Tripura

StateCommission

A/10/2016

The State Bank Of India - Complainant(s)

Versus

Smt. Krishna Nandi - Opp.Party(s)

Mr. H.K Bhowmik, Mr. A.Saha, Mr. B.Ch Deb

19 Apr 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.10.2016

 

1. The State Bank of India,

Represented by its Regional Manager,

State Bank of India, Agartala

Bijoy Kumar Chowmuhani,

P.S. West Agartala, West Tripura.

 

2. The Chief Manager,

State Bank of India, Agartala Branch,

Hariganga Basak Road, Agartala,

P.S. West Agartala, West Tripura.

 

3. The Branch Manager (ATM In-Charge),

State Bank of India, Agartala Branch,

Hariganga Basak Road, Agartala,

P.S. West Agartala, West Tripura.

… … … … Appellants/Opposite Parties

 

•  

 

1. Smt.Krishna Nandi,

W/o Sri Asish Nandi,

Lotus Club Lane, Shibnagar,

P.O. Agartala College, P.S. East Agartala,

District - West Tripura, Pin:799004.

 

Through the Head Master,

Netaji Subhash Vidyaniketan School,

P.O. Agartala, P.S. West Agartala,

District – West Tripura, Pin:799001.

… … … … … Respondent/Complainant.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

For the Appellants:                               Mr. Hare Krishna Bhowmik, Adv.

For the Respondent:                       Mr. Asish Nandi, Adv.

Date of Hearing:                                       01.03.2017.

Date of Delivery of Judgment:         19.04.2017.

 

 

J U D G M E N T

 

U.B. Saha,J,

The instant appeal is filed by the appellantsState Bank of India,represented by its Regional Manager, State Bank of India, Bijoy Kumar Chowmuhani, Agartala and two others namely, Chief Manager, State Bank of India, Hariganga Basak Road, Agartala and the Branch Manager (ATM In-Charge), State Bank of India, Hariganga Basak Road, Agartala under Section 15 of the Consumer Protection Act, 1986 against the judgment dated 10.02.2016 passed by the Ld. District Consumers Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No. C.C. 112 of 2014 whereby and whereunder the Ld. District Forum partly allowed the complaint petition filed by the respondent-complainantand directed the appellants (hereinafter referred to as opposite parties/Bank) to refund Rs.10,000/- to the complainant and also to pay Rs.10,000/- for deficiency in service as compensation and Rs.1,000/- towards cost of litigation, in total Rs.21,000/- within one month,failing which,the amount will carry interest @9% per annum.    

2. Heard Mr. Hare Krishna Bhowmik, Ld. Counsel appearingon behalf of the appellants-Bank as well as Mr. Asish Nandi, Ld. Counsel who appeared for the respondent-complainant (hereinafter referred to as complainant).
3. Facts of the case as narrated by the complainant before the District Forum are that, on 28.07.2014,complainant Smt. Krishna Nandi went to the ATM counter at Ker Chowmohani, Agartala for withdrawal of Rs.10,000/- through her ATM cardand the ATM machine processed her request, but instead of coming out the currency notes, a printed voucher came out from the ATM machine stating that the transaction was successful. The said amount was debited from her account though she did not receive any currency notes from the ATM machine. Then she again tried to withdraw Rs.5,000/-from the said ATM machine.Second time too, no currency note came out from the ATM machine and she found a printed voucher stating that “Sorry, unable to process”. Thereafter she made complaint to the concerned Branch of the State Bank of India where her account lies informing her non-receipt of Rs.10,000/- and Rs.5,000/-,subsequently, though Rs.5,000/- was credited in her account, but Rs.10,000/- was not credited in her account. As the opposite parties-Bankignored her complaint, she preferred a complaint petition under Section 12 of the Consumer Protection Act before the District Forum for redress.
4. The opposite parties namely, the Regional Manager, the Chief Manager and the Branch Manager who were theopposite party nos. 1, 2 and 3 respectively have filed their written statement denying the claim of the complainant. It has been stated, inter alia, that the control room of ATM switch center specifically recorded evidence for transaction of Rs.10,000/-successfully and the complainant received the amount, therefore, she is not entitled to get any relief. It also stated that the transaction which was unsuccessful so far withdrawal of Rs.5,000/- the same was initially debited from her account and subsequently credited in her account.
5. On the basis of the pleadings of the parties, the District Forum has considered the matter on two counts, namely,

1. Whether there was any deficiency of service by opposite party, State Bank in respect of ATM service in the Ker Chowmuhani Centre?
2. Whether the complainant is entitled to get compensation and refund of the amount that she had not received?

