HYDERABAD.

F.A.No.705/2005 AGAINST C.D.No.200/2004, DISTRICT CONSUMER FORUM-I, HYDERABAD.

Between:

Mrs. Jahara Begum, W/o.Mohd. Azeem

Aged 35 years, Occupation:Business,

r/o.11-3-362/13, S.V.S.Apartments,

Srinivas Nagar, Secunderabad.                                                                 Appellant/

                                                                                                                        Complainant

            And

State Bank of India, having its

Head Office at Bank street,

Hyderabad and one of its Branches

At Padmaraonagar, Secunderabad,

Rep. by its Branch Manager.                                                                       Respondent/

                                                                                                                        Opposite party

Counsel for the Appellant: Mr.G.M.Ravi Kumar.

Counsel for the Respondent:Mr.N.Srinivasa Rao.

 CORAM:THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT.

AND

SMT.M.SHREESHA, MEMBER.

MONDAY, THE EIGHTH DAY OF SEPTEMBER,

TWO THOUSAND EIGHT.

Oral Order:(Per Smt.M.Shreesha, Hon’ble Member)

***

            Aggrieved by the order in C.D.No.200/2004 on the file of District Forum-I, Hyderabad, the complainant preferred this appeal.

The brief facts as set out in the complaint are that the complainant is an account holder of S.B.Account No.01190018781 in opposite party bank having ATM card facility.  The complainant submitted that she was getting her passbook updated from time to time and as on 24-7-2003 she had an outstanding balance of Rs.6,396.01 in her account.  The complainant’s husband presented  a cheque dated 28-7-2003 for Rs.5,000/- signed by the complainant in the opposite party bank branch but the  opposite party bank staff did not honour the cheque stating that the complainant had drawn Rs.10,000/- on 13-5-2003.  The complainant had issued two cheques for Rs.487/- drawn in favour of A.P.Transco and another cheque for Rs.1,970/- in favour of  BSNL and presented the same with opposite party but the opposite party dishonored the said cheques even though there was sufficient balance in the complainant’s account.  In view of that A.P.Transco and BSNL authorities did not accept cheques presented by her.  The complainant brought the same to the notice of opposite party through her protest letters dated 19-8-2003, 19-9-2003 and 30-7-2003.  The complainant submits that she is not responsible for any errors which the opposite party committed in updating the pass book and dishonoring the instruments as and when presented for payment.  On 20-9-2003 she received a letter from opposite party wherein it was informed that by mistake a sum of Rs.10,000/- was not debited to her account due to technical fault and an over draft of Rs.10,000/- was created and they have debited Rs.6,900/- from her account towards partial recovery of Rs.10,000/- and called upon her to pay the balance immediately.  The complainant, therefore, got issued a legal notice dated 9-10-2003 to the opposite party informing that she had subsequent transactions with the opposite party  more than 15 times and operated the account and got the pass book updated from time to time.  Opposite party  after 2 ½ months from 13-5-2003 came forward with false allegations without any documentary proof that she was due a sum of Rs.10,000/- and that the same was withdrawn on 13-5-2003 at ATM centre, St.John’s Road, Secunderabad and denies issuing any cheque for anyone for Rs.10,000/-.  She submits that withdrawing at ATM centre of opposite party does not arise as the same is not shown in the statement of account or in the pass book furnished by the opposite party.   The complainant submits that if there was no balance in the pass book, opposite party would not have permitted the complainant to make 15 withdrawals from her account and this proves that there is deficiency of service.  Hence the complaint, for a direction to the opposite party to pay Rs.50,000/- for loss of reputation, Rs.25,000/- for mental agony, Rs.25,000/- towards damages along with costs of the complaint.

Opposite party filed counter stating that the allegations made in the complaint are false.  They submitted that the complainant is not having locus standi to file the complaint and that the complainant is not a consumer.  There was no customer and banker relationship between the complainant and the opposite party and she is only a debtor to opposite party bank and she is due and liable to pay Rs.3,700/- to opposite party.  They submitted that had already initiated appropriate legal action for recovery of the said amount.  The complainant had savings bank account with ATM card facility with separate code and pin number linked up with her S.B. account at SBI Padmaraonagar Secunderabad to enable her to withdraw cash directly from any of the SBI ATM centres anywhere in India and also to know her balance of her account.  On 13-5-2003 she had withdrawn a sum of Rs.10,000/- from one of the SBI ATM centres installed at St.John’s Road, Secunderabad.  Though the said transaction was recorded and registered in the ATM machine with all details but the transaction of withdrawal of Rs.10,000/- was not affected and debited into the S.B.Account of the complainant due to some technical problem in the net work linking with her SB account at that particular juncture and therefore the said entry was not reflected in her passbook.  Later on the opposite party bank came to know after reconciliation statement with the ATM accounts and check list where it was clearly recorded that the said transaction held on 13-5-2003 was missing .  All ATMs are continuously monitored round the clock by Central Administrative Office at Mumbai and all transactions made by the customers from SBI ATMs will be given posting to their respective accounts at concerned branches after routing through central Monitoring office at Mumbai and therefore the data will be transmitted to respective individual accounts of the customers all over India.  Some times due to technical problems the transactions made by customers from ATMs switch centre will not immediately be reflected in their respective accounts at concerned branches, but the entries will reach their account with delay, due to technical problems in connecting/transferring the data to the respective account of the customers.  The same thing happened in the case of complainant and the transaction dated 13-5-2003 was not reflected timely in her savings bank account maintained at SBI Padmaraonagar branch, Secunderabad.  Consequently her account was shown as credit balance and allowed the transactions from time to time.  The procedure followed by the bank in case the SB account does not have required balance is that the amount  of transaction will be debited to the ATM overdraft account. After which the bank will transfer the transaction amount to respective SB account if there is a balance.  In the instant case, the balance in the account was only Rs.6936.01 and accordingly Rs.6,300/- was debited to SB A/c. of the customer out of Rs.10,000/- and the balance amount of Rs.3,700/- was to be repaid by the customer.   The complainant is a debtor to the bank and  ignoring the said demand made by opposite party bank, issued two cheques without having sufficient funds in her account.  The technical error in not reflecting the transaction held on 13-5-2003 in S.B.A/c shall not absolve the liability of the complainant and making repayment of the amount withdrawn by her and submitted that there is no deficiency of service and prayed for dismissal of the complaint.

