Date of Judgment Dt.08.03.2016
J U D G M E N T
By Smt. S.Mishra, Lady Member.
The complainant, Ayodhya Biswal has filed this complaint against the B.M.S.B.I., Gajbandh Branch alleging deficiency of service and sufferings.
The facts, as stated in the complaint are that the complainant is having a Saving Bank Account No.1184821904, maintained with O.P. The complainant also availing A.T.M. facilities bearing ATM Card No.622018088750002639000 in respect of her said saving account. On dt.23.8.2010, the total amount deposited in the account of the complainant was Rs.19,131.39. On the same day she had withdrawn Rs.8000/- and Rs.5000/- from Axis Bank ATM and Rs.5000/- from S.B.I., A.T.M. So, in total she had withdrawn Rs.18,000/- from her said account through A.T.M. Card and that after deduction of withdrawal amount, balance amount of Rs.1106.39 was still available in her account.
Further, it is stated that on dt.26.8.2010, the O.P. has set hold her account alleging withdrawal of excess amount of Rs.10,000/- illegally and consequently did not allow her to operate the account and demanded refund of Rs.10,000/- for illegal withdrawal. On this, the complainant has specifically pleaded that she has never withdrawn any illegal or excess amount from her account through A T M as alleged by the O.P.
-: 2 :-
The complainant avers that the O.P. has issued letter No.GEN 23/05 dt.10.12.2010 (alongwith letter No.RBO/BGR/AV-29/44 dt..2.12.2010) and again on dt.19.5.2011 demanding repayment of Rs.10,000/- within seven days towards excess withdrawal and that the O.P. threatened to institute appropriate legal action against her in this respect.
Alleging deficiency in service, the complainant further avers that since dt.26.8.2010, she has been denied to use her account and ATM Card having no fault from her side, therefore she has filed this case seeking direction to the O.P. to allow her to operate the account, and not to claim Rs.10,000/- from the complainant, to pay Rs.90,000/- as compensation for deficiency in service and suffering, besides, litigation expenses of Rs.3000/- is also prayed.
Upon notice, the O.P. of this case has filed written reply with pleading therein that the O.P. has set hold the account due to illegal withdrawal of Rs.10,000/- on dt.23.8.2010 from Axis Bank ATM located at Sudpada, Hospital Chowk, Balangir by using her ATM Card No.622018088750002639000. Further pleaded that on dt.23.8.2010, the complainant had an amount of Rs.19,106.39 and she has admitted withdrawal of Rs.18,000/- but she has never disclosed in her complaint regarding withdrawal of Rs.10,000/- from Axis Bank ATM located at Sudpada Balngir on the same day.
In view of the said fact, the issued notices to her for refund of excess amount of Rs.10,000/-. Therefore denying deficiency in service and liabilities, the O.P. pray dismissal of the case.
The parties led their evidence by way of documents and affidavit. We have gone through the pleadings of the parties and carefully perused the evidence on record. Taking note of pleadings of the parties, submission made during hearing and documentary evidence as available on record, the following points are to be determined.
i. Whether the complainant has withdrawn an excess amount of Rs.10,000/- on dt.23.8.2010.
ii. Has there been any deficiency in service by the O.P. ?
iii. To what reliefs, the complainant is entitled for ?
Interalia, the crux of the dispute between the parties solely rest on determination of issue No.1.
-: 3 :-
In this case, the complainant has averred that she has not withdrawn any excess amount. She admits that on dt.23.8.2010. She has withdrawn a total sum of Rs.18,000/- in three transactions by using her ATM Card and accordingly filed copy of her saving account pass book. Wherein it is reflected that on 23.8.2010 she has withdrawn Rs.8000/-, and Rs.5000/- by using her ATM Card from Axis Bank ATM counter and again Rs.5000/- from S.B.I. Hotel ATM counter. In the said pass book there is no entry in respect of withdrawal of excess amount of Rs.10,000/- as claimed by the O.P. It also discloses that on dt.23.8.2010 (after deduction of all three transactions) Rs.1106.39 was the balance amount in the account on the contrary, generated ATM transaction slip filed by the O.P. clearly suggests withdrawal of Rs.10,000/- on 23.8.2010 at about 18.59 bearing ATM Card No.622018088750002639000 from ATM of Axis Bank located at Sudpada Hospital Chowk Balangir. It is also important to note that in the said slip another entries reveals that on the same day at about 18.58 (One minute before) balance inquiry was made, at that time the available balance was Rs.11,131.39 paise. Thus it is observe that all entries made in the pass book of the complainant do not tally with the ATM withdrawal slip filed by the O.P. Noticeing the said slip, conclusion can be drawn that if available balance on dt.23.8.2010 at 18.58 is Rs.11,131.39 paise then withdrawal of Rs.10,000/- out of the said amount on the same day after one minute cannot be held to be excess amount on its face. However another bank document filed by the O.P. clearly reveals that successful ATM transaction of Rs.10,000/- on dt..23.8.2010 vide TAN Code 024060. Moreover, to substantiate the stand, after service of copy, the O.P. has filed one affidavit of Sri Kishore Kumar Mishra as O.P.W.1, who is the Channel Manager at S.B.I., RBO, Bargarh. In addition to this, documents like BGL statement of account dt.23.8.2010 of Gajbandh Branch ATM system suspense account has been filed. Therefore in the above facts and circumstances, it can be concluded that all the bank documents except the saving pass book, are suggesting withdrawal of the Rs.10,000/- on dt.2.3.8.2010 from ATM counter of Axis Bank located at Sudpada Balangir.
Consequently, she has been intimated by the O.P. to refund the amount vide letter bearing GEN-23/03 dt.13.9.2010 which disclosed that Rs.10,000/- has been withdrawn on dt.23.8.2010. Thus the account of the complainant had no balance and that it is over drawn from the account and that the amount paid through ATM has been debited to system suspense account of Gajbandh Branch.
-: 4 :-
Taking note of all the facts and circumstances it is held that on 23.8.2010, over withdrawal of Rs.10,000/- was made by using her ATM Card in the ATM Counter of Axis Bank located at Sudpada Balangir and the transaction was successful. Accordingly point No.1 is answered.
For brevity and proper appreciation, point No.2 and 3 has been taken simultaneously. Coming to the issues, in our views, there is no deficiency in service as alleged by the complainant. This is because, in substance, she is held to be over withdrawn a sum of Rs.10,000/- and became enriched unjustly at the cost of O.P. it is seen from the documents filed by the O.P. that the ATM switch Centre Mumbai has debited the amount to the system suspense account of Gajbandh Branch. So accordingly the complainant is demanded to make good the loss amount.
So also, it can be safely concluded that to set hold or freezing of the account of the complainant is genuine and lawful till realization and restoration of Rs.10,000/-. Therefore action of O.P. is found to be in good faith and there is no deficiency in service, entitling the complainant to claim the reliefs under C.P.Act.
Taking note of all facts and circumstances, cumulatively, in our views, there is no any deliberate illegality committed by the O.P. towards the complainant nor in any way liable for deficiency in providing service to her. Further, there is implied contract between the account holder and the Banker to the effect that any wrong transaction can be rectified for holding the bank harmless for any loss or damage and the banker in its reasonable discretion may set hold the account without prior notice. Since the balance standing in the account of the complainant is not sufficient to satisfied refund of Rs.10,000/-. Accordingly the complaint of the complainant is dismissed without cost.
Dated the 8th day of March 2016
Typed to my dictation
I agree. and corrected by me.
Sri S.C. Nayak Smt. S.Mishra
President Lady Member
Dt.08.03.2016 Dt.08.03.2016
