COMPLAINT FILED: 26.05.2009 <br /> DISPOSED ON: 20.03.2010<br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 20TH MARCH 2010<br /> <br /> PRESENT :-SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER<br /> <br /> COMPLAINT NO.1197/2009<br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri.Chandrashekar Aradhya,<br /> S/o Late V.C.Somaradhya,<br /> Aged about 69 years,<br /> Residing at No.93, <br /> 5th Main, 3rd Cross, J.P.Nagar, II Phase, <br /> Bangalore – 560 078.<br /> <br /> Advocate: Sri. S.S.Haveri<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTY The Manager,<br /> Canara Bank,<br /> Jayanagar 9th Block Branch,<br /> No.1505, 1st Floor, <br /> 40th Cross, 26th Main, <br /> 9th Block, Jayanagar,<br /> Bangalore – 560 069.<br /> <br /> Advocate: <br /> Sri. T.N.Raghavendra Rao<br /> O R D E R<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint u/s. 12 of the C.P. Act of 1986 seeking direction to the Opposite Party (herein after called<br /> as OP) to pay Rs.11,052-28 with interest at 12% p.a. and compensation of Rs.10,000/- with litigation cost of Rs.5,000/- on an allegations of deficiency in service on the part of the OP.<br /> <br /> The case of the complainant to be stated in brief is that:-<br /> <br /> 2. The complainant is a customer holding Savings Bank account No.2613101006330 in the OP Bank and he also holds an ATM Debit Card bearing No.4214582613020594. On 19-12-2008 at about 12-30 p.m. the complainant went to ATM Counter at 9th Block Jayanagar to draw an amount of Rs.10,000/-. He inserted his Debit Card in to ATM Machine and instead of receiving the cash he received a slip from the Machine where in it is stated:<br /> “Record No.<br /> Withdrawal: Rs.10,000/-<br /> Transaction declined<br /> Unable to dispense”.<br /> And the Debit Card was struck in the Machine and did not come out. Immediately the complainant went inside the Bank and brought to the notice of the OP. As per the advise and instructions of the OP; the complainant was asked to come, after 3 or 4 days to collect the Debit Card struck in the Machine. The complainant by utilizing the withdrawal slip withdraw Rs.10,000/-. On 07-01-2009 when complainant went to OP to collect the Debit Card and to withdraw money from his account and he has withdrawn Rs.30,000/-, submitted pass book for entries. After entries he noticed 11 wrong ATM debit entries to the extent of Rs.11,502=28 and brought to the notice of the OP and requested to rectify the same. As the Debit Card was not available, OP directed the hot list the Debit Card suspecting fraud. After the withdrawing the cash of Rs.10,000/- on 19-12-2008 by using withdrawal slip, the complainant did not visit the Bank till 07-01-2009. As the complainant’s Debit Card was struck inside the Machine he operating the card between 19-12-2008 to 07-01-2009 is ruled out. The 11 Debit entries in the pass book shown as ATM operated entries were bogus and illegal. Requested the OP immediate action and rectification by his letter dated 12-01-2009. OP gave reply on 18-01-2009 on false and untenable grounds. Legal notice was got issued on 27-02-2008 to OP to rectify the mistake of 11 entries in the pass book, the postal acknowledgement was not received. The postal authorities replied for the complaint stating that the registered letter has been delivered on 03-03-2009. Though the legal notice is received, OP has not replied. The 11 Debit entries in the pass book are not in chronological order, they are bogus entries. Therefore there is deficiency in service in not properly handling and maintaining the SB account of the complainant and in not rectifying the mistake and bogus 11 entries for a sum of Rs.11,052=28 even though the OP promised to do orally on 19-12-2008. The entry dated 19-12-2008 for Rs.10,000/- is illegal, as evident from the slip received stating that “transaction declined” unable to dispense. The complainant has suffered mental agony as such he is entitled for compensation apart from the amount of Rs.11,502=28.