IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: HON’BLE Thiru JUSTICE. R. SUBBIAH :: PRESIDENT
TMT.Dr.S.M.LATHA MEHESWARI :: MEMBER
F.A.No.240/2014
[Against the order passed in C.C.No.36/2013 on the file of the DCDRC, Nagapattinam]
THURSDAY, THE 16th DAY OF SEPTEMBER 2021.
The Senior Manager M/s. K.P.Kiran Rao
Canara Bank (Regional Office) Counsel for
Chennai Appellant /3rd opposite party.
Vs.
1. Balakrishnan. M
No.143, East Street M/s. A. Saran Raj
S. Pudur Post, Kodimangalam Counsel for
Kutthalam Taluk, Nagapattinam District 1st Respondent/complainant
2. The Branch Manager
Indian Overseas Bank M/s. Anandha Gomathi
Thiruvaduthurai Counsel for 2nd Respondent
3. The Zonal Manager
Indian Overseas Bank R3 served & called absent
Zonal Office,
Nagapattinam 2nd & 3rd Respondents/ 1st & 2nd Opposite parties
The 1st Respondent as complainant filed a complaint before the District Commission against the opposite parties, praying for certain direction. The District Commission allowed the said complaint. Against the said order, this appeal is preferred by the 3rd opposite party praying to set aside the order of the District Commission dt.27.5.2014 in CC.No.36/2013.
This appeal coming before us for final hearing on 24.8.2021 and on hearing the arguments of Appellant and the 2nd Respondent and upon perusing the material records, this Commission made the following:-
ORDER
JUSTICE R. SUBBIAH, PRESIDENT
1. This appeal is filed by the 3rd opposite party/ appellant against the order dt.27.5.2014 in CC.No.36/2013, passed by the District Commission, Nagapattinam, directing the appellant/ 3rd opposite party herein to repay a sum of Rs.10000/- interest @12% p.a., alongwith compensation of Rs.25000/-for mental agony and cost of Rs.5000/-, further directing the 1st and 2nd opposite parties/ 2nd and 3rd Respondents to pay a sum of Rs.5000/- towards compensation.
2. Before the District Commission 1st Respondent was the complainant and appellant and the 2nd and 3rd Respondents are Opposite parties 1 to 3. For the sake of convenience the parties are referred as arrayed before the District Commission.
3. The case of the complainant before the District Commission in brief is as follows:
The complainant was having a Savings Bank Account No.8640 with the debit card facility in the 2nd Respondent/1st opposite party Bank. On 8.11.2012, the complainant had attempted to withdraw a sum of Rs.10000/- from the ATM centre of the 3rd opposite party/Canara Bank at Kumbakonam Railway Station from his account No.8640 in Indian Overseas Bank. But he could not withdraw the money because there was no flow of the cash from the ATM machine. Though he had not received the money, a sum of Rs.10000/- had been debited from his account by the 1st opposite party. When he came to know about this, he lodged a complaint with the Manager of the 1st opposite party. On receipt of the complaint from the complainant, the 1st opposite party bank had re-credited the said sum of Rs.10000/- to the complainant’s SB account on 20.11.2012. The complainant had also withdrawn a sum of Rs.10000/- from his account on 23.11.2012. While so, suddenly on 14.12.2012 a sum of Rs.10000/- was again debited from his account by the 1st opposite party without any notice. On enquiry, the complainant was informed that the transaction on 8.11.2012 from the ATM centre of the Canara Bank was actually successful thereby Indian Overseas Bank again debited the sum of Rs.10000/- from his account. Whereas according to the complainant, he had not withdrawn the cash from the ATM centre of Canara Bank on 8.11.2012. Therefore, after causing legal notice, he filed a complaint before the District Commission claiming for refund of Rs.10000/- alongwith 12% interest and compensation of Rs.200000/- with cost of Rs.5000/-.
