IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 390/08 DATED 16.02.2009<br /> <br /> ORDER<br /> <br /> Complainant Smt.Padmavathi.B.S., W/o Jayanth, R/at No.1287, E & F Block, Kuvempunagar, <br /> Mysore-23.<br /> (By Sri.Jaganath Suresh Kumar, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Manager, ICICI Bank, No.2950, Kalidasa Road, Mysore.<br /> (By Sri.Gerald Castelino, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 05.12.2008<br /> Date of appearance of O.P. : 01.01.2009<br /> Date of order : 16.02.2009<br /> Duration of Proceeding : 1 ½ MONTHS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant in brief is, that she is an account holder maintaining an account with the opposite party also having a credit card of that branch. As on 28.02.2007 she maintained a balance of Rs.6,748/- in her account. On 01.03.2007 at 8.00 pm she attempted to withdraw some money at ATM counter near Somani College, Kuvempunagar, Mysore, but, the ATM machine did not tender money. Then she tried to withdraw money from another machine and was able to draw Rs.4,000/- and Rs.2,000/- together Rs.6,000/- leaving the balance in her account Rs.748/- only as on that day. That her cousin had transferred Rs.6,250/- to her account on 11.06.2007, but to her surprise in the subsequent statement of the opposite party, she found debiting of Rs.5,000/- from her account and when she questioned the opposite party, he had told him that she had withdrawn Rs.5,000/- through ATM on 01.03.2007 at 11.03 pm and therefore that amount was debited. She has contended that she could not have withdrawn a sum of Rs.5,000/- on that day, when she had only balance of Rs.748/- in her account. After she came to know the wrong debiting of Rs.5,000/- from her account, she gave representation to the opposite party on 30.06.2007 and she received a reply from the opposite party on 25.07.2007 expressing his inability to reverse the transaction. Then she sent another letter to the opposite party on 04.08.2007, 01.09.2007 and on 14.10.2007 to rectify the mistake committed by the opposite party, but they did not response to it and therefore stated that the opposite party has caused deficiency in their service and thus has prayed for a direction to the opposite party to reverse the debiting entry by giving credit of Rs.5,000/- to her account with interest and to award damages with cost.<br /> <br /> 2. The opposite party has entered appearance through their advocate and filed version admitting this complainant maintaining an account in their branch and the cash balance she had Rs.6,748/- as on 01.03.2007, but stated that after the complainant withdrew Rs.6,000/- on 01.03.2007 due to power failure or technical snag or snapping of the ATM, the withdrawal actually did not reflect in the said ATM and therefore even though the credit balance of Rs.748/-, but it did not reflect in the account through machine. Therefore, the complainant taking advantage of that snag has withdrawn Rs.5,000/- after about 3 hours on the same day, that is at 11.03 pm. They after finding a credit entry into the account of the complainant on 11.06.2007 for a sum of Rs.6,250/- they debited Rs.5,000/- to her account to adjust Rs.5,000/- drawn by the complainant as stated above. Therefore, stated that they have not committed any deficiency in their service and the complainant since had withdrawn more money then what was in her credit a sum of Rs.5,000/- came to be debited later on and thus has prayed for dismissal of the complaint.<br /> <br /> 3. In the course of enquiry into the complaint, the complainant and the Branch Manager of opposite party have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced extract of the account maintained in the opposite party branch and she has also produced copies of letters she had addressed to the opposite party and legal notice she got issued. Heard the counsel for both the parties and perused the records.<br /> <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the opposite party proves that the complainant on 01.03.2007 at 11.03 pm withdrew a sum of Rs.5,000/- in addition to already drawing a sum of Rs.6,000/- on the same day?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> 5. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : See the final order.<br /> REASONS<br /> <br /> 6. Point no. 1:- The claim of the complainant that she has maintained an account with the opposite party with credit balance of Rs.6,748/- on 01.03.2007 and she withdrew a sum of Rs.6,000/- on that day leaving the balance of Rs.748/- is not disputed by the opposite party. Further, the case of the complainant that her cousin had transferred a sum of Rs.6,250/- to her account on 11.06.2007 is also not in dispute. But, dispute arose when the opposite party debited a sum of Rs.5,000/- from the account of the complainant after the complainant’s cousin remitting Rs.6,250/- to her account. On the ground that the complainant had withdrawn excess of Rs.5,000/- which is seriously disputed by the complainant. The complainant after coming to know this debiting of Rs.5,000/- from her account addressed a letter to the opposite party on 30.06.2007 narrating the transaction she did on 01.03.2007 and debiting of Rs.5,000/- from her account is fraudulent and wrongful. Thereafter, the complainant again on 04.08.2007, 01.09.2007, 14.10.2007, 02.11.2007 through letters and a legal notice dated 28.05.2008 went on reminding the opposite party to set right the irregularity committed by the opposite party in debiting a sum of Rs.5,000/- from her account. But, the opposite party it appears to had informed the complainant expressing their inability to reverse the entry probably justifying their action of debiting Rs.5,000/-.<br /> <br /> 7. As could be seen from the objection of the opposite party, even after lapse of more than a year, they are not in a position to identify the exact problem as to what had happened with regard to the alleged withdrawal of Rs.5,000/-. The opposite party in a very speculative way have contended as if as on 01.03.2007 the ATM machine had either a technical snag or power failure or snapping of the ATM, thus the ATM machine did not reflect the correct balance left after withdrawal of Rs.6,000/- by the complainant. When the opposite party received complaints of the complainant right from 310th June 2007 they could have by this time investigated as to the defect in the machine because of which the credit balance could not be reflected. They should have by way of investigation find out whether ATM machine did not function properly due to power failure or due to technical snag or snapping. But, without ascertaining the cause for such alleged mall functioning of the ATM machine have come up with a plea as if the machine did not reflect the credit balance and that the complainant by taking advantage of it has withdrawn that amount. The opposite party has not even produced the statement of ATM machine, which reflect the ATM card through which the amount was withdrawn the timing of amount withdrawn and credit balance. There was no difficulty for this opposite party to secure the statement of ATM machine of that particular date to prove the excess withdrawal of that amount by the complainant. Right from 01.03.2007 till this day, it seems that the opposite party has slept over the matter or forgotten to probe into the alleged excess withdrawal or fraudulent withdrawal as contended by the complainant. But, found to have satisfied by debiting Rs.5,000/- from the account of the complainant without assigning any reasons and without taking up the investigation into that matter to its logical end. Thus, the opposite party in our view has absolutely failed to prove excess withdrawal of Rs.5,000/- by the complainant. Even, as could be seen from the account extract issued by the opposite party in favour of the complainant, it is shown that the complainant on 01.03.2007 at the first attempt withdrew Rs.4,000/- out of Rs.6,748/- leaving the balance of Rs.2,748/- again on the same day she has withdrawn another Rs.2,000/- leaving the cash balance of Rs.748/- only. At that time, it appears there was no problem in the ATM machine because it has reflected the correct picture of the transaction. But, as evident again on the same day, the complainant alleged to have withdrawn Rs.5,000/- and the balance in her account shown as Rs.4,252/- that could not be, because the complainant as on that date had only credit balance of Rs.748/- and she could not have withdrawn Rs.5,000/- even after alleged withdrawal there could not have been the credit balance of Rs.4,252/-. Again the statement show the credit balance which seems without any basis. Assuming that there was some problem in the ATM machine, the opposite party for all these years should have investigated and find out whether there was such problem and when it was rectified and what steps they have take to correct the wrong withdrawals that were done on that day, nothing is coming out from them. Thus the act of opposite parties is debiting the amount without problem is improper amounts to deficiency in their service, with the result we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The opposite party is directed to give credit of Rs.5,000/- to the account of the complainant within 30 days from the date of this order with interest at 8% p.a. from the date of that wrong debiting of Rs.5,000/- till the date of crediting.<br /> 3. The opposite party is also directed to pay cost of Rs.1,000/- to the complainant.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 16th February 2009)<br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />