BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 11/07/2011

Date of Order : 29/05/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

C.C. No. 367/2011

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :

The complainant availed himself of an ATM Card from the opposite parties in his S.B. Account bearing No. 2339101006046. On 15-02-2010, the complainant attempted to withdraw an amount of Rs. 2,000/- from the ATM Kiosk of the 1^st opposite party. However, the complainant neither received the amount nor any transaction slip. Again on 24-02-2010, the complainant attempted to withdraw an amount of Rs. 2,000/- from the very same ATM Kiosk. The result was the same. The complainant submitted his account pass book for updating on 31-03-2010 with the 2^nd opposite party. On verification, it was found that an amount of Rs. 4,000/- was debited from the account whereas in fact the complainant had not withdrawn the said amount. The complainant preferred a written complaint with the opposite parties on 05-04-2010 to which the 1^st opposite party gave a reply on 25-02-2011. Thereafter, the complainant filed a complaint before the Banking Ombudsman. The Banking Ombudsman did not consider the grievances of the complainant. Thus, the complainant approached this Forum seeking direction against the opposite parties to pay Rs. 4,000/- which was incorrectly debited for the S.B. Account together with compensation of Rs. 10,000/- and costs of the proceedings.

2. The version of the opposite parties :

The transactions under dispute were successful and there was no excess cash on the dates of transaction as is evident from the various records such as ATM transaction reports dated 15-02-2010 and 24-02-2010 journal print out, cash verification report and switch log report etc. available with the opposite parties. The complainant failed to produce any document to show that the transactions under dispute were not successful as alleged. There is neither negligence or deficiency in service on the part of the opposite parties.

3. The complainant and his witness were examined as PW's 1 and 2. Exts. A1 to A5 were marked on the side of the complainant. The 2^nd opposite party was examined as DW1. Exts. B1 to B6 were marked on the part of the opposite parties. Heard the complainant who appeared in person and the learned counsel for the opposite parties.

4. The points that arose for consideration are as follows :

1. Whether the complainant is entitled to get Rs. 4,000/- from the opposite parties being the amount debited in the S.B. Account of the complainant?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- According to the complainant, he tried unsuccessfully to withdraw Rs. 2,000/- each from the ATM of the opposite parties on 15-02-2010 and 24-02-2010, but he did not receive the amounts in spite the said amount had been debited in his S.B. Account. The opposite parties maintain that the transactions of the complainant were successful and the complainant has no cause of action to file this complaint.

6. Both sides stick to their respective contentions naturally. Prima-facie, Exts. B1 to B6 go to show that the complainant's attempt to withdraw Rs. 2,000/- each on 15-02-2010 and 24-02-2010 were successful and he has received the amount. During evidence, the complainant stated that while he was attempting to withdraw money from the ATM, the door of the cash dispenser was not opened. DW1 stated that since the code has been stated in the print out after the dispensation of the cash it can be presumed that the transactions were successful. Admittedly, the documents submitted by the opposite parties are prepared and maintained by them. Since, there is no proper certification under Section 73 A of the Indian Evidence Act 1872. We are not to rely on documents submitted by the opposite parties. Now, the option open to this Forum is to verify the Video recording of the date of transactions. The complainant filed I.A. 607/2011 seeking direction against the opposite parties to produce the video recording of the transactions of the complainant at the relevant dates. In reply to the said petition, the opposite parties stated that their particular ATM machine is not under the surveillance of video recording, reasons not mentioned which only goes that the contentions of he complainant has to be upheld. There non-installation of video recording amounts to laches and lapse on the part of the opposite parties which has not been accounted for.

7. Ardently, adhering to law as called for this situation would not have arisen unfortunately not. In the absence of any evidence to the contrary, which the opposite parties have miserably failed to substantiate, we are of the view that they are liable to refund Rs. 4,000/- to the complainant with interest.

8. Point No. ii. :- However, the complainant has had to expend amounts for costs of which we are of the deliberate opinion that Rs. 1,000/- would meet the ends of justice. The prayer for compensation is declined for reasons that the primary grievance of the complainant has been met squarely.

9. In the result, we partly allow the complaint and direct as follows : i. The opposite parties shall jointly and severally pay Rs. 4,000/- to the complainant with interest @ 12% p.a. from the date of complaint till realisation.

ii. The opposite parties shall also pay a sum of Rs. 1,000/- to the complainant towards costs of the proceedings.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29^th day of May 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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