ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaintfiled by the ComplainantU/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service and direct the O.Ps to refund Rs.20,000/- along with interest and compensation of Rs.10,000/- for subjecting him to mental agony and harassment and Rs.15,000/- as damages towards his father who took leave from workplace for attending the matter and for other reliefs as this forum deems fit under circumstances of this complaint. 

2.     The brief facts of the complaint are: Complainant is the account holder ofIDBI Bank who is the 2^nd Op in this complaint.His account no. 0485104000161389 and is having an ATM card bearing 4587 7748 5082 2480. It is alleged that, on 11.07.2017 and on 14.07.2017 he went to the ATM of Indian Bank near Platinum City HMT road Peenya to get Rs.30,000/-.  On 11.07.2017 at the first instance he got Rs.10,000/- .  When he swiped his ATM card to draw further sumof Rs.10,000/- for the second time, it showed the transaction unsuccessful. On 14.07.2017 also when he attempted to draw Rs.10,000/- from his account through the said ATM, the transaction showed unsuccessful whereas when he checked with the accounts, the said Rs.20,000/- has been deducted from his account.He made a complaint to O.P.No.2 on 27.07.2017 as per the feedback and the said failed transaction was declined by the Indian Bank.  He requested the Indian Bank to set it right whereas they directed him to approach the IDBI bank.  After repeated correspondences also, the amount deducted from his account has not been reverted back.  He has corresponded with OP No.1 and 2 several times and inspite of it they have not refunded the amount and hence the complaint.

3.     Upon the service of notice, O.P No.1 and 2 appeared before the Forum and filed their separate version.

4.     In the version filed OP.No.1, it is alleged that the complaint is not maintainable either in law or on facts and it is frivolous complaint made in order to gain wrongfully and to harass OP.No.1.  It has contended that it is not within the knowledge regarding the failed transaction. It is maintaining the ATM mentioned therein and the same is being maintained by MPHASIS (Cash Management Company) and ATM is not in its possession and the keys and the method to access the machine or CCTV in the ATM room is with the said company. The complainant has to approach his bank and they have to settle the matter.  Complainant is not the customer of Indian Bank.  As per the rules and procedure, OP.No.2 the complainant’s banker has to settle the issue.  Complainant has not produced any documents to its banker for settlement.  The complainant failed to approach his bank for proper remedy and blaming OP.No.1 unnecessarily.  Giving camera footage on request, may geoparadise the privacy of other customers using ATM and the complaint is not maintainable against O.P.No.1 and prayed to dismiss the same.

5.     O.P.No.2 filed the objection contending that, the complaint is not maintainable either in law or on facts, whereas the complainant is its accounts holder and ATM card has been issued by it to him. The ATM used by the complainant is being operated by O.P.No.1 through its agency.   Since the transactions has been carried out with the ATM of O.P.No.1., O.P.No.1 has to hold an enquiry regarding the transaction.But for the reasons known to them, the complaint lodged has not been resolved.  Though the complainant sent emails to inform the actual situation, the same was not considered by OP 1 or the agency responsible for maintaining by ATM’s.   The said agency is not made as party to the complaint. It is stated that, it has done its best by writing letters to OPno.1 by raising the dispute regarding decline of transaction.  They have absolutely no role in the said transaction and there is no responsibility on them to compensate the complainant and hence prayed to dismiss the complaint.

6.     In order to prove the case, both the parties filed his affidavit evidence and produced documents. Heard the arguments.The following points arise for our consideration:-

                   1)   Whether the complainant has proved

     deficiency in service on the part of the

                      Opposite Party?

2)  Whether the complainant is entitled to

                       the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative.

POINT NO.2:            Partly in the Affirmative.

                                For the following.

REASONS

POINT No.1:-

8.     On perusing the entire documents produced by the respective parties, it is not in dispute that the complainant is an SB account holder of OP no.2 which has issued ATM card to the complainant for his use. As per Ex C1 the account statement, a sum of Rs.10,000/- was drawn on 11.07.2017 and further sum of Rs.10,000/- on the same day and Rs.10,000/- on 14.07.2017  has been shown as withdrawn from the account. Ex.C2 is the email correspondences  making a complaint of unsuccessful transaction to O.P.No.1 who owns the ATM.   Ex. C3 is also a complaint lodged to the banking ombudsman i.e. Reserve Bank of India regarding the wrongful deduction of Rs.20,000/- from his account.  

9.     O.P.No.1 and 2 have not denied the complainant approaching the ATM for withdrawal and drawing Rs.10,000/- at first instance on 11.07.2017. They have also not disputed the attempt made by the complainant to withdraw Rs.10,000/- on 11.07.2017 and another sum of Rs.10,000/- on 14.07.2017. It is also not their case that, the said two later attempts are false. O.p.No.1 and 2 have not at all come with any particular and definite defence regarding the unsuccessful transaction.  Upon going through the version filed by O.P.No.1 and 2, it is a clear blame game making the other one responsible.The R.B.I guidelines are clear that in case there is no negligence of either the bank or the customer but the fault lies elsewhere in the system the bank has to restore the actual amount involved. It is also made clear in the said directions that, as a gesture of goodwill and to deal with the customer fairly the bank will compensation the customer with Rs.100/- per Rs.5,000/- of the amount involved subject to a maximum ofRs.1,000/- for each instance.   Compensation by way of interest payment were necessary shall be made without any claim from the customer.

10.   When this is taken into consideration, the whole responsibility of refunding the amount i.e. Rs.20,000/- in this case lies on OP.No.2 since it has debited the said amount from the account of the complainant.   There may not be any fault on its part and also no fault on the customer.   In view of the same,inspite of the fact of bringing to the notice of the OP No.1 and also to O.P.No.2, O.P.No.2 has acted in a very careless manner in settling the claim of the complainant.It ought to have refunded the amount within 10 days as per the RBI notification 2017-18/15 DBR No.LEG BC 78/09.07.005/2017-18 dated:06.07.2017at Paragraph 6:-

“LIMITED LIABILITY OF A CUSTOMER

(a) Zero Liability of a customer.

6) A customer entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events:

i) Contributory fraud/negligence/deficiency on the part of the bank(irrespective of whether or not the transaction is reported by the customer).

ii) Third Party breach were the deficiency lies neither with the bank nor with the customer, but lies elsewhere in the system, and the customer notifies the bank within three working days of receiving the communication from the bank regarding the unauthorized transaction.

b) LIMITATED LIABILITY OF A CUSTOMER:

7) …………

9) On being notified by the customer the bank shall credit (shadow reversal) the amount involved in the unauthorized electronic transaction to the customer’s  account within 10 workings days from the date of such notification by the customer (without waiting for settlement of insurance claim, if any). Banks may also at their discretion decide to waive off any customer liability in case of unauthorized electronic banking transactions even in cases of customer negligence. The credit shall be value dated to be as of the date of the unauthorized transaction.

10. Further, banks shall ensure that:

i.  a complaint is resolved and liability of the customer, if any, established within such time, as may be specified in the bank’s
Board approved  policy, but not exceeding 90 days from the date of receipt of the complaint, and the customer is compensated as per provisions of paragraphs 6 to 9 above,

ii. Where it is unable to resolve the complaint or determine the customer liability, if any, within 90 days, the compensation as prescribed in paragraphs 6 to 9 paid to the customer, and

iii. in case of debit card/bank account, the customer does not suffer loss of interest, and in case of credit card the customer does not bear any additional burden of interest.”

And if there is any issue which cannot be resolved at the banks branch level, it ought to have referred to the higher authorities who ought to have taken and resolve the issue within 90 days.

11.   In view of the careless attitude of O.P No.2 in particular, we are of the opinion that there is deficiency in service and negligence on the part of O.P.No.2 in resolving the issueand paying the amount of Rs.20,000/- to the account of the complainant within 10 working days from the date of notification and also not seeking banks boardsapproval within 90 days, we answer POINT No.1  IN THE AFFIRMATIVE.

POINT NO.2:

12.   In view of the same O.P.No.2 is bound to refund Rs.20,000/- to the complainant which it has deducted from his account on the failed ATM transaction along with interest at 12% per annum from 11.07.2017 on Rs.10,000/- and 14.07.2017 on Rs.10,000/- till the payment of the entire amount.

13.   Further not taking the action within the time stipulated, made the complainant to approach this Forum and has to suffer mentally, physically and financially. In view of this, we are of the opinion that if a sum of Rs.5,000/- towards  damages and Rs.5,000/- towards litigation expenses if ordered to be paid by O.P 2 to the complainant would meet the ends of justice.

14.   Since O.P.No.1 is only running the ATM which the complainant has used and it has no responsibility of maintaining the account of the complainant, and as it is not having any account of the complainant, there is no deficiency in service on its part. Hence it is not liable to pay any of the claim made in complaint and complaint against O.P.No.1 is liable to be dismissed and hence we answer Point No.2 PARTLY IN THE AFFIRMATIVE. Hence we pass the following:-

ORDER

1. The Complaint is allowed in part with cost.

2. OP No.2 i.e. IDBI Bank Represented by its Branch Manager/Authorized Signatory is hereby directed to refund Rs.20,000/- to the complainant along with interest at 12% per annum from 11.07.2017 on Rs.10,000/- and 14.07.2017 on Rs.10,000/- till the payment of the entire amount to the complainant.

3. Further the OP No.2 is hereby directed to pay Rs.5,000/- towards compensation and Rs.5,000/- towards cost of the litigation expenses.

4.  The O.P No.2 is hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Complaint against O.P.No.1 is hereby dismissed.

6. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 5^thJANUARY 2019)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex C1: Copy of Pass Book Statement.

Ex C2: Copy of Email correspondences.

Ex.C3: Copy of the Letter addressed by the complaint to banking ombudsman.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1:AbhishekNaini, Assistant General Manager of O.P.No.1.

RW-2: MohitRana, Authorized Signatory of O.P.No.1.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Power of attorney

Ex R2: Copy authorization letter.

MEMBER                        PRESIDENT

A*