F.A.No.631/2013 against  C.C.No.378/2011 , Dist. Forum-III,Hyderabad. 

Between:

The Branch Manager,

State Bank of India,

Saifabad (SIB) Branch,

HACA Bhavan, Opp. to Assembly,

Hyderabad-500 004.                                            …Appellant/

                                                                           Opp.party

     And

Sri M.Jayarami Reddy,

S/o. Late Mathuru Subba Reddy,

Aged : 59 years, Occ:Service,

High School Road,  Vidavalur,

Vidavalur Mandal,

Nellore District  - 524 318                                   … Respondent/

                                                                         Complainant

Counsel for the Appellant     :      M/s.V.Sri Krishnudu

Counsel for the respondent  :        Party in person

QUORUM:   SMT. M.SHREESHA, HON’BLE INCHARGE PRESIDENT,

                                         AND

                    SRI S.BHUJANGA  RAO, HON’BLE MEMBER.

               WEDNESDAY, THE   TWENTY  THIRD DAY OF  OCTOBER,      

                         TWO THOUSAND  THIRTEEN .

Oral Order: (Per  Sri S.Bhujanga Rao, Hon’ble Member)           

                                    ***

This appeal is directed against the order dt.26.4.2013  of the District Consumer Forum –III, Hyderabad made in C.C.No.378/2011 directing the opp.party to pay a sum of Rs.20,000/- with interest at 9% p.a. from 10.10.2010  till realisation and a sum of Rs.15,000/- towards compensation and Rs.5,000/- towards costs.

         The respondent/complainant  is an S.B. Account holder bearing no.20020321942 with the State Bank of India, Saifabad (SIB) Branch, Hyderabad  the appellant/opp.party  herein, with ATM  card facility.  On 10.10.2010 at about 11 a.m., the complainant has drawn Rs.2000/-  from the ATM located in the premises of Kukatpally Petrol Pump. The complainant got his account updated on 13.10.2010. He found that the bank has wrongly debited an amount of Rs.20,000/-  from his account.  He lodged a complaint with the bank on 13.10.2010 itself.   The bank officials have initially promised  the complainant to credit the amount to his account within 12 working days.  But, to his surprise, the bank officials informed the complainant through SMS on 19.10.2010, that the transaction was successful and the complaint is closed.   

         The further case of the complainant is that  he has given another complaint on 22.10.2010  as he has not drawn   the amount of Rs.20,000/-. In response to it, the opp.party bank gave a reply letter dt.09.11.2010  that they have  checked the J.P.Log  and reiterated  that the transaction was a successful one. Then the complainant has given one more complaint on 10.11.2010, to rectify the defect and credit the amount to his account.   The appellant/opp.party has arranged the video recorded clipping in respect of TXN  5518, the disputed transaction. On verification of the video clipping the bank staff have orally admitted, that an amount of Rs.20,000/- was not drawn by the complainant. Since, nobody was drawing cash  or atleast not making any transaction standing infront of the ATM and the person just moving from one side to other, did not show the image of the complainant. The attitude of SBI  clearly shows their negligence and deficiency in service .  The complainant has not only suffered financial loss, but also was subjected to mental agony and bodily tension for the past six months.  The complainant has prayed to direct the opp.party  to pay a sum of Rs.20,000/- with  interest @ 12%, Rs.30,000/- towards mental agony and for costs. 

         Resisting the complaint, the opposite party filed written version denying the material allegations made in the complaint, while admitting the fact that the complainant is having SB  A/c. No.20020321942 and that  he was provided with debit card facility by the opp.party bank.   The contention of the opp.party is that on 10.10.2010  the complainant has drawn the amounts on two occasions at Rs.2000/- and Rs.20,000/- respectively. The complainant was present at the time of  the said two ATM transactions.   The complainant has admitted the transaction relating  to withdrawal of Rs.2,000/-,   but he has disputed the transaction relating to Rs.20,000/-.    That the ATM transactions   are not possible in the absence of  ATM card, which is in the custody of the complainant and also the pin number, which is in the exclusive knowledge of the complainant and the disputed transaction has taken place  either because of the negligence  or inconvenience of the complainant, as the complainant is solely responsible  to keep the ATM card in safe custody and also maintaining the confidentiality  of his debit card pin number and the opposite party is not liable for loss or damage, if any, arising from the failure or negligence of the complainant.   The complainant might be negligent  or he himself has withdrawn the amount or has divulged all the aforesaid details to some third party, which has resulted in the aforesaid transaction from the complainant’s account.  As per the statement of account of ATM and Admin Slip, it is evident that ATM disbursed the notes.

        The opp.party further contended that on 13.10.2010, the complainant lodged a complaint  with the opp.party alleging  that there was wrong debit of Rs.20,000/- on 10.10.2010. Immediately, after receiving the said complaint the opp.party registered the complaint on 13.10.2010 itself and  made all the enquiries and found that the disputed transaction dt.10.10.2010 for Rs.20,000/- was successful and hence closed the complaint on 19.10.2010    and the same was communicated to the complainant on the same day.   The officials of the bank have categorically informed the complainant that he himself has withdrawn the cash from ATM in respect of the disputed transaction and it was a successful transaction. 

The opposite party further contended that on the complaint given by the complainant  the Banking Ombudsman of A.P.  which is the competent authority constituted under law  for resolutions of the grievances of the customers against any  bank, made elaborate enquiry  and gave a finding that the disputed transaction was made using the physical ATM card and a valid pin  pertaining to the complainant’s account and the transaction as successful  and cash was dispensed by the ATM   and closed the complaint by holding that there is no case  of deficiency in service on the part of the bank.   The complainant is not entitled  to claim any  of the reliefs claimed   by him.   The complaint  is liable to be dismissed with   compensatory costs.

        During the course of enquiry, the complainant and opp.party  filed  their respective  evidence  affidavit and got marked Exs.A1 to A14  and Ex.B1 to B8 respectively. 

        Upon hearing the  respondent/complainant in person and the counsel for the opp.party  the District Forum allowed the complaint  passing the  aforesaid order.

        Aggrieved by the said order, the opposite party preferred the above appeal, questioning the validity  and legality of the order on various grounds.

        We heard the counsel for the appellant/opp.party and perused the entire material  placed on record including the written arguments submitted by both the parties.

        Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?

        The admitted facts are :

        The respondent/complainant  is  an SB Account holder bearing  No.20020321942 with the appellant/opp.party bank with ATM Debit Card facility. The complainant has withdrawn Rs.2000/- on 10.10.2010 at about 11 a.m. from the ATM located in the premises of Kukatpally Petrol Pump. 

        It is the case of the complainant   that he got his account updated on 13.10.2010   and that he found the bank has wrongly debited an amount of Rs.20,000/- from his account,  then  he lodged a complaint with the bank on 13.10.2010 itself.   But, to his surprise, the bank officials informed the complainant through SMS on 19.10.2010 that the transaction was successful and the complaint is closed.   On the other hand, the case of the appellant/opp.party is that the entries in J.P.Log and video recorded clippings, in respect of both the transactions,  established  that the complainant himself has withdrawn the cash of Rs.20,000/-  on 10.10.2010 itself  from ATM  and it was a successful transaction. 

         Ex.A1  is the xerox copy of the statement of account  pertaining to the  complainant.  Ex.A1 indicates that an amount of Rs.2000/- was withdrawn on 10.10.2010 at HPCL., Kukatpally through transaction no.6081 and that on the same day  i.e. 10.10.2010   another sum of Rs.20,000/- was said to have been drawn by the complainant from the same ATM  vide transaction no.5518.   The entry relating to the disputed transaction  of Rs.20,000/- is made underneath the transaction of Rs.2000/- in Ex.A1. 

         Ex.A2 is the xerox copy of the first complaint dt.13.10.2010 given by the complainant to the opp.party. In Ex.A2 the complainant has categorically asserted that he has drawn only Rs.2000/-  and that he never drawn Rs.20,000/- on 10.10.2010 from the SBI ATM, Kukatpally Petrol Pump i.e. HPCL Branch and requested the opp.party to credit the missing amount of Rs.20,000/- to his account.  Ex.A3  is the second complaint dt.22.10.2010. In Ex.A3 complaint, the complainant  has asserted that he never  withdrawn an amount of Rs.20,000/- and requested the opposite party to rectify the  defect and credit his  amount. 