<br /> <br /> 3. OP on appearance, filed version contending that the averments in the complaint that the complainant went to ATM counter on 19-12-2008 to withdraw Rs.10,000/- and instead of receiving the cash he received a slip “Transaction Declined” unable to dispense is not within the knowledge but the said information was given by the complainant. Withdrawal slip was provided to complainant at his request and he has withdrawn Rs.10,000/- on using the same. It is admitted that the complainant came to Bank on 07-01-2009 after lapse of 19 days; OP has hot listed the card at the request of the complainant on 07-01-2009. Letter of the complainant 12-01-2009 was duly replied by the OP on 16-01-2009. The main allegations of the complainant is Debit Card issued when operated on 19-12-2008 was struck in ATM machine and during 19-12-2008 to 07-01-2009 the same card was in the custody of the Bank and hence operating the card between that period was not possible hence all 11 entries are shown as ATM entries are bogus and illegal and fraudulent transaction and refusal on the part of the OP in not reversing the entries amounts to deficiency in service; as alleged in the letter dated 12-01-2009 and in the legal notice dated 27-02-2009.<br /> <br /> It is stated that whenever the card inserted in the ATM Machine is retained or captured by ATM Machine for various reasons instead of sending the cash, it sends a slip containing “Card captured or retained” and in either of the cases the JPT (Journal Print Transaction) of any day will show what exactly happened on that date. In case where the card was captured or retained the card will be in the custody of the Bank from that day of capture till it is returned to the party. In the case of the complainant; the ATM Debit Card was not captured or retained by the machine on 19-12-2008 as alleged. This is evidenced from the copy of JPT dated 19-12-2008 which shows that retained or captured card is zero. Hence the allegations that OP Bank was in custody of the card between 19-12-2008 to 07-01-2009 are all absolutely false and baseless. The allegations that 11 Debit entries in the pass book shown as ATM operated entries were bogus and illegal are false and baseless; for the letter dated 12-01-2009 from the complainant OP has suitably replied on 16-01-2009. For the legal notice dated 27-02-2009 suitable reply has been sent as per reply dated 18-06-2009. The allegations that entries in the account are not in chronological order etc not entirely true. What is not in chronological order is the dates on which account actually debited when the card has been swiped at various member and establishments but the day on which card has been swiped only on 19-12-2008 and that has been correctly recorded in the passbook. Hence there is no deficiency in service in not properly handling and maintaining SB Account. OP is producing the copy of the letter RB & SW issued by RB and S Wing Card Division Acquiry Section Canara Bank, M.G. Road which monitors the card business of the Bank confirming that all transaction of the above card holder was done on 19-12-2008. OP Bank has not orally promised to rectify the mistake as alleged by the complainant. It is submitted that the complainant might not have collected the card at the ATM Counter on 19-12-2008 and it might have fallen to the hands of third person who might have fraudulently misused the same at various MES. However OP is no way responsible for the said transactions. There is no deficiency of service on the part of the OP. Hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> 4. In order to substantiate the complaint averments; the complainant filed affidavit evidence and produced documents. The Senior Manager of OP filed affidavit evidence and produced documents. <br /> <br /> 5. Arguments heard on both sides. The points for our: <br /> <br /> Point No. 1:- Whether the complainant has proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2:- Whether the complainant is entitled <br /> for the relief’s now claimed?<br /> <br /> Point No. 3:- To what Order?<br /> <br /> 6. After going through the pleadings; the documents produced affidavit evidence and arguments advanced. We record our findings on the above points:<br /> <br /> Point No.1:- Negative.<br /> Point No.2:- Negative.<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N <br /> <br /> 7. It is not in dispute that the complainant being the customer of OP - bank holding SB account No.2613101006330 was also holding an ATM debit card bearing No.4214582613020594. On 19-12-2008 at about 12-30 p.m. the complainant went to ATM counter of OP to draw an amount of Rs.10,000/- and inserted his debit card in to the ATM machine. The complainant received a slip from the machine stating that <br /> “Record No. <br /> Withdrawal: Rs.10,000/- <br /> Transaction declined <br /> Unable to dispense”. <br /> The complainant has not received the cash. The debit card did not come out from the machine. Immediately the complainant went inside the OP - bank and brought to notice of the OP. The complainant has withdrawn the amount of Rs.10,000/- by utilizing the withdrawal slip from his account. <br /> <br /> 