DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 26th day of September 2017
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member Date of filing: 07/05/2015
: Sri.V.P.Anantha Narayanan, Member
(C.C.No.66/2015)
1. Radhamani Amma,
W/o M.M.Junaid,
H.No.17/485 (2),
Kaviyad House,
Kunnathurmedu (PO),
Palakakd 678 013.
2. Deepak.M,
S/O M.M.Junaid,
H.No.17/485 (2),
Kaviyad House,
Kunnathurmedu (PO),
Palakakd 678 013. - Complainant
(Adv.T.S.Rajeshkumar)
V/s
1. The Branch Manager, - Opposite parties
State Bank of India,
Civil Station Branch,
Palakkad.
2. The Branch Manager,
State Bank of Travancore,
Chandran Nagar Branch,
Palakkad.
(Adv.G.Ananthakrishnan)
O R D E R
By Sri.V.P.Anantha Narayanan, Member,
Brief Facts of the complaint
The complainant deposited ATM card to withdraw Rs.20,000/- at about 11.45 am on 24.09.2014 from SBI ATM system situated in Civil Station Branch of SBI, Palakkad. The withdrawal was to be made from her son’s account in SBT, Chandra Nagar Branch for repayment of his educational loan. According to the complainant on the screen was shown “your transaction is being processed, please wait” but amount or slip did not come out. After 10 minutes from the nearby other system Rs.20,000/- was withdrawn. Immediately complainant informed this matter to her son who went to the 1st opposite party bank and intimated this matter to the Senior Accountant who informed him that they could not do anything because this was a technical problem. This matter was also informed to the Manager, SBT, Chandra Nagar Branch who told the complainant to give a complaint and also got signed a form given by the bank. Then the matter was informed to the branch Manager of SBI, Civil Station Branch. After 3 weeks the reply that “transaction was a success” came to the complainant from Bombay and the transaction took place at “11.57 am”. According to the complainant, although she stood before the machine up to 12.35 pm she did not receive any amount. As per the instruction from the Branch Manager of SBT Chandra Nagar Branch on 17.12.2014, Chief General Manager, SBI, Thiruvananthapuram and SBT ATM complaint service section AGM, Thiruvananthapuram were given complaints. But their replies were “transation was a success and there was no excess cash in ATM”. According to the complaint, in the beginning itself she had contacted State Bank of India, Civil Station Branch Manager and told him to inspect the camera; but the Manager and another officer told the complainant that the same would be expensive. According to the complainant there was one person beside her at the time of entering ATM who enquired with her about the amount to be withdrawn. To verify whether that person received the amount seeing of the camera was demanded by the complainant to the bank Manager who replied that only backside could be seen and face could not be seen. On not getting justice from the 1st and 2nd opposite parties complainant filed a case with Banking Ombudsman, Thiruvananthapuram. After one month final reply from the Ombudsman was received which stated that as per RBI Act, 2006, since ATM card was individually used they could not proceed with this case and complainant was asked to approach any other Forum. Hence, the complainant filed a complaint with this Hon’ble Forum requesting them for a compensation of Rs.50,000/- for mental agony suffered and expenditure incurred by her.
The complaint was admitted and notices were issued to opposite parties 1 & 2 to enter appearance.
The 1st and 2nd opposite parties who entered appearance through their counsel, in their versions, deny all the allegations and averments in the complaint except those which are expressly admitted. According to the 1st opposite party, the complainant is not entitled for any reliefs prayed for by her. The 2nd complainant was maintaining SB account no: 57003854775 with Chandra Nagar Branch of SBT. The 1st complainant has withdrawn Rs.20,000/- from one ATM machine managed by the 1st opposite party on 24.09.2014 at 11.57.46 hours and another Rs.20,000/- from the second machine at 12.01.36 hours. According to 1st opposite party the withdrawal is clearly identifiable from the printout obtained regarding the transaction. There was also no excess cash available in the machine and the entries show that both the transactions were successful. The CD produced by the 1st opposite party shows the images which also clearly show that both the transactions are successful. The 1st opposite party also contends that the ATM machine dispenses cash during successful transaction and it is the duty of the person withdrawing cash to collect the cash and close the transaction. Since the complainant has failed to do so, she is negligent. From the images taken by the camera, her averments that she came at 11.45 am and waited for 10 minutes and stood there till 12.35 pm are false. After withdrawing Rs.20,000/- at 11.57 am, the next withdrawal from the same machine by another customer was at 12.35 pm etc. Hence according to 1st opposite party the machine was properly working and CC TV footage of the ATM and other records pertaining to 24.09.2014 prove that the alleged ATM operation was successful. 1st opposite party also contends that the complainants have violated the basic principle that the ATM card has to be operated by the card holder only and secrecy regarding ATM operation has to be maintained during the transaction. Hence according to the 1st opposite party there is no deficiency in service or negligence on their part. Therefore 1st opposite party prays to the Hon’ble Forum to accept their contentions and dismiss the complaint with cost to this opposite party.
According to the 2nd opposite party, the 2nd complainant was maintaining SB account No.57003854775 with State Bank of Travancore, Chandra Nagar Branch. The 1st complainant has withdrawn Rs.20,000/- from one ATM machine managed by the 1st opposite party on 24.09.2014 and again another Rs.20,000/- from the 2nd machine on the same day. Thus a total of Rs.40,000/- was withdrawn by the complainant. According to the 2nd opposite party the 2nd complainant should not have divulged the pin number and card to the 1st complainant. This opposite party also contends that he has nothing to do with the transaction because, the amount has been withdrawn by the complainant from the ATM maintained by the 1st opposite party and this opposite party is not liable for the action on the machine. Since the complainants have violated the basic principle that the ATM card should be operated by the card holder only and secrecy regarding the operation should be maintained during the ATM transaction, there is no deficiency of service/negligence on the part of this opposite party. Hence, 2nd opposite party prays to the Hon’ble Forum to accept their contentions and dismiss the complaint with cost to this opposite party.
In the final report filed by Advocate.K.Dhananjayan, appointed as Advocate Commissioner in this case, he submitted that he saw the CD and its images from the computer. He also took complete photographs contained in the CD and there are 52 separate photos. After seeing the CD the Advocate Commissioner also observed that the photographs taken from the CD installed in the ATM do not reveal that the complainant gets any amount or not because the camera is not exactly focused on the transaction taken place at ATM. The display board nor the counter nor the cash counter from where the cash comes out are not focused. The ATM machine is also not photographed by the camera; the quality of the images taken and recorded in the camera and in the hard disk of the computer and the quality of the picture are far from satisfactory and substandard. He also reported that the photos are not clear and it is not imprinted the images that where the ATM is situated and details regarding the ATM/bank are not imprinted.
The complainant filed, IA- 179/2015 to amend the complaint; since no objection was submitted by opposite parties IA was allowed and amendment was carried out. Complainant filed chief affidavit. 1st opposite party also filed chief affidavit and IA 324/2015 to appoint as advocate commissioner to view the CD and submit report, since no objection was filed IA was allowed. Advocate Dhananjayan was appointed as Advocate Commissioner to view the CD and file detailed report. Complainant also filed additional chief affidavit. Complainant was cross examined as PW1 and Exts.A1 to A11 were marked from the side of the complainant. Commission report was marked as C1 and photographs are marked as C2 series. 1st opposite party was cross examined as DW1. Exts.B1 to B4 were marked from the side of the opposite parties and CD was marked as Ext.B5. Advocate Commissioner was also cross examined as CW1. Complainant was heard.
The following issues arise for consideration in this case
- Whether there is any deficiency in service and unfair trade practice from the side of opposite parties in this case?
- If so what are the relief and cost?