         Ex.A4  (Ex.B7)  is the reply letter dt.9.11.2010 from the opposite party  addressed to the complainant, wherein it has been stated that  Ex.A3 complaint dt.22.10.2010  given by the complainant was referred to  ATM Switch Centre and they have advised that it was successful transaction and that they have also checked the JP Log  to reiterate  that the said transaction was successful one.     As rightly observed by the District Forum, Ex.A4  is ambiguous, in as much as there is no clarity, whether it relates to the transaction of Rs.2000/-  or  the transaction of Rs.20,000/-. On receipt of Ex.A4 reply, the complainant again gave another complaint under Ex.A5 dt.10.11.2010  reiterating that he  has never withdrawn Rs.20,000/- on 10.10.2010.    Ex.A6  is    the copy of another complaint dt.15.12.2010 given by the complainant to the opposite party.  In Ex.A6 also the complainant has reiterated that he has never withdrawn an amount of Rs.20,000/- as alleged by the opposite party in transaction no.5518 on 10.10.2010.   Ex.A7   is the reply letter dt.21.12.2012, given by the opposite party for Ex.A6 complaint. 

 In Ex.A7 reply letter, the opposite party has stated that they have made an enquiry and verified video clippings of the transaction relating to transaction no.5518  and 6081 and both transactions are successful.   It is further stated in Ex.A7 that transaction no.5518 video reveals  that the transaction started at 10.55.25 hrs.  and closed at 10.56.09 hrs.  Card no. 6220180731500104906 and that  the transaction  no.6081  video reveals that the said transaction started at 11.04.32 hours and closed at 11.04.54, Card no.6220180731500104906.

           A perusal of Ex.A7 made it clear that the disputed transaction bearing   no.5518 had taken place at 10.55.25 hours  and ended at 10.56.09 hours  i.e. prior to the admitted transaction.   As rightly observed by the District Forum, if really, the disputed transaction had taken place prior to the admitted transaction, its entry in Ex.A1 would have been the first entry and  the entry relating to the admitted transaction would have been the second entry, but it is otherwise. Ex.A1 clearly shows that the admitted transaction for Rs.2000/- had taken place first and subsequently the disputed transaction had taken place.   Ex.A8, J.P.Log sheet indicates that the disputed transaction bearing no.5518 had taken place at 11 a.m. whereas the video clipping indicates that it has taken place  at 10.55 a.m. 

         Explaining  the discrepancies  regarding the   timings in the JP Log and video CC cameras, the learned counsel for the appellant/opp.party  submitted in his written arguments that there may  be a difference in the settings  with regard to the timings from one ATM to another ATM and similarly, one CC T.V.  to another CC TV, which will depend upon time setting and there is a scope for variation of times for both the ATMs as well as CC TVs.  Similarly, there may be  variation of times between ATM and CC TV attached to the same ATM.    Therefore, the complainant cannot take any advantage of differences in the time settings  in CC TVs. and further  the difference in the time settings is irrelevant  to the case and only indicate the difference in the chronometer/clock settings  in ATMs.  and CC TVs.  It is not possible  to edit or manipulate  the video clippings and the District Forum erred in holding that the video clippings  furnished to the  District Forum   is not an original cassette and it is an edited and  manipulated C.D. 

           As rightly observed by the District Forum that  if there is no consistency in the JP Log and CC camera timings, the fraudulent transaction  cannot be detected.   Further,   Ex.A11  is the copy of the complaint given by the complainant to the Banking Ombudsman, Reserve Bank of India, Hyderabad.  In Ex.A11, the complainant has stressed  this point  of  difference in timings of the disputed transaction. The opposite parties filed their counter before Ombudsman, but they had not made any mention about the difference in timings of the same transaction  vide Ex.A12.    It appears that  only with the leading clue given by the Ombudsman, the opp.parties are now  contending  that there could be difference in  timings of the same transaction. Therefore, the contention of the opposite parties, that there could be difference in timings from one machine to the other machine is an after thought and the same cannot be accepted. In addition to that, the opp.parties have not placed any material on record, in support of their contention  that there could be difference  of times  from one machine to another machine in the same premises.  There may be difference in timings  from one  time machine to the other machine,  either due to slow/fast running  or the difference may occur  while setting the times in the machine.  The times once   registered  in the records will not  differ/change. The opposite parties  asserted that they have made  enquiry, besides verification of video  clippings and declared that the disputed transaction took place at 10.55  a.m.  Under these circumstances, we are unable to  accept the above submission of the learned counsel for the appellant/opp.party.

