CONSUMER DISPUTES REDRESSAL FORUM,PALAKKAD

Dated this the 18^th August, 2015

PRESENT :  SMT. SHINY.P.R, PRESIDENT

               :  SMT. SUMA. K.P, MEMBER                     Date  of filing : 26/09/2013

CC /165/2013

K.K.Muralidharan,

S/o.K.M.Kunju(Late)

Kallingal House, Paruthipulli,                                    :        Complainant

P.O. Paruthipulli, Alathur Taluk,

Palakkad District

Chief Controller,

Divisional Railway Manager’s Office,

Southern Railway,

Railway Quarters No.618/F,

Old Railway Colony, Olavakkode,

Palakkad-678 002

(By Adv.K.Dhananjayan)   

             Vs

1. State Bank of India,

    Regd. and Head office,                               :        Opposite parties

    Madamcama Road, Mumbai,

2. The Branch Manager,

    State Bank of India (ADB)

    Palakkad Branch, Palakkad.

3. The Regional Manager,

    State Bank of India,

    Robinson Road, Palakkad.

4. General Manager,

    State Bank of India,

    Kerala Circle, Local Head Office,

    S.S.Kovil Road, Thampanur,

   Thiruvananthapuram 695 001

   (By Adv.G.Ananthakrishnan)

O R D E R

By Smt. Suma. K.P, Member,

The above  complaint is filed to issue an order to pay Rs.40,000/- which is alleged to have lost by the complainant in the ATM transaction and to allow a sum of Rs.25,000/- as damages for the mental agony suffered by him. The complainant was having an SB account in the 1^st opposite party branch and was availing ATM facility.  On the eve of his daughter’s marriage on 15/03/2013 at about 4.50 p.m he had used the ATM facility at Olavakkode Railway Station ATM counter to withdraw Rs.4,000/-.  The complainant had used the ATM facility thrice.  During the first operation complainant had enquired the balance and during the second operation he had complied all the required formalities.  He alleges that he did not get the amount which he has ordered.  On the second occasion also complainant did not get the amount nor receipt from the ATM.  As a last attempt the complainant opted to operate, even then the complainant neither got the amount nor the receipt from the machine.  So he returned under the impression that the ATM machine at Olavakkode second terminal through which he has operated is not functioning properly.  On the next day i.e. on 16/03/2013  complainant had gone to the ATM terminal at Olavakkode SBI branch and operated the ATM machine to withdraw Rs.3,000/-.  The amount of Rs.3,000/- came followed by a receipt which shows available balance Rs.36,810.06. The complainant was astonished to see that surprising loss of the amount from his account and has ordered the machine to  get a mini account statement wherein he came to understand that on 15/3/2013 an amount of 40,000/- was withdrawn.  According to the complainant he had not at all withdrawn Rs.40,000/- on 15/03/2013.  He alleges that due to defect and fault of the ATM, he had lost Rs.40,000/-. So in order to get his grievance redressed complainant had sent a letter to the Manager of the 2^nd opposite party requesting the Manager to credit the amount of Rs.40,000/- in his account with immediate effect.  No positive action of any kind was taken by the bank. Again the complainant had sent another letter  to the 4^th opposite party.  As a last resort complainant has filed another representation to the 4^th opposite party for which a reply was issued stating that the complainant has withdrawn the amount of Rs.40,000/- as  per their records the transaction was successful and in that circumstances they were unable to accede the request for the refund of the amount.  Again the complainant had approached the banking Ombudsman at Thiruvananthapuram who has also turned down the request of the complainant.  So  aggrieved by this hostile attitude of the opposite parties complainant had approached before the Forum  seeking an order to pay Rs.40,000/- along with Rs.25,000/- (Rupees Twenty Five thousand only) as damages.

The notice was served to the opposite parties for appearance.  Opposite parties entered appearance through counsel and filed version denying all the allegation stated in the complaint.  From the records available with the opposite parties taken from the ATM, the Complainant had used the ATM facility twice on 15/03/2013 at 4.52 p.m and 4.56 p.m.  During the first operation the complainant had enquired the balance and during the second operation the complainant had withdrawn a sum of Rs.40,000/-.  The withdrawl is made during the second operation.  The cash balance has been verified and it is clear from the cash balance that the amount has been withdrawn.  There was no excess cash in the ATM for the period from 13/03/2013 to 18/03/2013.  The photo clippings of the ATM is produced herewith which shows that the complainant had operated the ATM with the assistance of another person and had pressed the PIN number in the presence of the aforesaid another person and thereafter had verified the balance in his account in the presence of that third person and had left the account without completing, closing or cancelling the transactions properly.  The photo clippings further revealed that the complainant’s gross negligence in handling of ATM transactions helped/induced the next person who operated the account to withdraw Rs.40,000/-.  The photo clippings revealed that there is collusion in the ATM transaction.  Any person who operates ATM has to mandatorily keep his PIN code safe and should not operate ATM in the presence of others and failure to adhere to these basic safety measures has resulted in the alleged transaction if any.  The opposite parties cannot be held responsible for the negligence of the complainant.  The banking ombudsman had dismissed  the complaint filed by the complainant.  The complainant is not entitled for any relief prayed in the complaint.  The complainant had suffered loss only due to his own negligence for which opposite parties are not liable.  Without properly closing, cancelling or completing the ATM transactions and by divulging the PIN number, account balance to strangers the complainant himself is only responsible for the alleged transaction .  The opposite parties always give information to its customers to maintain secrecy in ATM as well as internet transaction through various modes of communication including advertisements, e-mails, sms messages.  Inspiteof these informations the complainant had diverted the information to third party in total contractual violations for which he alone is responsible.  Hence  the complaint has to be dismissed.

The complainant and opposite parties filed respective chief affidavits. Opposite party filed IA for cross examination of complainant.   Complainant filed application  for cross production of photographs by opposite party.  Opposite parties produced CD pertaining to the alleged transactions.  An Advocate Commissioner was appointed to view the CD and filed a detailed report.  Commissioner filed report after viewing the CD containing photographs.  Commissioner directed the opposite party to produce the hard disk for which opposite parties filed affidavit stating that the CD produced is the exact copy of the images in the hard disk.  Complainant filed application to cross examine the Regional Manager.  The opposite parties stated that the Senior Manager has filed affidavit on behalf of all the opposite parties.  Hence application was allowed.  Opposite party was present and examined as DW1.   Ext.A1-A5 was marked from the part of the complainant and  Ext.B1-B8 was marked from the part of the opposite parties.  Evidence was closed and the matter was heard.

The following issues are to be considered.

1. Whether there is any deficiency of service on the part of the opposite parties?
2. If so, what are the reliefs and cost? 

 ISSUE No. 1

We have perused the documents produced from both sides along with Commission Report.  The very definite stand taken by the complainant is that the ATM machine installed and operated by the opposite parties are all substandard quality and is defective and therefore the complainant had suffered the loss.  The ATM machines do not confirm the international standard and the opposite parties are not following the guidelines issued by the RBI pertaining the credit card transactions and operations.  After scrutinizing the CD the Commissioner has filed a report which was marked as Ext.C1.  In the said report he had stated that at about 16:52:32 hrs the complainant was seen returning from the ATM counter without withdrawing the amount.  At that time the person who was in the room was seen moving to the ATM and he started operating the machine.  He was seen making phone call while operating at 16:52:38 hrs.  He went on operating the machine and finally at 16:55:53 hrs he was seen withdrawing an amount Rs.40,000/- from the counter as Transaction I.D 7116 from A/c.No.0000010396558389 through Card No.519619.  He was seen leaving the counter.

Subsequently another person was also seen entering the counter and operating the machine.  A delay in dispensing the amount was evident and was noticed in the clipping and the complainant was not aware that whether it was the defect of the machine or not.  Moreover only active transactions were seen in the screen of the clippings as the clippings was from the camera in the machine.  What is done by the customer cannot be seen through this clippings.   

The Commissioner had stated that the amount was withdrawn by a stranger for which he could not state the reason whether it was  due to the defect of the machine.  According to the opposite parties the complainant was grossly negligent in handling of the transactions which helped/induced by the next person who operated the account to withdraw Rs.40,000/-.  Without properly closing, cancelling or completing the ATM transactions and by divulging the PIN number, account balance to strangers the complainant himself is only responsible for the loss suffered by him. 

From the above circumstances it can be inferred that the complainant himself was responsible for the transactions put through by utilizing the card at the ATM terminal at the presence of a third party.

In view of the above discussions we cannot attribute deficiency of service on the part of the opposite parties.  In the result complaint is dismissed without cost. 

Pronounced in the open court on this the 18^th  day of August, 2015.

                                                                   Sd/-

                                                                   Smt. Shiny.P.R

                                                                     President

                                                                        Sd/-                                                                                                         Smt. Suma. K.P

                                                                       Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1 – Pass book issued by the 2^nd opposite party to the complainant bearing SB A/c.No.10396558389  (Photocopy)

Ext.A2 – Original receipt issued from the ATM on 16/03/2013 bearing TXN No.6393 time 8.35 A.M

Ext.A3 – Original receipt issued from the ATM on 16/03/2013 bearing TXN No.6394 time 8.37 A.M with true xerox copy

Ext.A4- Reply sent by the 4^th  opposite party to the complainant dtd.3/4/13(Original)

Ext.A5-  Order bearing No.OBO(T) No.9480/20748/2012-13 issued by the Office of the Banking Ombudsman, Reserve  Bank of India, Trivandrum to the complainant(Original)

Witness marked on the side of complainant

Nil

Ext.C1-Commission Report

Exhibits marked on the side of opposite party

Ext.B1- C.D of A/c.No.10396558389 of  Sri.K.K.Muralidharan

Ext.B2- Letter from the Chief Controller (complainant) to Banking Ombudsman

           dtd.26/03/2013 (Photocopy)

Ext.B3- Letter from Reserve Bank of India to Branch Manager, SBI, Olavakkode

           dtd.10/04/2013 (Photocopy)

Ext.B4- Letter from Banking Ombudsman to Branch Manager, Olavakkode  

           dtd.03/05/2013(Photocopy)

Ext.B5-  Letter from the Chief Manager to Banking Ombudsman dtd.15/05/2013   

            (Photocopy)

Ext.B6- Letter from Banking Ombudsman to Asst.General Manager, SBI, Thiruvananthapuram to Branch Manager, Olavakkode dtd.23/05/2013 (Photocopy)

Ext.B7- Copy of Electronic Journal pertaining to A/c.No.10396558389 of

           Sri.Muraleedharan(Photocopy)

Ext.B8- Users guide issued to the ATM customer (original)

Witness examined on the side of opposite parties

DW1-Rajesh.DH

Cost Allowed

No cost allowed.