Andhra Pradesh

Nellore

CC/95/2015

Araveti Umabhavani, W/o Araveti Chandrasekhara Gupta, - Complainant(s)

Versus

1.The Branch Manager, Andhra Bank - Opp.Party(s)

Ch.Lakshmi Prasad Rao,A.Chnadra Sekhar Gupta

26 Sep 2017

ORDER

 

                                                                      Date of Filing     :05-10-2015

                                                                  Date of Disposal:26-09-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Tuesday, this the  26^th day of   SEPTEMBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

 

C.C.No.95/2015

Araveti Umabhavani,

W/o.Araveti Chandrasekhara Gupta,

Hindu,  Female, Aged about 47 years,

Resident of H.No.3/31,

SSK Complex,

Thadikala Bazaar Centre, Stonehousepet,

Nellore-524 002.                                                                           ..… Complainant    

 

                                                             Vs.

 

1.	The Branch Manager, Andhra Bank, Stonehousepet Branch, Nellore.
2.	The Chief Manager, Andhra Bank, Main Branch, Brindavanam, Nellore.                                                                              ..…Opposite parties

                                                             .

          This complaint coming on 19-09-2017  before us for hearing in the presence of  Sri Ch. Lakshmi Prasad Rao and Sri A. Chandrasekhar Gupta, advocates for the complainant and Smt Ch. Lakshmi and Sri P. Sankar Reddy,                                                        advocates for the opposite parties  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

                       (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

 

This complaint filed under Section-12 of Consumer Protection Act, 1986 prays to direct the opposite parties  to pay Rs.17,500/- towards wrong   debit entries amount with  interest  at 12% p.a. from the date wrong debit entry i.e., 20-02-2015 till the date of realization, damages of Rs.50,000/- and Rs.5,000/- towards costs of the complaint.

2.     The brief averments of the  complaint are as follows that:-  The complainant respectfully submits that the complainant is maintaining S.B.Account bearing No.05171000110015387 with ATM  card  facility with opposite party No.1.  While  so as the complainant was in need of cash, the complainant along with her husband on 20-02-2015 at about 9.30 a.m. came to Andhra Bank ATM counter  situated at Stonehousepet, Nellore and used her ATM card  to withdraw Rs.10,000/-, but the transaction failed and  neither the said cash or Rs.10,000/-  nor   the  transaction  statement was delivered. Thus the said transaction was not fruitful.  As the complainant was in need of money, she opined that the said ATM    counter will deliver cash of  Rs.7,500/-  nor the transaction statement was delivered.  Thus the  said second transaction was   also not fruitful.   Then again the complainant used her ATM  card to withdraw  Rs.2,000/-  and then this time cash of Rs.2,000/- was delivered to the complainant.  Then the complainant obtained mini statement  from the said ATM  counter.  Then   to the great shock of the complainant,  she observed in the said mini  statement  wrong and illegal debit entries of Rs.10,000/- and Rs.7,500/-  was noted as if the complainant withdrawn   the said two amounts, even though the said amounts were not delivered by the  said ATM   to the complainant.  Thus the bank authorities  mis used the ATM facility for their illegal gain due to mal functioning of the said ATM.  Then   immediately the complainant searched for the security guard with a view   to lodge a complaint, but he was not available at the ATM counter. Though   it is  the duty of the bank authorities  to  safeguard the credit balances maintained by the respective account holders, they failed to do so and acted in a very  negligent manner.

    The complainant further submits that on the next day i.e., on 21-02-2015,  the complainant along with her husband approached opposite party No.1 and lodged a written complaint of wrong and illegal debit entries  of Rs.10,000/- and  Rs.7,500/- totaling to Rs.17,500/-. The  complainant further complained to opposite party No.1 that the said wrong and illegal debit entries  of Rs.10,000/-  and Rs.7,500/- totaling to Rs.17,500/-  will attract offences  i.e., cheating, mischief, misappropriation and other penal sections under the  Indian  Penal Code.  The opposite party No.1 requested the  complainant to wait for 3 days to credit  the  complainant account with the said amount of Rs.17,500/-.  Inspite of the same,  the said  amount was not credited by opposite party No.1  as promised, again the complainant  along with her  husband approached opposite party No.1  and  who again obtained   complaint from the complainant in the prescribed form i.e., ‘Uniform template’  for lodging   complaint relating to the ATM  transactions  on 23-02-2015 and promised the complainant that they will credit the said wrong debit amounts totaling Rs.17,500/- within seven days.  Even though   several days were passed,  the said amount of Rs.17,500/-  was not credited  to the complainants account.  This attitude of the opposite parties constitutes gross negligence and deficiency in service and   as a result of the said attitude, the complainant suffered lot of mental agony,  distress and financial loss.  So, the complainant got issued legal notice dated 07-05-2015 through  the complainant’s  counsel demanding  the opposite parties to credit the said illegal debit entries and  claiming compensation. Having received the said notice, the opposite parties got issued simply reply with all false and baseless allegations  without complying with the demand of the complainant so saying that their manager (IT)verified the journal copy and further stated that the cash was delivered to all the transactions on that day.  The complainant submits that it is a baseless  and vogue allegation.  Even the opposite parties  did not provide the call logs, journal copy, video footage etc., which show the real fact.

The complainant submits that  it is the duty of the opposite parties  to safe guard the amounts of its customers by maintaining ATM  machines with good working condition without any mal functioning.  But the opposite parties did not do so.  Even they failed  to maintain a security  guard in the said ATM  so as to enable the customers  to  complaint  any complaint immediately.  When the complainant approached the opposite party No.1, it is opposite party No.1’s duty  to see that the said complaint will be resolved immediately.  But  having received written complaint from the complainant on 22-02-2015, again on 23-02-2015, the opposite party No.1 issued prescribed form i.e., ‘ Uniform template ‘.  Inspite of receipt of the same on 23-02-2015, the opposite parties did not choose to solve the complaint.  Vexed  with their  attitude, after several approaches, the complainant got issued notice after three months.  Without giving any rely to personal complaints, the opposite parties got issued reply through their counsel withal false and baseless allegations. The acts of the opposite parties  constitute  gross  negligence and deficiency in service.  Due to that the complainant suffered lot of mental agony, distress, inconvenience  and also financial loss.  For which the opposite parties are not only liable tore-credit the wrong debit  amount of  Rs.17,500/-  with interest thereon at 24% p.a. till realisation, besides paying compensation etc.,  and hence submits to allow the complaint with costs.

3.     The brief averments of the  written version  of the opposite party No.1 are as follows that:-  The complainant  is maintaining a S.B.Account  bearing No.051710011015387   with ATM Card with 1^st opposite party  bank.  The 1^st opposite party bank is not aware of the further allegations that while so the complainant was in need of cash, that the complainant along with her husband on 20-02-2015 at 9.30 p.m. came to Andhra Bank ATM  counter situated at Stonehousepet and used her  ATM card to withdraw Rs.10,000/-  but the transaction failed and neither the said cash of  Rs.10,000/- nor the transaction statement   was delivered, that thus the said transaction was not fruitful,  that as the complainant  was in need of money she opined   that the said  ATM  counter will deliver cash if lesser amount than Rs.10,000/-  is asked for and  hence  the complainant again used her ATM card  to withdraw Rs.7,500/- but again  the transaction failed and neither the  said cash of Rs.7,500/- nor the transaction statement was delivered, that thus  the said second transaction was also not fruitful, that then again the complainant used  ATM  card to withdraw Rs.2,000/- and then  cash of Rs.2,000/- was delivered to the complainant.  The 1^st opposite party bank is also not aware  that the complainant obtained mini statement from the said ATM  counter, that then to the great shock of the complainant, she observed in the said mini statement wrong and illegal  debit entries of Rs.10,000/- and Rs.7,500/- as if the complainant withdrawn the said 2 amounts even though   the said amounts were not delivered by the said ATM  to the  complainant.  The opposite party  No.1 submits that the authorities misused the ATM  facility  for their   illegal gain  at the   cost of the complainant’s credit  balance is totally false.

The opposite party No.1 further submits that  immediately the complainant searched for the security guard with a view to lodge a complaint, but he was not available at the ATM counter, that though it is mandatory to provide guard at the ATM centre, that it is the duty of the bank authorities   to safeguard the credit balances maintained by the respective  account holders, they failed to do so and acted in a very  negligent manner are totally false.

  The  opposite party No.1 further  alleged that  on the next day, i.e., on           21-02-2015, the complainant alongwith   her husband approached opposite party No.1 and lodged a written complaint of wrong and illegal  debit entries of Rs.10,000/-  and Rs.7,500/- totaling to Rs.17,500/- is true.  But the opposite party No.1 submits that the complainant further complained to opposite party No.1 that the said wrong and illegal debit entries of Rs.10,000/- and Rs.7,500/-  totaling to Rs.17,500/- will attract  offences i.e., cheating, mischief, misappropriation  and other penal sections under the Indian Penal Code is false.  The further allegations  that then opposite party No.1 requested the complainant to wait for 3 days to credit the complainant account with the said amount of Rs.17,500/-  that inspite of the same the  said  amount was not credited by opposite party No.1  as promised, that again the complainant  along with her husband approached opposite party No.1 and who again obtained complaint from the complainant in the prescribed form  i.e., Uniform template for   lodging complaints relating to the ATM  transactions on           23-02-2015  and promised the complainant  that they will credit the said wrong debit amounts totaling Rs.17,500/- within seven days, that even though several days were elapsed till today the said amount of  Rs.17,500/- was not credited to the complainants account is totally false.  The opposite party No.1 submits that  the complainant lodged a complaint with the opposite party No.1   and the opposite party No.1 received the complaint and assured the complainant that the matter will be looked into and  requested the   complainant to wait for some days.  The opposite party No.1 further submits that even though  several days were elapsed till today the said amount of Rs.17,500/- was not credited to the complainants account, that this attitude of the opposite parties  constitutes arose    negligence and deficiency in service and as a result  of the said attitude the complainant suffered lot of mental agony, distress and financial loss, that so vexed with their attitude the complainant got issued legal notice dated 07-05-2015 through her counsel demanding the opposite parties  to credit the said illegal  debit entries and claiming compensation are all false.   The opposite party No.1 submits that  they issued a  reply to the said notice dated 07-05-2015 with actual facts.

 The opposite party No.1 submits that it is the duty of the opposite parties  to safe guard the  amounts of its customers by maintaining ATM  machines with good working condition without any malfunctioning that but the opposite parties  did not do so, that even they failed to maintain a security guard in the said ATM so as to enable the customers to complain any complaint immediately are all false.  The opposite party No.1 submits that having received written complaint  from  complainant on 22-02-2015, again  on 23-02-2015, the opposite party No.1 issued prescribed form i.e., uniform template, that inspite of receipt of the same on                     23-02-2015, the  opposite parties did not choose tosolve the complaint are totally false.  The opposite party No.1  further submits that vexed with their attitude after several approaches, the complainant got issued notice after three months, that without giving any reply to personal complaints, the opposite parties  got issued reply through their counsel with all false and baseless allegations, that the acts of the opposite parties constitute  gross negligence and deficiency in service, that due to that the complainant suffered  lot of mental agony, distress, inconvenience and also financial loss for  which the opposite parties are not only liable to recredit the wrong debit  amount of Rs.17,500/-  with interest thereon at 24% p.a. till realization besides paying compensation are all false.

The opposite partyNo.1 further  submits that  after  receipt of the complainant’s  complaints the opposite party No.1 bank referred  the matter to the Manager (IT), Andhra Bank, Transaction Banking & New Initiatives, ATM Cell, Hyderabad.  The concerned Manager (IT)  verified the details  of the transactions that took place on 20-02-2015 at the ATM counter,  Stonehousepet, Nellore, and obtained a Journal Copy of the transactions of the above said date.  As per the Journal copy all the withdrawal transactions that took place on 20-02-2015 were successful and the cash  was delivered to all the customers including the complainant.  There were  also  no complaints  from any of the other customers of the opposite party No.1 bank ATM who  operated the ATM counter, S.H.Pet, Nellore in respect of any wrong debit entries.

The opposite party No.1 submits that only the amount of  Rs.2,000/- withdrawn by the complainant  was from the opposite party No.1 ATM centre. The alleged other amounts that is, Rs.10,000/- and  Rs.7,500/- are from some other bank ATM centre.  This opposite party No.1 submits that   there will be a separate code No. for each  bank ATM  centres.  The code No.1 of the opposite party No.1 bank ATM  centre is “D 0517001”.  The  code no. of the  other  bank in which the complainant has withdrawn is “00887003”.  So the alleged   amounts of Rs.10,000/- and Rs.7,500/- , the complainant has allegedly withdrawn is not from the opposite party No.1 bank ATM centre.

The opposite party No.1 submits that in  Complainant’s  Statement of Account is clear that the complainant  has withdrawn   the amount    of Rs.2,000/- from the opposite party No.1 bank  ATM  and the other   amounts ofRs.10,000/-  and Rs.7,500/- from other  bank ATM  centre. It is also reveals that all the said amounts are  delivered   to the complainant.  Thus it is clear that the complainant filed this false complaint to obtain wrongful gains from the opposite parties.

The opposite party No.1 submits that in the  ‘Journal Log’, it is revealed that the amounts of  Rs.10,000/-  and Rs.7,500/- was delivered to the complainant on     20-02-2015.  The opposite party No.1  submits that the complainant has mentioned in the complaint that  she has withdrawn all the  three amounts at 9.30 p.m.  The said allegation is totally false.  The time of the withdrawal from the other bank ATM  centre is 12-53 and 12-54 p.m.  The time of the  withdrawal from the opposite party No.1 bank ATM centre is 9.30 p.m and submits for dismissal of the complaint with costs.

4.     The brief averments of the  written version  of the opposite party No.2   that:- The complaint is not just and maintainable at law.  The opposite party No.2 submits that the opposite party No.2 is no way concerned with the dispute.  The opposite party No.2 submits that  he is falsely implicated in this case and hence submits for dismissal of the complaint with costs.

5.      On behalf of the complainant, affidavit of  complainant was examined as P.W.1 and Exs.A1 to A6 marked.

6.     On behalf of opposite party No.1, R.W.1 was examined  and Exs.B1 to B4 marked and on behalf of the opposite party No.2 R.W.2  was  examined

7.     Written arguments  filed on behalf of the complainant  and opposite party No.1

8.      Perused the  written arguments filed on behalf of the both parties.

9.      Arguments on behalf of the learned counsels for   both parties heard.

10.     Now the points for consideration are:

1.  Whether the  complaint filed by the complainant against the opposite parties 1 and 2 under Section-12 of Consumer Protection Act, 1986 alleging  the deficiency of service is maintainable?
2. To what relief, the complainant is entitled?

 

           11.   POINT No.1:The learned counsel for the complainant submits by relying upon Exs.A1 to  A6  that the complainant  is having savings bank account with ATM  card facility  in Andhra Bank, Stonehousepet Branch, Nellore and  on                   20-02-2015 , the complainant alongwith her husband   used the ATM    card of the complainant to withdraw  a sum of Rs.10,000/-  but the said  transaction is failed and again on the same day, the complainant  try to  withdraw a sum of Rs.7,500/-   but the said transaction  is also failed  but again the complainant withdraw a sum of Rs.2,000/- from the ATM  and inspite of  not receiving a sum of Rs.17,500/-  , there was  a deduction of Rs.17,500/-  in the complainant’s bank  account and  inspite  of issuing of legal notice as the opposite parties  failed to pay the   amount of Rs.17,500/-, the complainant  filed this complaint against the opposite parties               1 and 2 to direct them for the  payment of Rs.17,500/- with interest @ 12% p.a. and to award damages of Rs.50,000/- and costs of the complaint  and submits to allow the complaint with costs.

 

            On the other hand, the learned counsel for the opposite parties  1 and 2  submits by relying upon the evidence of R.Ws.1 and 2  and Exs.B1 to B4. At the time of drawing  of the amount, the pin was used by the complainant which is exclusively in the knowledge of the complainant and hence   as the person who had knowledge about  the secrete code  and pin, the amount was withdrawn  from the   savings bank account of the complainant and hence there is no deficiency of service as stated by the complainant and hence the learned counsel for the opposite parties submits for the dismissal  of the complaint with costs.

 

             In  view of the arguments submitted by the learned counsels for the both parties and  as seen from the contents of Ex.B2, which shows the transaction  about the savings bank account of the complainant.  Ex.B3 transaction enquiry shows about the  withdrawal of the amount.  The contents of  Ex.B3 at page -2  shows as follows:

 

Tran.Date	Value Date	Chq. No.	Withdrawl	Deposit	Balance	Narration
20-02-2015	20-02-2015		2,000.00 Dr		4,64,854.00 Cr	ATMWDL/20-02-2015 21:36:15/d0517001
20-02-2015	20-02-2015		7,500.00 Dr		4,66,854.00 Cr	ATMWDL/20-02-2015 12:54:43/00887003
20-02-2015	20-02-2015		10,000.00 Dr		4,74,354.00 Cr	ATMWDL/20-02-2015 12:53:26/00887003

 

          By  relying upon Exs.B2 and B3, we are of the opinion that the person who is  in exclusive possession of the ATM card and pin operated the account and withdraw the amount from ATM.   In

Raghabendra Nath Sen. & Anr. Vs.  Punjab National Bank reported in I ( 2015) CPJ 254 (NC).

 

           The Hon’ble National Commission held that ATM, withdrawal  of cash illegally,  not possible  without  insertion of ATM  card hence no  deficiency.

 

In    State Bank of India Vs. Srinath Prasad Singh reported in  II (2014) CPJ 4B (Jhar.) (CN).

 

              Wherein  the   Hon’ble State Commission held that ATM  card withdrawal  not possible  without secrete code and in

 

Rajinikant  Upadhyay  Vs. ICICI Bank Limited & Another  reported in II (2012) CPJ 211 (Chd.)

 

                 The Hon’ble  State Commission held that “ATM  - Transaction could not take  place  without use of ATM card which was in exclusively  possession of complainant – No fraud established”.

               Following  the  above decisions and as seen from the facts of the case unless a person who knows the pin number and the ATM  card  who is in exclusively possession is alone  permitted to withdraw the amount  or to operate.

               By relying upon the above decisions and the contents of Exs.B2 and B3, we are of the opinion that there is  no deficiency on the part of opposite partis 1 and 2 and hence the complaint filed by the complainant against the opposite partis 1 and 2 has to be dismissed.

                 In view of the above said  discussion, we answer this point against the complainant and in favour of the opposite parties 1 and 2.

               12.    POINT No.2:In view of our  answering  on point No.1 against the complainant and in favour of the opposite parties 1 and 2, the complaint filed by the complainant has to be dismissed.

               In the result, the complaint is dismissed, but in the circumstances no costs.

          Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the  26^th  day of  SEPTEMBER, 2017.

 

             Sd/-                                                                       Sd/-

      MEMBER                                                                PRESIDENT

 

                                      APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -

09-03-2016

Smt.Araveti Umabhavani, W/o.Araveti Chandrasekhara Gupta, Nellore-524 002 (Deposition affidavit filed)

 

Witnesses Examined for the opposite parties

 

R.W.1  -	19-12-2016	Sri.Matta Naveen Kumar, S/o.M. Radha Krishna Murthy, Chief Manager, Andhra Bank, Stonehousepet Branch, Nellore ( Deposition affidavit filed).
R.W.2  -	19-12-2016	Sri K.V.S.N. Murthy, S/o.Joga Rao, Chief Manager, Andhra Bank, Main Branch, Brindavanam, Nellore  (Affidavit filed).

 

                           EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	-	Photostat copy of savings pass book in A/c.No.051710011015387 in favour of  complainant issued by the opposite party.
Ex.A2  -	20-02-2015	Photostat copy of ATM slip  on 20-02-2015 at 21:36.
Ex.A3  -	-	Four ATM  transaction slips and one Photostat copy of  transaction slip dated 20-02-2015 at 21:49.
Ex.A4  -	21-02-2015	Legal notice from complainant to the opposite party No.1 and   Uniform Template for lodging of complaints relating to ATM  transactions details.
Ex.A5  -	07-05-2015	Legal notice from  complainant’s advocate to the opposite parties alongwith  registered post receipts.
Ex.A6  -	20-05-2015	Reply opposite parties’s advocate to the complainant’s advocate.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -	20-05-2015	Photostat copy of Reply opposite parties’s advocate to the complainant’s advocate alongwith registered post receipt.
Ex.B2  -	-	Transaction details.
Ex.B3  -	-	Transactions Inquiry in A/c.No.051710011015387 in favour of complainant.
Ex.B4  -	15-12-2016	Certificate issued by the  opposite party No.1 in Ref.No.0517.

 

                                                                                                       Id/-

                                                                                               PRESIDENT

Copies to:

 

1.	Sri Ch. Lakshmi Prasada Rao and Sri A. Chandrasekhar Gupta, Advocates, Nellore.
2.	Smt Ch. Lakshmi and Sri P. Sankar Reddy,  Advocates, Nellore.

 

Date when free copy was issued: