KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.707/12
JUDGMENT DATED:08.04.2014
PRESENT :
JUSTICE SHRI. P.Q. BARKATHALI : PRESIDENT
SHRI. V.V. JOSE : MEMBER
Axis BankL Ltd.,
Alappuzha Branch,
Mullackal, Alappuzha, : APPELLANT
R/by its Branch Head.
(By Adv: Sri.S.Reghukumar)
Vs.
Sri.Prakash.C.M,
Kunnel Veedu, Kattoor.P.O, : RESPONDENT
Alappuzha.
(By Adv: Sri.Narayan.R)
JUDGMENT
JUSTICE SHRI. P.Q. BARKATHALI: PRESIDENT
This is a reference made under section 14(2) A read with section 18 of Consumer Protection Act. A Bench consisting of Members Smt.Radha and Smt.Santhamma Thomas disagreed and Member Smt.Santhamma Thomas dismissed the appeal while Member Smt.Radha allowed the appeal and dismissed the complaint.
2. The appeal was filed by the opposite party in CC.132/08 challenging the order of the Forum dated, November 30, 2011 directing the opposite party bank to return to the complainant Rs.15,394/- being the amount illegally debited from the account of the complainant and to pay compensation of Rs.5000/-.
3. The case of the complainant as testified by him as PW1 before the Forum and as detailed in the complaint in brief is this:-
Complainant is an ATM card holder of the opposite party, M/s Axis Bank Limited. In May 30, 2008 complainant withdrew a total amount of Rs.49,500/- by 4 times. On June 02, 2008 the opposite party bank illegally debited Rs.15,394/- from the account of the complainant. Complainant presented a cheque for Rs.6,380/- and the same was returned by the Bank stating that there was no sufficient funds in his account. Therefore complainant filed the complaint for return of that amount and also claiming compensation.
4. The respondent/opposite party in its version contended thus before the Forum:-
On May 30, 2008 complainant withdrew Rs.49,500/- from his account. But actually there was only Rs.34,900/- in his account at that time. Complainant withdrew Rs.15,000/- from his account but due to the mal functioning of the machine the withdrawal of the said amount was not recorded in it and the balance amount was again shown as Rs.34,900/-. As the complainant withdrew Rs.49,500/- from his account and when complainant deposited Rs.15,500/- the opposite party on June 02, 2008 debited Rs.15,000/- from his account. Therefore when the cheque for Rs.6380/- was presented for encashment it was returned unpaid for want of sufficient funds. An amount of Rs.394/- was debited from his account towards return charge. Therefore complaint has to be dismissed.
5. Complainant was examined as PW1 and Exts.A1 to A3 were marked on their side before the Forum. Report of the Commissioner was marked as Ext.C1. On the side of the opposite party the Branch Manager was examined as RW1 and he marked Exts.B1 to B4. On an appreciation of evidence the Forum found that there was deficiency of service on the part of the appellant and directed him to refund Rs.15,394/- and to pay compensation of Rs.5000/-. Opposite party has now come up appeal challenging the said order of the Forum.
6. When the appeal came up for hearing before the Bench of Smt.Radha and Smt.Santhamma Thomas, Smt.Radha wanted to allow the appeal and dismiss the complaint while Smt.Santhamma Thomas wanted to dismiss the appeal. Therefore the matter was referred to us for a final decision.
7. We have gone through in detail the Judgment rendered by both the Members we are of the view that though there was some mistakes happened due to technical defects in ATM machine opposite party Bank did not communicate the same to the complainant which is clearly deficiency in service on their part. Therefore we are in complete agreement with the Judgment delivered by Smt.Santhamma Thomas and dismiss the appeal.
JUSTICE P.Q. BARKATHALI: PRESIDENT
V.V. JOSE : MEMBER
VL.
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO.707/12
JUDGMENT DTD: 13/09/2013
(Appeal filed against the order in C.C. No. 132/2008 on the file of CDRF, Thiruvananthapuram, dt: 30.11.2012)
PRESENT
SMT. A. RADHA : MEMBER
SMT. SANTHAMMA THOMAS : MEMBER
Axis Bank Ltd.,
Alappuzha Branch, APPELLANT
Mullackal, Alappuzha,
R/by its Branch Head
(By Adv. Sri. S. Reghukumar & Associates)
V/s.
Sri. Prakash C.M.,
Kunnel Veedu, RESPONDENT
Kattoor P.O.,
Alappuzha
(By Adv. Sri. Narayan. R)
JUDGMENT
SMT. SANTHAMMA THOMAS : MEMBER
This appeal is directed against the judgment and order passed by Learned District Forum, Alappuzha in case No. CC 08/132 allowing the complaint and directing the Appellant/opposite party to return the complainant/respondent an amount of Rs.15,394/- which the appellant/opposite party debited from the complainant’s account. The appellant/opposite party is further directed to pay an amount of Rs.5,000/- as compensation to the complainant for the deficiency of service and for the harassment the appellant/opposite party inflicted on him. The appellant/opposite parties shall comply with the order of this Forum within 30 days of receipt of the same. Being aggrieved by that order the appellant has preferred the instant Appeal.
The case of the Appellant (Respondent in Lower Forum) before the Ld. District Forum, in short, is that the respondent (Complainant in Lower Forum) is the ATM card holder of the Appellant. On 30th May 2008, the respondent withdrew a total amount of Rs. 49,500/- by four intervals. Thereafter on 2nd June 2008, the respondent deposited Rs.15,500/- from which the Appellant debited Rs.15,000/- from the respondent’s account. Further, Appellant returned the respondent’s cheque on the same date stating insufficient balance. The appellant again on 16th June 2008 collected an amount of Rs.394/- from the complainant as the charges on ‘cheque return’. The complainant contended that the Appellant committed deficiency of service, and inflicted mental agony and harassment on the
complainant. The contention of the Appellant is that on the day when the respondent withdrew Rs.49,500/- from his account when on reality his account had only Rs.34,900/-. According to the Appellant, due to the malfunctioning of the machine, the withdrawal of the said amount was not recorded and hence an excess amount of Rs.10,000/- was shown and withdrawn. On the same day the complainant effected three more transactions withdrawing the entire amount of Rs.34,900/-. In this manner, the respondent pulled out a total amount of Rs.49,500/- from his account while in reality, there was only Rs.34,900/-. Later the respondent effected remittance of a total amount of Rs.15,000/- in his account. Thereupon, the appellant, on 2nd June 2008 debited Rs.15,000/- from the respondent’s account, the amount which the respondent excessively withdrew from the appellant and, when a cheque for an amount of Rs. 6,380/- was produced before the Appellant for encashment through clearing, the same was returned unpaid for want of sufficient funds, further an amount of Rs. 394/- was charged and debited from the respondent accounts towards return charge.
We have heard the submission made by both sides and perused the papers on record. On perusal of the record nothing was found on the basis of which we could come to a conclusions that the appellant took steps to inform the respondent in relation to the malafide transaction of the said ATM card and thus became deficient in providing service to the Respondent and it is a fact that the Bank is the custodian of the money of its customers/account holders and it is a service where the bank should have taken steps to contact the respondent rather than waiting for him to deposit money in his bank account which could be snatched away by the appellant. Irrespective of any malfunction of their ATM it is their duty to put forward adequate steps to prevent such defaults and should have diligently handled the matter rather than waiting for the respondent to deposit money and deduct the same without his informaion for a default of the complainant.
With regard to debiting of amount without the knowledge of the respondent we can draw certain points from Dilip Madhukar Kambli Vs. Nilesh Vasant Borkar and Ors. 1991 (1) CPR 571 (SCDRC – New Bombay, Maharashtra “the banker is supposed to safeguard the interest of the depositors when his amount is entrusted to the custody of the Bank and the Bank is liable to return the amount with interest. In the absence of any directions from the customer, no banker can unilaterally and arbitrarily transfer the money of a depositor from his account and deposit in the account of another customer. This amounts to deficiency in service by the bank.” Bank/appellant in order to protect their interest cannot just take their customers for granted, in this manner.
Under the circumstances, we are of the considered view that the Learned District Forum was justified in passing the impugned judgment and order. There is no ground to interefere with the findings of the Learned District Forum.
In the result, the appeal fails and the same stands dismissed with cost of Rs.2,000/- to be paid by the appellant to the respondent/complainant. The impugned judgment is affirmed.
SANTHAMMA THOMAS : MEMBER
A. RADHA : MEMBER
Nb
APPEAL NO.707/12
JUDGMENT DATED 03/10/2013
SMT. A. RADHA : MEMBER
I have gone through the judgment prepared by the Learned Member and with due respect I cannot agree with the view point of Learned Member in finding deficiency in service on the part of the appellant. The finding is to the effect that “in the absence of any directions from the customer, no banker can unilaterally and arbitrarily transfer the money of a depositor from his account and deposit in the account of the customer”.
2. In this case the respondent withdrew an amount of Rs.15,000/- in excess from the ATM counter which is clear from Exbt.B1. The withdrawal made on 30/05/2008 at 11.04 and available balance shown is Rs.19,846.34 and again at 11.12 the withdrawal shown is Rs.15,000/- and available balance shown as Rs.19,846.34. The respondent knowingly was trying to encash against the discrepancy occurred due to the system error and tried to make use of the technical error through excess amount withdrawal.
3. The transaction took place on 30/05/2008 31/5 and 1st of June were Saturday and Sunday. Nothing is on record to show that the discrepancy was communicated to the respondent. However on 02/06/2008 an amount of Rs.5,000/-, Rs.6,500/- and Rs.4,000/- (totalling Rs.15,500/-) was remitted by respondent which was appropriated (to ATM RVSL) towards the overdrawn amount from the complainant’s Savings Bank Account. The bankers have every right to appropriate wrong debit and the inward clearing charge and here the bankers charged cheque returning charge of Rs.394/- for cheque No.9003. The terms and conditions for opening Savings Bank Account (Exbt.B2) clearly states the mode of transaction, charges etc. and the deduction towards the clearing charges, collection charges etc. for a quarter and the bankers are entitled for it as per rules and it does not amount to deficiency in service. It cannot be a termed as unilateral action of the bankers and being a customer of the said Bank sufficient prior information at the time of opening the Savings Bank Account was already communicated and agreed upon by respondent himself. Hence the decision relied upon by the Learned Member can be distinguished on the facts of the case itself as it is not a transfer of money of a depositor to the account of another customer and here it is a withdrawal of excess amount by the respondent. For stating my reasons, I rely on Section 72 of the Indian Contract Act. Section 72 of Indian Contract Act – “liability of person to whom money is paid or thing delivered by mistake or under coercion” - A person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it. Hence the technical error will not amount to deficiency in service and the Learned Member and the Forum Below erred in the finding. The respondent has no case that he had not withdrawn excess amount. The Exbt.B1 is available with the respondent during the operation of ATM so he was well aware of the error of the system and operated willfully and withdrew the entire balance amount.
4. The facts of the case has already been mentioned in the judgment prepared by the Learned Member.
5. I would like to state here that in the version filed by the opposite party it is contended that the total amount withdrawn by the complainant on 30/05/2008 is Rs.49,500/- as Rs.15,000/-, Rs.15,000/-, Rs.15,000/- and Rs.4,500/- respectively. The process of usage of ATM is that while inserting the card the customer feeds the pin number, type of account and amount required. After successfully entering the pin the transaction request comes into the (SWITCH) central processing unit. It will inturn do the pre-screening checks and authorization process in the switch which will transfer the transaction request to finacle (Accounting System) and the finacle will thereafter respond to switch and the switch will reply back to ATM and the transaction request is honoured or bounced as the case may be. In the case of withdrawal once the amount is disbursed, the confirmation in this regard will be sent by the ATM as per the route mentioned within a specific time and the account of the customer would be debited. In this case the confirmation of disbursement of currency note was not communicated by the machine to the switch in the stipulated time and the relevant entry pertaining to the withdrawal of the amount of Rs.15,000/- was reversed in the system despite the amount actually withdrawn by the complainant. To substantiate the case Exbts. B1 and B2 were produced in evidence by the opposite party. When the complainant had withdrawn Rs.15,000/-, twice the balance was wrongly reflecting in the Account as Rs.34,900/- instead of 19,900/- and all the 4 transactions were honoured by ATM. This was occurred due to the reversal of the amount of Rs.15,000/- back to the account due to the technical error in ATM. After getting due credit to make reversal entry with the remittance of Rs.5,000/-, Rs.6,500/- and Rs.4,000/- made on 02/06/2008 by the complainant showed the actual balance account as Rs.9,00/-. Accordingly the cheque No.9003 dated 02/06/2008 for Rs.6,380/- presented for encashment through clearing was returned unpaid for want of funds and return charges of Rs.394/- was debited in the transaction. The transactions made by the complainant were denied by the complainant where as it is clear in the statement produced by the complainant along with the complaint. So the complainant was well aware of the true facts and was just trying to encash when the discrepancy occurred due to the system error. No actual monitory loss caused to the complainant on the other hand the complainant utilized the excess amount withdrawn. There is no deficiency in service on the part of opposite party and no relief prayed is entitled to the complainant. It is contended that the complaint is filed in order to tarnish the image of the opposite party.
6. Now coming to the evidence tendered before the Forum Below a Commissioner was appointed. Even after accepting the notice, the respondent was not present during the inspection of the Commissioner and commission report is marked as Exbt.C1. The commissioner was not cross examined and the commission report remained unchallenged. As per the commission report, it is stated that non deduction of the amount withdrawn from the available balance was due to an error in computer system.
7. The arguments put forth by the counsel for the appellant are that the respondent got the knowledge of technical error and it was misused by overdrawing from the account of the complainant through the ATM. It is submitted that such technical error rarely happens and it is an automatic system and the same is a ‘force majure’. All the transactions were duly reflected in the statement produced as Exbt.B2. The counsel relied on the decision of the Hon’ble High Court of Kerala in the case of M/s. Ameen Trading Co. Vs. Bank of Baroda and Another 1993(2)KLJ 447 wherein it is observed under section 72 of the Contract Act – “mistaken credit in the account of the person by the bank such wrong credit is liable to be corrected by the bank – defendant is liable to repay the amount”. Here the mistake happened due to a technical error and the amount was withdrawn by the respondent himself. It is open to the Bank to recover the amount paid in by mistake. So it is clear that the mistake is committed by the Bank and a wrong credit is entered, and is certainly liable to be corrected by the Bank under Section 72 of the Contract Act. When money has been paid by mistake, the payee has to return it. Hence the appellant is entitled to debit the Account for reversing the excess payment. No monitory loss has caused to the respondent rather he was benefited with the amount for 2 days.
8. On perusal of documents and on hearing both the counsels, in my considered view, the excess withdrawal has come to the knowledge of the respondent and he tried to utilize it for his own benefit. The bankers have every right to correct the wrong credit made by the Bank. Further the installation of ATM counters are intended for the benefit of the customers at the doorstep in order to overcome the difficulty to approach bank in person. Relying on the decision of the Hon’ble Kerala High Court’s Decision in M/s. Ameen Trading Co.’s case the order of the Forum Below is to set-aside and the view of the Learned Member’s cannot be agreed upon.
In the result, appeal is to be allowed in favour of the appellant/opposite party setting aside the order passed by the Forum Below.
A. RADHA : MEMBER
Sa.
