23.12.2014
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The instant Appeal has been filed against the judgment and order dated 29.4.2013 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas, in C.C.Case No. 225 of 2011, directing the Appellants/Ops to ‘reimburse the amount to the complainant’s account’ within 15 days from the date of the order and also to pay to the Complainant Rs. 50,000/- as compensation and Rs. 10,000/- as cost, failing which interest @ 10% p.a. shall be paid for the entire period of default.
Brief facts of the case, as appearing from the materials on records, are that the Respondent/Complainant withdrew on 18.11.2010 from ATM of Bank of Baroda Rs. 21,000/- (Rs. 10,000/- + Rs. 10,000/- + Rs. 1,000/-) in three instalments through ATM Debit Card (No. 6220181136400016227, Savings Bank A/c No. 30799324024 of State Bank of India, Namkhana Branch) leaving a credit balance of Rs. 29,668/- as per ATM ‘Customer Advice’ dated 19.11.2010 (TXN No. 3072, Time- 9.15 a.m.) as available on records. Further, on19.11.2010 the Respondent/Complainant withdrew Rs.4,000/- leaving a credit balance of Rs. 668/- as per ATM ‘Customer Advice’ dated 19.11.2010 (TXN 3075, Time – 9.19 a.m.) as available on records. Then the Respondent/Complainant deposited on 1.12.2010 by cash Rs. 400/- in the said account making the credit balance increased to Rs. 1068/-, but the credit balance was shown as ‘0’ with the description ‘set hold’. On enquiry into such event the Respondent/Complainant came to know that on 18.11.2010 while he was withdrawing the money of Rs. 21,000/- from the ATM, the ATM due to ‘technical fault’, allowed the withdrawal of Rs. 31,000/- instead of Rs.21,000/- as shown in the aforesaid ATM Customer Advice. After noticing such incident the Appellants/Ops-Bank debited the excess withdrawal of Rs.10,000/- showing the credit balance as ‘0’ instead of Rs. 1068/- as claimed by the Respondent/Complainant. Noticing such ‘0’ credit balance instead of credit balance of Rs. 1068/- the Respondent/Complainant requested in writing the Appellants/Ops-Bank, i.e. SBI, Namkhana Branch, to correct the credit balance, but without any success. In this background, the Ld. District Forum passed the impugned judgment and order in the aforesaid manner. Aggrieved by such order the Appellants/Ops have preferred this Appeal.
Ld. Advocate for the Appellants/Ops submits that as per the terms and conditions of the contract between the Respondent/Complainant and them related to ATM transaction the Appellants/Ops-Bank are within their legal rights to recover Rs. 10,000/-, withdrawal of which was not debited mistakenly from the account of the Respondent/Complainant by the ATM machine due to its ‘technical fault’ and that the Respondent/Complainant cannot bypass his legal liability relating to excess withdrawal of Rs. 10,000/-. In support of his submission the Ld. Advocate refers to the following decisions:-
- M/s. Amitara Industries Ltd. Vs. State Bank of India, reported in 2012 (4) CPR 450 (NC)
- Subhash Chander Mahajan Vs. Parsvnath Developers Ltd., reported in 2014 (3) CPR 142 (NC)
The Ld. Advocate concludes that in view of the above the impugned judgment and order should be set aside, it being bad both in fact and law.
Respondent/Complainant, who appears in person, submits that had the excess withdrawal of Rs. 10,000/- from the account of the Respondent/Complainant on 18.11.2010 occurred due to ‘technical fault’ in the ATM as argued by the Appellants/Ops-Bank, the Appellants/Ops-Bank would not have taken a long time to rectify the mistake in the age of internet and hence, the ground of ‘technical fault’ in the ATM is an unfair ploy on behalf of the Appellants/Ops-Bank to deprive the Complainant/Respondent of his legitimate dues. It is further submitted by the Respondent/Complainant that the ‘Customer Advice’/Mini Statement of Account, as generated by the ATM immediately after withdrawal, is more reliable than the Bank Statement (Running Page-14 of Memo of Appeal), as furnished by the Appellants/Ops-Bank, showing the disputed withdrawal of Rs. 10,000/- on the simple ground that the Bank Statement concerned was at the exclusive disposal of the Appellants/Ops-Bank and hence, open to easy manoeuvring by the possessor bank of the same, i.e. Appellants/Ops-Bank. Finally, it is submitted by the Respondent/ Complainant that in view of the above premises, there is no impropriety or illegality in the impugned judgment and order and so, it should be sustained.
We have heard both the sides, considered their rival submissions and perused the materials on records including the BNAs.
The ‘Customer Advice’ (TXN No. 3072 dated 19.11.2010 at 9.15 a.m.) as generated by the ATM shows the withdrawal on 18.11.2010, in three instalments, of Rs. 21,000/- as against the claim by the Appellants/Ops-Bank of Rs. 31,000/- with closing credit balance of Rs.29,668/-. This closing credit balance is also fortified by further Customer Advice (TXN No. 3074 dated 19.11.2010 at 9.17 a.m.) showing further withdrawal of Rs.25,000/- out of the said credit balance of Rs. 29,668/- with remaining closing balance of Rs. 4,668/-. As against this evidence, no evidence except a mere statement, in support of ‘technical fault’ as claimed by the Appellants/Ops-Bank of the ATM, is available on records. The Bank Statement being the only document showing the controversial withdrawal of Rs. 10,000/- further does not show, with implicit hint of unreliability, any entry of withdrawal of Rs. 1,000/- on 18.11.2010 as shown in the Appellants/Ops-Bank’s own evidence of Customer Advice/Mini Statement (TXN No. 3072 dated 18.11.2010 at 9.15 a.m.), which was generated by the ATM not long after the withdrawal of the amount, and thus the same is more reliable than the Bank Statement which was generated by the Appellants/Ops-Bank much later and kept at the disposal of the Appellants/Ops-Bank with possibility for window dressing.
The judgments referred to by the Ld. Advocate for the Appellants/Ops-Bank are not applicable to the present case, the facts and circumstances of the said judgments being not identical with that of the present one as one of the said judgments is related to Bill of Exchange and another is related to housing.
In view of the above discussion and also on the basis of the materials on records as well as on the principle of equity we find force in the submission of the Respondent/Complainant. Thus, we find no ground to interfere with the impugned judgment and order.
Consequently, the Appeal is dismissed. The impugned judgment and order stands affirmed. No order as to costs.
