Haryana

Yamunanagar

CC/930/2010

Jyoti Mehta W/o Shashi Kumar Mehta - Complainant(s)

Versus

Manager,SBI - Opp.Party(s)

V.S.Chauhan

10 Jul 2015

ORDER

 

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                                            C.C.No.930 of 2010.

                                                                                                            Date of Instt. 04.10.2010.

                                                                                                            Date of Decision:10.07.2015.

 

Jyoti Mehta w/o Sh. Shashi Kumar Mehta R/o House No.B-VI-1350, Modern Colony near ITI Yamuna Nagar

                                                                                                                 ..Complainant

     Versus

 

1. Manager, State Bank of India  Yamuna Nagar
2. State Bank of India, Chandigarh through its regional manager sector 17, Chandigarh.

                            ..Opposite Parties

 

Before: SH. ASHOK KUMAR GARG …………….    PRESIDENT

            SH. S.C. SHARMA  …………………………MEMBER

           

Present:       Ms Sakshi Sharma Advocate for Complainant

                    Sh. P.K.Kashyap Advocate for Ops

ORDER   

1.                     The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 against the respondents/opposite parties (for short the Ops only hereinafter to be referred) with the averments that the complainant is having a saving account bearing No.10351925115 and also having an ATM card.  On 03.02.2010, at about 10.45 a.m. the complainant’s son visited ATM branch of OPs and withdrew Rs.5000/- through her ATM card but due to some technical defect in the ATM Machine required slip and amount  could not be disbursed. The complainant’s son reported the matter to the guard and the guard also supported the same statement that money and slip could not be released as the server was down. When in the evening the complainant checked her account, it was found that the amount of Rs.5000/- was deducted from the complainant’s account despite the fact that no amount was disbursed.  The complainant intimated this to Op no.1 vide letter dated 04.02.2010 however, the OP no.1 replied on 20.02.2010 stating that there was no error on its part.   On getting unsatisfactory reply from the Op no.1, the complainant demanded the video clipping captured by the camera fixed in the ATM chamber so that the incident of drawing of Rs.5000/- might be viewed but in video footage provided by the Ops no.1, nobody was present in the cabin of ATM Machine at the particular time i.e.10:51 a.m. which proves that video provided by the Ops had been altered.  Due to negligent and careless behavior and non pursuance of the complaint of the complainant seriously by the Op no.1 inspite of repeated requests complainant has to go through a lot of mental harassment and loss of money. The act and conduct of the OPs clearly amounts to deficiency in service as due to this the complainant has suffered a loss of Rs.5000/-. 

2.                                 On notice, OPs appeared and filed their reply taking some preliminary objections such as complaint not maintainable, no cause of action, locus standi and ATM was used by her son whereas her son is not consumer of the Ops Bank and on merit stating therein that as per account statement Annexure R-1, on dated 03.02.2010 ATM was used 4 times and all the times, the amount has been withdrawn i.e. Rs 2000/- , Rs 5000/-,Rs.200/- & Rs 4000/- respectively. It has been further stated that the complainant’s son has withdrawn the amount of Rs.5000/- from ATM of State Bank of India Ambala City and as per letter (Annexure R-2) dated 22.06.2010, the transaction no.4946 SAIC0060806 dated 03.02.2010 was successful transaction and no cash was surplus on the very day in the ATM Machine and there is no compensatory error of the same amount. It has been further mentioned that transaction was also shown in the copy of JP Log (annexure R-3). Since it was a successful transaction, therefore, no amount was credited to the account of the customer.  There is no deficiency on the part of OPs. 

3.                         The parties have led their evidence in the form of affidavits and documents.    The complainant has tendered in evidence her   affidavit Annexure C-X and documents such as Annexure.C-1 photocopy of letter dated 20.02.2010 of SBI Bank , Annex C-2 & Annex C-3  letters of Jyoti Mehta demanding  Video footage from SBI Bank,  Annex C-4 to  C-5  and  Annexure .C-7 copy JP Log and  Annex C-6 Video Footage CD, Annexure C-8 Photo copy of Passbook   whereas the Ops have  tendered affidavit  of A.G.M Sh Suresh Sharma  as Annexure RX  and some documents such as Annex R-1 copy of transaction enquiry, Annexure R-2 copy of letter dated 22.06.2010 ,Annex R-3 JP Log and Annex R-4  letter of SBI Bank dated 31.07.2010 . The evidence on behalf of the parties has been closed.

4.                     Learned counsel for complainant has argued that on 03.02.2010 at about 10.45 a.m. the complainant’ son visited ATM branch of OPs and withdrew R.5000/- through her ATM card but due to some technical defect in the ATM Machine, required slip and amount could not be disbursed. The complainant’s son reported the matter to the guard and the guard also supported the same statement that money and slip could not be released as the server was down. When in the evening the complainant checked her account, it was found that the amount of Rs.5000/- was deducted from the complainant’s account despite the fact that no amount was disbursed. It has further been argued that nobody was present in the ATM premises at 10:51 a.m. as per video footage provided by Ops, which shows that video footage had been altered with ulterior motive. Learned counsel for the complainant referred the Guidelines issued y the RBI vide no. RBI/2009-2010/100 dated. 7.7.2009 and RBI/2010-2011/457 dated 27.5.2011 wherein it has been held that Banks are required to reimburse to the customer the amount wrongfully debited on account of failed ATM transaction within a maximum period of 12 days and 7 days respectively otherwise bank shall pay compensation of Rs. 100 per day. And also referred the case law titled as State Bank of Patiala vs. Sumit Kumar & others RP no. 4526 decided on 7-8-2013 ( NC), and also referred case law titled as Branch Manager vs. Jai Ram Patel & others, Appeal No. FA/13/263 of 2013 (State Commission, Pandri, Raipur (Chattisgarh)) and also referred the para no. 13 of the case law titled as PNB vs. Rajinder Singh, FA no.  02 decided on 2015 passed by Hon’ble State Commission, Punjab which is reproduced as under:

            “As per Ex.C2, transaction of the ATM card for withdrawal of cash was undertaken on 29.9.2009 at 17:49:49 hrs vide transaction no. 7966. We have looked into the footage of the video recording placed on the file. It has been noticed by us that the complainant had entered the ATM premises at 17:42 hrs and left the ATM at 17:44:10 hrs. The guard stationed outside the ATM Cabin, entered the ATM Cabin at 17:44:25 hrs and remained there till 17:52:32 hrs. It is evident from Ex. C2 and C7 that disputed transaction was processed at 17:49:49 hrs. However, there was no footage available in the CD from 17:49 to 17:50:44. Looking into the video footage, it can be easily conclude that only the guard who was the only person inside the ATM Cabin at that time, might have collected cash, it seems that CCTV footage, when amount was actually dispensed at 17:49:49 hrs to 17:50:04 hrs has been deliberately erased, confirming the suspicion that the guard had malafidely collected the cash after disallowing two customers to enter the ATM Cabin, which is quite evident from the movements of the recorded in the footage.” Accordingly appeal dismissed.

5                      Learned counsel argued that the facts of this complaint are  the same as to above noted case, because in this case also,  in video footage provided by the OP No.1, nobody was present in the cabin of ATM Machine at the particular time i.e.10:51 a.m. which proves that video provided by the Ops had been altered.  The act and conduct of the OPs clearly amounts to deficiency in service as due to this the complainant has suffered a loss of Rs.5000/-and requested for acceptance of the complaint.

6                      On the other hand, it has been argued on behalf of the OPs that on 03.02.2010, an amount of Rs.5000/- was withdrawn by son of Complainant through ATM Machine at Ambala City vide transaction no.4946 SAIC0060806 dated 03.02.2010 and it was a successful transaction. The OPs have invited the attention of the Forum towards letter issued on 22.06.2010 by State Bank of India, Ambala city (ATM Branch) in which it is mentioned that no excess amount of cash was found on dated 03.02.010. It has been further argued that as per inquiry statement Annexure R-1, on dated 03.02.2010, ATM was used 4 times and all the times, the amount has been withdrawn i.e. Rs 2000/- , Rs 5000/-,Rs.200/- & Rs 4000/- respectively. and there was no compensatory error of the same amount. It has been further argued that transaction was also shown in the copy of JP Log (annexure R-3) since it was a successful transaction.  Learned counsel for the Ops referred the case law titled as State Bank of India vs. K.K.Bhalla, 2011(3) CLT page 256 (NC) –in which it has been held that ATM cum Debit Card as well as the PIN numbers was only in his personal custody and knowledge.  Merely because the CCTV was not working on that and footage was not available does not mean that money could be withdrawn frequently without using ATM Card and PIN number and the same view has been  discussed in case law titled as The Branch Manager, State Bank of India Versus Samuel Tirkey & others, 2013(3) CLT page 604. And lastly strongly referred case law titled as State Bank of India Vs. Om Parkash Saini I (2013) CPJ 749 (NC).

7                      We have examined the pleadings and documents of the parties placed on file very carefully and minutely. There is no dispute between the parties that the complainant is having a saving account with the OP No.1-bank. The moot question under consideration is whether an amount of Rs.5000/- has been withdrawn by the complainant’s son through ATM of OPs or not.  Perusal of letter dated 22.06.2010 issued by State Bank of  India Ambala City Branch reveals that Rs. 5000/- were disbursed to the complainant  vide transaction No ATM TX4946 dated  03.02.2010 and it was a successful transaction and no excess amount of cash was found on 03.02.2010. Further perusal from the enquiry transaction details of the account of the complainant reveals that 4 transactions were done by the son of complainant on the same date i.e.03.02.2010 since the complainant’s son has received Rs.5000/- through ATM being successful transaction therefore, complainant has no right to take a plea that said amount has not been disbursed. Reliance can be placed on case law titled as State Bank of India Vs. Om Parkash Saini I (2013) CPJ 749 (NC) wherein it has been held that Banking and Financial Institution Services- Withdrawal from ATM-Defect in machine alleged-Amount could not be withdrawn-Slip showing deduction from account-Refund of amount denied- Alleged deficiency in service-District Forum allowed complaint-State Commission dismissed appeal-Hence, revision. Camera is fixed on the face of user and not on 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.5,000/- from ATM machine-Impugned order set aside.

8                      Further, the complainant has not come to the Forum with clean hands and has not filed the affidavit of her son who operated the ATM, in support of her claim, whereby the evidence of her son has been withheld by the complainant due to reason best known to her. Complainant has supported her claim only by her affidavit without leading any trustworthy and reliable evidence which could show that any lapse or fault has occurred on the part of the OPs.  It is true that normally a person would not tell a lie but in civil matters, complainant was obliged to prove her claim by preponderance of evidence. Complainant should have called for the statement of the opposite parties showing opening balance in ATM machine on and closing balance on that day alongwith with amount withdrawn  which should have proved that Rs.5000/- were not received by her son. When many other persons had withdrawn money from that ATM on that day and none complained for not receiving money it cannot be presumed that the complainant’s son alone did not receive Rs.5000/- from the ATM machine. Normally, machine does not lie but man may do so. Moreover, there is nothing on the file to prove any negligence or deficiency in service on the part of OPs and the present complaint deserves dismissal.

9                      Keeping in view the above mentioned facts and circumstances and going through the citations referred by the parties, we are of the considered opinion that the plea of the complainant is not tenable and law cited by the Learned Counsel for Complaint is not applicable to the facts of present case, as in that case Guard was present in the ATM Cabin at the relevant time but in the case in hand nobody/Guard was present in the ATM Cabin. Hence, there is no merit in the complaint and the same is hereby dismissed. The parties are left to bear their own costs.  A copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.

Announced in the open court:

Dated: 10.07.2015

                                                                                   (ASHOK KUMAR GARG)

                                                                                     PRESIDENT

 

 

                                                                                            

                                                                                    (S.C. SHARMA)

                                                                                      MEMBER