The facts which have led to the filing of this consumer complaint under Section 12 of the Consumer Protection Act, 1986 Act hereinafter, at the instance of Shri Neeraj Sharma the complainant against Punjab National Bank, Moti Bazar, District Mandi, H.P. through its Senior Manager and Anr., the opposite parties, in short, are as under:- The complainant was having an account with opposite party No.1 and he was operating it through ATM also. On 18.6.2012 the complainant was at Mandi and he needed a sum of `2,500/- for his personal use. He went to SBI ATM, Police Lines, Mandi and initiated the process of withdrawal after entering PIN No. etc. Before the complainant could enter the amount intended to be withdrawn, the process failed with massage Transaction Timed Out. After some time, he received a message on his cell phone that a sum of `10,000/- stood withdrawn from his account, though as a matter of fact, no amount was actually withdrawn vide that transaction. However, later on, he went to some other ATM in the town and withdrew the requisite amount of `2500/-. Regarding illegal withdrawal of `10,000/- from his account he immediately intimated the opposite party No.1 and telephonically informed ATM Cell @ PNB on next day. The complainant visited OP-1 many times in this connection and requested them to make arrangement for refund of amount. A written complaint dated 7.8.2013 was filed with OP-1 and Email dated 10.2.2015 was also sent to OP-2 in this connection, but without any result. By pleading deficiency in service and unfair trade practice on their part, the complainant has prayed for refund of `10,000/- with interest, ` 80,000/- as compensation for harassment and `10,000/- as litigation expenses from the opposite parties.
2. The opposite parties have filed a joint written version and contested the complaint by raising preliminary objections qua joinder of parties, limitation and maintainability. On merits, thought it has been admitted that the complainant was having an account with OP-1 and he was operating it through ATM also, have been admitted, but other allegations have been denied. It is pleaded that the fact that no amount of `10,000/- was actually withdrawn could be verified by SBI, whose ATM facility was availed by the complainant. However, as a matter of fact, as reflected in the statement of accounts, a sum of `10,000/- and `2500/- was withdrawn on that day from complainants account. The complaint is stated to be barred by limitation.
3. The complainant has filed a rejoinder and re-asserted his case as set out in the complaint. The complainant has filed his own affidavit, whereas, on behalf of the opposite parties, affidavit of Shri Anit Kumar, Manager, PNB, Moti Bazar, Branch, has been filed.
4. We have heard the learned counsel for the parties and perused the record carefully. The contention of the learned counsel is that the complaint is barred by limitation and the complaint should have been against SBI whose ATM facility was availed by the complainant. Whereas, the learned counsel for the complainant has contended that information regarding wrong deduction of amount from his account was given to the opposite parties on that date itself, but they did not take any action on its basis. Therefore, the complaint is not barred by limitation. Reference is made to National Insurance Company Ltd. Vs. Hindustan Safety Glass Works Ltd.,II (2017) CPJ 1 (SC). It is contended that the complaint is maintainable against the opposite parties without impleading SBI.
5. We have heard the learned counsel for the parties and perused the file with care. Para No.2 of the complaint is relevant. The transaction involving wrong conveying of message of withdrawal of `10,000/- from the account of complainant through ATM of SBI, Police Lines, Mandi admittedly took place on 18.6.2012. The complainant received a message on his cell phone on the same day. He informed opposite party No.1 regarding wrong drawl of money from his account on that date itself. Therefore, for all practical purposes the cause of action arose and concluded on 18.6.2012. It is not a case of continuing cause of action. The accrual of cause of action cannot be taken to have been extended simply because the complainant had been visiting the opposite parties and making request to look into his matter. As per Section 24-A(1) of the Act, the period of limitation in filing consumer complaint is two years from the date cause of action accrued to the complainant unless condonation is prayed for and allowed by the Forum for the reasons to be recorded in writing. By that standard, the complainant should have filed the complaint within two years on and w.e.f. 19.6.2012. The complaint was filed on 5.5.2015 and thus, is clearly barred by limitation. No condonation in delay in filing the complaint has been sought by the complainant. Reliance on National Insurance Company Ltd. Vs. Hindustan Safety Glass Works Ltd. (Supra), is misplaced. That was a case involving insurance policy between the insurer and insured. The claim of the insured was never repudiated by the opposite parties (insurer) before filing of consumer complaint by the said concern. In these circumstances, the Honble Supreme Court has held that the complaint was not barred by limitation. However, the facts of the present case are totally different as there was no insurance contract between the complainant and opposite parties.
6. There is another point involved in this case. The complainant had used the ATM facilities of SBI, therefore, it was the SBI, Mandi, which was to explain the discrepancy regarding Transaction Timed Out vis-a-vis the message regarding withdrawal of money from complainants account. After all, it was the mal-functioning of its machinery that had produced the end result to the disadvantage of the complainant. The complainant did not implead SBI, Mandi. His application for impleadment of SBI, Mandi was dismissed by this Forum. So SBI, Mandi was the necessary party in the present case and without its impleadment, complaint is not maintainable. As such the complaint is dismissed. There is no order as to costs.
7. Copy of this order be supplied to the parties free of costs as per Rules.
8. File, after due completion be consigned to the Record Room. Announced 05-09-2017. (Virender Sharma) *Ramesh* President (Akash Sharma)(Vibhuti Sharma) Members