6. The complainant examined herself as a witness and produced photocopy of Account Book, the ATM customer advice (2nos), her letter addressing to Branch Manager, SBI, Agartala Branch, and her complaint which were exhibited and marked as Exhibit 1 series.
7. Opposite parties on the other hand examined one witness, namely, Sri Paresh Chandra Roy, the Assistant Manager, State Bank of India and also produced the transaction report of 28.07.2014 of the said ATM which was marked as Exhibit-A.
8. Considering the evidence on record, the District Forum is of the opinion that,

“…State Bank authority produced the statement of disbursement cash from the ATM counter on 28.07.2014. On that date Rs.8,56,600/- was disbursed. Rs.10,000/- was also shown successfully disbursed. But the machine which cannot process just after one minute admittedly also may not work when the complainant placed her request for Rs.10,000/- earlier. It cannot be said that machine is always in working condition. CCTV installed at the ATM counter. But according to O.P.W.1, Paresh Chandra Roy, Manager it only could take the image of the person who used the ATM up to the chest level. So, from the CC TV camera it cannot be ascertained whether the amount was withdrawn or not. The opposite parties failed to produce details about the pending balance in the counter on 28.07.2014. It only given a statement of disbursement nothing else. From this, it cannot be said that transaction was successful. If we believe the machine only not the man, then opposite parties has a good case. But the opposite parties did not engage any expert or mechanic to support that machine was working properly whole day on 28.07.2014. It is clear from the machine report that sometimes it cannot process the request. So, we cannot say that machine always carry the request successfully and its report is true. We rather believe the complainant who tried to get Rs.10,000/-, failed and then wanted to get Rs.5000/-, but her request for second time also not processed. We decide that the first request also not processed like the second request just after one minute. The machine should have refund the amount through reverse system just second transaction, but it was not done. So, therefore, it cannot be said that machine was working properly whole day as net problem some time occurs. Complainant therefore is entitled to get back Rs.10,000/-which she did not receive for improper working of the machine…”

9. In the light of the above, by the impugned judgment delivered on 10.02.2016 passed in C.C.112 of 2014, the District Forum allowed the complaint petition filed by the complainant and directed the opposite parties State Bank of India to refund the amount as stated (supra).
10. Aggrieved by the aforesaid judgment, the appellants Bank has preferred the instant appeal on the ground that the Ld. District Forum did not apply its judicious mind properly while considering the evidence on record of both sides, rather passed the impugned judgment on mere presumption, which was totally improper on the part of the District Forum. It is also contended that the appellants in their evidence specifically stated that the first transaction of Rs.10,000/- was successfully completed and it is also admitted fact that the second transaction of Rs.5,000/- was not successful.Accordingly, the voucher print came out stating that “Sorry, unable to process” and the amount of Rs.5,000/- which was initially debited and again the said amount was credited. This admitted position does not rise the claim that the first transaction of Rs.10,000/- only, which was shown successful was also unsuccessful and the findings of the Ld. District Forum that sometimes the report of the machine cannot process the request and by this it is no way acceptable proposition that the transaction, which has been shown successfully completed was practically unsuccessful and in support of that contention though from the side of the appellants, the Exhibit-A was submitted as a documents, i.e. the statements of cash disbursement in ATM on 28.07.2014, but the Ld. District Forum has also failed to appreciate the same with an observation that the opposite parties have failed to produce details about the pending balance in the counter on 28.07.2014, which is contrary to the evidence on record.
11. Mr. Bhowmik, Ld. Counsel for the appellants Bank while urging for setting aside the impugned judgment submits that every day crores of rupees are transacted and disbursed through ATM machines all over India. A transaction appears successful, when machine disburses money from it to ATM cardholders and in any unsuccessful transaction, even any amount is debited, the same amount is credited in the account from which the amount was debited. In the case of complainant, the transaction was successful which means that an amount of Rs.10,000/- was disbursed to the complainant. It happens that an account holder after getting money in his first transaction, he may want to withdraw more money in his second transaction. But for any reason, his second attempt may be unsuccessful. In such circumstances, it cannot be said that he did not receive money in his first transaction. All the ATM machines run through a certain system with the help of NET services. There are also control rooms to see the functioning of the ATM machines. In addition, experts working on ATM machines are also supervising the ATM machines daily. If any ATM machine goes out of order, it would remain non-functioning for a period till it is repaired. But it would appear from the transaction statement of the said ATM machine that it functioned well on that day before and after the transactions of the complainant. Even after an amount was debited, when the ATM machine could not dispense the money to the complainant, it credited the said amount then and there to the account of the complainant as per system order as the machine cannot deviate from it. He further contends that the learned District Forum mere on presumption has held that in the first transaction, the complainant did not receive Rs.10,000/-. He also contends that there is no deficiency of service on the part of the Bank. If it is so happened, these large number of ATM machines could not function at the services of the account holders. After receipt of the complaint from the complainant, it was taken into consideration with due care and found that the transaction was successful. So the complaint of the complainant so far non-receipt of Rs.10,000/- is untrue, unreasonable and baseless, therefore, is liable to be dismissed.
12. Mr. Nandi, Ld. Counsel appearing for the complainant while supporting the impugned judgment contended that having failed to receive money from the ATM, the complainant made her second attempt to withdraw Rs. 5000/- in the need of money and that time too, the complainant could not get money from the ATM. The complainant was surprised to see that even without disbursing any money, Rs.10,000/- and Rs.5000/- was debited from the Account of the complainant in two consecutive transactions. The first transaction was said successful while in the second transaction, it was stated “Sorry, unable to process.” Again when the second transaction amount of Rs.5000/- was debited and credited in the account of the complainant,  the first transaction amount of Rs.10,000/- was not credited.  Therefore, it can be said that at the relevant time, the ATM machine was not functioning properly.  Hence, the appellants State Bank is liable to pay the debited amount of Rs.10,000/-to the complainant. Supporting the judgment of the learned District Forum, he has also contended that the learned District Forum has rightly imposed the cost of Rs.1,000/- as cost of litigation and Rs.10,000/- for deficiency of service. Therefore, there is no other alternative to the appellants bank but to pay the aforesaid amount to the complainant and thus no interference with the impugned judgment is called for and the appeal filed by the appellantsBank should be dismissed as the Bank has totally failed to adduce any evidence as regards the payment of any amount from the aforesaid ATM machine to the complainant.
13. We have heard the Ld. Counsel of the parties and also gone through the evidence on record as well as the impugned judgment.
14. This is a peculiar case at hand. The complainant, the respondent herein, made a complaint about non-receipt of money from the ATM machine of the State Bank of India, though the amount desired to be drawn was debited from her account. No convincing evidence is available, but the prevailing circumstances can be discussed.
15. To make it easier and convenience to the people, banking transactions can now be made outside the Bank. One need not enter into the Bank to deposit money to his account. Automatic machine is there in certain places to receive money from the account holders, though such facilities are not available in all places of the State. Machine has also been set up to make the Pass Book up to date. One can insert his Pas Book into the machine following some specific procedures and the machine prints the Pass Book showing the account balance. Similarly, Automatic Teller Machines, ATM in short, are also standing in different areas to disburse money to the ATM cardholders against their accounts.  To operate the ATM machine, ATM cards are used which are issued by the concerned Bank to the account holders against their accounts in the Bank. For obtaining money through ATM counter, one has to swipe his ATM Card in the machine, and then to command for paying the required amount following the directives correctly. The machine then dispenses the notes of the said amount from inside.
16. Most of the ATM counters remain open round the clock. The account holders may collect their money from those machines at any time on their need, even on urgent requirement of money at odd hours. Such a utility is very helpful in our daily life.
17. ATM Machine runs with the help of electric power as well as NET services. Either of them if not available, the machine cannot function. Besides technical defects or want of notes in stock inside the machine, falling of power or down condition of NET services disturb the proper transactions of the ATM machine.
18. Against each transaction, the machine provides a slip to the drawee account holder to see about his transaction.  Sometimes for any reason, ATM machine does not comply with the command of the valued customers for which as per system put to it, it expresses “Sorry, unable to process”. When emitting of currency is processed inside the ATM machine, the intending amount is debited from the account holder’s account. But sometimes, even after the said amount is debited, the machine may not eject the money, although transaction may appear successful. In that situation, it is generally seen that machine automatically credits the debited amount to the account at the same time from which the amount was debited. If it happens, a bank customer expresses no grievance. But occasionally a customer alleges that though he did not get money from the ATM machine, but the slip coming out from the ATM machine reflects that the amount he demanded has been debited by the ATM machine from his account. Immediately thereafter, he may make complaint to inform the Branch Manager of the concerned Bank where the account of the customer lies that he wanted to draw some money from the ATM machine, but though the transaction appeared successful and the amount was also debited from his account, practically, he did not get any amount of money from the ATM machine. Such is a case of the complainant before the District Forum. The complainant has also alleged about the deficiency of service by the State Bank of India.
19. As per system, all the transactions are recorded both in respect of one’s individual account and against each ATM. Whole transactions are held with date and time and the amount given along with the deposit of money to the ATM machine. Such a statement has been filed by the Bank appellants that contains details under different columns, namely, ATM ID Branch, Bank, Card No., Account No., PR No. Tr date, Tr. Time, DC, Tr. Amount, Derived Admin Bal, particularly, to show all these things on 28.7.2014 on which date, the complainant wanted to draw the money from the ATM machine, but failed.
20. On query by us, the appellants Bank has placed a clarification in regard to the ATM transaction dated 28.07.2014 in respect of ATM (ID No. DFBK000002100 situated at Ker Chowmohani, Agartala which shows the closing balance of 27.7.2014 and the opening balance on 28.7.2014 as Rs.11,31,800/-. Cash replenishment on 28.7.2014 was Rs.12,00,000/-. So total cash available in ATM on 28.7.2014 was Rs.23,31,800/-. Total cash dispensed by the ATM on 28.7.2014 Rs.8,55,600/-. As such closing balance on 28.7.2014 stood for Rs.14,76,200/- which in turn was the opening balance on 29.07.2014. This statement was not available before the District Forum. Therefore, the District Forum could not peruse the closing balance on 28.7.2014 and thus recorded in its judgment that opposite parties failed to produce details about the pending balance in the counter on 28.7.2014. The opposite party Bank has also not produced any expert or mechanics who are dealing with the ATM to say whether the aforesaid ATM machine was working properly for the whole day on 28.7.2014 and the aforementioned amount of Rs.10,000/- was disbursed to the complainant. No Bank official, who feeds the ATM machine with currency note and maintains accounts, has been examined to say whether any excess amount was visible in the ATM machine on closing the account on 28.7.2014 although it is seen in the transaction statement of the said ATM machine that for every transaction, each time the disbursed amount was deducted from the total amount of the ATM showing the next balance. It is stated that in each and every ATM counter, there is CCTV camera coverage. If so, an expert on CCTV footage should have been examined by the appellants Bank to know whether any coverage was there as to the disbursement of the money from the ATM machine to the complainant. It is learnt that against each ATM machine, there remains an Electronic Journal Report (in short, EJ Report) in regard to the dispensation of currency notes, which has not been produced as an evidence by the appellants Bank. All those vital evidences are required to be considered in such a complaint case.
21. We are unable to accept the impugned judgment passed by the Ld. District Forum mainly on the ground that the Ld. District Forum went on presumption. We have noticed that the Ld. District Forum in its judgment dated 08.02.2016 in Case No. C.C. 15 of 2014, (Sri Sambhu Kanti Debnath Vs State Bank of India and another) dismissed the complaint of that case noting, inter alia, “…………We cannot disbelieve the mechanical system introduced and prevailing for long period only on the statement of the petitioner.”
22. It is not clear to us how the Ld. District Forum in one case believed the result of the ATM machine and in another case disbelieved the functioning of ATM machine on mere presumption. In the instant case, the Bank Authority produced some documents showing that the first transaction of the complainant for Rs.10,000/- was successful and the same was rightly debited from her account and when the second transaction was unsuccessful, then the amount of Rs.5,000/- which was initially debited, was subsequently credited in her account. It shows that when the money is not received by the person concerned, then the money even debited is automatically credited.Therefore, it cannot be said that on that date, the ATM machine was not properly functioning as held by the Ld. District Forum. If the views of the Ld. District Forum areaccepted, only on the basis of the deposition of the complainant, then a Pandora box will be opened and the customers of the Banks’ even after they received the money will come with a claim that they have not received the money. However, as the documents placed before us by the State Bank of India, were not produced before the Ld. District Forum, the District Forum could not get opportunity to decide the case, taking note of those documents. Therefore, we direct the opposite parties Bank to produce Admin Balance at EOD on previous day which was amounting to Rs.16,25,500.0 and Admin Balance at EOD on 28.07.2014 and 29.07.2014 and other relevant records including the Electronic Journal Report regarding the respective ATM machine (in short E.J. Report) in regard to the dispensation of currency notes before the Ld. District Forum, which has not been produced as an evidence before the Ld. District Forum as all those vital evidencesare required to be considered in such a complaint case.
23. Keeping in view of the above, we are of the opinion that it will be proper for us to set aside the impugned judgment and accordingly, the same is set aside and the case is sent back to the Ld. District Forum to rehear the same considering the above aspects. After issuing notice to the parties for their appearance and production of records, the opposite parties Bank may be allowed to examine any technician or expert of ATM machine, if they desire.

Appeal is partly allowed. The Ld. District Forum is requested to dispose of the complaint case immediately after receipt of the records and appearance of the parties.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura