By Sri. A. A. Vijayan, President
The complaint is filed by complainant under Section 12 of Consumer Protection Act.
1. The complaint is in respect of loss of money from the account. The averments in the complaint are as follows:-
The complainant had an account in the bank of first opposite party and he was doing transaction through this bank. On 15-10-2011 at 3.30PM he withdrew Rs.10,000/- using ATM card of first opposite party through ATM counter of State Bank of India, Nilambur. On the same day after taking the above Rs.10,000/- he attempted to withdraw Rs.5,000/- more but he did not obtain the amount. On the other hand it was displayed on the screen “Sorry for cash limit exceed”. After one day when he perused bank statement it was noticed that Rs.5,000/- was debited from his account. This brought to the notice of the Manager of State Bank of India, Nilambur branch and on their advise complaint was lodged before the first opposite party. But still the lost amount is not refunded. Hence he is entitled to the above Rs.5,000/- and compensation of Rs.50,000/-.
2. The first opposite party entered appearance and filed version with the following allegations.:-
The complainant had opened an account in the bank on 03-12-2008 and in 2009 on his request an ATM card was issued to him and he was using the same for withdrawing the amount from his account. On 21-10-2011 this opposite party received a fax message from complainant stating that on 15-10-2011 he used the ATM card for withdrawing the cash of Rs.20,000/- and Rs.10,000/- each from the State Bank of India, ATM at Nilambur and he used the Central Bank of India, ATM Card for withdrawing Rs.5,000/-. But no cash was disbursed and he saw the message that “withdrawal exceeded”. When he updated his pass book there was three ATM transactions on 15-10-2011 one is for Rs.10,000/- and another is again for Rs.10,000/- and third one is for Rs.5,000/- and he requested for reversal of Rs.5,000/-. After receiving the Fax this opposite party approached the Central office at Bombay for confirmation of transaction and Bombay office confirmed that the transaction for sum of Rs.5,000/- was successful at the ATM. Accordingly the said amount was transferred from the account of the complainant. Since complainant used the ATM card for withdrawing amount through State Bank of India, ATM counter at Nilambur, State Bank of India is a necessary party and since State Bank of India is not impleaded complaint is bad for non joinder of necessary parties. Since the deduction entry in the account of the complainant is not proved to be wrong, complainant is not entitled to any compensation.
3. Then complainant filed I.A.31/13 to implead State Bank of India, Nilambur branch as opposite party No.2 and that was allowed and State Bank of India, Nilambur branch was impleaded as opposite party No.2.
4. Second opposite party filed version stating as follows:-
The complainant has no customer relationship with the second opposite party and there is no privity of contract between them. The complainant only utilized the ATM of State Bank of India, Nilambur branch. The second opposite party has not received any consideration from the complainant for using ATM and there is no allegation against this opposite party. On 15-10-2011 ATM, SBI Bank, Nilambur branch was in good working condition and there was no mechanical error. Thus this opposite party is not a necessary party in this case.
5. Complainant filed chief affidavit and Ext.A1 to A4 were marked. Opposite party No.1 and 2 also filed chief affidavit and Exts.B1 series, B2 series and Ext.B3 to B5 were marked.
6. An additional affidavit was filed by opposite party No.2 stating as follows:-
On 15-10-2011 the complainant had withdrawn Rs.10,000/- from the ATM counter of this opposite party as transaction No.6127 as per their ATM EJ-Log. The transaction No.6128 was incomplete. But on the same date ATM machine was in good working condition and there was no mechanical error. On perusing the cash balance register it would be clear that no cash was gained from the complainant to opposite party No.2 Bank. The ATM error code of the alleged transaction of the complainant is No.63 as seen in the document produced by this opposite party. From this it is very evident that the complainant was not affected by any loss by the transaction through ATM machine of opposite party No.2 bank. As per account statement filed by the complainant it can be seen that during this period there are several transactions done by the complainant through the ATM counter of other banks also. The complainant has not proved that the deduction of entry of Rs.5,000/- was wrongly made. On 15-10-2011 the complainant had withdrawn Rs.5,000/- from the ATM counter of South Indian Bank, Nilambur branch using the same ATM card. There is no deficiency of service on the part of second opposite party and the complaint is to be dismissed against second opposite party.
7. The following points arise for consideration in this case.
(i) Whether there was any deficiency of service on the part of
opposite party No.1 and 2.
(ii) Whether Rs.5,000/- actually lost from the account of the complainant.
(iii) Relief and costs.
