BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.76/2018

DATED ON THIS THE 19^th September 2018

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

                     2) Sri. Devakumar.M.C.                   

                                                B.E., LLB., PGDCLP   - MEMBER

Sri. Devakumar,M.C.

Member

1.     The complainant filed the complaint under section 12 of the C.P.Act 1986, against the opposite parties, alleging deficiency in service and seeking a direction to pay Rs.15,000/- debited to his S.B.Account and to pay Rs.15,000/- towards mental agony, inconvenience and to pay Rs.2,000/- towards cost of litigation.
2.     The complainant on failure to withdraw a sum of Rs.10,000/- from opposite party No.2’s ATM and on receipt of SMS messages about debit and credit of same amount from opposite party No.1, on 20.12.2017, he again attempted twice to withdraw a sum of Rs.10,000/- and Rs.5,000/- respectively.  But, the money was not dispensed with, even then he received SMS messages from opposite party No.1 about debit of the said amount.  A complaint was lodged with opposite party No.1 and 2.  Aggrieved with the untenable reply, complaint was filed seeking reliefs.
3.     Opposite party No.1 in their version, admitted that, as per record, the ATM dispensed a sum of Rs.10,000/- and Rs.5,000/- respectively on 2^nd and 3^rd attempt by the complainant.  So, the complainant received SMS messages relating to debit of the amount from his S.B. account.  Therefore, the amount was not credited back to his S.B. account.  The allegation of non-availability of cash in ATM was denied.  In response to the complaint lodged on 28.12.2017 by the complainant, the opposite party No.2 through an E-mail, intimated the complainant about rejection of claim and remittance of the amount to opposite party No.1 account, on the grounds of successful transaction of ATM.  Hence, denies the allegations and prays for dismissal of the complaint.
4.     The opposite party No.2 denied the allegations in their version and submit there was sufficient cash in ATM.  The CCTV footage discloses the entry of persons, not the withdrawal of amount and other related transactions.  The electronic journal log confirmed the transaction as successful and hence denies the allegation and prays for dismissal of complaint.
5.     To establish the facts, both side parties filed affidavit evidence and relied on several documents.  Opposite party No.1 filed written arguments.  Heard the oral submissions of complainant and opposite party No.2.  Perused the material on record and posted for orders.
6.     The points arose for our consideration are:-

1. Whether the complainant establishes the deficiency in service by the opposite parties, for not crediting the amount, towards non-dispensed amount by the ATM of opposite party No.2 in spite of complaining the same to opposite party No.1 and thereby he is entitled for the reliefs sought?
2. What order?

7.    Our findings on the aforesaid points are as follows:

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order, for the following

:: R E A S O N S ::

8.    Point No.1:- The complainant, a senior citizen, holds an S.B. account with opposite party No.1 bank and obtained a debit card from opposite party No.1, had used the debit card to withdraw a sum of Rs.10,000/- on 20.12.2017, but no amount was dispensed with.  Still he received an SMS message from his banker, i.e. opposite party No.1 stating debit of Rs.10,000/- from his S.B. account and within few second he received another SMS message stating the amount (Rs.10,000/-) has been credited back to his S.B. account.
9.    The complainant again tried to withdraw a sum of Rs.10,000/- but no cash was dispensed from the same ATM.  Even then, he received an SMS from opposite party No.1 bank, stating debit of Rs.10,000/- from his S.B. account.  But, the same was not credited to his S.B. account.
10. Once again, the complainant attempted to withdraw sum of Rs.5,000/-, using the debit card, then also he failed to receive the cash.  Even then, he received an SMS message from opposite party No.1, stating a sum of Rs.5,000/- debited from his S.B. account and the same also was not credited to his S.B. account.
11. He waited for few days, alleging that there was no cash in the ATM and anticipating auto reversal of the amount to his S.B. account later.  On 28.12.2017 filed a complaint with opposite party No.1 bank, seeking reliefs.  After 10 days, he learnt that his complaints were closed without giving any reasons.
12. Subsequently, an E-mail was received from opposite party No.1, on 30.01.2018, stating the opposite party No.2 rejected the complainant’s claim twice and refused to remit the amount back to opposite party No.1, on the grounds the ATM transactions were successful, as such refused to credit the amount to complainant’s S.B.Account.  As such, the complainant sought for CCTV footage of opposite party No.2’s ATM to ascertain the truth, the aggrieved alleged deficiency in service and filed the complaint and sought for the reliefs.
13. The opposite party No.1 admitted the ATM Kiosk located at JLB Road, adjacent to Hotel Jade Garden and the same belonged to opposite party No.2.  It is strongly contended that, the cash was dispensed by the ATM machine on both the occasions when the complainant attempted to withdraw the amount (i.e. Rs.10,000/- and Rs.5,000/-) using his debit card.  As such, debit messages were delivered and no credit of the amount to S.B. Account was made.  The non-availability of cash in the ATM machine at the time of withdrawal of the amount has been denied as false.  Therefore, denied the allegation of deficiency in service and prayed for dismissal of the complaint.
14. The opposite party No.2 contended that, they have no nexus with the complainant and no deficiency in service by them and hence only opposite party No.1 liable to compensate the complainant.  The electronic journal log confirmed that the complainant only had drawn the amount and the transaction was completed.  As per the electronic journal log there were transaction even before and after the complainant attempted to withdraw the cash, as such, non-availability of cash in ATM machine is denied.  Thereby, the allegation of deficiency in service is denied and prays for dismissal of the complaint with costs.
15. On perusal of the material on record, admittedly, the complainant had attempted thrice to withdraw cash from ATM machine, belonged to the opposite party No.2 bank, using the debit card provided by the opposite party No.1 bank.  The opposite party No.1 bank statement for the period between 01.08.2017 to 31.12.2017 revealed that, a sum of Rs.10,000/- was debited first and the same was credited back on 20.12.2017 apart from debit of Rs.10,000/- and Rs.5,000/- on the very same day from S.B. account of complainant.  The document i.e. Electronic Journal Log of ATM machine, furnished by opposite party No.2, revealed that, there was withdrawal of Rs.10,000/- and Rs.5,000/- at 16.20 and 16.21 hrs. on 20.12.2017 vide transaction No.9775 and 9776 respectively.  Therefore, in order to ascertain the truth, the opposite party No.2 is under the obligation to provide the CCTV footage to the complainant.
16. However, in view of the directions issued by the Reserve Bank of India, relating to “Reconciliation of failed transactions at ATM’s” dated 27.05.2011, the opposite party No.1 bank, ought to have re-credit the amount to customers account, within 7 working days from the date of receipt of customer complaint.  On failure to do so, the complainant is entitled for a compensation of Rs.100/- per day, by the issuing bank.  Accordingly, the opposite party No.1 is liable to credit Rs.15,000/- to the S.B. account and to pay compensation to the complainant, for not crediting the disputed amount within 7 days of receipt of complaint, with compensation for the deficiency in service and damages for the mental agony and inconvenience.  Hence, point No.1 is answered partly in the affirmative.
17. Point No.2:- with the above observations, we proceed to pass the following:-

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party No.1 is hereby directed to credit Rs.15,000/- to complainant’s S.B. Account and to pay Rs.26,100/- compensation for the delay of 261 days from the date of filing the complaint, till this date and to pay Rs.2,000/- for the deficiency in service and Rs.1,000/- for the mental agony, inconvenience and Rs.1,000/- towards cost of litigation to the complainant, within 30 days of this order.  Failing to comply, the opposite party No.1 is liable to pay interest at 10% p.a. on the said total sum of Rs.41,100/- until compliance.
3. In case of default to comply this order, the opposite party No.1 to undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
4. Complaint against opposite party No.2 is dismissed.
5. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 19^th September 2018)