         Further,  Ex.A10 is representation letter  dt.20.11.2010 by  the complainant to the opposite party, requesting the bank to furnish the timings, relating to the transaction  numbers 6082 to 6084. The complainant has categorically stated in Ex.A10  that  he does want   the other details like account number, card number and balance etc., as the details of the customers are  to be maintained  confidentially.   Admittedly,  the opposite party bank did not furnish timings relating to the above said transactions mentioned in Ex.A10. No explanation is offered by the opposite party  as to why they could not furnish the said details.   We do not find any ground much less valid ground  to withhold   the information  which required by the complainant as under Ex.A10 letter.  The opposite party cannot deny the said information, which is not with regard to the details of the accounts of the customers, on the ground that the details of the other customers will not be revealed to others. Further, in addition to that, the opposite party was  stopped from taking such plea in view of  Ex.A8 JP Log Sheets.  Ex.A8 is issued in respect  of the transactions  of 5516 to 5519, which carry the most important  details namely the account numbers of the customers, their ATM card numbers, time of withdrawals, the amounts withdrawn and available, closing balance etc.  From Ex.A8  it is evident that there is no strict rule that the banks should not reveal the details of the customers. Under these circumstances, the opposite party is not justified  in refusing to intimate the time (just times)  of proceeding and  succeeding transaction of the successful transaction.

The learned counsel for the appellant/opp.party has submitted   that the Banking Ombudsman   of  A.P., Reserve Bank  of India   which is competent authority   constituted  under law  for resolution of  the grievances of the  customers against any bank, made elaborate  enquiry  and called for entire record  such as ATM Log report,  CC TV Clippings, Admin slips,  statement of ATM etc. from the bank and  after hearing both sides and after perusing the documents   gave a finding that the disputed transaction was made using physical ATM card and valid pin pertaining to the complainant’s account and the transaction was successful and cash was dispensed by the  ATM and closed the complaint by holding that there is no case of deficiency in service on the part of the Bank.

We are of the view that the order of the Ombudsman  is not binding on the District Forum,  while conducting enquiry under the provisions of the Consumer Protection Act. That apart, in para 4 of  Ex.A9, the Banking Ombudsman  observed that during the conciliation  meeting, the bank  has played back the CC TV  records taken at the time of the transaction and that the images were not clear   to identify the person putting through the disputed transaction and that the bank also  played back the CC TV recording in respect of transaction nos.6081  for Rs.2000/- admitted transaction  on 10.10.2010  put through using the complainant’s ATM card.  That the complainant has identified his image  in C.C. T.V. recording of transaction no.6081 (admitted transaction.) As rightly observed by the District Forum, having observed the same in para 4 of the order, Ombudsman ought not to have come to the conclusion that the disputed transaction is  a successful trans action,  especially in view of the fact that to identify  and locate person  whose image is not clear in video clippings and especially when the opposite party has not taken efforts to locate and identify the person’s image is not clear in video clippings.  Under   these circumstances, basing on Ex.A9  order of the Ombudsman, we are  not inclined to accept Ex.A9, in proof of the whole case of the opposite party. 

Ex.A13 is the representation dt.19.2.2011 of the complainant   to the opposite party requesting them to furnish  the details  regarding the transaction  nos.5516, 5518 and 5519  as the transaction no.5517   is conspicuously    missing. The opposite party bank  officials instead of furnishing   the said information, addressed   a letter vide Ex.14 dt.22.3.2011 stating that as per  Sec.8(1)(d)  read with Sec.8(1)(e) and  Sec.8(1)(j) of RTI Act, 2005  they are  not  supposed  to disclose the information data relating to the accounts of other customers to the outsiders  and hence they are providing the complainant with the  documentary evidence and correspondence made by the bank pertaining to  the captioned transaction only. As seen from Ex.A13, the complainant is not seeking the details of other customers, such as their ATM Card numbers, names and other personal details. He is only asking the details of the transaction relating to the transaction no.5517. Therefore, the opposite party is not justified in not furnishing  the information required by the complainant as per Ex.A13. The learned counsel for the appellant/opp.party submitted that the complainant made initial complaint over phone vide ticket no. AT 7315601445 stating that he had tried to withdraw   Rs.20,000/-  and account debited but  cash   not dispensed  which is  evident from Ex.B6. But subsequently, he has changed his version that he  has not tried to withdraw any amount from the  subject ATM No.2 and has withdrawn an amount of Rs.2000/- from ATM no.1. 

It is true that the complainant himself  admitted in the complaint that on 09.10.2010  he has tried to withdraw a sum of Rs.20,000/-  from ATM near KPHB  main road, but he could not get the cash and it was  displayed  on the screen ”please check up your daily cash withdrawal limit”.   On the same day he has also tried to withdraw  from  Kukatpally Petrol Pump  ATM and that there was no cash   in that ATM also.  He withdrew Rs.2000/- from  ATM  located in the premises of Kukatpally Petrol Pump   on 10.10.2010 and dropped idea of withdrawing  of Rs.20,000/-  since his  colleague   S.Vijayakrishna   promised to  give Rs.17,000/-  within a day or two.  It is the specific case   of the complainant that he has not tried at all to withdraw Rs.20,000/- in the second ATM on 10.10.2010  at Kukatpally and that since  a few SBI officials  are clever enough  to fraudulently withdraw  Rs.20,000/- invoking  his unsuccessful  transaction on the previous day, they can also well manipulate  the same in the records, to see that the amount  disappeared and cash balance reduced.   The opposite party has not produced any evidence, to show that the complainant tried to withdraw a sum of Rs.20,000/- from ATM near KPHB main road  and the transaction failed, as there was no cash in the ATM.    Reply letter dt.21.12.2010   issued by the Branch Manager of the opposite party proves that their JP Log is invalid.  Under  these circumstances, we are not inclined to accept the above contention  of the appellant/opposite party.          

The learned counsel  for the appellant/opposite party submitted that  unless  ATM card had been stolen or pin number become known to the person other than the ATM  card holder/account  holder, there is no scope  for  misusing of the same.  In this case, the specific  case of the complainant is that his ATM card was very much  held with him  till  10.07.2013.  Therefore, the question  of stealing of ATM card and the  third person   knowing  about the  pin number  of the ATM card of the complainant does not arise.

Further, the District Forum had played  the CD video  clippings furnished by the opposite party bank for   the transaction  bearing no.5518    for withdrawal of  Rs.2000/- . The image   of the complainant is clearly visible, when he was  standing in front of the ATM and drawing  the cash.   Whereas the video clipping relating to the disputed transaction bearing  No.5518, the image of the persons standing in front  of ATM is not  clear and nobody  was  standing infront of the  machine a the time of drawing the amount. Two persons are  moving  from one side to other side.  That means, nobody is  drawing the cash,  nobody is making  any transaction and atleast nobody is standing in front of the machine, just a person not the complainant  is moving  from one side to the other side. The District Forum  observed that the video clipping furnished to them is not original cassette, it is an edited and manipulated CD and that the banking Ombudsman has also expressed the same view in  Ex.A9 order  that the images were not clear to identify the person relating to the disputed transaction. Under these circumstances,  the mother cassette  would help us to clearly know the person who was infront of the machine,  on that day.  But the opposite party though promised to produce, failed to produce the same. Had the opposite party been holding the video clipping to establish the disputed transaction as successful transaction, they would have certainly brought the mother cassette and placed before the District Forum.                           

         In view of the above facts and circumstances, the opposite party failed to prove that the complainant has withdrawn Rs.20,000/-  on 10.10.2010  as alleged by the opposite party.   Therefore, the opposite party is liable to pay that amount which is missing from the account of the complainant to the complainant. 

For the aforesaid facts and circumstances, we do not find any irregularity or illegality in the  well reasoned order  of the District Forum, to interfere with it.   The impugned order of the District Forum is sustainable under law and is not liable to be set aside.   Hence the appeal fails.

        In the result, the appeal is dismissed confirming the impugned order of the District Forum.    The appellant/opp.party is directed to  pay   a sum of  Rs.10,000/-  to the complainant towards costs of this appeal.   

 INCHARGE   PRESIDENT

                                                                        MEMBER

Pm*                                                               Dt. 23.10.2013