IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 27th day of August, 2020
Filed on 15 .02. 2018
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. C.K.Lekhamma. BA. LLB(Member)
In
CC/No.45/2018
Between
Complainant:- Opposite party:-
Sri.P.Muraleedharan Nair 1. The General Manager.
5/562, Palazhi Canara Bank, Circle Office
Aroor, Alapuzha M.G.Road,
Pin-688 534 Thiruvananthapuram
(Adv.Viwabhadran.M.V)
2. The Manager
Canara Bank, Maythara.P.O
Cherthala (Adv.M.R.Chandraletha)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
1. Materials averments briefly discussed are as follows:-
Complainant is a retired bank employee and had worked for more than three years in ATM department of the bank. He is having a SB account with Canara bank at Maythara branch as number 1134111058081 under which an ATM card was issued.
On 15/6/2016 complainant withdrew Rs.3000/- from SBI ATM located at Aroor. Even though Rs.3000/- was debited, cash was not dispensed, but a regret message was generated by the machine. Once again he tried to withdraw Rs. 2,500/- but failed and the regret message again appeared. He withdrew Rs.2,500/- from the CD machine of the bank fixed in the same cabin, but no message was received in his mobile phone of this withdrawal. On 17/6/2016 he received phone messages of the failed transaction done in ATM and successful transactions done in CD machine on 15/6/2016 for Rs. 2,500/-. As regard the first failed transaction for Rs.3000/- he lodged a complaint with the 2nd opposite party. But the said amount was not re-credited to this account. As per RBI circular dtd. 27/5/2011 the second opposite party is required to credit this three thousand rupees within 7 days from the date of intimation and pay at the rate of hundred rupees per day from 27/6/2016 till the amount is re-credited. But the 2nd opposite party is not complying with this circular. Hence the complaint is filed for re-crediting three thousand rupees and for a direction to the 2nd opposite party to pay Rs.100/- per day from 27/6/2016 till date of full payment. He is also seeking an amount of Rs.25,000/- as compensation for the mental agony and hardships.
2. 2nd opposite party filed version mainly contenting as follows:-
Complainant has already redressed his grievance by filing a complaint before the banking Ombudsman regarding the alleged bank transaction. After accepting the reply filed by this opposite party the Ombudsman closed the complaint. It is not seen stated in the complaint. Complainant is not a customer as defined u/s 2(d) of the Consumer Protection Act. Since SBI Aroor branch is not made a party it is bad for non jointer of necessary parties.
Complainant was a former employee of the opposite parties and he is maintaining saving bank account. Opposite parties have also permitted its customers to use the ATM counters maintained by other banks as an additional facility. The complainant alleges that he used ATM maintained by SBI for withdrawing Rs.3000/-. It is also alleged that the said attempt was failed but Rs. 3000/- was debited from his account. On 20/6/2016 a complaint was received and it was taken up with the Head office of SBI. On 4th July SBI replied that the transaction made by the complainant was a successful one. It was informed to the complainant. There is no deficiency in service from the side of opposite party since the transaction of the complainant was successful. The complainant did not sustain any loss or injury due to any wrong committed by the opposite parties. These opposite parties are not liable to compensate the complainant and the complainant is not entitled for any relief and hence complaint is to be dismissed.
3. Complainant filed a replication mainly contenting as follows:-
Complainant approached this Commission since deficiency in service on the part of the opposite parties. Complainant is keeping his account with the 2nd opposite party since long and there exist a banker customer relationship between them. As per the guidelines disputes over failed transactions are to be taken up with the card issuing bank and so SBI is not a necessary party. Camera recordings have a very important role in redressing grievances over failed transactions.
3. On the above pleadings following points arise for consideration:-
1. Whether the complainant is entitled to realize an amount
of Rs. 3000/- from the opposite parties as prayed for?
2. Whether the complainant s entitled to receive an amount
of 100/- per day from 27/6/2016 till the date of payment as
prayed for?
3. Whether the complainant is entitled to realize an amount
of Rs.25,000/- as compensation.
4. Reliefs and Cost?
Evidence in this case consists of the oral evidence of PW1and Exts.A1 to A9 from the side of the complainant. Opposite party has not adduced any oral evidence Ext.B1 was marked.
4. Point No.1 to 3:-
For the sake of convenience these points are considered together.
Complainant got examined as PW1 filed affidavit in tune with the complaint and marked Ext.A1 to A9. The case of PW1, complainant is that he is an ex-employee of the Canara bank and is having an SB account with its Mayithara branch. He was provided with an ATM card in the said account. On 15/6/2016 using his ATM card he withdrew three thousand rupees from SBI ATM located at Aroor. Though three thousand rupees was debited from his account the cash was not disbursed and regret message was generated in the machine. Though he tried again to withdraw two thousand rupees the amount was not available. But he withdraw rupees two thousand five hundred from the CD machine available in the same cabin. On 17/6/2016 he received mobile phone messages regarding the failed transactions in the ATM and successful transaction done in CD machine on 15/6/2016. Since he lost three thousand rupees from the account he contacted the opposite party to re-credit the same. Since it was not fruitful, he filed a complaint before the banking ombudsman. As per Ext.A2 letter dated 6/10/2016 banking ombudsman directed the banks to forward records. Later as per Ext.A1 letter dtd. 14/12/2016 the banking ombudsman informed PW1 that the complaint is closed and he was permitted to approach any other Forum in accordance with law for the redress of his grievance. It is mentioned in Ext.A1 letter that as per the ATM documents the transaction was successful. Thereafter PW1 has filed this complaint before this Commission. 2nd opposite party filed a version contenting that the withdrawal of Rs. 3000/- on 15/6/2016 was successful as per the records received by them from the SBI who is operating the ATM. Since the transaction was successful, they closed the complaint.
