This complaint coming up before us for hearing on 22-06-12 in the presence of Sri N. Durga Prasad, advocate for complainant and of Sri K.V.R.H. Prasad, advocate for 1st opposite party, 2nd opposite party remained absent and set exparte, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-
O R D E R
Per Sri A. Hazarath Rao, President:-
The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking to pay Rs.10,000/- (wrongly debited from his account) with interest @24% p.a., from the date of complaint; Rs.25,000/- towards compensation for mentally agony and for costs.
2. In brief the averments of the complaint are these:
The complainant is having savings bank account bearing No.00000010719831470 with the 2nd opposite party since 2000. The complainant also obtained ATM-cum-debit card bearing No.62201801 46000017740 from the 2nd opposite party in July, 2004. The said debit card can be used in any ATM of other banks also and the limit for withdrawal is Rs.40,000/- per day. On 23-08-11 the complainant through the ATM of 1st opposite party withdrew Rs.15,000/- each on two occasions and the available balance was Rs.12,378.11 ps. The matter in the slip was erased due to lapse of time. On 12-09-11 the complainant approached the 2nd opposite party in counter to withdraw Rs.10,000/- from his account. An employee of the 2nd opposite party informed the complainant that the available balance in the account of the complainant was Rs.2,378.11 ps only. The complainant surprised to note the same and made a complaint to toll free number and his complaint was registered as AT 42922343081. The complainant reported the same in writing to the 2nd opposite party for which there was no response so far. The complainant learnt that withdrawal of Rs.10,000/- was a successful transaction. The complainant approached banking ombudsman, Hyderabad on 10-10-11. The complainant operated ATM twice only and withdrew Rs.30,000/- only. An entry of wrong withdrawal was made in the account of the complainant and it amounted to deficiency of service. Due to that the complainant suffered mental agony and incurred unnecessary expenditure. The complainant is entitled to seek Rs.25,000/- as damages from the opposite parties. The complaint therefore be allowed.
3. The contention of the 1st opposite party in nutshell is hereunder:
The complainant used ATM card under transaction numbers 3786 3787 and 3788 and withdrew Rs.15,000/-; Rs.15,000/- and Rs.10,000/- respectively at 17.41; 17.42; and 17.43 hours respectively and they were successful being the response code 000. The electronic journal log of the ATM dated 23-08-11 and the ATM log maintained in the Switch Centre at Mumbai revealed that those three ATM transactions were successful. The complainant operated ATM thrice on 23-08-11 and withdrew Rs.40,000/-. The 1st opposite party therefore did not commit any deficiency of service. Rest of the allegations contra mentioned in the complaint are all false. The complaint therefore be dismissed.
4. The contention of the 2nd opposite party in brief is hereunder:
The complainant is having savings bank account bearing No.00000010719831470 with the 2nd opposite party since 2000. The complainant also obtained ATM-cum-debit card bearing No.62201801 46000017740 from the 2nd opposite party in July, 2004. The complainant did not receive any amount by way of submitting withdrawal form or through ATM of the 2nd opposite party. The 2nd opposite party has nothing to do with the claim of the complainant. Rest of the allegations contra mentioned in the complaint are all false. The complaint therefore be dismissed.
The 2nd opposite party was set exparte on 19-06-12 for not filing affidavit.
5. Exs.A-1 to A-4 on behalf of complainant and Exs.B-1 and B-2 on behalf of 1st opposite party were marked.
6. Now the points that arise for consideration are:
- Whether the opposite parties committed deficiency of service?
- Whether the complainant is entitled to compensation?
- To what relief?
7. Admitted facts in this complaint are:
1. The complainant is having bearing No.00000010719831470 with the 2nd opposite party since 2000.
2. The complainant also obtained ATM-cum-debit card bearing No.62201801 46000017740 from the 2nd opposite party in July, 2004 (Ex.A-1 and A-2).
3. The complainant withdrew Rs.15,000/- each on two occasions on 23-08-11.
4. The electronic log revealed that the transaction (TXN) number 3788 for Rs.10,000/- was successful (Ex.A-4).
8. POINTS 1&2:- The deficiency coined by the complainant was that an amount of Rs.10,000/- was wrongly debited from his account though not withdrawn on 23-08-11 by using ATM card. The 1st opposite party on the other hand filed electronic log journal for 23-08-11 regarding transaction numbers 3783, 3784, 3785, 3786, 3787, 3788 and 3790 and account balance sheet of ATM switch centre. As per Ex.A-4 =(Ex.B-1) the disputed transaction vide TXN no.3788 on 23-08-11 for Rs.10,000/- was shown successful.
9. The complainant issued a memo to the 1st opposite party to produce recordings dated 23-08-11 at 17.41; 17.42 and 17.43 of the CC camera fixed in the ATM of the 1st opposite party. The 1st opposite party did not furnish recordings of CC camera as sought by the complainant. The complainant in his complainant as well as affidavit mentioned that the permitted withdrawal from ATM per day is Rs.40,000/- only.
10. In State Bank of India vs. K.K. Bhalla 2011 (2) CPR 26 (NC) it was held:
“It is not in dispute that the ATM card was issued to the respondent and that he had kept the card in his safe custody. Thus, no one had access to it nor was it ever missing. Further, only the respondent was aware of the special four digit PIN number which is essential to operate the ATM card. Despite all these facts, learned Fora below ruled in favour of the Respondent only on the grounds that the CCTV footage which was required in respect of ATM transactions was not made available and this was a major lapse on the part of the Petitioner/Bank since it breached the security and safety in ATMs and was thus, clearly a deficiency in service.
We are not convinced by this reasoning of either the District Forum or the State Commission, particularly, in view of the fact that merely because the CCTV was not working on those dates and its footage was thus not available, does not mean that the money could be withdrawn fraudulently without using the ATM card and the PIN number. In case the ATM card had been stolen or the PIN number had become known to persons other than ATM card holder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card. In the instant case it is not disputed that the ATM card or PIN remained in the self-custody/knowledge of the respondent. In view of elaborate procedure evolved by the petitioner/Bank to ensure that without the ATM card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, we find it difficult to accept the Respondent’s contention. No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM card or the PIN number fell in wrong hands.”
11. The successful transactions as contended by the complainant were done at 17.41 and 17.42 on 23-08-11 through which the complainant withdrew Rs.15,000/- on each occasion vide TXN nos. 3786, 3787. The disputed transaction bearing No.3788 was done by using ATM at 17.43 hours on 23-08-11. The complainant did not adduce any cogent evidence to rebut Ex.A-4 =(Ex.B-1). There was no scope for a 3rd party to intervene and operate ATM card of the complainant considering the transaction serial numbers and the proximity of time. Considering the proximity of time between the successful transaction and the disputed transaction the contention of the complainant that he did not withdrew Rs.10,000/- on 23-08-11 cannot be believed as no other transaction intervened. Under those circumstances, not furnishing of the CC camera proceedings by it in our considered opinion is not fatal to the 1st opposite party.
12. In view of the above discussion, we opine that the opposite parties did not commit any deficiency of service and the complainant is not entitled to any compensation. We therefore answer these points against the complainant.
13. POINT No.3:- In view of above findings, in the result the complaint is dismissed without costs.
Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 26th day of June, 2012.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant:
Ex.Nos. | DATE | DESCRIPTION OF DOCUMENTS |
A1 | - | Copy of ATM card of complainant |
A2 | 23-08-11 | Copy of ATM transaction slip (erased) |
A3 | 10-10-11 | Copy of complaint given to Ombudsman, RBI, Hyderabad |
A4 | - | Copy of electronic journal log issued by opposite party |
For opposite party :
Ex.Nos. | DATE | DESCRIPTION OF DOCUMENTS |
B1 | 23-08-11 | Copy of electronic journal log |
B2 | - | Copy of cash balance sheet |
PRESIDENT