Issues 1 & 2
The case of the complainant is that she deposited ATM card to withdraw
Rs.20,000/-on 24.09.2014 from SBI ATM system in Civil Station, Palakkad. Since no amount or slip was received, from the nearby other ATM Rs.20,000/- was withdrawn and this was informed to the Senior Accountant of the 1st opposite party bank. This matter was also informed to the 2nd opposite party and the letter given to the 2nd opposite party was marked as Ext.A1 which requests 2nd opposite party to recover Rs.20,000/- lost by the complainant due to the defect of the ATM. The complainant also signed a form given by 2nd opposite party which was marked as Ext.A2 which indicates customer information, ATM information and nature of complaint as complaint relating to cash withdrawal. The complaint given to the 2nd opposite party bank is acknowledged by a receipt marked as Ext.A3 which shows the receipt of the complaint from the 2nd complainant and his declaration. Details of ATM transaction made by the complainant on 24.09.2014 are indicated by Ext.A4 which reveals that Rs.40,000/- was withdrawn on 24.09.2014 from Account No: 57003854775. Letter enclosing JP Log copy received from 2nd opposite party was marked as Ext.A5 which shows that the transaction on 24th September 2014 on Account No: 57003854775 and card no. 5049937067300043089 was successful. As per the instruction given by the 2nd opposite party complainant sent a letter dated.17.12.2014 marked as Ext.A6 to Chief General Manager, State Bank of India Thiruvananthapuram requesting him to redress her complaint. A letter marked as Ext.A7 was also sent to Assistant General Manager, ATM SBT, Thiruvananthapuram requesting him to refund Rs.20,000/- lost to her account. The reply dated.19.01.2015 received from AGM customer service, SBI, Thiruvananthapuram marked as Ext.A8 mentioned that transaction was a success and there was no excess cash in ATM. On not getting justice from the 1st and 2nd opposite parties complainant filed a complaint with Banking Ombudsman, Thiruvananthapurm. Letter sent by the complainant to Reserve Bank of India, Thiruvananthapuram is marked as Ext.A9 which requests the Reserve Bank of India for a solution to her grievance for returning the amount to her account. A reply was received from the office of the Ombudsman, marked as Ext.A10, which mentioned that the disputed transaction at the ATM on 24.09.2014 was successful and was considered as an unauthorised transaction because it was not done by the card holder. In the
email message which is given to the SBT Head Office Customer Service Department the former by Assistant Manager, Chandranagar Branch through email message marked as Ext.A11 the former was intimated that although the 2nd opposite party lodged the claim of the complainant to SBI, SBI rejected her claim stating that EJ Log was successful.
In the version given by 1st opposite party, he contends that as per CC TV footage SBI, Civil Station Branch, Palakkad, opposite party’s claim is proved. Print out of CC TV footage SBI, Civil Station Branch is marked as Ext.B1 which indicates ATM transaction on 24.09.2014. 1st Opposite party also sent a letter to DGM, ATM (operation) Navi Mumbai which is marked as Ext.B2 certifying that as per journal print, electronic journal print, log, the transaction no.4132 dated. 24.09.2014 was a successful transaction and no excess amount of cash was found in the concerned ATM on the next replenishment date (25.09.2014). As per cash tally report whose print out was marked as Ext.B3 no excess cash was reported. According to 1st opposite party the 1st complaint has withdrawn Rs.20,000/- from one ATM machine managed by them on 24.09.2014 at 11.57.46 hours and the withdrawal was clearly identifiable from the print out obtained regarding the transaction. The printout regarding this ATM transaction is marked as Ext.B4 which shows transaction No. as 4132 on account No. 00003197552042926. Both 1st and 2nd opposite parties also contend that the complainant is not entitled for any reliefs prayed for because complainant has violated the basic principles that the ATM card has to be operated by the card holder only and secrecy regarding operation has to be maintained during the ATM transaction. Hence there is no deficiency of service or negligence or unfair trade practice on their part and therefore they are not liable to compensate the complainant. Hence 1st and 2nd opposite parties pray to the Hon’ble Forum to uphold their contentions and dismiss the complaint with costs to these opposite parties.
As per the final report filed by Advocate Commissioner marked as Ext.C1 it is observed that the photographs taken from the CD installed in the ATM do not reveal whether the complainant has received any amount or not. He also observed that he cannot clearly tell whether the complainant has received any amount from the ATM by using it on the disputed date. The photo album produced by the commissioner which is marked as Ext.C2 series also do not clearly show whether the complainant has received any amount from the disputed ATM on the disputed date (24.09.2014).
In this connection depositions by DW1 and CW1 are worth noting.
In his deposition on 07.04.2017 DW1 stated that “Cu tIknse transaction \S¶p F¶p ]dbp¶ kab¯v Rm³ accountant Bbncp¶p. Cu tIkn tImSXnbn \n¶v summons In«p¶ kab¯v Rm³ Manager Bbncp¶p. ATM machine  currency ]pd¯p hcp¶Xv camera  ImWphm³ km[n¡pw. km[mcW KXnbn CC TV bn Imiv hcp¶Xpw, F®p¶Xpw bag  FSp¯p h¡p¶Xpw FÃmw ImWm³ km[n¡pw. Cu A¡un ATM counter  \n¶pw ss]k In«nbn«nà F¦n bank sImSp¡m³ _m[ykvY\mWv.” In his deposition on 30.05.2017 as CW1, the advocate commissioner stated that “I am the Advocate Commissioner appointed in this case. I have observed the CD and have taken the print of the photographs. I could not reveal anything by observing the CD. The incident happened on 24.09.2014.”
From the documentary evidences submitted before the Forum it is clear that the alleged dispute had taken place on 24.09.2014, when the complainants were using the ATM installed by the 1st opposite party near Civil Station Branch, Palakkad. We also observe that from the CC TV footage in the ATM and the photographs, there are seen no clear images that the complainant has received Rs.20,000/- from the ATM which is also confirmed by Advocate Commissioner in his final report. We also observe that if the images had been clear, we could have clearly understood whether the complainant has received Rs.20,000/- or not from the CD. Hence the argument put forth by the 1st and 2nd opposite parties that complainants have received Rs.20,000/- from the ATM cannot be accepted. Therefore opposite parties are seen to have committed negligence and deficiency in service by not maintaining CC TV footage in the disputed ATM in perfectly clear working condition.
Under the above circumstances complaint is allowed.
1st and 2nd opposite parties are jointly and severally liable to pay to the complainants Rs.20,000/- (Rupees twenty thousand only) wrongly debited to their account for disputed withdrawal of Rs.20,000/- (Rupees twenty thousand only); they are also ordered to be jointly and severally liable to pay to the complainants Rs.5,000/- (Rupees five thousand only) towards compensation for mental agony suffered by them and to pay them Rs.3,500/- (Rupees three thousand five hundred only) by way of litigation expenses incurred by the complainants.
The order shall be executed within one month from the date of receipt of this order failing which complainants will also be entitled to realize interest at the rate of 9% p.a on the total amount due from the date of this order till realization.
Pronounced in the open court on this the 26rd day of September 2017.
Sd-
Shiny.P.R.
President
Sd/-
Suma.K.P.
Member
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 - photo copy of request letter dated.27.10.2014 sent by the 1st complainant to
2nd opposite party
Ext.A2 – photo copy of a form showing customer information etc dated.25.09.2014
Addressed to Chief Manager, State Bank of Tranvancore,
Chandranagar Branch, Palakkad
Ext.A3 – photo copy of acknowledgement of complaint dated.26.09.2014
Ext.A4 - print out of details of ATM transaction on 24.09.2014
Ext.A5 - JP Log copy enclosed letter received from 2nd opposite party namely
SBT, Chandra Nagar Branch, Palakkad
Ext.A6 - photo copy complaint dated. 17.12.2014 forwarded to Chief General
Manager, SBI, Thiruvananthapuram
Ext.A7 - Photo copy of complaint sent to Assistant General Manager, ATM SBT,
Thiruvananthapuram
Ext.A8 - photo copy of reply dated.19.01.2015 received from Assistant General
Manager, Customer Service, SBI, Thiruvananthapuram
Ext.A9 - photo copy of complaint given to Banking Ombudsman,
Thiruvananthapuram
Ext.A10 – photo copy of reply letter dated. March 12, 2015 received from the
Banking Ombudsman, Thiruvananthapuram
Ext.A11 – photo copy of email message sent on December 11, 2014 by SBT
Chandra Nagar Branch, Palakkad to Customer Service Department,
SBT Head Office, Thiruvananthapuram
Exhibits marked on the side of Opposite parties
Ext.B1 - print out CC TV footage SBI, Civil Station Branch, Palakkad
Ext.B2 – Photo copy of letter dated.29.09.2014 sent by 1st opposite party to the
DGM, ATM (operation) Navi Mumbai
Ext.B3 – print out of cash tally report dated. 25.09.2014 of ATM No.
SIOA004925001Q
Ext.B4 – print out of details of ATM transaction on 24.09.2014 issued by Branch
Manager, State Bank of India, Civil Station Branch, Palakkad
Ext.B5 – CD showing the images on 24.09.2014
Commission report
Ext.C1 series - final report filed by Advocate Commissioner
Ext.C2 series – Photo Album produced by Advocate Commissioner
Witness examined on the side of complainant
PW 1 – Radhamani Amma
Witness examined on the side of opposite party
DW 1 – Sivadasan.K
Witness examined on the side of Advocate Commissioner
CW 1- Advocate Dhananjayan
Cost
Rs. 3,500/-
