SUKH PAL vs AXIS BANK OF INDIA

The present revision petition has been filed against the judgment dated 25.07.2014 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (''the State Commission'') in Appeal no. 121 of 2014.

The brief facts of the case as per the petitioner/ complainant are that Sukhpal- petitioner/ complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986, with the averment that he used his ATM card for withdrawing an amount of Rs.10,000/- on January 3 , rd 2013 at 5:00 p m from ATM machine of the HDFC Bank Limited but the amount was not received by him inspite of the fact that amount of Rs.10,000/- was debited to his account. He complained to the HDFC Bank but to no avail.

The respondent/ opposite party No.1, i.e., Axix Bank of India contested the complaint by filing written reply taking the plea that all transactions of ATMs and through internet banking

facility meet all the stringent safety as well as security criteria specified by international associations VISA AND MASTERCARD. There was journal printer in the machine which records each and every transaction done through ATM and was a fool proof system for reconciling the accounts. The HDFC Bank/ Opposite Party No.2 did not contest the complaint and was proceeded ex parte .

The District Consumer Disputes Redressal Forum, Palwal, (''the District Forum'') vide order dated 28.01.2014 while allowing the complaint held that: "The allegation made by the complainant to the effect that he used his ATM Card for withdrawing an amount of Rs.10,000/- on 03.01.2003 at 05.00 p m from ATM Machine of opposite party no. 2 located at Anaj Mandi, Palwal but neither the said amount nor any receipt was received. Thereafter, the complainant inserted his ATM Card in ICICI Bank located opposite to the said Bank and found that an amount of Rs.10,000/- had been debited in his account go un-rebutted and unchallenged as unchallenged as opposite party no. 2 has not come present to contest the claim of the complainant.

Resultantly, complaint is allowed. Opposite party no. 2 is directed to pay Rs.10,000/- with interest @ 9% per annum from the date of filing of this complaint till the realisation of the said amount to the complainant. Opposite party no. 2 is further directed to pay Rs.2200/- as compensation towards mental agony and harassment along with Rs.1100/- as litigation expenses within 30 days from the receipt of this order to the complainant".

Aggrieved by the ex parte order of the District Forum, opposite party no. 2, i.e., HDFC Bank Ltd., filed an appeal before the State Commission. The State Commission vide their order dated 25.07.2014 accepted the appeal and set aside the impugned order and dismissed the complaint. In their order, the State Commission has observed as under: " Learned counsel for the appellant has argued that as per transaction slip (Annexure A-2), an amount of Rs.10,000/- was withdrawn from the account of the complainant by using ATM. Further reference was made to ATM/BASE 24/ Cash Balancing Sheet. The complainant should have called for the statement of the Bank showing opening balance in ATM machine on January 3 , 2013 and closing balance on that day along with amount rd withdrawn, which could prove that Rs.10,000/- were not received by the petitioner. The Balance Sheet of the ATM machine furnished by the Bank shows that several customers had withdrawn money from that ATM before and after the petitioner but none of them made any complaint of not receiving the cash from the said ATM. Therefore, it cannot be believed that petitioner did not receive Rs.10,000/- from the ATM machine. The HDFC has annexed JP Log Book showing the transaction to be successful. The perusal of Annexure A/2 shows that the details of ATM Card number and account number tally with the account of the petitioner. The ATM Balancing Sheet produced by the HDFC Bank shows that the amount of Rs.10,000/- was withdrawn by the petitioner by using ATM. The District Forum allowed the complaint merely on the ground that the appellant/ opposite party no. 2 was ex parte. In such circumstances, this Commission does not find it a fit case to attribute any deficiency on the part of the appellant Bank. In view of the above, the appeal is accepted, the impugned order is set aside and the complaint is dismissed".

Hence, the present revision petition.

We have heard the petitioner who is appearing in person and the learned counsel for the respondent and have carefully gone through the record.

Petitioner is aggrieved by the fact that the State Commission has dismissed the complaint and denied him the refund and compensation ordered by the District Forum, despite of the fact that subject ATM transaction failed and the petitioner did not receive Rs.10,000/- from the ATM machine of HDFC Bank.

Learned counsel for the respondent on the other hand has stated that the revision petition should be dismissed as the order of the District Forum was against OP no. 2, i.e., HDFC Bank Ltd and the respondent had not been held liable. The appeal before the State Commission was also by OP no. 2, i.e., HDFC Bank Ltd. The State Commission vide their order had set aside the order of the District Forum which was against OP no. 2 i.e., the appellant before the State Commission. The petitioner has thus, misled the court and has wrongly filed the revision petition against respondent/ OP no. 1, i.e., Axis Bank of India which was not found guilty of any deficiency of service or negligence by the District Forum against whom no order had been passed. The petitioner has failed to implead as respondent/ opposite party no. 2, i.e., HDFC Bank against whom the District Forum had passed an order.

On careful perusal of record and the observation of the State Commission reproduced above we do not find any fault with the approach adopted by the State Commission in reversing the order of the District Forum in appeal. There is no material irregularity in the order which may call for interference in exercise of the revisional jurisdiction. Further, from the record it is clear that the District Forum did not find the respondent/OP No.1 deficient in service and it allowed the complaint only against OP No.2 i.e. HDFC Bank Ltd. The State Commission vide impugned order allowed the appeal preferred by OP No.2 against the order of the District Forum and dismissed the complaint. It is against the said order of the State Commission revision petition has been preferred but without making HDFC Bank as a party. The revision petition, therefore, is not maintainable because the main opposite party against whom the revision is directed has not been arrayed as a respondent. Ongoing through the record, we find that the District Forum had held HDFC Bank deficient in service and passed an order for refund of Rs.10,000/- with interest and compensation. The State Commission has set aside the order passed by the District Forum and dismissed the complaint. None of the lower fora have passed any order against the respondent. Hence, this is a case of misjoinder of parties.

Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby, dismissed.