Sri.G.V.Balasubramanya,<br /> Member<br /> <br /> <br /> 1. This Forum deems it fit to pass a common order in these complaints for reasons stated here under. Complainants in both these complaints are husband and wife and the opponents are the same. CC 248/06 has been filed by the wife whereas CC 252/06 has been filed by the husband.<br /> <br /> 2. The complainants held a joint Savings Bank Account with the 1st opponent. The complainant in C.C.248/06 is a Doctor practicing in Saudi Arabia and her husband who is the complainant in C.C. 252/06 is an Engineer and a man claimed to be with reputation. Hereinafter, the complainants will be referred to as husband and wife for clarity. On 21.11.06 the husband withdrew Rs.9,000/- at the ATM belonging to State Bank of Mysore. The balance in the account after withdrawal was Rs.13,919.75. Prior to that, on 20.01.2006 he had issued a cheque for Rs.9,044/- towards the premium of his wife’s insurance policy. On 23.01.2006, the husband visited the ATM of State Bank of Mysore once again and obtained a statement of account before making withdrawal. He was shocked to find that the available balance was Rs.4,919.75 instead of Rs.13,919.75. The statement reflected two withdrawals of Rs.9,000/- each made on 22.01.2006. He immediately approached the Manager of the Branch who told him that it will have to be corrected at their Mumbai Office only. Then he couriered a Complaint to the Opposite party, narrating what had happened and also requesting not to dis-honour the cheque issued by him towards his wife’s insurance premium. However, as apprehended by the Complainant the cheque was dis-honoured on the ground of insufficient funds and an amount of Rs.55/- was levied as cheque bounce charges. As a consequence of this, the Insurance Company wrote a letter to the wife asking her to pay the premium only by cash or D.D. and not to issue cheques.<br /> 3. The Complainants have alleged that the Bank did not arrange to give credit of the amount wrongly debited to their account until 13.02.2006 and the cheque bounce charges was reversed on 27.04.2006 only after the husband issued a legal notice.<br /> <br /> 4. The Complainants have pointed out that their account had a maximum withdrawal ceiling of Rs.15,000/- per day and when two withdrawal of Rs.9,000/- each were reflected on 22.01.2006 on their computer, it should have alerted the Opposite parties since the withdrawals exceeded the ceiling limit. <br /> <br /> 5. The Complainants have alleged that the Opposite parties after realising their mistake visited their house a number of times without taking prior permission and pestered them not to initiate any legal action. The Complainants have alleged that the ATM had not been properly maintained by the Bank which led to such deficiency in service. The wife has also stated that she being a NRI Opposite parties should have taken special care in her case. Each Complainant has claimed Rs.2,00,000/- for deficiency in service and Rs.5,00,000/- towards mental agony.<br /> <br /> 6. Common version has been filed by both the Opposite parties. They say that the husband withdrew Rs.9,000/- once only on 22.01.2006 and not on 21.01.2006 as contended by the Complainants. Thereby they have admitted that was only one withdrawal of Rs.9,000/-. They have also admitted having received a Complaint from the husband on 24.01.2006. The other allegations of dis-honouring the cheque and levying cheque bounce charges are also admitted. However, they say that the insurance premium cheque was dis-honoured because it came to the branch for payment on 23.01.2006, a day before the husband’s Complaint was received by them. Attributing the error to the mal functioning of the ATM they have pleaded helplessness for not honouring the cheque as they could not have retained the cheque for more than one hour within which period it had to be honoured or dis-honoured.<br /> 7. The Opposite parties have admitted that there was precious little they could do to immediately reverse the double debit as the computer system is so programmed that the rectification can be carried out only at the Mumbai Office. The Opposite parties have averred that the Head Office was notified about the incident immediately and corrective measures were taken on 28.01.2006. It is also averred that a proposal was given to the husband for payment of the premium through a Banker’s cheque in lieu of the dis-honoured cheque and also to reimburse any amount levied by the Insurance Company. The Opposite party have alleged that the husband informed them that the premium had been paid by means an alternative cheque and no incidental charges were levied by the Insurance Company.<br /> <br /> 8. The Opposite parties have said that the husband made use of the ATM belonging to State Bank of Mysore with whom they only have an arrangement for withdrawal by customers of their Bank and as such they have no control over the way the ATM’s are maintained by State Bank of Mysore.<br /> <br /> 9. A further contention is taken that the ATM debit card had been issued to the husband on the condition that the Bank would not be responsible for any loss direct or indirect. They have contended that, they cannot be held liable for the dis-honour of the cheque which would not have happened had the ATM not mal functioned. Regarding the pestering the Complainants not to initiate legal action, the Opposite parties have said that they made no such attempts but they did try to convince the couple.<br /> <br /> 10. The Opposite parties have taken two other contentions, firstly that the Complainants as Joint Account Holders cannot maintain separate Complaints and secondly that the complainants have not suffered any monitory loss. On these grounds they have sought dismissal of the Complaints.<br /> <br /> <br /> 11. From the above contentions, the following points arise for our consideration:<br /> I. Whether the complainants are entitled to maintain separate Complaints?<br /> II. Whether the Complainants prove deficiency in service on account of mal functioning of the ATM?<br /> III. Whether the Opposite parties prove that they have mitigated the deficiency?<br /> IV. What order or relief?<br /> <br /> 12. After hearing both sides and perusing the documents we have answered the above points as under:<br /> <br /> Point I: In the Affirmative.<br /> <br /> Point II: In the Affirmative.<br /> <br /> Point III: Partly in the Affirmative.<br /> <br /> Point IV: As per final order.<br /> <br /> REASONS<br /> <br /> 13. Point I:- The most curious thing about these two complaints is that the complainants nowhere in their complaints say anything about the spouse’s complaint though they have originated from the same set of facts. The pleadings in both complaints are as identical as it can get, right up to the relief sought by them. Since one transaction involving Rs.9000/- has given raise to two complaints wherein the total relief claimed is to the tune of Rs.14 lakhs, and the complainants are questions about the husband and wife this common order is being passed. Of course, the issues involved are also common as also the Opposite parties. <br /> <br /> 14. We have given our anxious consideration as to the maintainability of 2 complaints arising out of a single cause of action and the provision order 1 Rule 1, CPC. Cause of action means every fact which if traversed it would be necessary for the complainant/plaintiff to prove in order to support his right to a judgment of the Court. It covers every fact or facts which entitled a party to seek redress in a Court of law. Admittedly, the cause of action arose due to double debit of Rs.9000/- due to malfunctioning of the ATM. All subsequent events spring from it. If there was no double debit there would have been no dihonour of cheque, no deficiency in service, etc., The dishonour of cheque itself does not give rise to a separate cause of action. It is a subsequent event and a consequence of the double debit. The insurance premium cheque was no doubt issued by the husband. But it was towards the premium of the policy of his wife who is incidentally a joint account holder with her husband. <br /> 15. Order 1 Rule 1 reads as under:- <br /> “All the persons may be joined as plaintiffs where<br /> (a) any right to relief in respect of, or arising out of the same act or transactions or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative and<br /> (b) if such persons brought separate suits, any common question of law or fact would arise.<br /> Thus the complainants had 2 choices. Either they could have jointly filed a complaint or file separate complaints as they have done now. Where a right to relief in respect of the same act or transactions is alleged to exist in 2 or more persons severally, they may join as plaintiffs (complainants) in one suit/complaint or they may at their option bring separate suits. In the instant case the right to relief exists severally to the complainants though it has arisen from the same transaction. Whereas, the wrong double debit is the common cause of action to both complainants, right to relief has arisen to the husband by virtue of dishonour of cheque and right to relief has arisen to the wife by virtue of non-payment of her insurance premium. Thus, they are entitled to maintain separate complaints though they could have joined to file one complaint.<br /> <br /> 16. Points II & III:- The opposite parties have admitted most of the allegations made by the wife. The chronology of the events reveal that the husband withdrew Rs.9000/- from the ATM belonging to State Bank of Mysore [SBM] on 21.1.2006. This is evident from the transaction list of SBM. For some reason no debit was made to the complainants’ account. However, when the husband went to the ATM maintained by the opposite party on 23.1.2006 to withdraw some cash, the statement of account revealed two withdrawals of Rs.9000/- each not on 21.1.2006 but on 22.1.2006. Clearly this is a case of malfunctioning of the ATM of SBM or computer system of the opposite party. As luck would have it, the cheque issued by the wife towards her insurance premium came through clearing to the first opposite party on 23.1.2006. The rules of the clearing house does not permit retaining the cheque for a long time. It has to be either honoured or dishonoured and sent back to the drawee’s branch. Contrary to the averments of the complainants that as soon as the discrepancy was noticed in the statement of account, the husband approached the first opposite party to inform about the discrepancy, we find no mention about it in the letter dated 23.1.2006 written by the husband to the first opposite party. He has merely written that he has noticed the discrepancy and since he has issued a cheque towards his wife’s insurance premium he would not want it to be dishonoured on ground of insufficiency of funds. This letter reached the first opposite party on 24.1.2006 a day after the cheque came to the first opposite party through clearing.<br /> <br /> 17. Consumer protection Act does not distinguish between intentional deficiency in service and unintended deficiency in service. There is only one definition for it. But the Forum is empowered to examine the circumstances under which the deficiency has occurred, the steps taken by the opposite party to mitigate the deficiency, the speed with which it has been mitigated and the loss suffered by the complainant. These factors decide the quantum of compensation the complainant is entitled to.<br /> <br /> 18. In the instant case, the opposite parties have admitted that the double debit was a result of malfunctioning of ATM maintained by SBM. They have stated that they have little control over the way SBM maintains its ATMs. An application filed by the complainants to implead SBM as an opposite party has been turned down by us on the ground that the opposite parties arrayed are answerable to the complainants. Indeed, the complainants being customers of the opposite parties, they are responsible for answering them. It is the opposite parties who have entered into sharing arrangement with SBM for use of ATMs of SBM by their customers. Hence, the opposite parties are liable to any problem arising from the use of shared ATMs.<br /> <br /> 19. Next defence of the opposite parties is that it was due to malfunctioning of ATM and they had no role to play in the entire transaction. As already discussed, Consumer Protection Act in its present form does not allow us to distinguish between intentional and unintended deficiency in service. But we do take cognizance of the fact that the amount wrongly debited to complainants’ account was recredited on 13.2.2006, after a gap of 22 days. Though the opposite parties say that they took up the matter with their Mumbai people immediately on receiving the husband’s letter on 24.1.2004, it took 20 days for them to reverse the wrong debit. The Opposite parties have, also, not placed any material to show that they took prompt action to redress the complainants’ grievance by taking up the matter with their Mumbai office. As noted from the documents produced by the complainants, the wife issued a cheque from her NRI account towards her insurance premium and the same was cleared on 7.2.2006.<br /> <br /> 20. The opposite parties have taken some corrective steps like contacting the complainants to explain how the problem occurred due to malfunctioning of the ATM, etc., We do understand the problems of centralized banking operations wherein corrective steps can not be taken at the branch level. Similarly, we do recognize the fact that the opposite parties do not have control over the ATMs of SBM. Yet, the opposite parties are liable to compensate for the delay in attending to the complaint not withstanding the fact that they took pains to speak to the insurance company to narrate what had happened. Hence, we answer point II in the affirmative and point III partly in the affirmative.<br /> <br /> 21. Exaggerated claims have become the order of the day. There is virtually no explanation as to how and why the complainants have suffered loss to the extent of Rs.14 lakhs. No evidence has been led by the complainants to justify such a huge claim. We have already held that there is deficiency in service and we have, also, discussed the various factors we take into account to arrive at the quantum of compensation awardable for such deficiency. Taking into account all these facts we proceed to pass the following order:<br /> <br /> ORDER<br /> <br /> A. Both complaints are allowed in part.<br /> B. The opposite parties shall pay each complainant compensation of Rs.500 within 1 month from today failing which the said amount shall carry interest at the rate of 10% p.a thereafter until the date of payment.<br /> C. No costs. <br /> D. Keep original order copy in C.C.248/06 and Xerox copy in C.C.252/06.<br /> E. Give a copy of this order to each party according to Rules.<br />