This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Thimayya against the Opponent-Chief Manager State Bank of Hyderabad Branch Raichur. The brief facts of the complaint are that: The complainant is an employee in GESCOM and customer of O.P. Bank holding ATM Card with A/c. No. 62002448530. He operated his Account twice on 07-04-06 and with-drew in all Rs. 10,000/- (Rs. 5,000/- each). Accordingly his account was debited for Rs. 5,000/- each on 07-04-06 and excepting the said withdrawals on that day he has not made any other withdrawals. On 03-10-06 surprisingly he was not allowed to make further withdrawals by the O.P. Bank and upon persistent enquiries the O.P. Bank stated that his account has been debited with a sum of Rs. 5,000/- on the said date i.e, 07-04-06 that ATM disbursed the said amount on the same day but not debited the account. It is worth-while to mention that on 07-04-06 he made only two withdrawals of Rs. 5,000/- each which have been properly debited to his account. It is very astonishing to note that the alleged 3rd withdrawals came to be debited on 03-10-06 and therefore the story put-forth by the O.P. Bank cannot be believed. Further if the said withdrawal is made on 07-04-06 then it ought to have been re-flexed in the account of the complainant along with above said two withdrawals. Therefore O.P. Bank ought not to have been debited his account with Rs. 5,000/- on 03-06-06 which is illegal. Even in-spite of the repeated requests made by him the O.P. have not cared to credit the said sums of Rs. 5,000/- to his account. Thus there is a deficiency in service, will-full negligence, unfair tactics with full of faults and imperfection in the service on the part of the O.P. The complainant got issued the Legal Notice on 04-11-06 by Registered Post Acknowledgement Due by providing an opportunity to the O.P. to pay the said amount Rs. 5,000/- together with damages of Rs. 2,000/- within (7) days. But O.P. Bank he has sent a false reply and dis-owned its liability. Hence for all these reasons the complainant has sought for refund of Rs. 5,000/- together with damages of Rs. 2,000/- along with interest at 24% p.a. from 03-10-06 till realization. 2. In response to service of notice of the complaint issued by this Forum the O.P. Bank remained absent when called out on 19-07-07. Hence O.P. Bank has been placed Ex-parte. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief and got marked (4) documents at Ex.P-1 to P-4. 3. Heard the arguments of counsel for complainant and perused the records. The following points arise for our consideration and determination: 1.Whether the complainant proves deficiency in service by the Opponent, as alleged.? 2.Whether the complainant is entitled for the reliefs sought for? 4. Our finding on the above points are as under:- 1.In the affirmative. 2) As per final order for the following. REASONS POINT NO.1 :- 5. The complainant has produced office copy of Legal Notice dt. 04-11-06 at Ex.P-1, Reply to the legal notice by the O.P. Bank dt. 11-11-06 at Ex.P-2, Extract of Statement of Account issued by the O.P. Bank (enclosed to the reply notice) at Ex.P-3 and Extract Statement of ATM A/c. of the complainant bearing A/c. No. 62002448530 issued by the O.P. Bank at Ex.P.4. In the reply letter at Ex.P-2 it is contended by the O.P. Bank that the complainant had made three withdrawals on 07-04-06 but not twice as stated in the Legal Notice. The statement of his account clearly shows that two withdrawals are duly debited. But when he made third withdrawal on same day ATM has dispensed cash though Account Holder (complainant) did not have sufficient balance in his A/c. by debit to their Internal A/c. No. 98581202031 (CASH DISPENSED - A/C. NOT DEBITED ACCOUNT) as seen from the enclosed Extract of Internal A/c. No. 98581202031 (of O.P. Bank). It is further stated in the reply notice that when the ATM officer of the Bank noticed this aberration, he marked a lien to the A/c. on 02-08-06 and lifted the same on 03-10-06 when the amount was properly debited to the account of the complainant. Therefore the amount of Rs. 5,000/- debited to the complainants account is just, proper and legal and so the question of crediting Rs. 5,000/- to the A/c. of the complainant did not arise. The officer of the O.P. Bank have convinced this fact to the complainant several times but he has not preferred to listen properly, so there is no deficiency in service and there are no lapses on the part of the O.P. Bank as contended. 6. Ex.P-4 is the Extract of Statement of A/c. of the complainant bearing No. 62002448530. This Extract of A/c. shows opening balance of Rs. 11,313/- as on 07-04-06. It further shows two cash withdrawals @ of Rs. 5,000/- on 07-04-06 namely: one withdrawal of Rs. 5,000/- under ATM Card NO. 5044352020300037756 and after debiting Rs. 5,000/- the balance is shown at Rs. 6,313/-. On the same date we find the second withdrawal of Rs. 5,000/- under same Card number and after debiting this sum the balance is shown at Rs. 1,313/-. The Third entry in this account is dt. 28-04-06 which is a credit entry of salary of Rs. 2,250/- and balance is shown at Rs. 3,563/-. The Fourth entry dt. 09-05-06 shows debit entry of Rs. 2,500/- showing balance at Rs. 1,063/-. The Fifth entry dt. 30-05-06 shows credit of Rs. 2,524/- (by salary) showing the balance at Rs. 3,587/-. The Sixth entry dt. 01-06-06 is debit entry showing the withdrawal of Rs. 2,500/- by leaving a balance at Rs. 1,087/-. The Seventh entry dt. 30-06-06 is a credit entry of interest of Rs. 34/- showing the total balance at Rs. 1,121/-. The Eighth entry dt. 29-07-06 shows credit entry of Rs. 2,564/- (by salary) and on the same day i.e, 29-07-06 we find Ninth entry of withdrawal of Rs. 2,500/- by leaving a balance of Rs. 1,185/-. The Tenth entry dt. 29-08-06 showing credit entry of Rs. 2,801/- (by salary) showing the balance of Rs. 3,986/-. The Eleventh entry is dt. 27-09-06 showing credit entry of Rs. 2,731/- (by salary) showing the balance of Rs. 6,717/-. The Twelveth entry dt. 03-10-06 is debit entry of Rs. 5,000/- is showing withdrawal transferred- ATM Cash Disbursed Transferred to 0098541202038 showing the balance of Rs. 1,717/-. 7. Ex.P-3 is the computerized extract of Statement of Cash Disbursed But A/c. not debited. This Extract shows entries of withdrawal of certain amount on 07-04-06 through ATM card- holders and one among them we find a transaction of cash disbursement of Rs. 5,000/- to the complainants SB A/c No. 62002448530 on 07-04-06. But however the O.P. Bank Internal A/c. No. 98581202031 is a hand written on the extract of Statement of A/c. 8. The Learned Counsel for the complainant argued that on 07-04-06 the complainant had a bank balance of Rs. 11,313/- only as per extract of his S.B. A/c. issued by the O.P. Bank at Ex.P-4 and out of this sum on 07-04-06 the complainant had withdrawn Rs. 5,000/- each on two times by operating ATM Card which has been debited to his S.B. A/c. by leaving a balance of Rs. 1,313/- only and so there was no occasion for third withdrawal of Rs. 5,000/- on that day i.e, 07-04-06. Even the O.P. Bank has not shown the alleged 3rd withdrawal of Rs. 5,000/- in his account, as could be seen in the Extract of A/c. at Ex.P-4. So the story of the O.P. Bank in the reply notice at Ex.P-2 that the complainant made three withdrawal of Rs. 5,000/- each on 07-04-06 and when he made 3rd withdrawal ATM had dispensed cash though the A/c Holder (complainant) did not have sufficient balance in his A/c by debit to their (O.P Bank) Internal A/c. No. 98581202031 and that their ATM Officer when noticed this aberration he made a lien to the S.B. A/c. of complainant on 02-08-06 and lifted the same on 03-10-06 when the amount was properly debited to the account of the complainant, does not stand to reason. Further no intimation or notice was given to the complaint in this regard. 9. The Learned Counsel further argued that as per the Users Manual of ATM-Cum- Debit Card issued by the State Bank Group Banks, the Debit Cards service is meant for withdrawals against the balance already available in the account of the Card Holder whose obligations is to maintain sufficient balance in his A/c. to meet withdrawals and service charges. In-support of his arguments he has relied on the literature User Manual State Bank Cash ATM- Cum - Debit Card at Para- L of terms and conditions under which the ATM Debit Card has been issued. (9-A) We have gone through the literature User Manual of ATM-Cum-Debit Card. Para/clause L of User Manual ATM-Cum-Debit Card, as referred to by the L.C. states that the Debit Card service is meant for withdrawals against the balance already available in the designated account. It is the Card Holders obligation to maintain sufficient balance in the designated account to meet withdrawals and service charges. This condition L impliedly goes to show that the operation of ATM Cards for withdrawal of the amount is only against balance already available in his account with the bank. Clause C & D of terms and conditions also bears important. Clause C under the head DEBIT TO THE CUSTOMERS ACCOUNT states that the Bank has authority to debit the designated account of the Card Holder for all withdrawals effected by the Card Holder by using the Card as evidenced by Banks records which will be conclusive and binding on the Card Holder. Clause D under the head TRANSACTIONS states that the transaction record generated by the ATM or POS will be binding and conclusive unless verified other wise and corrected by the Bank. The verified and corrected amount will be binding on the Card Holder. 10. With the background of clause C, D & L, let us consider the statement of account of the complainant-card holder. As discussed earlier this statement at Ex.P-4 shows about (12) entries/transactions from 07-04-06 to 03-10-06. The first transaction dt. 07-04-06 shows two withdrawals of Rs. 5,000/- each by operation of ATM Card bearing No. 5044352020300037756 totaling to Rs. 10,000/- by leaving a balance of Rs. 1,313/- in his account. This statement of account does not show the third withdrawal of Rs. 5,000/- by operation of ATM Card. As stated supra the O.P. Bank in-spite of service of notice by this Forum has not appeared and remained absent as discussed above. The O.P. Bank in their reply notice dt. 11-11-06 addressed to the counsel for the complainant have stated that on 07-04-06 the complainant had made three withdrawals and that when the complainant made third withdrawals ATM has dispensed cash though the complainant did not have sufficient balance in his account by debit to their (banks) internal A/c. No. 98581202031 and when their ATM officer noticed this aberration he marked a lien to account on 02-08-06 and lifted the same on 03-10-06 when the amount was properly debited to the account of the complainant as shown in extract of statement of A/c. at Ex.P-3. As discussed above this statement of A/c. at Ex.P.3 a perusal of which shows it is computerized statement of A/c. but the banks Internal A/c. No. 98581202031 is a hand written one. According to reply notice at Ex.P-2 if the complainant had made three withdrawals on 07-04-06 and for third withdrawal the ATM Card has dispensed cash by debit to their alleged internal A/c. No. 98581202031 as the complainant had no balance at his credit, then in the usual course of its business O.P. Bank ought to have been noticed at least on the next date of operation of ATM Card by complainant/card-holder which was made on 01-06-06 as could be seen from statement of A/c. at Ex.P-4 which shows the withdrawal of Rs. 2,500/- on 01-06-06 by operation of ATM Card No. 5044352020300037756 at which time the complainant had a balance of Rs. 3,587/-. But according to the reply notice, the ATM officer noticed the aberration only on 02-08-06 and lifted the same on 03-10-06 even there is no intimation made to the complainant in this regard and no explanation is coming forth. Even we do not find any whisper in the Instructions Book like Users Manual of ATM-Cum-Debit Card regarding DISPENSATION OF CASH BY BANKS Internal A/c. No. (A/c. No.98581202031) in case the Card Holder had no sufficient balance in his account and subsequently debiting to A/c. of Card holder. But as stated supra, the clause Lof Users Manual stating that the debit card service is meant for withdrawal against the balance already available in the designated account and it is the obligation of card-holder to maintain sufficient balance to meet withdrawal and service charges meant that for debit card service, card holder must have sufficient balance in his A/c. If this is so how the ATM has dispensed cash of Rs. 5,000/- by debit to the Internal account of the O.P. Bank and it was noticed by ATM Officer only after lapse of four months after the alleged third withdrawal and that too after withdrawing of Rs. 2,500/- by ATM Card on 01-06-06 as seen from extract statement of A/c. at Ex.P-4. This in-action on the part of the O.P. Bank is contrary to the Instructions of Clause C & D of Users Manual of ATM-Cum-Debit Card as discussed above. Further it is significant and also astonishing to note that the O.P. Bank in-spite of service of notice of the complaint issued by this Forum has failed to appear and has remained absent and thus O.P. Bank have not refuted the allegations made against them in the complainant. This is also one of the circumstances leads to interference that they have no defence to rebut the case of the complainant. Hence for all these reasons we find deficiency in service by the O.P. Bank and thereby we hold that the complainant has proved deficiency of service and so Point No-1 is answered in the affirmative. POINT NO.2:- 11. The complainant has sought for direction to the O.P. to pay the sum of Rs. 5,000/- debited from his S.B. A/c. towards alleged third ATM Card withdrawal and sought for damages of Rs. 2,000/- with interest at 24% p.a. from 03-10-06. So far as the first claim is concerned, in-view of our discussion and finding on Point No-1, the complainant is entitled for refund of Rs. 5,000/- debited from his account on 03-10-06 at Ex.P-4. So far as the relief of damages of Rs. 2,000/- and claim of interest at 24% p.a. is concerned, having regard to the facts and circumstances of the case and our finding & conclusion on Point NO-1, we hold it just and proper to award a global compensation of Rs. 1,500/-. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part. The Opposite Party shall refund Rs. 5,000/- along with global compensation of Rs. 1,500/- The Opposite Party shall comply this order within six weeks from the date of receipt of copy of this order. Office to furnish certified copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 13-09-07) Sd/- Sd/- Sri. Vishwanath Yekkelli, Sri. N.H. Savalagi, I/C. Member, President, District Consumer Forum-Raichur. District Consumer Forum-Raichur.
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