8. Point No.(i) & (ii):-
The definite case of the complainant is that on 15-10-2011 he had withdrawn Rs.10,000/- from his account using his ATM card through the ATM counter of opposite party No.2 at Nilambur. But when he found that the amount obtained by him was not sufficient for his purpose he again tried to withdraw Rs.5,000/- more from his account through the same ATM counter. But that attempt was not successful and he did not obtain the amount also. But when he perused his statement of accounts he found that amount is debited from his account. That is clear from Ext.B1 series of document which are the statement of account of complainant. It is clear from this the document that on 15-10-2011 only Rs.15,000/- were withdrawn by the complainant using ATM card. The first entry is for Rs.10,000/-
and second entry for Rs.5,000/-. The receipt of Rs.10,000/- is admitted by complainant and regarding the withdrawal of Rs.5,000/- seen in Ext.B1 alone is disputed. It is significant to note that the specific stand taken by the complainant is that he tried to withdraw the amount through ATM counter of State Bank of India, Nilambur alone. It is also alleged by complainant that two attempts were made by him for withdrawing the amount and first attempt was successful and he obtained Rs.10,000/- and that is seen debited from his account as seen in Ext.B1. He further alleged that the second attempt was also made by him in the same ATM counter and that was not successful and that attempt was for Rs.5,000/-. It is revealed from the documents and contentions of the parties that the complainant had attempted to withdraw amounts from his account through ATM counter of opposite party No.2 thrice. Ext.B2 series are the details of the transactions made through the ATM counter of opposite party No.2 on 15-10-2011. As per the statement of accounts of opposite party No.1 only transactions were done by complainant on 15-10-2011 using his ATM card. Ext.B2 series clearly shows that the complainant withdrew Rs.10,000/- from his account through ATM counter of opposite party No.2 on 15-10-2011 3.30 PM. Another withdrawal on the same date as per Ext.B1 is for Rs.10,000/- and that is also withdrawn using ATM card of the complainant. That amount is not disputed by the complainant and third entry in Ext.B1 series on 15-10-2011 was for Rs.5,000/- that is the disputed entry. In this context the averment of the complainant and Ext.B2 shall be scrutinized. According to complainant after withdrawal of Rs.10,000/- he realized that amount was not sufficient for his purpose and he again attempted to withdraw Rs.5,000/- more but that attempt was unsuccessful. This claim is fortified by the entries in Ext.B2. The unsuccessful attempt for withdrawing the amount are separately shown in this document. There in it is seen that the complainant using his ATM card attempted to withdraw the amount from his account and that attempt was not successful. If this entry of unsuccessful attempt was in respect of Rs.10,000/- that would have been objected by the complainant. He has no complaint on
debiting two entries of Rs.10,000/- each from his account on 15-10-2011. Therefore this unsuccessful attempt must be for Rs.5,000/- as claimed by complainant in the complaint as well as in the affidavit. There is no case for the first opposite party that complainant has withdrawn Rs.5,000/- using his ATM card through any other ATM counter of other banks. On the other hand the specific stand taken by the complainant is that after withdrawing Rs.10,000/- when he tried to withdraw Rs.5,000/- that attempt failed and that was for Rs.5,000/-. Thus an evaluation of entire circumstances and evidence leads to the irresistible conclusion that the complainant has used his ATM card for withdrawing amount from his account thrice on 15-10-2011 and in that process one attempt for withdrawal of Rs.5,000/- failed. There is no ample plausible evidence to establish that the complainant's attempt to withdraw Rs.5,000/- from his account using his ATM card on 15-10-2011 was successful. On the other hand list of unsuccessful attempts shown in Ext.B2 series make clear that one attempt of complainant to withdraw the amount using his ATM card was unsuccessful. That corroborates the statement of complainant in the complaint. Therefore we conclude on the basis of the above evidence that complainant could not withdraw Rs.5,000/- from his account on 15-10-2011 using his ATM card through ATM counter of second opposite party. Since ample evidence is not available to prove that complainant had withdrawn Rs.5,000/- on that day using his ATM card through any other ATM counters, the conclusion that the entry of Rs.5,000/- in Ext.B1 is a wrong entry is justified. Therefore the evidence, circumstances and documents unequivocally proved that debiting Rs.5,000/- from the account of the complainant on 15-10-2011 as seen from Ext.B1 is baseless and complainant is entitled to get back that amount. The stand taken by the opposite party No.1 denying the claim of complainant shows deficiency of service on his part. Hence opposite party No.1 is liable for the compensation for the mental agony of complainant. Points are decided accordingly.
9. Point No.(iii):-
On the basis of the findings on the above point we allow this complaint and opposite party is directed to pay the complainant a sum of Rs.5,000/-(Rupees Five thousand only) which is unauthorizedly and illegally debited from the account of the complainant and also Rs.15,000/-(Rupees Fifteen thousand only) as compensation for the mental agony suffered by complainant. Complainant is also entitled to Rs.2,000/-(Rupees two thousand only) as cost of the proceedings. The above amounts shall be paid to the complainant by opposite party No.1 within 30 days from the date of receipt of copy of this order failing which opposite party No.1 is liable to pay interest @ 12% per annum from the date of complaint till realization.
Dated this 28th day of June, 2016.
A. A. VIJAYAN, PRESIDENT
R. K. MADANAVALLY, MEMBER
MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 to A4
Ext.A1 : Photo copy of the statement of account from 15-10-2011 to 31-07-2012
Ext.A2 : Photo copy of the letter dated, 05-12-2011 by complainant to first opposite party.
Ext.A3 : Photo copy of the CBI #631880 Request Detail.
Ext.A4 : Photo copy of the first page of complainant's pass book.
Witness examined on the side of the opposite parties : Nil
Documents marked on the side of the opposite parties : Ext.B1 series, B2 series and Ext.B3 to B5
Ext.B1 series : Print out of statement of account dated, 14-07-2012.
Ext.B2 series : Printout of the entries contained in the computer system(ATM EJ Log)
of 2nd opposite party during the period of complaint.
Ext.B3 :
Ext.B4 : Letter dated, 18-04-2015 from Branch Manager, SBI., Nilambur branch.
Ext.B5 : Photo copy of the ATM ADMIN – Physical cash balance register of 2nd opposite party.
A. A. VIJAYAN, PRESIDENT
R. K. MADANAVALLY, MEMBER
MINI MATHEW, MEMBER
