Subhash Chander complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to credit the amount of Rs. 15,000/- in the account of the complainant alongwith interest at the rate of 2% per month from the date of debiting the amount till realization of the amount and to pay Rs.50,000/- as compensation for mental tension, harassment and wastage of time besides Rs.5,500/- as litigation expenses. <br /> 2. The complainant averred in his complaint that he is the holder of Saving account No. 55100566246 with the opposite party No. 1. The complainant was also issued the ATM-cum-Debit Card after some days from the opening of the account from the opposite parties bearing No. 6038455005100028904, so he is the consumer of the opposite parties. The complainant is posted as electrician of PWD at Faridkot and the salary of the complainant is being deposited by the department in his above account and the complainant used to withdraw the amount from his account. On 3/2/2007 at about 5.15 P.M. the complainant had gone to withdraw money from his account through his ATM card and he checked that his balance amount in the account through ATM machine and found that an amount of Rs.15,785/- is lying in his account. The complainant noted the said balance from the screen of the ATM machine but no statement of account was provided to the complainant by the ATM machine. Then the complainant operated the ATM machine for withdrawing Rs.5000/- from his account after inserting his ATM card and using his PIN number but the ATM machine of State Bank of India showed that the limit of complainant to withdraw the amount is Rs.15,000/- daily which has already been completed and the processing of withdrawal could not be completed and the complainant never withdraw the amount of Rs.15,000/- from his account. After that he went to the opposite party No. 1 and made written representation telling his grievance but the opposite parties did not pay any heed to his request. So much so a registered notice was also served upon the SBOP, Faridkot opposite party No. 1 and State Bank of India Faridkot opposite party No. 4 which was duly replied by the banks but the amount of Rs.15,000/- is not credited in his account. The opposite parties have wrongly debited the amount of Rs. 15,000/- in the account of the complainant whereas he has never withdrawn the said amount through his ATM card or presented any cheque. So this is clear cut deficiency in service on the part of the opposite parties. The complainant many times visited the office of the opposite parties and requested them to credit the amounts in question but to no effect. The act and conduct of the opposite parties caused inconvenience, mental tension, harassment and mental agony and complainant also waste his precious time and energy in visiting the offices of the opposite parties in connection with the above matter for which the opposite parties are liable to compensated the complainant to the tune of Rs.50,000/- and Rs.5500/- as litigation expenses. Hence this complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 21/5/2007 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of the notice the opposite party No. 1 to 3 appeared through Sh. R.P. Goel Advocate and filed written reply taking preliminary objections that the details of the transactions dated 3/2/2007 in Saving Bank account No 55100566246 in the name of complainant duly maintained with the answering respondent, it has been revealed that complainant has used her ATM card No. 6038455005100028904 and operated the same at the ATM of State Bank of India, Faridkot opposite party No. 4 installed adjoining the ATM of State Bank of Patiala, Main Branch, Faridkot for withdrawing cash so the so he is snot a consumer of the answering respondents in respect of debit entries in dispute. All disputes relating to the ATM facility are subject to the jurisdiction at Patiala only. The ATM facility is Governed by all the terms and conditions as mentioned in the application form and these terms and conditions are binding upon the ATM card holders. ATM card holder has agreed to indemnify the the respondent bank harmless against all actions, claims, demands, proceedings, damages costs, charges and expenses whatsoever that the bank at any time incur, suffer, sustain or be put as a consequence and further Breach of any obligation of the facility specified herein and even misuse of the lost or stolen card. Against all these indemnities the dispute referred in the complaint is no dispute and does not call for any cognizance of this Hon'ble Forum. The complainant has no cause of action again the opposite parties. On merits it is admitted that the complainant is a account holder and was issued ATM card but he is not a consumer in respect of the dispute in question and for that he is consumer of State Bank of India. It is also admitted that complainant is having Saving bank account with the answering opposite parties. The ATM card in question can be used at all the ATMs of SBOP as well as SBI. As the complainant is having its account at SBOP, Faridkot so the ATM card was supposed to be used at all other ATMs of SBOP or SBI. In the present complaint on 3/2/2007 complainant operated the ATM of SBI Faridkot twice and both the transactions have been entered at Sr. No. 2740 and 2741 in the JP roll of SBI. Transaction No. 2740 relates to knowing the balance and Transaction No. 2741 relates to withdrawing the cash. Both the transactions have been successful. As the complainant has withdrawn the cash as such his Saving Bank account No. 55100566246 has been rightly debited the amount of Rs.15,000/- withdrawn by the complainant by using ATM card at ATM machine of SBI Faridkot. Moreover on the inquiry from SBI, Faridkot who have informed that no cash has found excess in the ATM machine on 3/2/2007 or 4/2/2007, as such it is crystal clear and there is no possibility left out for any misuse of the funds of the complainant. It is wrong that complainant operated the ATM machine for withdrawing Rs.5000/- rather he operated it for withdrawing Rs.15,000/- and withdrew Rs.15,000/- vide transaction No. 2741. So there is no deficiency on the part of the opposite parties. He is not entitled for any compensation. So the complaint may kindly be dismissed with special costs. <br /> 5. On receipt of the notice the opposite party No. 4 & 5 appeared through Sh. Rajneesh Garg Advocate and filed written reply taking preliminary objection that the present complainant is not the consumer of the answering opposite parties as the answering opposite parties have not rendered any service for consideration to the complainant. On merits the opposite party No. 4 and 5 submitted that the complainant is not the consumer of the answering opposite parties. The complainant operated the ATM of the answering opposite parties two times on 3/2/2007 at Sr. No. 2740 and 2741 and firstly the complainant checked the balance in his saving account and the transactions so done by him showed him a balance of Rs.15,785/- and thereafter the complainant again operated the ATM machine and withdrew a sum of Rs.15,000/- from his account. This transaction was also successfully carried out by him and is shown in Sr. No. 2741 in the JP roll which duly maintained by the answering opposite parties. Both the transactions are fully recorded in the JP roll at Sr. No. 2740 and 2741. No excess amount was found by the answering opposite parties at the end of the day. There is no deficiency on the part of the opposite parties, so the complainant is not entitled for any compensation. So the complaint may be dismissed with costs. <br /> 6. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, copy of ATM card Ex.C-2, postal receipt Ex.C-3, copy of pass book Ex.C-4, carbon copy of notice Ex.C-5, postal receipts Ex.C-6 to Ex.C-8, reply of notice Ex.C-9, reply of notice from State Bank of Patiala Ex.C-10, copy of letter dated 11/4/2007 Ex.C-11, and closed his evidence. <br /> 7. In order to rebut the evidence of the complainant opposite parties No. 4 and 5 tendered in their evidence affidavit of P.K. Goyal Branch Manager, SBI, Faridkot Ex.R-1, copy of JP rolls having entry No. 2740 and 2741 Ex.R-2, copy of letter dated 5/2/2007 Ex.R-3, copy of letter dated 5/2/2007 Ex.R-4, copy of letter dated 7/2/2007 Ex.R-5 and closed their evidence.<br /> 8. In order to rebut the evidence of the complainant the opposite party No. 1 to 3 tendered in evidence affidavit of Smt. Manju Galhotra System Administrator, SBOP, Main Branch, Faridkot Ex.R-6, terms and conditions of ATM Ex.R-7, copy of transaction inquiry Ex.R-8, copy of ATM transaction list dated 3/2/2007 Ex.R-9, affidavit of Harcharan Singh Chief Manager, SBOP, Main Branch, Faridkot Ex.R-10 and closed their evidence. <br /> 9. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 10. Learned counsel for the complainant has submitted that the opposite parties have illegally debited the amount of Rs.15,000/- in the saving account of the complainant have been opened in State Bank of Patiala opposite party No. 1. Complainant though have operated the ATM machine of the opposite party No. 4 and 5 for verification of the account and withdrawal of the amount of Rs.5000/- but Rs.15,000/- have been illegally shown to have been withdrawn by the complainant. The ATM machine of opposite party No. 4 and 5 did not deliver the amount of Rs.5,000/-. Complainant have been caused loss of Rs.15,000/- by the opposite parties. Complainant has been harassed mentally and economically, so the complainant is entitled to the compensation to the tune of Rs.50,000/- alongwith the litigation expenses of Rs.5,500/-. <br /> 11. Learned counsel for the opposite parties submitted that the transactions carried out by the complainant in the ATM machine of opposite parties No. 4 and 5 in the saving account of the complainant with opposite party No. 1 with regard to withdrawal of Rs.15,000/- by the complainant after knowing balance amount have been successful. No excess cash has been found by the opposite party No. 4 with regard to the transaction in question so there is no deficiency of service on the part of the opposite parties. <br /> 12. From the perusal of the affidavit Ex.C-1 of Subhash Chander, copy of ATM card Ex.C-2, pass book Ex.C-4 it is made out that complainant is having his account in State Bank of Patiala, Faridkot from where ATM card was issued to the complainant. The complainant served notice Ex.C-5 to the opposite party No. 1 on 20/3/2007 State Bank of Patiala, Main Branch, Faridkot. Reply to this notice has been given by the opposite party No. 1 on 2/5/2007. This reply is Ex.C-9. Another reply Ex.C-10 has been given by the opposite party No. 1 through Sh. S.K.Dhir Advocate on 2/5/2007. <br /> 13. There is a copy of the letter dated 5/2/2007 Ex.R-4 written by the complainant to The Manager, State Bank of Patiala, Faridkot. There is no receipt of the opposite parties on this application. <br /> 14. Another application Ex.C-11 has been given by Subhash Chander to Deputy Commissioner, Faridkot on 11/4/2007 with regard to loss of the amount of Rs.15,000/- from the account of the complainant. <br /> 15. The JP roll entries Ex.R-2 show that the complainant operated the ATM machine of opposite party No. 4 with regard to knowing of the balance, immediately after knowing of the balance the amount of Rs.15,000/- has been shown to have been withdrawn by the complainant. This JP roll was taken out by the opposite parties. State Bank of Patiala have written letter to State Bank of India on 5/2/2007. As per this letter Ex.R-3 the State Bank of India was required to look into the matter with regard to non delivery of the cash by operation of ATM card of the complainant. In response to this letter State Bank of India wrote letter Ex.R-5 on 7/2/2007 to State Bank of Patiala. The JP roll and this letter showed that both the transactions were found to be successful. <br /> 16. List of ATM transactions dated 3/2/2007 run dated 4/2/2007 shows that operation of ATM card by the complainant in the ATM machine of State Bank of India had been successful with regard to withdrawal of Rs.15,000/-. All the above noted transactions placed on the file by the opposite parties i.e. JP roll entry printout Ex.R-2 and list of ATM transactions Ex.R-9 are not result of handling of the electronic system physically by the opposite parties. Account details Ex.R-9 also is printout from the accounts of the complainant. All the above noted documents are prepared automatically through the electronic recording computer system only on the operation of ATM machine by applying ATM card and secret pin number of the complainant. It is the complainant who was controlling the transactions. Transaction No. 2740 is about knowing balance by the complainant at about 17.26 hours, immediately after that there is transaction No. 2741 at 17.28 hours by which Rs.15,000/- has been shown to have been withdrawn by the complainant. Thereafter the transaction is at about 17.30 hours by some another person who have withdrawn Rs.1000/-, there are continuous withdrawals of the amounts by some other persons also. There is no complaint of such other person immediate withdrawal of the amounts after withdrawal of the amount by the complainant. Complainant have not pleaded if he had waited ATM machine for delivery of the cash for considerable time. He has not given complaint immediately after non delivery of the cash to the bank Manager. The terms and conditions under which the ATM-cum-Debit Card has been issued were required to be complied with by the complainant. The terms and conditions with regard to debit to the customers account has been mentioned in Clause (e). Transactions have been mentioned in Clause (f). Clause (e) runs as under: <br /> (e) Debit to Customer's Account:<br /> “The bank has the express authority to debit the designated account of the cardholder for all withdrawals transfer effected using the card as evidenced by Bank's records, which will be conclusive and binding on the Card Holder. <br /> The Card Holder expressly authorize the Bank to debit the designated account with service charges from time to time. <br /> Clause (f) runs as under:<br /> (f) Transactions:<br /> “ The Transactions record generated by the ATM will be conclusive and binding unless found to be otherwise on verification and corrected by the bank. The verified and corrected amount will be binding on the Card Holder. Deposits (cash and/or cheques etc.) will be verified by two officials of the Bank and their account will be deemed to be correct. Errors will be notified to the Card Holder by mail. <br /> Outstation cheques, drafts, dividend warrants etc. will normally be accepted on collection basis/immediate credits subject to Bank's existing terms and conditions governing such business. <br /> 17. From the above noted facts and circumstances the evidence of the opposite parties examining Smt. Manju Galhotra, System Administrator, State Bank of Patiala, Main Branch, Faridkot is reliable. As per her affidavit Ex.R-6 it is held that there is no deficiency of service on the part of the opposite parties. As per her statement, a foolproof electronic device is completed internally and every process is printed on a roll inside ATM which is called JP roll and if it shows 000 it means transaction is successful. Even on the slip issued after completion of process transaction number, card number, account number, ATM ID, time, date, available balance after withdrawal and withdrawal amount is mentioned. In the case in hand complainant has not placed on the file both of the slips delivered by the ATM machine to the complainant. Complainant has not specifically pleaded if these slips were not delivered by the ATM machine. Complainant has withheld best evidence. So it cannot be said that no cash was delivered to the complainant. <br /> 18. J.P. Sharma Vs. ICICI Bank Ltd. reported in 2007(2) CLT-534 relied upon by the learned counsel for the complainant is not helpful to the complainant in any manner. This authority is related to not delivery of money to the ATM card holder on operation of ATM machine though the amount has been shown to have been withdrawn, on taking of the matter the entry was reversed after a period of two months by the bank but this case is different than that of the above noted authority so this authority is not helpful to the complainant. <br /> 19. The complainant is a consumer of the opposite parties as per Standard Chartered Bank Ltd. Vs. Dr. B.N. Raman reported in 2006(3) CLT-346 relied upon by the complainant. <br /> 20. With regard to territorial jurisdiction of this Forum to decide the matter in dispute the complainant has placed reliance on 2003-2 The Punjab Law Reporter page-605 United India Insurance Co. Ltd. Vs. New Moga Transport Co. Udaipur and others, as per this authority insertion of clause of jurisdiction only at particular place does not carry any weight at least when there is a branch office or an institution and where the transaction took place. So this Forum has jurisdiction to try and decide the present complaint. <br /> 21. There is no security lapse in any manner on the part of the opposite parties. So D.S. Sachar Vs. Punjab and Sind Bank 2005 (3) CLT-164 relied upon by the learned counsel for the complainant is not helpful to the complainant in any manner. <br /> 22. Since the matter in dispute can be decided by the Consumer Dispute Redressal Forum even if the proceedings are of summary nature effectively as per P.K. Transport Corporation Vs. Bhilwara Synthetic Ltd. reported in 2006(3) CLT-493 the matter is not required to be referred to the Civil Court. <br /> 23. In view of the aforesaid facts and circumstances there is no deficiency of service on the part of the opposite parties, so the complaint being devoid of merits is dismissed. However there is no order as to costs due to peculiar circumstances of the case. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 4/12/2007<br /> <br />