4. The case of the complainant was resisted by the 1st and 2nd opposite parties before the District Commission by filing their version as follows:
The complainant had used his IOB VISA card for withdrawal of Rs.10000/- from the ATM centre of 3rd opposite party/ Canara Bank at Kumbakonam Railway Station on 8.11.2012 at 15.34 hour as per record No.3584. Again on the same day at 15.37 hours he made another transaction which was declined for the reason ‘insufficient funds’ as per record No.3585. On receipt of the complaint from the complainant on 12.11.2012, a communication was sent to the appellant/3rd opposite party. Since no reply had been received within 7 days, the said amount was credited to the account of the complainant. But after a few days, since the reply was received belatedly from the appellant/3rd opposite party by rejecting the claim of the complainant, the said sum of Rs.10000/- was again debited from the complainant’s account. On receiving a lawyer’s notice from the complainant, several communications have been sent to the 3rd opposite party requesting them to furnish certain proof for the withdrawal of the amount including the CCTV recordings. But the 3rd opposite party had furnished only a single line reply, which was forwarded to the complainant. Therefore, there is no deficiency in service on the part of the 1st and 2nd opposite parties.
5. The appellant/ 3rd opposite party has also filed a version stating that on 8.11.2012, the complainant had made three transactions by using the ATM card in the Canara Bank ATM at Kumbakonam Railway Station. The first transaction was a balance enquiry, and by the second transaction as per record No.3584 a sum of Rs.10000/- was withdrawn. The 3rd transaction as per record No.3585 was declined as “insufficient fund”. As per the guidelines of the RBI, the banks have to maintain the camera proof for 90 days only. Since the complaint was preferred after a lapse of 90 days, this 3rd opposite party has nothing to do with the allegations made in the complaint. Thus prayed for the dismissal of the complaint.
6. In order to prove the claim on the side of the complainant 11 documents were marked as Ex.A1 to A11, on the side of the 1st and 2nd opposite parties Ex.B1 to B5 and on the side of the 3rd opposite party one document was marked as Ex.B6.
7. On hearing the submissions on either side, perusing the documents on record, the District Commission had rejected the defence of the opposite parties on the ground that as to whether the amount had been received from the ATM centre or not has to be proved only by preserving the camera proof. But there is no proof for the withdrawal of the amount, thereby the complaint was allowed. Aggrieved over the said order, the 3rd opposite party had filed this appeal, praying for dismissal of the complaint against the 3rd opposite party.
8. Before this commission, Appellant/3rd opposite party and the 2nd Respondent/1st opposite party was present. 1st Respondent/ complainant though appeared through counsel, did not appear before this commission for the past two hearings. The matter was posted for arguments in list during the previous hearing. After hearing the arguments in part, the same was reposted for continuation of arguments. But again the 1st Respondent/ complainant remained absent. Therefore, we have heard the learned counsels for appellant and 2nd Respondent, perused the documents, and the written arguments of the appellant and 1st Respondent, passed the following order.
9. Point for consideration is
1. Whether there is deficiency in service on the part of the opposite parties?
2. If so, what relief the complainant is entitled to?
10. POINT NO.1 & 2:
It is the case of the complainant that he was having a SB Account No.8640 with the 2nd Respondent/ 1st opposite party bank alongwih Debit card facility. On 8.11.2012, when he made an attempt to withdraw a sum of Rs.10,000/- from the ATM centre of the appellant’s bank at Kumbakonam Railway Station, there was no flow of cash from the ATM machine, inspite of that the amount was debited from his account by the 1st opposite party bank. When it was brought to the notice of the 1st opposite party bank, they have credited a sum of Rs.10000/- to the complainant’s account on 20.11.2012. But on 14.12.2012 again a sum of Rs.10000/- was debited from his account. When he enquired the 1st opposite party bank, they replied that they got an intimation from the Appellant/ Canara bank that the ATM transaction made by him on 8.11.2012 at Kumbakonam Railway Station was successful.
The District Commission had allowed the complaint on the ground that the appellant had not proved that the amount was received by the complainant. The appellant ought to have produced the CCTV recordings, which would be the correct and reliable proof to establish the withdrawal of the money from the ATM by the complainant.
A perusal of document filed by the complainant under Ex.A11 the EJ and switch report received by the 1st opposite party from the appellant/ canara bank, which was forwarded to the complainant would show that at about 15.33 hrs by using the card No.4221321400408444, the complainant had made a balance enquiry. Subsequently at 15.34 hrs, by using the same card the complainant had withdrawn a sum of Rs.10000/- under Record No.3584. Again at 15.37 hrs he tried to withdraw a sum of Rs.10000/- under Record No.3585, which was declined. The EJ and the switch report was also filed by the 1st opposite party under Ex.B1 and B2. But the District Forum had totally rejected these documents. The passbook produced by the complainant under Ex.A1 also has the entry for withdrawal of Rs.10000/- on 8.11.2012. Therefore, this commission is of the considered view that the opposite parties have furnished sufficient evidence to prove that the complainant had withdrawn the said amount.
The appellant/3rd opposite party would submit that they have been instructed by the RBI to preserve the cctv footage upto 90 days only. Since the complainant had reported about the non receipt of money after 90 days, they are not in a position to produce the cctv footage. The complainant had also not submitted any proof to rebut the contention of the appellant about the preservation of the CCTV footage.
Moreover, in our considered opinion the cctv camera surveillance would focus and record only the face of the persons entering the ATM, and their attempt to use the machine, and leaving the ATM. The cctv will not focus and cover the operation of the machine with regard to the pin number, and the denomination of the money he is withdrawing. Therefore, the production of camera footage will not be of clinching proof to show that the complainant had not received cash through ATM. On the other hand, the banks have produced sufficient evidences to prove that the complainant had withdrawn the said amount.
The complainant had not also refused the statement that he had made the first attempt about the balance enquiry. Therefore, while making the second attempt to withdraw the money, the complainant was well aware about the balance he had in his account. Therefore, if he had not received money, immediately he ought to have rushed to the bank or reported through customer service centre about the non-receipt of money after successful transaction in the ATM centre of the appellant/3rd opposite party. Therefore, the attitude of the complainant in not informing their banker immediately and suppressing about three transactions creates suspicion that he preferred a false case based on the 3rd transaction. Therefore we find some force in the argument of the 3rd opposite party/ appellant.
11. In view of the above, the appellant had drawn our attention to the judgement of the Hon’ble National Commission reported in IV (2017) CPJ 199 (NC) in Satyanarayan Pandey Vs. State Bank of India & Ors. In the said judgement when handling the similar case, the Hon’ble National Commission had observed that
“ Generally ATM cards and ATM machines are safe and if transaction is not successful, it is shown on screen on ATM as well as on slip issued by ATM……….
“The money was not taken out after using the ATM Card , the complainant could have registered the complaint in the customer care of the bank. Basically the complainant had not filed any proof showing that when he used his ATM card, money was not transacted. On the other hand there is ample proof to show that the transactions were successful and Rs.20000/- was delivered to the person using the ATM card” ………… “ As the documents of the bank showed that the transactions were successful and Rs.20000/- was delivered to the person using the ATM card and no proof on the contrary has been filed by the complainant, it is difficult to find any fault”.
In this connection, the appellant had also drawn our attention to another judgement of the Hon’ble National Commission, reported in I (2013) CPJ 749 (NC) stating that “Camera is fixed only on the face of user and not the keys of ATM and delivery window- Non supply of video footage had no bearing on claim of complainant – No other person complained for not receiving money on that day- It cannot be presumed that complainant did not receive Rs.5000/- from ATM machine”.
12. In view of the above findings, and on the basis of the judgements cited, we hereby hold that the District Commission had erred in their findings, which is not legally sustainable. Therefore, we are of the considered opinion that there is no deficiency in service on the part of the opposite parties and the order of the District Commission is liable to be set aside. Point No.1 & 2 answered accordingly.
13. As against the order of the District Commission, appellant/ 3rd opposite party alone had approached this commission. Therefore, it is presumed that the 1st and 2nd opposite parties have accepted the order of the District Commission passed against them.
14. In the result, the appeal is allowed and the direction of the District Commission in CC.No.36/2013 dt.27.5.2014 as against the appellant/3rd opposite party is hereby set aside. No order as to cost throughout.
S.M.LATHA MAHESWARI R. SUBBIAH
MEMBER PRESIDENT
INDEX; - YES/No
