BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.32/2013

Dated this the 7^th day of February 2017

(Date of Institution: 28.06.2013)

Sundaram, son of Rangasamy

No.33, 20^th Cross, Avvai Nagar

Lawspet, Puducherry – 605 008.

                                                ….     Complainant

Vs.

The Branch Manager 

ICICI Bank,

87-91, L.A. Complex

(Near Indira Gandhi Square)

Puducherry.

                                       ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. V.V. STEEPHEN, B.A., LL.B.L.,

           MEMBER

FOR THE COMPLAINANT            :  Thiru.S. Vimal,  Advocate.

FOR THE OPPOSITE PARTY          :  Tvl. L. Swaminathan and I. Ilankumar,

      Advocates.

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to order payment of a sum of Rs.15,000/- to the complainant by the opposite parties and to order interest at 18% on Rs.15,000/- from 24.01.2013 till the date of payment of the amount;  to order a sum of Rs.50,000/- towards the mental agony suffered by the complainant due to deficiency in services and order cost of Rs.5,000/-. 

2.  The case of the complainant is as follows:

          The complainant is having a Savings Bank Account bearing No. 623301117519 with the opposite party and also having ATM facility.  On 23.01.2013 a sum of Rs.15,157.62 was the balance amount in the account of the complainant and that he needed money and had availed ATM facility on 24.02.2013 near M/s Latha Steels, Lawspet, Puducherry.  After complying with the formalities the complainant wanted to withdraw an amount of Rs.15,000/- and the request was declined.  The complainant approached the opposite party and complained orally who in turn requested to complaint through e-mail and the same was sent by the complainant on 30.01.2013 and a reply SMS was received from the opposite party that his request has been registered and it will be processed in five working days from the request date.  But, on the same day at 17.41 hrs. the complainant received SMS from the opposite party stating that they were unable to reverse the transaction as it has been paid completely.  The complainant issued a legal notice on 04.03.2013 to the opposite party to reverse the transaction and allow the complainant to withdraw the said amount of Rs.15,000/-.  The said legal notice was received by the opposite party on 07.03.2013 but no reply was sent.  Hence, the opposite party has not rendered service to the satisfaction of the complainant and thus, there is deficiency in service which caused mental agony to the complainant.  Hence, this complaint. 

          3. The reply version filed by the opposite party is as follows:

          The complaint is neither maintainable in law nor on facts.  The complainant only to achieve unlawful gains through suppression materials facts had approached this Forum with unclean hands.  The complainant had availed the services of ATM facility for withdrawal of Rs.15,000/- on 24.1.2013.  The opposite party stated that the complainant alone is responsible for any transaction that takes place in the ATM and the PIN Number for the Debit / Credit Card is known only to the Customer.  Further, if the request of withdrawal of money was rejected, the complainant would have received a slip stating "Transaction decline".  The said slip has not been filed to vouch safe that the amount of Rs.15,000/- has not been received.  Further, on perusal of the Accounts statement dated 28.01.2013 filed by the complainant for the period of 1.12.2012 to 28.01.2013 it could be seen that the complainant had withdrawn amounts on various occasions from the ATM and there is no grievance even remotely pertaining to the utilization of the ATM facility and the complainant is well aware about its usage.  Further, if the said amount of Rs.15,000/- had not been received by the complainant on 24.01.2013, nothing prevented him to approach the opposite party and register a complaint in this regard, but from the complaint it could be seen that the complainant had registered a complaint through e-mail only on 30.1.2013.  Further, if the amount of Rs.15,000/- was decline, the same would have been reversed in the account of the complainant which will be revealed in the account statement.  The complainant being a Retired Chief Telephone Supervisor of BSNL and knowing fully well about the rules and regulations of the Opposite Party Bank more particularly about the usage of ATM, cannot take shelter that he had made oral complaint to the opposite party in this regard without any dates and the same cannot give a cause of action for filing the present complaint.  Further, the query of the complainant was immediately redressed through reply and therefore seeking compensation of Rs.50,000/- towards mental agony due to deficiency in service cannot arise.  The complainant had approached this Forum without cause of action, without relevant documents and legal notice and its acknowledgement would alone not suffice for preferring a complaint.  Hence, prayed for dismissal of the complaint. 

4.       On the side of the complainant, he has chosen to examine himself as CW.1 and marked Exs.C1 to C3.  On the side of opposite party, no witness was examined and no documents were marked. 

5.       Points for determination are:

          1. Whether the complainant is a Consumer?

          2. Whether the opposite party attributed any deficiency in service?

          3. To what relief the complainant is entitled to?

          6. POINT No.1:  

            The complainant is having a Savings Bank Account No. 623301117519 with the opposite party bank and having transactions with them. The  Ex.C1 statement of accounts issued by the opposite party proves that the complainant is having a Savings Bank Account with the opposite party.     Hence, the complainant is the consumer.

            7. POINT No.2:

            The complainant was examined as CW1 and marked Exs.C1 to C3.  The Opposite Party filed reply version, however no oral or documentary evidence was let in.   The complainant submitted that he is having a Saving Bank Account with the opposite party and he had made several transactions.  The complainant also withdrawn cash through ATM.        While so, on 23.01.2013, there was a balance of Rs.15,157.63 in his account and that on 24.01.2013 he wanted to withdraw a sum of Rs.15,000/- from the ATM situated near Latha Steels, lawspet, Puducherry but his request was declined.  It is alleged by the complainant that he lodged a complaint through e-mail with the opposite party on 30.1.2013 and the same was replied through SMS to the complainant that the opposite party was unable to reverse the transaction as it has been paid completely.   The complainant issued a legal notice dated 04.03.2013 vide Ex.C2 to the opposite party who also received the same on 7.3.2013 vide Ex.C3 acknowledgement, but did not reply for the same.  The complainant alleged that the act of the opposite party amounted to deficiency in service and he suffered mental agony and has filed this complaint.

          8. On the other hand, the opposite party alleged by way of Reply Version that the complainant has suppressed material facts.  The complainant availed the services of ATM facily for withdrawal of Rs.15,000/- on 24.01.2013 and that the complainant alone is responsible for any transaction that took place in the ATM and the PIN Number for the Debit / Credit Card is known only to the customer.  It is alleged by the opposite party that the complainant would have received a slip stating "Transaction Declined".  The said slip has not been filed before this Forum to vouch safe that the amount of Rs.15,000- has not been received.  Further alleged that on perusal of statement of accounts Ex.C1 filed by the complainant for the period 1.12.2012 to 28.01.2014, it could be seen that the complainant had withdraw amounts on various occasions from the ATM.  Further, the complainant himself admitted that the opposite party has registered his complaint on 30.1.2013 and replied on the same day itself and hence, there is no deficiency in service on the part of opposite party.  The opposite party further alleged that the complainant approached this Forum without any cause of action and without any proof.   The legal notice and its acknowledgement alone would not suffice for preferring a Consumer Complaint.  Hence, prayed for dismissal of the complaint.

          9.  From the above facts and evidence adduced by the complainant, it is clear from Ex.C1 that the complainant is having a Savings Bank Account with the  opposite party and  the complainant was given the facility of utilizing the ATM to enable him to withdrawn the cash from ATM.  The Ex.C1 statement of account shows that on 23.01.2013 a sum of Rs.15,000/- was credited into his account and on 24.01.2013 a sum of Rs.15,000/- was debited and the remaining balance was Rs.157.63.  The allegation rasied by the complainant is that the above mentioned sum of Rs.15,000/- though not disbursed by the ATM on 24.01.2013, it was made a debit entry in his account.  The above said contention was resisted by the opposite party alleging that if aforesaid ATM transaction was declined, it would have issued a receipt stating that the transaction declined, the said receipt was not produced by the complainant and in order to get illegal gain, has filed this complaint.    In order to establish the case, the complainant has filed a petition in M.P. No. 117/2015 for directing the opposite party to produce the statement of account for the relevant day on 24.01.2013 of the concerned ATM of opposite party from 7.00 a.m. to 7.00 p.m. from their Central Data Centre and also the relevant video footage of the concerned ATM of the relevant date and time, for which the opposite party  filed counter and stated that the memory of the video footage in any of the ATM centres would remain only for a month's time and thereafter over-writing of the video footage would take place.  Further stated that the complainant cannot seek a document which has become dormant / inexistent.   The complainant has adduced evidence before this Forum in support of his contention of having not received the money from the ATM on 24.01.2013.  Further the complainant in his evidence has stated that "There is no slip that came out from the ATM machine after the transaction that took place on 24.01.2013".  When this is the factual position, the burden of proof shifts on the shoulder of opposite party to produce their records that the cash was disbursed to the complainant on the alleged date through the alleged ATM.  Further, the opposite party did not come forward before this Forum to enable the complainant to cross-examine them.  There is enough evidence let in by the complainant about non-receipt of money from the ATM, the same was not rebutted by the opposite party either by giving any documentary or oral evidence.  Since the opposite party did not produce the relevant records and evidence before this Forum though they are very much available with the opposite party, an adverse inference could be drawn against the opposite party.  Further, the complainant has informed about the non-receipt of money from the ATM to the opposite party.  If at all any complaint comes from the withdrawal of money from ATM, the opposite party has to take the footage of the ATM and the disputed transaction has to be kept in custody.  The opposite party himself stated that the video footage would remain only for a month's time.  Hence, nothing prevented the opposite party to take and keep the footage of the ATM on the alleged date i.e. on 24.01.2013 to establish their case.  Thus the Opposite Party has failed to rebut the claim of the complainant with substantial evidence.  The adverse inference drawn against the opposite party and the benefit goes to the complainant.   Hence, the complainant is entitled to claim compensation from the opposite party for loss of money and mental agony and the Opposite Party is liable for their negligent act and deficiency in service.

10.     Point No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed and the Opposite Parties are directed  

1. To recredit the amount of Rs.15,000/- and make reversal entry in the account of the complainant.
2. To pay a sum of Rs. 10,000/-  as compensation to the complainant for the deficiency in service and for the negligent act.
3. To pay a sum of Rs.5000/- as cost of the proceedings.

Dated this the 7^th day of February 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          05.09.2014           Sundaram

OPPOSITE PARTY'S WITNESS:  Nil

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: Nil

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER