FA No.476 OF 2010 AGAINST C.C.No.48 OF 2008 DISTRICT FORUM-I KRISHNA AT MACHILIPATNAM

Between:

1. Chief Manager,

    State Bank of India,

    Main Branch, Machavaram,

    Machilipatnam, Krishna District.

2. The Assistant General Manager,

    Regional Office, S.B.I. Region-4,

    Suryaraopet, Vijayawada,

    Krishna District.

                                                Appellants/opposite parties’ no.1 & 2

        A N D

1. Kota Ratna Kumari,

    W/o. Chandrasekhar,

    Hindu, aged about 45 years,

    House Wife, R/o. D.No.15-456-45-55,

    Drivers Colony, Edepalli,

    Machilipatnam, Krishna District.        

Respondent/complainant

2.  Office of Banking Ombudsman,

    Reserve Bank of India,

    Annexe Building

    Secretariat Road,

    Saifabad, Hyderabad-500 004.  

                                                        Respondent/opposite party no.3

Counsel for the Appellants            Sri Vamaraju Sri Krishnudu

Counsel for the Respondent No.1    Party in person

Counsel for the Respondent No.2   Served

QUORUM:    SRI R.LAKSHMI NARASIMHA RAO, HON’BLE MEMBER

                               AND

      SRI T.ASHOK KUMAR, HON’BLE MEMBER

        MONDAY THE FIFTH  DAY OF DECEMBER

                     TWO THOUSAND ELEVEN

    Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Hon’ble Member.)

***

1.     The opposite parties no.1 and 2 are the appellants. 

2.     The respondent no.1 is the account holder of appellant no.1 bank with Savings Bank Account, bearing No.30253460772.  The respondent no.1 has A.T.M. card facility bearing No. 6220180087400091416 and made several transactions.  As per the account copy furnished by the appellantno.1 as on 31-12-2007, the balance amount in the Account of the appellant was `14,152/-.  On 01-01-2008, the respondent no.1 withdrew a sum of `10,000/- through A.T.M.  On 02-01-2008, again the respondentno.1 withdrew another sum of `3,500/- from her S.B. Account and as on 02-01-2008, the balance amount in the said Account was  `652/-.  On 09-01-2008, the respondent no.1 deposited an amount of `2,000/- in cash.  Again, on 11-01-2008, the respondent no.1 deposited a sum of `5,500/-.  After crediting the said two amounts, there was a balance amount of `8,152/- as on 11-01-2008 in her Account.  On 11-01-2008, the respondent no.1 withdrew a sum of `2,000/- through the A.T.M.  On 13-01-2008, the respondent no.1 credited a sum of `10,000/- and `2,600/-On 16-01-2008, the respondent no.1 credited a sum of `6,000/- and after crediting the said three amounts, there was a balance amount of `24,752/- as on 16-01-2008. 

3.     As per the statement of account two entries were made in the Account of the respondent no.1, showing the sums of `13,000/- and `3,500/- as debited from her Account on 17-01-2008.  The respondent no.1 states that she came to know the same when she withdrew a sum of `8,000/- through the A.T.M. on 18-01-2008.  After coming to know the same, the respondentno.1 approached the appellant and gave a complaint to the appellant no.1 on 22-01-2008.  Thereafter, the respondent no.1 made transactions continuously.  The first respondent issued Notice on 27-02-2008 to the appellants and the respondent no.2 requesting them to rectify the transaction dated 17-01-2008 and to send an upto date statement of account to her.  The appellant no.1 in it’s reply dated 26-04-2008, alleged that the respondent  withdrew an amount of `13,000/- on 01-01-2008 through the A.T.M. and that on 02-01-2008, an amount of `3,500/- was withdrawn by the respondent no.1.  The respondent no.2 had sent reply dated 13-03-2008, stating that if the respondent no.1 desires, she may file a complaint before the Banking Ombudsman.            

4.     The appellants resisted the case contending that the Banking Ombudsman is a quasi judicial authority and he cannot be shown as opposite party no.3 in the complaint.  .  The appellant no.1 gave reply on 28-03-2008 followed by reply notice dated 26-04-2008 with necessary documents, which clearly explain how the respondent no.1 withdrew the amounts from the A.T.M. and they were not properly debited in the Statement of Account.  On due verification, the Account was corrected as per the A.T.M. rolls due to mechanical defects and the O.P.1 is entitled to correct the mistake and it was explained by their reply Letter dated 26-04-2008.  The first respondent’s transactions of withdrawal of `13,000/- and `3,500/- through her A.T.M. Card on 17-01-2008 were not properly accounted for in the account and hence, the mistake was corrected by the O.P.1, which is perfectly legal and valid and there is no need to approach the first respondent for her consent as she must have knowledge of withdrawing of the amount by using her A.T.M. Card.  The appellant could not rectify the transaction of dated 17-01-2008 as the A.T.M. was used by her twice, and the amount was withdrawn by her using her A.T.M. Card.     

4.     The second respondent did not choose to contest the claim.

5.     The respondent no.1 filed her Affidavit and the documents Exs.A1 to A9.  The Chief Manager, State Bank of India, Main Branch, Machilipatnam filed his affidavit on behalf of appellants no.1 and 2 and the documents Exs.B1 to B3. 

6.     Feeling aggrieved by the order of the District Forum, the opposite parties no.1 and 2 filed the appeal contending that the respondent no.1 had withdrawn an amount of `13,000/- on 1.1.2008 from ATM and the transaction was not debited to her account due to error occurred in ATM.  She had withdrawn a sum of `10,000/- from ATM on the same day and an amount of `3,500/- on 2.1.2008 from the ATM.  The transaction was not debited to her account due to error in ATM.  She had withdrawn the amounts taking advantage of non-debit of the amounts to her account.    She had withdrawn a further sum  `3,500/- on the same day from her account by submitting a withdrawal form.  The first respondent had admitted withdrawal of the amount of `10,000/- on 1.1.2008 through ATM and `3,500/- on 2.1.2008 through SB Account.  The only dispute is in regard to the entries dated 17.1.2008 for `13,000/- and `3500/- which are the ATM withdrawals of `13,000/- dated 1.1.2008 and `3,500/- dated 2.1.2008.  Every transaction made in the ATM will be recorded in the JP Log Report of that particular ATM. 

7.     The points for consideration are:

1.  Whether the first respondent had retained the amount of  
        `13,000/- on 1.1.2008 and `3500/- on 2.1.2008 through the
        ATM?

        2)     Whether there was any deficiency on the part of the appellants
                no.1 and 2?

        3)     To what relief?

8.     POINTS NO.1 AND 2: The respondent no.1 is an account holder with the appellant no.1 bank.  Her savings bank account no.30253460772.  The first respondent obtained ATM card provided by the appellant no.1 bank.  The respondent no.1 contends that the transactions were not materialized  in regard to the amounts of `13,000/- and `3,500/-  purported to have been withdrawn through ATM on 1.1.2008 and 2.1.2008.  The entries made in the passbook of the first respondent show that an amount of `13,000/- and Rs.3500/- were debited from her account on 17.1.2008.  There are other transactions which are disputed and which have no concern for the amounts in question and the subject matter of the complaint.  It is the contention of the first respondent that two entries were made in her account showing that an amount of `13000/- and `3500/- was debited to her account on 17.1.2008 and she came to know about it when she had withdrawn a sum of `8000/- through ATM on 18.1.2008.  It is her contention that no action was taken on her complaint dated 17.1.2008 and 22.1.2008.  The first respondent had issued notice dated 27.2.2008 to the appellants and the respondent no.2 to rectify the mistake in transaction dated 17.1.2008 for which the appellant no.1 bank had given reply on 26.4.2008 stating that the first respondent had withdrawn an amount of `13,000/- on 1.1.2008 through ATM and an amount of `3,500/- on 3.1.2008. 

9.     The JP Log report filed as additional evidence in the appeal would show that a sum of `13,000/- was drawn on 1.1.2008 and a sum of `3,500/- on 1.2.2008 from the account of the first respondent.  These two JP Logs would support the plea of the appellants to the extent of withdrawal of the sum of `13,000/- on 1.1.2008 and they do not lend any support to the other limb of the appellants plea that a sum of `3500/- was drawn on 2.1.2008 from the ATM.  As the JP Log reports have been heavily relied upon by the appellants, we do not have any hesitation in holding that the appellants had committed deficient service by not debiting the amount of `13,000/- drawn on 1.1.2008 as also by wrongly claiming the amount of `3,500/- was withdrawn by the first respondent through the ATM on 2.1.2008.  To the extent of the amount of `3,500/- stated to have been withdrawn through ATM dated 2.1.2008  which in fact was not done so, the appellants are liable to answer the claim of the first respondent. 

10.    The entries in the passbook made by the first appellant bank would show that an amount of `13,000/- was debited to the account of the first respondent on 17.1.2008 as also further amount of `3,500/- was debited from her account on 17.1.2008.  The claim of the appellants is that the first respondent had though withdrawn the amount of `13,000/- and `3,500/- on 1.1.2008 and 1.2.2008, the same amount could not be debited to her account owing to technical problems posed by the server.  It can be understood that the amount of `13,000/- stated to have been withdrawn through ATM was not debited to the account of the first respondent due to technical problems, however, it cannot be accepted that the first respondent had withdrawn an amount of `3,500/- through ATM on 2.1.2008 and subsequently thereto on the very same date she had withdrawn an amount of `3,500/- across the counter by submitting the withdrawal form. 

11.    The JP Log report shows that the transaction through ATM was made on 1.2.2008 and the latter limb of the appellants plea is that the sum of `3,500/- was withdrawn through ATM on 2.1.2008 which does not find any support from the JP Log Report as such insofar as the amount of `3,500/- is concerned, the appellants are liable to return it to the respondent no.1.  Certainly, the first respondent had spent lot of time in prosecuting the complaint all through till the appeal has reached the stage of hearing and on that count she is entitled to the enhancement of  amount of `1,000/- towards compensation as awarded by the District Forum to `2,000/-.

12.    In the result the appeal is allowed.  The order of the District Forum is modified.  The appellants/opposite parties no.1 and 2 are directed to pay the amount of `3,500/- together with compensation of `2000/- and costs of `1,000/-.  There shall be no order as to costs in the appeal.

                                                                                MEMBER

                                                                                MEMBER

                                                                            Dt.5.12.2011

KMK*