BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of June 2015
Filed on : 27/03/2013
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.240/2013
Between
Binoj Pankajakshan, : Complainant
S/o. Pankajakshan, (By Adv. Roy Varghese,
Uthalangatu house, ‘Olimolath, Pancode P.O.,
Ezhikkara P.O., Ernakulam-682 310)
North Paravur,
Ernakulam-683 513,
And
1. Axis Bank Ltd., : Opposite parties
J.P. Nagar Branch, (1st o.pby Adv. Madhu Radhakrishnan,
Ground Floor, No. 6/A, Radhakrishnan & Co, Door No.
JP Nagar, 3rd Phase, 39/4275-A, Manikkiri Cross Road,
Bannergatta main road, Near Pallimukku, Kochi-682 016)
Bangalore,
Karnataka-560 076,
rep. by its manager.
2. The Federal Bank Ltd., (2nd O.P. by Adv.Varghese J.
Federal Tower, Marine Drive, Punnachalil, Office, IInd floor,
Cochin-35, V.B. Udyog, Near Matha
rep. by its manager. Tourist home, St. Vincent Road,
Ernakulam North, Kochi-18)
O R D E R
Cherian K. Kuriakose, President.
The complainant Shri. Binoj Pankajakshan is an account holder in M/s. Axis Bank, Bangalore, Karnataka, the 1st opposite party. The complainant attempted to withdraw an amount of Rs. 10,000/- through the
ATM of the 2nd opposite party M/s. Federal Bank at Marine Drive Branch, Cochin using the debit card of Axis bank on 02-4-2011. But transaction was aborted and the cash was not dispensed. He received only a transaction slip with cash deduction of an amount of Rs. 10,000/- from his account. The complainant again tried to withdrew an amount of Rs. 10,000/- to check whether there was any complaint to that ATM machine. At that time he received a message slip stating that the daily withdrawal limit was reached. The complainant’s withdrawal limit was Rs. 25,000/- per day. Then the complainant again attempted to withdraw an amount of Rs. 10,000/- from the next ATM and he got an amount of Rs. 10,000/- from the next ATM and he got an amount of Rs. 10,000/-. Immediately the complainant contacted with Federal Bank (the 2nd opposite party) customer service and he was informed to lodge a complaint before the Axis bank since the complainant is not an account holder of the Federal Bank. The complainant then approached the 1st opposite party who had informed him to contact within two days as it was year ending closing. On 07-04-2011 the complainant lodged a complaint before M/s. Axis Bank, the 1st opposite party as a complaint No. 1104-011096. On 26-04-2011 after 18 days from the date of complaint, the 1st opposite party M/s. Axis bank credited Rs. 1,000/- to the account of the complainant. As per Reserve Bank of India Rule, the Bank should refund the failed transaction money within 12 working days failing which the bank is responsible for payment of Rs. 100/- each for the number of days delayed. On enquiry the complainant was given information that he had lodged another complaint for the retrieval of balance amount of Rs. 9,000/-. Accordingly the complainant filed complaint No. 4967435. The complainant was asked to wait for 10 days . After 10 days when he contacted the 1st opposite party M/s. Axis bank he was informed that Rs. 9,000/- was successful transaction and only Rs. 1,000/- was failed transaction due to
transaction amount of Rs. 10,000/- that is why, they have returned only Rs. 1,000/-. The complainant enquired with the 1st opposite party Axis Bank whether it is possible to fail a transaction partially. But they did not give any explanation. If there was no sufficient money in the ATM that should have shown a message that the ATM is without cash. Therefore it is clear that there was a problem with the ATM machine and due to that problem with the ATM machine, the complainant did not receive any amount as claimed by the 1st opposite party. The complainant went to the home branch and gave a written complaint on 09-05-2011. The complainant contacted the 2nd opposite party M/s. Federal Bank who directed him to lodge a complaint to Axis bank itself. Aggrieved by the non-redressal of his grievance, the complainant approached the banking Ombudsman. He disposed of the complaint on 17-10-2011 advising that the bank should have given the documents regarding excess cash of Rs. 1,000/- on the date of dispute and stated that Rs. 9,000/- has been disbursed. The complainant therefore prayed for an order directing refund of Rs. 9,000/- by the opposite parties and also to direct them to make payment of penalty for delay occurred @ Rs. 100/- per day.
