Date of Filling     :  05.07.2016.

                                                                                           Date of Disposal :  31.10.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                    TMT. S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint no.29/2016

(Dated this Monday the 31^st day of October 2016)

Mr. M. Gowri Shankar,

Kodivalsa Village,

Athimajeri Post,

Pallipattu Taluk,

Thiruvallur District.                                                                   … Complainant.

                                                          - Versus -

1.  The Branch Manager,

     AXIS Bank,

     Thiruthani,

     Thiruthani Town & Taluk,

     Thiruvallur District.

2.  The Zonal Manager,

     AXIS Bank,

     Karumuthu Nilayam,

     No.2, Anna Salai,

     Chennai - 600 002.                                                           … Opposite parties.

This complaint is coming upon before us finally on 28.10.2016 in the presence of Thiru. A.R. Poovannan, Counsel for the Complainant and the  1 & 2^nd Opposite parties are Set Exparte for non appearance and upon hearing arguments, having perused the documents, evidences, written and oral arguments of the Complainant, this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the 1 & 2^nd opposite parties for seeking to furnish the video recording on 08.11.2015 at the AXIS Bank ATM center in Nagalapuram Road, Uthukkottai Taluk, Thiruvallur District and to pay a sum of Rs.50,000/- towards compensation for mental agony, hardship, strain, inconvenience, monetary loss caused to the complainant with cost Rs.5,000/-.

2.      The brief averments of the complaint as follows:-

The complainant is having an SB Account in State Bank of India, Athimanjeri Branch, Thiruvallur District and he availed Debit card facility on this account in A/c No.11372949293.  The complainant on 07.11.2015 went to withdraw cash at TATA INDICASH ATM in Athinajeneripettai Bazaar Street and the amount was not processed and an unknown person entered inside the ATM room and told that he will help the complainant to withdraw the amount.   Then the said person asked the complainant’s PIN number and he tried again and told that it is unable to process again.  Thus the complainant went out the place.  Thereafter during night the complainant received a message from his banker that a sum of Rs.80,000/- was withdrawn from the complainant’s account by using the complainant’s Debit card.  The complainant was shocked and verified with his card and found that the person who acted to help the complainant in the morning has not returned the complainant’s card and had given a card of somebody else.

3.       The culprit by returning a card of somebody else, had misused the complainant’s card and swindled the hard earned money of the complainant.  Then the complainant lodged a complaint with the Inspector of Police, D6, Pothatoorpet Police Station, Pallipattu Taluk, Thiruvallur District.  The said culprit swiped the complainant’s debit card in the AXIS Bank ATM at Nagalapuram Road, Uthukottai on 08.11.2015 and withdrawn a sum of Rs.80,000/- in two times from the complainant’s account.  The complainant submits that the photograph of the culprit who cheated the complainant in the morning on 07.11.2015 was identified with the video recording placed in the ATM centre at Athimanjeripet. 

4.       If the video recording on 08.11.2015 at AXIS Bank ATM, Uthukottai was submitted to the Inspector of Police, D6, Pothatoorpet Police Station, it will be easier to identify the culprit and to take necessary action.  Though the complainant already made a complaint with the Branch Manager, AXIS Bank at Thirutani with a request was also made by the Inspector of Police, D6, Pothatoorpet Police Station, to submit the video recording on 08..1.2015 by so far no action was taken and the evidence called for by the Police was also not served for the reasons best known.  The complainant having lost his hard earned money is put to great mental agony and hardship.  Therefore, the complainant on 26.02.2016 issued a legal notice to the 2^nd opposite party to make arrangements to serve the Video recordings on 08.11.2015 at the ATM centre in AXIS Bank at Nagalapuram Road, Uthukottai for complete investigation but the same was returned as insufficient address.  Though it is well known by the opposite party and for the reason best known to them, they wantonly not furnished the same.  Hence the complaint.

5.       In spite of sufficient and repeated opportunities given, the 1 & 2^nd opposite parties have neither filed the written version nor appeared  before this Forum to continue the proceedings and therefore the 1 & 2^nd opposite parties are set Ex-parte. 

6.      In order to prove the case, on the side of the complainant, the proof affidavit submitted and Ex.A1 to Ex.A7 are marked on his side. 

7.    At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?

     2. To what other reliefs, the complainant is entitled to?

8.       Written arguments filed on the side of the complainant.   In addition to that oral arguments adduced.  Though the opposite party remained Ex-Parte, this Forum wants to decide this complaint purely on merits with available evidence.

9.       Point no.1:-

On perusal of the averments and the proof affidavit submitted by the complainant, it is learnt that on 07.11.2015 when the complainant went to withdraw cash at “Tata Indicash ATM” in Athinajneripettai Bazaar Street, it was not processed and at that time, the complainant was told by one unknown person to enter inside the ATM room to help the complainant to withdraw the amount and thereby the unknown person asked the pin number of the complainant’s ATM card and tried to withdraw the amount but the same was not able to process and so he left the place.  It is further stated that during night time, the complainant received the message from his bank that a sum of Rs.80,000/- was withdrawn from his account by using his debit card and immediately the complainant verified his card and found that the unknown person has not returned his card and by misusing his card swindled the hard earned money of the complainant.  Immediately, the complainant lodged the complaint with the Sub Inspector of Police, D6 Pothatoorpet Police Station on 10.11.2015 along with the copy of the SB Account passbook of the complainant which are marked as Ex.A1 & Ex.A2 respectively.  Thereafter, the Sub Inspector of Police, D6 Pothatoorpet Police Station sent a letter to the Manager, AXIS Bank Tirutanni for seeking the footage of the concerned ATM video camera.  The letter dated 10.12.2015 is marked as Ex.A3.  The video image is marked as Ex.A4.  It is further learnt that again the Sub Inspector of Police, D6 Pothatoorpet Police Station had addressed the General Manager, AXIS Bank, Chennai for seeking reply for the letter Ex.A3, which is marked as Ex.A5.  But there is no reply from the concerned General Manger to the Sub Inspector of Police, D6 Pothatoorpet Police Station and thereby no action was taken further.   Therefore, the complainant had issued legal notice dated 26.02.2016 to the 2^nd opposite party and the same was returned as unserved with endorsement as insufficient address which are marked as Ex.A6 & Ex.A7 respectively.  Inspite of sufficient time given and notice sent to the 1 & 2^nd opposite parties, so far no action was taken and not come forward to comply and hence this complaint is filed.

10.     At the outset, it goes without saying that the duty cast upon the complainant, to prove the allegations made in the complaint by means of relevant evidence.  At this point of time, on careful perusal of the evidence adduced by the complainant through his proof affidavit, it is crystal clear that in fact no document to show about the deficiency of service on the part of the opposite parties.  Furthermore, the evidence of the complainant itself shows that the loss of amount of Rs.80,000/- was occurred only due to the inadvertent and negligence of the complainant himself.  Similarly, the documents from Ex.A1 to Ex.A7 are not at all relevant to prove any deficiency of service on the part of the opposite parties.  Therefore, the negligent act of the complainant cannot create any liability against the opposite parties since because, the alleged amount of Rs.80,000/- has been withdrawn from the account maintained by the complainant in the opposite parties’ bank.  Moreover, the Counsel for the complainant fairly admitted during arguments that no fault on the part of the opposite parties.

11.     From the forgoing of among other facts and circumstances, this Forum can easily come to conclusion without any hesitation that the complainant has not proved the deficiency of service on the part of the opposite parties.  Thus, the point is answered accordingly.

          12.     Point no.2:-

As per the decision arrived in point no.1, the complainant is not at all entitled for any relief as prayed in the complaint.  Thus, point no.2 is answered accordingly.

          In the result, this complaint is dismissed.  No cost.

Dictated by the President to the Steno-Typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 31^st    October  2016.

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MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

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MEMBER - I                                                                             PRESIDENT