Rs.50,000/- from the account of complainant. He further argued that the complainant met the bank managers of both the banks and made request about the same on the same day i.e. on 27.11.2015 and moved an application regarding the same. Both the banks gave assurance that the money would come back after sometime in his account. He further argued that on 4.12.2015, the complainant gave application to OP no.1, who assured that money would be come back after two weeks, but till today no money came into the account. He further argued that the limit of the ATM of the complainant was only Rs.25000/- for one day but the account statement shows that Rs.50,000/- were deducted from the account of complainant in one day i.e. on 27.11.2015 through ATM, which is against the rules of the Bank. In this way the OPs have deducted Rs.25,000/- extra from the account of complainant which was not received by the complainant, so the OPs are deficient in providing services to the complainant.

9.             On the other hand, the learned counsel for OP no.1 argued that as per SWITCH REPORT from Mumbai, the complainant operated three transactions on 26.11.2015 and three transactions on 27.11.2015. The three transaction dated 26.11.2015 were operated near about 1½ hours before midnight (12.00 p.m.), so all these transactions were shown on 27.11.2015 in the account statement because some time is taken by SWITCH (ATM Reconciliation Department) in Mumbai to show the transaction. Due to this reason the amount was shown deducted from the account of complainant on 27.11.2015, whereas all the six transactions were successful and were conducted on two dates i.e. on 26.11.2015 & 27.11.2015 and the complainant received the money, so the amount of Rs.50,000/- has been deducted from the account of the complainant. He further argued that OP no.1 is not liable to pay the deducted amount to the complainant which was deducted by HDFC Bank and ICICI Bank from his UBI account.

10.            The learned counsel for OP no.2 (ICICI Bank) argued that the complainant had done four transactions on 27.11.2015 vide transactions reference no.8617, 8618, 6300 for Rs.10,000/- each and no.6301 for Rs.5000/-. The transactions no.8618 of Rs.10,000/- had been reversed to his account. The respondent has received the charge back from the banker of complainant for transaction no.8617, 6300 and 6301 on 5.1.2016. He further argued that on verification the said transactions were found successful.

11.            The learned counsel for OP no.3 argued on the same footing as that of OP no.2 and argued that complainant operated ATM (ID no.SIANPP08) on 27.11.2015 at Ram Lal Chowk, Panipat for withdrawal of Rs.10,000/- through ATM card issued by OP no.1. The said transaction was unsuccessful due to technical shortcoming and a debit of Rs.10,000/- was shown in ATM receipt and thereafter, as a automatic process of system, the same was shown reversed for Rs.10,000/-

12.            From the  account statement Ex.P1 it is clear that Rs.50,000/- have been deducted from his account vide different ATM transactions on 27.11.2015. The account statement also shows that two reverse entries of  Rs.10,000/- each were also made on the same date i.e.27.11.2015. To prove his allegations the OP no.1 referred the document Ex.O-5 and stated that three transactions were dated 26.11.2015 just before 11.00 p.m. and all the three transactions were successful. This fact has been mentioned by the OP no.1 in his reply in para no.7 of the preliminary objections that first transaction was operated at 22:50:00 p.m for Rs.10,000/-, the second transaction operated at 22:51:56 p.m. for Rs.10,000/-and third transaction operated at 22:53:16: p.m for Rs.5000/- on 26.11.2015 and all these transactions were successful. It is pertinent to mention here that the account statement Ex.P-1 issued by OP no.1 shows one reverse entry after the abovesaid three transactions. When there was a reverse entries regarding one of the above three transactions, it means one of the above three transactions was unsuccessful. The contention of OP no.1 that all the three transactions were successful is against the factual position and not tenable in the eyes of law. When one transaction is proved from this document that the same was not successful then how the version of OP no.1 can be believed that other two transactions were successful. The OP no.1 admitted about three transactions dated 27.11.2015. According to the argument of OP no.1, all the transactions dated 27.11.2015 were successful but the OP no.1 is silent about one reverse entry of Rs.10,000/- which shows that one transaction on 27.11.2015 was also not successful. It is pertinent to mention here that the ATMs machine of OPs no.2 and 3 were used by the complainant and the OPs no.2 and 3 have not mentioned in their reply that the complainant had operated three transactions on 26.11.2015. The version of OPs no.2 and 3 is not similar to that of OP no.1 regarding the transactions on 26.11.2015. The contention of OP no.1 that the entries of these transactions were made after 2.00 a.m. on 27.11.2015 is  not seems to be genuine because there was a difference of more than three hours about which the OP no.1 has not shown any instruction vide which it can be said that there would be delay in making the entries in the concerned account concerned regarding the withdrawal during midnight. It is pertinent to mention here that the computer allowed the withdrawal of the money only if the account of withdrawing person having money which means the computer has ingress with the account of the person withdrawing the amount even the account is in different bank. So there should not be any delay in making the entries of the transactions. If the  delay was due to computerize system even then the OPs are liable for the same.

13.            As stated above the ATM machine of OPs no.2 and 3 was used by the complainant, so it was the duty of the OPs no.2 and 3 to produce the CCTV footage to show that the money was received by the complainant in the above transactions but the OPs no.2 and 3 withheld the best possible evidence vide which it can be proved that the money was received by the complainant.  In these circumstances, the contention of complainant cannot be disbelieved that he has not received money during the transaction as alleged by him. It is also pertinent to mention here that it is admitted case of the parties that the limit for withdrawal of the ATM of complainant in one day was Rs.25,000/-. The account statement is the evidence regarding the deposit and withdrawal of the money from the Bank. The account statement Ex.P-1 of the account of complainant shows that the OPs have deducted the amount of Rs.50,000/- from the account of complainant on 27.11.2015 through ATM transaction whereas the limit for withdrawal through ATM of the complainant in one day was Rs.25,000/-.  It is admitted case of the parties that amount of Rs.25000/- were withdrawn by the complainant on 27.11.2015. Therefore, Rs.25,000/- had been deducted in excess from the account of the complainant through ATM transactions in one day.

14.            It is pertinent to mention here that the complainant has produced the copies of applications Ex.C2, Ex.C3 and Ex.C4 moved to the Branch Manager of the OPs in his evidence wherein it has been specifically mentioned that the amount of Rs.25,000/- was received by him whereas the amount of Rs.50,000/- has been deducted by OP no.1 from his account and the complainant made request that Rs.25,000/- be sent in his account. These applications were moved within a short period which shows that the complainant has received the amount of Rs.25,000/- only and not Rs.50,000/- which has been wrongly deducted from his account. This fact  also proves the genuineness of the complainant.

15.            In these facts and circumstances discussed above, we are of the view that the complainant has not received the money regarding all the transactions mentioned in the account statement on 27.11.2015 and the complainant had received only Rs.25,000/-. Therefore, the OP no.1 has wrongly shown the payment of Rs.50,000/- to the complainant. Hence the OPs are deficient in service.

16.            Thus, as a sequel to above discussion, we allow the present complaint and direct the OP no.1 to pay Rs.25,000/- to the complainant. We further direct the OP no.1 to pay Rs.5000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. It is hereby made clear that the OP no.1 is at liberty to recover the amount from OPs no.2 and 3. This order shall be complied with within 30 days from the receipt of copy of this order failing which the abovesaid amount will carry interest @ 8% per annum from the date of order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:04.07.2018

                                                                       

                                                                  President,

                                                          District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

                       (Anil Sharma)

                            Member