2. Notices were issued to both opposite parties. The 1st opposite party M/s. Axis Bank filed their version contending as follows:
Version of 1st opposite party.
The fact that the complainant had an account with the 1st opposite party and that he was holding a debit card in that account is admitted. The allegation that the complainant did not get Rs. 10,000/- from the ATM of M/s. Federal Bank is not correct. Hence denied. The allegation raised by the complainant was answered fully by M/s. Federal Bank (the 2nd opposite party) since the transaction was carried out through the ATM of the 2nd
opposite party, the Acquiring bank i.e. M/s. Federal Bank. On the next day of the transaction the complainant has claimed the transaction amount and the same was credited to his account. However when the complainant raised his claim before the 1st opposite party, the opposite party processed the matter and raised a complaint with debit card department on 07-04-2011 with a complaint I.D. No. 1104-011096. The Federal Bank had declared the transaction of Rs. 9,000/- was valid and successful according to their data and therefore an amount of Rs. 9,000/- was not charge backed. As per National Financial Switch / Euronet arrangement and Rules prescribed in this regard, whenever a paying bank raises a chargeback on another bank for refund of the amount, the acquiring bank has 12 working days to represent the chargeback. The opposite party had credited the remaining amount of Rs. 1,000/- to the account of the complainant on 26-04-2011. The averment that only Rs. 1,000/- was refunded to the complainant in spite of Rs. 10,000/- is admitted. It was due to the fact that the acquiring bank whose ATM money was withdrawn declared that Rs. 9,000/- was successful. Hence the remaining amount of Rs. 1,000/- was credited to the account of the complainant. The 1st opposite party has no control over the ATM Machine of the Federal Bank, the 2nd opposite party . The complainant is therefore not entitled to get any relief from the 1st opposite party.
3. Version of the 2nd opposite party. The complainant has filed the complaint suppressing material facts and by mis-representation of the actual facts. This Forum does not have any jurisdiction to entertain the issues involved in this complaint . The issues involved in the complaint were dealt with by the banking Ombudsman. A re-appreciation of the issues is not necessary. The complainant is not a consumer of the 2nd opposite party. The complainant has not availed any services of the 2nd
opposite party for consideration which has been paid or promised or partly paid and partly promised. The allegation that the complainant did not get the amount from the ATM machine of the 2nd opposite party is not fully correct. The allegation that the complainant received a message that his daily withdrawal limit reached is also incorrect. The card issuing bank’s switch communicates with the CORE Banking Software and creates actual transaction account based on the customer’s request. Acquiring Bank’s switch instructs the ATM to dispense the cash with the customer. The time limit for resolution of customer complaints by issuing banks is 7 working days from the date of receipt of the customer complaint. If there is a failure to re-credit the customer’s account within 7 days on receipt of the complaint shall entail payment for compensation to the customer at the rate of Rs. 100/- Day by issuing the issuing bank . All disputes regarding ATM failed transactions shall be settled by the issuing bank and the acquiring bank through the ATM system provider only. No bilateral settlement arrangement outside the dispute resolution mechanism available with the system provider with them. The transaction made by the complainant was successful transaction. Rs. 9,000/- was already been dispensed to the complainant on 02-04-2011 and there was a short fall of Rs. 1,000/- in the transaction. There was enough money in the ATM and the transaction made by the complainant was successful except for a shortfall of Rs. 1,000/- in the transaction. It was due to cash jam occured at the presenter mouth during dispensing operation. This excess amount was found in the diverter tray and reflected in the cash tally report on the disputed day and the same was given as chargeback to the complainant’s bank. The complaint that during the next transaction a message was communicated stating that daily withdrawal limit has reached is absolutely false. If the claim of the complainant was true the entire amount ought to have been available to the diverter tray or re-credited to the account of the
complainant by the opposite party. But in this case, though the transaction was successful, only an amount of Rs. 1,000/- was charge back. The complainant is not a consumer so far as the 2nd opposite party is concerned. The 2nd opposite party is only a facilitator and there were no contractual obligations between the complainant and the 2nd opposite party. As such the claim of the complainant ought to have been pin- pointed to the 1st opposite party alone. The 2nd opposite party is not liable to make any payment as claimed. The complaint is therefore sought to be dismissed.
4. On the basis of above versions and averments in the complaint the following issues were settled for consideration.
i. Whether the complainant is a consumer in so far as the 2nd opposite party is concerned?
ii. Whether the allegation of the complainant that the withdrawal of an amount of Rs. 10,000/- during the first attempt of the transaction was aborted fully?
iii. Was there any proved deficiency of service on the part of the opposite parties and if so, on whom?
iv. Reliefs and costs
5. The evidence in this case consisted of documentary evidence Exbt. A1 to A6 marked on the side of the complainant and the oral evidence of PW1 on the side of the complainant and the oral evidence of DW1 and 2 on the side of the opposite parties and Exbts. B1 to B8 were marked.
6. Issue No. i The 1st issue refers to the question as to the contention that the complainant is a consumer within the meaning of Sec. 2 (1) (d) of
the Consumer Protection Act. There is no reason to doubt the status of the complainant as a consumer because every ATM transaction would entail in a reduction of a particular sum from the account of the account holder without even his knowing clandestinely. It is true that the account holders may not be knowing that their account is being deducted with an amount of Rs. 15/- or 20/- for each and every transaction. In this case also there was deduction of amount from the account of the complainant and therefore we find that the complainant who had paid for the service availed from the ATM counter of the 2nd opposite party, is a consumer who is entitled to file this complaint. This issue is therefore accordingly found in favour of the complainant.
7. Issue No. ii & iii. The complainant after having been denied of an amount of Rs. 9,000/- by the opposite parties had approached the Ombudsman who had redirected the complainant to approach this Forum for the redressal of his grievance. The learned counsel for the 1st opposite party M/s. Axis Bank Ltd. had contended that the Ombudsman being a statutory authority the complainant ought to have challenged the order passed it under Article 226 of the Constitution of India. If he questioned this authority or if he thought that this order was not just and fair and violative of Article 14 of the Constitution. This having not been done, according to the learned counsel, the order of Ombudsman has become final. Consumer Disputes Redressal Fora are establishments which has jurisdiction over and above and in addition to the existing system of redressal of Civil Disputes. Therefore the authority of Ombudsman and the authority of the Consumer Fora are to be distinguished in that matter. The allegation of finality of the order of the Ombudsman as alleged by the 1st opposite party has therefore no legs to stand.
8. The next allegation argued by the learned counsel for the 1st opposite party was that the complainant did not act as a prudent man in the circumstances of this case. According to the learned counsel the complainant had raised his grievance for the 1st time only on 07-04-2011 that is after a lapse of 5 days from the date of alleged transaction. The complainant in his complaint itself has sufficiently explained the reason why the delay had occurred. According to the complainant the 2nd opposite party refused to accept the complaint at first and the complainant was advised to make the complaint before the 1st opposite party at Bangalore. The refusal to accept the complaint was the sole reason for the delay caused and that delay ought to have been explained by the opposite parties and not by the complainant, which they did not do even while they were examined in the witness box as DW1 and 2.
9. It was also argued that the complainant ought to have filed a criminal complaint before the Police Authority once he came to know that as per the allegation there was a cheating by the banks concerned. This argument is also equally unproductive since a person of ordinary prudence was not expected to approach the police authority with a complaint of cheating when the matter could have been amicably and honestly settled between the contracting parties.
The disputed transaction was carried at the ATM that operated by M/s. Federal Bank, the 2nd opposite party. The transaction is effected through the server which remained under the direct control of the very same bank. Immediately on the next day the 2nd opposite party had claimed the transacted amount from the 1st opposite party and that amount was credited to their account by the Axis Bank believing the accuracy of the data provided by M/s. Federal Bank. When the complaint was received by the 1st opposite party on 07-04-2011 from the complainant it had processed
the matter and raised a complaint with a Debit Card Department on 07-04-2011 as per complaint ID 1104-011096. Since the transaction was done at the ATM of the 2nd opposite party Federal Bank the amount has to be claimed from them as a sum was credited to their account earlier as a successful transaction. Therefore the 1st opposite party had claimed the reversal of the said amount from M/s. Federal Bank. It was informed that the transaction of Rs. 9,000/- was valid and successful as per their data. The evidence in this case therefore would go to show that Axis Bank made the entire payment to M/s. Federal Bank as demanded by them. The transaction was a successful transaction according to M/s. Federal Bank, the second opposite party. It was contended that only an amount of Rs. 1,000/- was remaining in the excess collection tray. The probability of having taken Rs. 9,000/- after leaving Rs. 1,000/- could not have been ruled out as contended by the learned counsel for the bank. The transaction was during the year 2011 when the Reserve Bank of India did not insist the cancellation of retraction facility. If the amount tendered was not received at the dispensing tray within the time prescribed, the amount would go back to the ATM machine itself and that amount will be placed in the separate tray as excess collection. A question was asked when PW1 was examined with regard to the verification to the cash tally report PW1 has promptly replied that the cash tally report should have been verified by the two joint custodians as per law. However in this case, there is nothing to show that both joint custodians have verified excess cash. Exbt. B7 is a display of switch data certified as true copy by the chief Manager of Federal Bank, Ernakulam, Marine Drive Branch. Exbt. B8 is ATM cash position as on 02-04-2011 wherein the excess cash on Rs. 1,000/- is seen to have shown.
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10. We failed to understand as to why the 2nd opposite party bank did not get switch report and produced it before this Forum to show that an amount of Rs. 10,000/- was withdrawn from such and such tray and it was placed at the dispensing tray. The grievance of the complainant that he lost Rs. 10,000/- is attempted to be thwarted by the opposite parties only on the basis on the factual assumption that only Rs. 1,000/- was left behind in the tray as excess collection. There is no acceptable evidence in this case to show that there was only Rs. 1,000/- excess in the ATM tray. We are at a junction as to whether to believe a consumer who says that he did not get his money of Rs. 10,000/- or to believe the unknown bank officer who had allegedly counted that only actual Rs.1,000/- was received back. Without supplementing that contention, and without physical data records, we are inclined to believe that the case of the complainant considering the fact that no ordinary man with ordinary prudence would approach the opposite parties at first and then to the Ombudsman and again to this Forum for redressal of his grievance for a clearance of an amount of Rs. 10,000/- allegedly lost by him. In the absence of production of Switch Report with continuity to substantiate the credentials of the bank officers with time schedule and transaction schedule, we are unable to accept the case of the opposite parties that there was only excess amount of Rs. 1,000/- in the tray. We find the issue in favour of the complainant finding that there was clear deficiency in service on the part of the 2nd opposite party in not attending to the complaint of the complainant in time and in not reimbursing the amount to the complainant in time.
11. Having found issue Nos. 1 to 3 in favour of the complainant we grant the following reliefs to the complainant.
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i. the 2nd opposite party is directed to make a payment of Rs. 9,000/- to the complainant with interest at the rate of 12% p.a. from 07-04-2011 till the date of realization.
ii. The 2nd opposite party is directed to pay compensation of Rs. 5,000/- to the complainant which would carry interest from the date of this order till the date of realization @ 12% p.a.
iii. We direct the 2nd opposite party to pay the costs of litigation which we estimate at Rs. 3,000/-.
The above said order shall be complied with, within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 30th day of June 2015.
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
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Appendix
Complainant’s Exhibits:
Ext. A1 : Copy of letter dt. 17-09-2011
A2 : Copy of e-mail dt. 01-07-2011
A3 : Copy of letter dt. 07-06-2011
A4 : Copy of e-mail dt. 30-09-2011
A5 : Copy of e-mail dt. 19-05-2011
A6 : Copies of journal proof
Opposite party’s Exhibits:
Ext. B1 : copies of slips
B2(a) : Copy of letter dt. 21-07-2011
B2 (b) : Copies of slips
B 2(c) : Copy of switch report dt. 04-02-2011
B2(d) : Copies of receipts
B2 (e) : Copies of receipts
B3 : Copy of e-mail dt. 11-07-2011
B4 : Copy of display of switch data
B5 : Copy of letter dt. 03-08-2011
B6 : Copy of statement of account
B7 : Copy of display of switch data
B8 : Copy of details of ATM cash position
Depositions:
PW1 : Binoj Pankajakshan
DW1 : Geetha Gopinath
DW2 : Roji P.G
Copy of order despatched on:
By Post: By Hand:
