BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH,                                                                               MANGALORE

Dated this the 15^th November 2016

PRESENT

    SRI. VISHWESHWARA BHAT D  : HONBLE PRESIDENT

     SRI. T.C. RAJASHEKAR               : MEMBER

ORDER IN

C.C.No.192/2013

(Admitted on 09.07.2013)

Smt. Ganga, Aged 36 years,

W/o Neelayya,

R/a Quarters No.54,

PWD Quarters,

Bondel, Mangalore.                  

                                            ….. COMPLAINANT

(Advocate for the Complainant: SRK)

VERSUS

1. State Bank of India, a Banking Company,

    Constituted under the State Bank of

    India Act of 1955 having its Corporate Center

    Represented by its authorized signatory.

2. The Manager,

    State Bank of India,

    Port Road,

    Mangalore  575 001.                         

                                          ….........OPPOSITE PARTIES

(Advocate for the Opposite Parties No.1 and No.2: Sri. SLS)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

  The brief facts of the case are as under:

The complainants contends she has an Account with the opposite party No.2 bearing No. 10981144384 and also got an ATM facility.  On 01.03.2013 at 12.50 PM the complainant approached SBI ATM counter at Milagres as she was need of Rs.3,000/ to enquire about the balance and to withdraw the amount.  Since the ATM counter was not working properly she could not withdraw the amount and checked the balance and she waited about 10 minutes and visited to another ATM Counter at Port Road Mangalore.  When she attempted to withdraw the amount the complainant was surprised to see endorsement there is no sufficient balance to withdraw the amount.  When enquired with opposite party she was informed that she had withdrawn Rs.20,000/ from Milagres ATM counter.  But she doesn’t withdraw any amount at Milagres ATM counter.  As such complainant lodged police complaint.  A legal notice was issued to opposite party dated on 20.04.2013 to which the reply on 26.04.2013 was issued.  Hence seeks direction to opposite party to refund Rs.20,000/ and compensation of Rs.50,000/ and the cost of the complaint Rs.5,000/ from opposite party.

II.    opposite party filed written version contending the matter of allegation made by the complainant admits that the bank Account with ATM facilities for the account with opponent but denying other allegations as to not withdrawn of the amount of Rs.20,000/ and by investigated the matter using modern technology through CCTV of the ATM counter there is no role of the bank in complainant lossing her money.  The complainant is either stating falsehood or has lost money owing to her own negligence or mistake to which opposite party cannot held be liable.  Further to the complaint lodged to Mangalore North Police Station the opponent co-operated fully the CCTV photos seen by the police revealed that the complainant had operated the ATM at 12.50 hrs with the ATM ID Card issued in respect of the Account maintained with opposite party in crystal Arc Balmatta Road the transaction of withdrawal of Rs.20,000/ completed.  The Electronic Journal and ATM log along with the CD containing photo footage produced clearly shows that the complainant was accompanied by an unknown person who perhaps was helping her.  The complainant instead of waiting transaction to be completed left the ATM counter and the amount of Rs.20,000/ withdrawn from the ATM machine has been perhaps pocketed by the unknown person.  Since the complainant negligently left the place before collecting her money.  Hence seeks dismissal of the complainant.

          In support of the above complainant Smt. Ganga filed affidavit evidence as Cw1 and answered the interrogatories served on her and produced documents got marked Ex C1 to C4 detailed in the annexure here below.  On behalf of the opposite party Mr. Sathish T (Rw1) Manager, SBI also filed affidavit evidence and answered the

Interrogatories served on him and produced documents marked as Ex.A1 & A2 detailed in the annexure here below.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

          Point No. (i): Negative

          Point No. (ii): Negative

         Point No. (iii): As per the final order.             

                                                                                     REASONS

IV.      POINTS No. (i) & (ii):  In this case the opponent produced the print out of the transaction dated 01.03.2013 in respect of the cause of complainant pertaining to the Account on the complainant maintained with opponent as seen from the printout as per Ex.C1 request for cash complaint received on 1.03.2013 at 12.50 hrs. an amount on withdraw of Rs.20,000/- from the complainant using card issued to the complainant is clearly established. In this case the crucial question is where during the relevant period that is on 1.03.2013 at 12.50 pm the complainant had approached the SBI counter at Milagres to enquire about the balance in that account and to withdraw the amount.  The complainant case is that the ATM machine was not working properly and even after waiting for another 10 minutes she left the counter and visited another ATM counter at Port Road Mangalore and on attempted to withdraw money she was surprised to see the endorsement from the counter that there is no sufficient balance in the account to withdraw the amount. 

     However, the version of the opponent RW1 Mr. Sathish T of SBI filed affidavit evidence and contention that the allegations that ATM machine at Milagres was not properly functioning is not correct and produced the details of the Electronic Log showing withdrawal of Rs.20,000/ from the Account of the complainant mentioned in the complaint mentioned in the complainant with the ATM card bearing No. that was issued to the complainant and the time showing of the withdrawal is 12.50 hrs. on 1.3.2013.  The CD copy and its maintained version are produced by the opponent.  The CD of the records of the ATM machine and its printout of time log are produced by opposite party.  These documents are not marked.  For the sake of convenience the CD is marked at A1 and the time log at A2. 

     The allegations in the complaint is complainant approaching the ATM of maintained by the opposite party on 1.3.2013 at 12.50 pm and used the ATM Card issued to complainant from the account of complainant maintained with the opposite party 2.  The details found in the log correspondence to the account number and card number of complainant.  The time also tallies.  In respect of the question posed to complainant during the interrogatories served on behalf of opposite party in the respect of ATM Card No with date and time and the amount of Rs.20,000/- withdrawn by the complainant in question No.3 is answered in the negative as and she has not withdrawn the amount.  However, there is no mention by the complainant either in the complainant or in the affidavit evidence or in any other documents as to what is the Number of her ATM Card.

          The amount from the account of the complainant could not have been withdrawn using another card considering this and that at the relevant time at 12.50 pm on 1.03.2013 complainant did visit the ATM counter in question and made attempt to withdraw the amount is admitted by complainant.  The further contention of complainant is that ion she wanted to know the available balance as the machine was not properly functioning.  But even the response code of not working is also not produced by the complainant of her transactions using her ATM card.  Considering this and the documents Ex.A1 & A2. In fact we have verified the CD Ex.A1 through our office system and the entries at 12.50 pm on 1.3.2013 pertaining to account Number and card number mentioned at A2 tally with the entry.

          Even according to complainant during the relevant time on 12.50 pm on dated 1.03.2013 the complainant was at the ATM counter in question.  There is no other evidence by complainant to show that ATM machine was not functioning at that time.  Instead the complainant case is that she did operate the ATM machine using her ATM card. 

The contention of complainant is that there was some fraud in the staff of opposite party and some Rupees 6 crores in respect of loading ATM machine and the rest of staff.  Further the nexus of such activities and to the present transactions is not established by the complainant at the ATM counter with her card and that the complaint given by her to the police about the alleged illegal withdrawal to the police and then with the police on investigation reporting that there was cash withdrawal by the complainant herself and no ground in the complaint.  Considering this aspect we are of the view that the complainant failed to establish that the opponents or someone else using technology has withdrawn Rs.20,000/ from the complainant’s account.  Considering the fact that the amount of Rs.20,000/ was withdrawn from complainant’s account at very time she was at the ATM counter and even according to her even she was at ATM counter for about 8-10 minutes negates complainants claim that she has not withdrawn amount.  Hence we are of the firm view the complainant failed to establish deficiency in service on the part of opponent as claimed by her in the complaint.  Hence we answer point No.2 in the negative.         

POINTS No. (iii): Wherefore the following order:

ORDER

                                                                          The complaint is dismissed.

    Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 8 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 15th November 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Smt. Ganga

Documents marked on behalf of the Complainant:

Ex C1: 01.03.2013    Acknowledgement for complaint issued  by opposite party No.2

ExC2: 04.03.2013    Copy of the police complaint

ExC3: 20.04.2013    copy of the legal notice

ExC4: 26.04.2013     Reply notice

Witnesses examined on behalf of the Opposite Parties:

RW1:  Mr. Sathish T, Manager, SBI

Documents marked on behalf of the Opposite Parties:

Ex.A1: Video footage of ATM Material object

Ex.A2: ATM log True copy

 Documents produced on behalf of the Opposite Parties:

No.1: Electronic Journal true copy

No.2: 04.03.2013   Letter addressed by Sub Inspector of Police to opposite party True copy

Dated:  15.11.2016                                          PRESIDENT