8. The complainant claims that on 07-01-2009 he visited the OP - bank to collect the debit card and to withdraw money from his account. After withdrawing an amount of Rs.30,000/- from his account; he got entries made in his pass book. At that time he noticed 11 wrong ATM debit entries to the extent of Rs.11,502=28 and brought to the notice of OP with a request to rectify the same. The debit card was not available. Hence the OP directed his officials to hot list the debit card suspecting fraud. <br /> <br /> The main contention of the complainant is the debit card was struck inside the ATM machine as such operating the card between 19-12-2008 to 07-01-2009 is ruled out and 11 debit entries in the pass book shown as ATM operated entries were bogus and illegal. OP has given false reply for the letter dated 12-01-2009 for rectification of bogus entries. <br /> <br /> 9. The defence version of the OP is the ATM debit card of the complainant was not captured or retained by the ATM machine on 19-12-2008. The copy of JPT (Journal Print Transaction) dated 19-12-2008 produced at Annexure – ‘A’ shows that retained or captured card is zero. It is stated that whenever the card is inserted in the ATM machine and correct pin code is pressed the card will come out first and the required cash comes out immediately after wards. If for any reason the said processing is not completed; the ATM machine sends a slip stating “transaction declined unable to dispense”. However the machine will not retain the card and card comes out immediately and the card holder should collect it immediately by being present at ATM machine. It is stated that the complainant might not have collected the card at the ATM counter on 19-12-2008 and it might have fallen to the hands of third person who might have fraudulently misused the same at various MES. However OP is no way responsible for the said transactions. <br /> <br /> Annexure – B and C are the Journal Print Transactions dated 03-12-2008 and 22-06-2009 produced by OP to show how it will be recorded in JPT if the card is retained or captured. It is contended for the OP that Annexure – A JPT dated 19-12-2008 does not show that the ATM card of the complainant was retained or captured, but the same shows that “transaction declined unable to dispense” thus it is contended that the allegation that the debit card was retained or captured at ATM machine on 19-12-2008 and since then the same remained in the custody of OP is false and baseless. <br /> <br /> 10. Annexure – A Journal Print Transaction (JPT) dated 19-12-2008 produced by the OP in respect of debit card of the complainant shows that “transaction declined unable to dispense” on that day no ATM card of any customer is captured or retained. Annexure – B JPT dated 03-12-2008 and Annexure – C JPT dated 22-06-2009 produced goes to show that in case the debit card is retained or captured in the ATM machine; the same will be recorded as “retained cards”. The JPT dated 19-12-2008 does not show any cards being retained; as such the case of the complainant that his debit card was captured or retained in the ATM machine cannot be accepted. In case if the same was retained or captured Annexure – A JPT could have clearly shown the same as “retained”. It appears that the complainant soon after receipt of the slip stating “transaction declined unable to dispense” from ATM machine without waiting for the debit card, went inside the bank and the debit card might have fallen to the hands of third person and the same might have been misused at MES. <br /> 11. Annexure – E the letter from card division of OP – bank reveals that the disputed six transactions are dated 19-12-2008; all these six transactions were carried out by making use of the ATM card of the complainant at member establishments of other banks. The main transaction amounting to Rs.10,000/- is carried out at member establishment by name cellular solutions. The said transaction is not a transaction of cash withdrawal. Similarly remaining five transactions of the same date are also not cash withdrawal. When the ATM card has been used at member establishments of other banks on that day itself i.e., on 19-12-2008 it is difficult to accept the case of the complainant that, on that day the ATM card used for withdrawal of the cash was retained or captured in the ATM machine and since then it remained in the custody of OP bank. If the card was retained or captured in the ATM machine there was no possibility of making use of the same card in other member establishment of other banks as shown in the letter of card division branch of OP. The other five disputed entries dated 24-12-2008 relates to debit entries with regard to tips charged in respect of six transactions dated 19-12-2008. The memo filed by the counsel for OP clarifies the same. <br /> <br /> Merely because the entries in the pass book are not date wise chronological relating to these disputed entries it cannot be said that these entries are fraudulent and bogus entries. The transactions in other member establishments of other banks are carried out by making use of the debit card of the complainant on 19-12-2008 itself and the debit entries relating to those transactions are shown for that date itself, but only the tips charged for those transactions are debited on 24-12-2008. In the defence version OP has clarified the reason as to different dates appearing in the pass book regarding the debit is that MEs claimed reimbursement on different dates. Therefore it appears that the entries in the pass book relating to disputed entries are not in chronological order as to date wise. <br /> <br /> 12. The user guide issued by OP - bank with regard to debit card provides that the usage of the debit card is governed by the terms and conditions applicable to canara bank debit card. In this booklet, With regard to any disputes regarding the transactions it is stated at page – 6 that as the transactions are debited online any dispute relating to transaction should be reported to the branch of issue of card within 15 days from the date of transaction. The branch will in turn take up with card division regarding disputed transaction which will take steps for resolving the dispute. <br /> <br /> The disputed transactions are dated 19-12-2008 the complainant has not reported to the OP - bank within 15 days from the date of transaction disputing the said transactions as stipulated in the user guide. The complainant visited OP - bank on 07-01-2009 and at that time he came to know about these disputed entries and requested OP to rectify the same. Annexure – E letter from card division of OP clearly goes to show that the ATM card of the complainant has been used at member establishments of other banks and all those transactions were carried out on 19-12-2008. In the said letter it is stated that all these are txns were from other bank’s merchants; charge slips are not available. In the letter the details of member establishments of other banks where the ATM card was used has been clearly mentioned. Merely because OP - bank is unable to provide charge slips with regard to these transactions; it cannot be said that these disputed entries are fraudulent entries or the officials of OP misused the ATM card of the complainant. Since the card has been used at member establishments of other banks; OP – bank is unable to provide charge slips of those transactions. <br /> <br /> 13. For the letter dated 12-01-2009 exhibit C-3 of the complainant; OP has replied as per exhibit C-4 stating that ATM card has not been retained / captured on 19-12-2008 and the same was informed to the complainant on 07-01-2009 when he visited OP – bank. Further for the legal notice dated 27-02-2009 exhibit C-5 got issued by the complainant, OP got issued reply as per exhibit C-7 denying the allegations regarding the fact that the ATM card was retained or captured on 19-12-2008 by the ATM machine of OP. Under these circumstances we are of the view that the disputed entries in the pass book dated 19-12-2008 and 24-12-2008; are not bogus or fraudulent entries. The ATM card of the complainant has been used by some third person fraudulently in other member establishments of other banks. On 07-01-2009 when the complainant visited OP – bank he was informed about the fact of ATM card being not retained or captured by ATM machine. The card was hot listed suspecting fraud. Earlier to that there was no any intimation regarding the card being lost or misplaced from the complainant; as such the transactions carried out till that date on the basis of that card are binding on the complainant. OP – bank cannot be saddled with any responsibility with regard to those transactions. Therefore we are of the view that the complainant failed to prove the deficiency in service on the part of the OP. In view of the same the complainant is not entitled for any reliefs. Accordingly while answering points No.1 and 2 in negative we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed. In view of nature of dispute no order as to costs. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 20th day of March 2010.) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Snm:<br />