Date of Filing      : 16.12.2022

                                                                                                                                       Date of Disposal: 27.07.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, MA.,ML, Ph.D (Law)                          .…. PRESIDENT

                 THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                              .....MEMBER-I

                 THIRU.P.MURUGAN,M.Com.,ICWA(Inter)., BL.,                                            ....MEMBER-II

CC. No.17/2023

THIS THURSDAY, THE 27^th DAY OF JULY 2023

Mr.M.Thangaswamy,

S/o.Murugesan,

Thiruvalluvar Street,

Melnallathur, Thiruvallur 603 002.                                                       …… Complainant.

                                                                                  //Vs//

The Manager,

State Bank of India,

Agricultural Branch,

J.N.Road, Thiruvallur 602 001.                                                          .......Opposite party.

Counsel for the complainant                                    :   M/s..E.Arunagiri, Advocate.

Counsel for the opposite party                                :   Mr.D.Sathish Kumar, Advocate.

This complaint is coming before us on various dates and finally on 11.07.2023 in the presence of M/s..E.Arunagiri, counsel for the complainant and Mr.D.Sathish Kumar, counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER-I

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party in Banking Services along with a prayer to direct on the opposite party to pay  a sum of Rs.10,000/- the debited amount from the complainant’s account and to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused to the complainant with 12% interest from the date of receipt of payment to disposal of the complaint and to pay a sum of Rs.35,000/- towards cost of the litigation expenses to the complainant.

Summary of facts culminating into complaint:-

That the complainant is an Account holder of the opposite party bearing Account No.31093846487 and also utilizing the ATM card issued by the opposite party.  The complainant tried to withdraw Rs.10,000/- on 08.07.2022 through ATM machine.  He had received the message as if he had withdrawn the amount.  But he had not received the cash from ATM machine.  Immediately he lodged a complaint with the opposite party on the same day itself.  The opposite party promised that he will take necessary action in this regard.  Inspite of repeated requests, reminders and demands, the opposite party had not refunded the amount to his account.  He had personally insisted the opposite party more than three months.  But all went in vain. He had issued legal notice dated 11.11.2022 to the opposite party and in turn the opposite party issued a reply letter on 28.11.2022 with false averment. The act of the opposite party not refunding the amount of Rs.10,000/- is nothing but deficiency in service.  Hence the complaint.

The crux of the defence put forth by the opposite party:-

The opposite party denying all the allegations inter alia contended that the complainant is a consumer of State Bank of India, ADCB Branch Thiruvallur.  Upon receipt of complaint from the complainant, the opposite party escalated the issue with ATM attached branch and gave proper updates to the complainant.  The opposite party had verified the CCTV footage along with the Bank Statement of the complainant.  After that on enquiry and on verification, the opposite party came to know that the transaction done by the complainant was successful and it was communicated to the complainant. Upon direction from banking Ombudsman, the opposite party had verified with its vendor Ms/.Hitachi Payment services Private Limited who is maintaining the ATM machine that the complainant received the cash and no excess cash was found on the particular machine on the end of the day on 08.07.2022. The Banking Ombudsman upon receipt of report from the opposite party rejected the claim of the complainant.  This fact was not disclosed by the complainant in his complaint.  There is no deficiency in service on the part of the opposite party and prays to dismiss the complaint.

On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex.A6 was submitted.  On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B10 was submitted.

Points for consideration:-

1. Whether the complaint allegation as to deficiency in service against the opposite party has been successfully proved by complainant?
2. To what relief the complainant is entitled?

Point No.1:-

It is the case of the complainant that he had withdrawn Rs.10,000/- on 08.07.2022 through ATM machine.  The cash was not dispensed by the ATM machine.  However, he had received message stating that he had withdrawn Rs.10,000/- from the particular ATM machine.  He lodged a complaint to the opposite party.  The opposite party had not taken any steps to refund the said amount and hence the complaint.

To prove the case, the complainant deposed proof affidavit along with 6 documents which were marked as Ex.A1 to Ex.A6.  Ex.A1 is the Aadhar card of the complainant, Ex.A2 is the Bank Pass Book of the complainant, Ex.A3 is the amount debit details message, Ex.A4 is the copy of complaint lodged by the complainant, Ex.A5 is the legal notice issued by the complainant and Ex.A6 is the reply notice of the opposite party.

Per contra, the opposite party contended that the transaction done by the complainant was successful one and there is no excess cash found in the ATM machine as reported by the vendor who is maintaining the ATM machine.  The opposite party had verified the CCTV footage and Bank Statement of the complainant.  There is no deficiency in service and the opposite party prays to dismiss the complaint.

To refute the claim of the complainant the opposite party deposed proof affidavit with 10 documents which were marked as Ex.B1 to Ex.B10, Ex.B1 is the copy of legal notice issued by the complainant to the opposite party, Ex.B2 is the reply notice issued by the opposite party, Ex.B3 and Ex.B4 email communications between the opposite party and its vendor M/s.Hitachi Payment, Ex.B5 is the copy of No Excess Cash Certificate, Ex.B6 is the report issued to Nodal Officer, LHO, SBI, Chennai, Ex.B7 is the copy of letter issued by the opposite party to the complainant, Ex.B8 is the ATM logs pertaining to 08.07.2022, Ex.B9 is the transaction status with regard to transaction No.3252 and Ex.B10 is the CCTV images.

It is true that the complainant had gone to the alleged ATM center to withdraw the money.  The only question to be decided by this Commission, whether he had withdrawn the money or not? The allegation of the complainant is that the ATM machine had not dispensed the cash to him.  Though he had received the message as if he had withdrawn the amount of Rs.10,000/-, he had not received the cash from the machine. Ex.A3 is the typed version of the message received by the complainant.  Ex.A4 is the complaint given by the complainant to the opposite party.  Ex.A5 is the legal notice issued by the complainant.

It is stated by the opposite party that the complainant had lodged complaint before the Banking Ombudsman and the claim was rejected by the Banking Ombudsman after verifying the CCTV images as the transaction was successful.  There is no such averment in the complaint with regard to complaint lodged before the Banking Ombudsman. 

On perusal of Ex.B6, we came to know that the complainant lodged complaint before Banking Ombudsman vide complaint No.N-202223023250554 on 29.10.2022.  However, the opposite party had not chosen to file the final order passed by the Banking Ombudsman. Ex.B5 is the No Excess Cash Certificate issued by the vendor M/s. Hitachi Payment Services Limited.  Ex.B7 is the letter dated 08.11.2022 issued by the opposite party to the complainant.  On perusal of Ex.B10 CCTV images, cash was dispensed by the ATM at 10:36:10 and no cash was found at 10:36:40.  It is clearly revealed that ATM machine had dispensed the cash at 10:36:10.  This fact was already informed to the complainant during the proceedings before the Banking Ombudsman.  However, the complainant had not disclosed the above fact in his complaint. Moreover, the complainant had not filed any documents to deny Ex.B5, Ex.B7 and Ex.B10 in his arguments.

We have heard the arguments of the counsels and carefully perused all the records.  As pointed out by the opposite party in Ex.B10 CCTV images, the cash was dispensed from the ATM machine.  The allegation made by the complainant that cash was not dispensed by the machine, was not proved by him with proper evidences and documents.  Hence, we have come to the conclusion that the opposite party had not committed any deficiency in service to the complainant. This point is answered accordingly.

Point No.2:-

Since we have come to the conclusion that there is no deficiency in service on the part of the opposite party, the complainant is not entitled any of the reliefs as prayed him.  The complaint is liable to be dismissed and accordingly the complaint is dismissed without any cost.

In the result, the complaint is dismissed.  No order as to cost.

Dictated by the Member-I to the steno-typist, transcribed and computerized by him, corrected by the Member-I and pronounced by us in the open Commission on this the 27^th day of July 2023.

      -Sd-                                                -Sd-                                                           -Sd-

MEMBER-II                                  MEMBER-I                                               PRESIDENT

List of document filed by the complainant:-

      List of documents filed by the opposite party:-

        -Sd-                                                   -Sd-                                                      -Sd-

MEMBER-II                                         MEMBER-I                                         PRESIDENT