THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVANANTHAPURAM.
APPEAL NO. 330/2014
JUDGMENT DATED. 30/11//2016
(Appeal filed against the order in CC.No. 201/2010 on the file of CDRF, Thiruvananthapuram)
PRESENT:-
SMT. A. RADHA : MEMBER
SRI.K.CHANDRA DAS NADAR : JUDICIAL MEMBER
APPELLANTS:
- Dhanlaxmi Bank Ltd,
Extension Counter,
Bar Association, Vanchiyoor,
Represented by its Branch Manager,
Prasanth K S/o Dr. P.C. Kesavankutty Nair.
- Dhanlaxmi Bank Ltd, Head Office,
-
(By Adv. Anithas Jacob)
V/S
RESPONDENT :
Shaffeek S, Shafeek Manzil,
Vemb, Elavattom P.O,
Nedumangadu, Thiruvananthapuram.
(By Adv. N.Satheesh Kumar )
JUDGMENT
SMT. A.RADHA : MEMBER
Appellant is the opposite party in CC.No. 201/2010 on the file of Consumer Disputes Redressal Forum, Thiruvananthapuram who preferred this appeal against the impugned order. The Forum below allowed the complaint and directed the opposite parties to pay Rs. 10,000/- towards compensation and Rs. 3,000/- towards cost.
2. It is the case of the complainant that he could not use his Debit cum ATM Card when he gave card to pay a sum of Rs. 45,000/- on 22-05-2010 and showed an error in process. Repeated attempts to use the debit card was also failed. In order to check the card the complainant approached the ATM counter of Axis Bank and Danalekshmi Bank ATM Counter wherein the complainant received the print out ‘unable to process’. The same repeated in Federal Bank ATM counter also where he got the reply as ‘transaction declined unable to process’. The complainant along with his family and relatives went to purchase garments and ornaments . The complainant could not purchase the items and had to suffer loss of prestige and mental agony. The complainant had to attend a marriage and due to the non- processing of the card, the complainant alleges deficiency in service on the part of the opposite parties. The complaint is filed for compensation of Rs. 25,000/- for the deficiency in service and Rs. 20,000/- towards mental agony.
3. The opposite parties filed version contending that the Consumer Forum has no jurisdiction to entertain the complaint. It is admitted that the complainant has a savings Bank account and was in possession of visa International ATM Cum Debit Card and was using uninterruptedly since 10 -02- 2006. It is contended that on 22-05-2010 the core banking system of the opposite parties was down owing to unforeseen break down. The break down stalled the proceedings since the peak hours on 22-05-2010 was finally resolved around 1.50 P.M on 23-05-2010 after putting in tireless effort over 36 hours. The opposite parties could not intimate the customer well in advance since this instance was unforeseen . There is no deficiency in service on the part of opposite parties and the service rendered to the customers are good. The complainant availed the ATM card facility by accepting the terms and conditions published in web site . As per the terms and conditions if the card is not honoured in the decided manner for any reason whatsoever or if the ATM is destroyed or not functioning due to force majeure or due to power failure, temporary insufficiency of cash in the ATM or for any other reason the bank shall in no circumstances be held liable to the card holder for consequential or indirect loss or damage arising therefrom. It is also stated that the Bank shall not be liable for any loss caused by a technical break down of the payment systems. On acceptance of the ATM Cum debit card the customer is unconditionally agreed and accepted the terms and conditions. Hence the complaint is only to be dismissed as the complainant could not use the card on the alleged date owing to the technical error generated by the system.
4 . The complainant was examined as PW1 and documents were marked as Exbts. P1 to P7. On the part of the opposite parties DW1 was examined and Exbt. D1 was marked in evidence. On appreciation of evidence and documents the Forum Below allowed the complaint which was challenged in this appeal.
5. We have heard both the counsels in detail and had gone through the records. It is an undisputed fact that the respondent went for a shopping at Joy Alukkas and had purchased on 22-05-2010 as per Exbts. P5 &P6. It is in evidence that Exbt.P3 and Exbt.P4 shows that the ‘transactions declared unable to process’ in the Axis Bank and Federal Bank on 22-05-2010 against the complainant’s ATM card. The respondent was having a cash balance of 70,000/- on 22-05-2010 and could not utilise the money by using the debit card. The respondent alleges that he had to suffer mental agony as he could not purchase the garments and ornaments in order to attend marriage. It is an admitted fact that the system of the opposite party was in fault and had to take 36 hours to revive into the working condition. The allegation of the respondent was not challenged by the appellant whereas it is stated that the process could not be carried out due to the system failure. It is also confirmed that the complainant went to different ATM counters and same result received. The respondent had to undergo mental shock as he could not purchase the materials and his family members also had to suffer. The appellant had not taken any chance to inform the customers through mobile phone regarding the default of the machine. No technical report was placed before the Forum Below to prove that the ATM with regard to break down on that specified date ie on 22-05-2010. This amounts to deficiency in service according to the respondent. The contentions of the appellant that the break down was an unforeseen incident and was unable to inform the whole customers. As per the terms and conditions published in the web site of the appellant, the customers are bound by the terms and conditions on acceptance of the ATM Card. As per clause 19 Bank shall not be liable for any loss caused by the technical break down of the payment system. The technical error of the system was resolved after hard work. The actual loss incurred to the complainant is nothing except the pleadings. As per Exbt. D1 produced by the opposite parties the usage of debit card is clearly given in the terms and conditions. The appellants are not charging any transaction charges from the card holders. The only condition is to keep minimum balance in the customer’s account. The Bank is not responsible for the refusal of the card. It is also specifically mentioned that no liability can be fastened upon the bank against the technical error caused to the usage of ATM card. It is specifically mentioned that no charges levied for issue of fresh ATM cum debit cards.
6. We find that the debit card use by the respondent could not be processed on 22-05-2010 due to a technical error of the ATM of the opposite parties which is an unforeseen incident. As per the terms and conditions of the International ATM cum debit card of the opposite parties the liability of the appellant is excluded on the ground of technical error. There had technical error in the appellant’s ATM and could not process the respondent’s account. Considering the fact that the technical error gives the immunity to the appellant no deficiency can be attributed upon the appellant.
In the result, appeal allowed setting aside the order passed by the Forum Below.
Office is directed to send a copy of this order along with LCR
A. RADHA : MEMBER
K.CHANDRA DAS NADAR : JUDICIAL MEMBER
Sh/-