Ext.A7 is the statement of account of PW1 with the Canara bank. On a perusal of Ext.A1 it is seen that an amount of Rs.3000/- is debited on 15/6/2016 as ATM cash withdrawal at SBI, Aroor. Thereafter on 17/6/2016 Rs. 2,500/- is seen debited as ATM cash withdrawal. However the said amount is reversed since it was a failed transaction. Again on 17/6/2016 Rs. 2,500/- is seen withdrawn. It is to be remembered that According to PW1 all the three transactions took place on 15/6/2016. However as per Ext.A7 it is seen that except the first one all other transactions including the reversal of Rs.2,500/- took place on 17/6/2016. According to the learned counsel appearing for the complainant PW1 is an ex-employee of Canara bank and in fact he had experience in the ATM department also. It was explained that if there is no connectivity and cash is available in the cash bin amount can be withdrawn. However if there is no connectivity message will be sent when connectivity is restored. That is why on 15/6/2016 he was able to withdraw of Rs. 2,500/- from CDM. After losing the amount of Rs.3000/- on 15/6/2016 the connectivity was restored only on 17/6/2016 and that is why other transactions was recorded on 17/6/2016. Though 2nd opposite party had filed version no witness was examined from their side. Only Ext. B1 was marked which shows that on 15/6/2016 Rs. 3000/- was withdrawn.
As rightly pointed out by the learned counsel appearing for the complainant several documents such as CCTV footage, availability of cash in the bin etc will be available at the bank. No document is seen produced to prove the contentions of the opposite party. The fact that Rs.3000/- was debited from the account of PW1 on 15/6/2016 is not in dispute. The only question is whether cash was disbursed from the ATM to PW1. PW1 asserts that there was no cash in the cash bin and that is why he was unable to get the cash. But the system debited his account with Rs.3000/-. It is to be remembered that PW1 is an ex-employee of Canara bank and the amount involved is Rs. 3000/-. The evidence on record shows that he was running from pillar to post to redress his grievance. First he filed a complaint before the Canara bank authorities. Since it was not fruitful he approached the banking ombudsman. There also he could not succeed and hence he had filed this complaint and proceeding with the same. Complainant may not be able to produce more documents to prove that he has not received cash. But the evidence such as CCTV footage will be available with the opposite party (SBI ATM) and the best evidence is not seen produced by the opposite party to disprove the case of complainant. Learned counsel appearing for the complainant relied upon a decision of National Consumer Disputes Redressal Commission, New Delhi dtd. 8/6/2018(T.N Ravi prakash Vs. The Manager, State Bank of Mysore). In the said case though the complainant withdrew an amount of Rs.3500/- as per the mini statement it was shown that Rs. 3,5000/- also was debited. Thereafter the complainant withdrew Rs. 2000/- on another date and on that occasion Rs. 20,000/- also was shown as debit entry. The bank was directed to repay the amount along with interest.
As discussed earlier here in this case though the 2nd opposite party filed version and resisted the case, they preferred to abstain from the witness box. Only Ext.B1document to prove the transaction dtd. 15/6/2016 was marked in evidence. As held by the Hon’ble Supreme Court in AIR 1999 (SC) 1441 (Vidhyadhar vs. Mankikrao). Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. Here in this case the complainant asserts that all the transactions took place on 15/6/2016. But according to opposite parties only one transaction took place on 15/6/2016 and remaining transaction took place on 17/6/2016 which is revealed from statement of account. However PW1 asserts that since there was no connectivity on 15/6/2016 after the first transaction the other transactions are shown as done on 17/6/2016. Though sufficient evidence will be available with the opposite parties it is not seen produced for the best reason known to them. In said circumstances we are of the opinion that the case set up by the complainant is true and so he is entitled to receive an amount of Rs.3000/-. Complainant is claiming an amount of Rs.100/- per day on the basis of Reserve bank circular till the date of payment. The transaction took place on 15/6/2016 and now we are in 2020 August. Much delay has caused for disposal of the case because complainant had approached various Fora to redress his grievance. Rs.100/- per day will be giving un lawful enrichment to the complainant and so we are not awarding the same. However it has come out in evidence that complainant was running from pillar to post to redress his grievance by which much hardships and mental agony was caused to him. Hence he is entitled for compensation and considering the entire aspects we are limiting the same to Rs.5000/-. These points are found accordingly.
5. Point no.4:-
In the result complaint is allowed in part.
A. Complainant is allowed to realize an amount of
Rs 3000/- along with interest at the rate of 9% from
15/6/2016 till realization from the opposite party.
B. Complainant is allowed to realize an amount of Rs
5000/- as compensation from the opposite party.
C. Complainant is allowed to realize an amount of
Rs.2000/- as cost.
The order shall be complied within one month from the date of the receipt of the copy of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 27th day of August, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - Muraleedharan Nair.P(Complainant)
Ext.A1 - Letter dtd. 14/12/2016
Ext.A2 - Letter dtd. 6/10/2016
Ext.A3 - Letter dtd.23/11/2016
Ext.A4 - Letter dtd. 12/3/2016
Ext.A5series - Reports
Ext.A6 - Letter dtd 21/7/2016
Ext.A7 - Statement of Account
Ext.A8series- RBI notice
Ext.A9 - E-mail .
Evidence of the opposite parties:-
Ext.B1 - Statement of Account
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