Based on the evidence adduced i.e. Exs.A1 to A15 and B1 to B14 and the pleadings put forward, the District Forum dismissed the complaint with a direction to the complainant to approach civil court within a month from the date of the order.

Aggrieved by the said order, the complainant preferred this appeal.

The learned counsel for the appellant submitted that the District Forum erred in not appreciating the various exhibits, namely A1 to A12 filed by the complainant.  It also erred in not appreciating that the complainant had sufficient balance in her account.  The learned counsel also submitted that the opposite party being a banker occupies a fiduciary position compared to the complainant and in certain circumstances acts as a Trustee and custodian of the Funds of the Account holders and once there are sufficient funds it is the duty of the banker to honour the cheques whenever presented and dishonour of cheques when there was balance in the account amounts to breach of faith and trust on the part of opposite party.  He further submitted that the Forum erred in holding that there was a technical mistake on the part of opposite party and the complainant cannot take advantage of the same and that the complainant suppressed the withdrawal of Rs.10,000/- on 13-5-2003 through ATM facility.  He also submitted that the Forum erred in not appreciating that  there was no over draft account over due by the complainant as on 13-5-2003 as depicted in the statement of accounts and prayed to allow the appeal.

            We have perused the material on record.  It is not in dispute that the complainant is having S.B. account No. 01190018781 with opposite party bank.  The appellant/complainant’s case is that on 28-7-2003 when her husband presented a cheque No.808691 for Rs.5,000/-, he was informed that there was no balance since the complainant had withdrawn a sum of Rs.10,000/- on 13-5-2003.  Subsequent cheques bearing Nos. 00808689 and 00808690 dated 14-8-2007 and 24-7-2003 respectively for Rs.487/- and Rs.1970/- issued in favour of A.P.Transco and B.S.N.L. were dishonoured on the ground that there was no sufficient balance in the complainant’s account.  The complainant addressed letters dated 19-8-2003, 19-9-2003, 30-7-2003, 23-9-2003 and brought to the notice of the opposite party that her cheques were wrongfully dishonoured.  The learned counsel for the respondent/opposite party submitted that the complainant on 13-5-2003 withdrew Rs.10,000/- from S.B.I, A.T.M. which was not reflected in her S.B.Account due to some technical problem and generally there is a slight delay between the actual transaction in A.T.M. Centre and the reflection of the same in the concerned pass book.  The learned counsel for the respondent/opposite party contended that the balance in the account was Rs.6396.01 ps. and Rs.6,300/- was debited to S.B. account out of Rs.10,000/- and balance amount of Rs.3,700/- was to be repaid by the customer and therefore, there is no deficiency of service on their behalf. 

The contention of the opposite party that an amount of Rs.10,000/- was withdrawn from the S.B.I. A.T.M. centre is not substantiated by any documentary evidence.  It is pertinent to note that if indeed the balance was only Rs.6,396-01 ps, the complainant ought not to have been allowed to encash Rs.10,000/- when the balance was only Rs.6,396/-.  There is no  substantial evidence filed on behalf of the opposite party to establish that the complainant had withdrawn Rs.10,000/- on 13-5-2003 from S.B.I. A.T.M. account.  It is neither reflected in her pass book and except for stating that it is a technical fault, opposite parties have failed to establish that firstly an amount of Rs.10,000/- was withdrawn on 13-5-2003 and also as to why the complainant was kept in the dark and not informed about the mis-entry in the pass book from 13-5-2003 till 28-7-2003, which is almost 2 ½ months after the said date of transaction.  It is also pertinent to note that the bank has written a letter to the complainant only after 2 ½ months and issued a legal notice on 15-12-2003 for recovery of Rs.3,700/- which they stated is excess withdrawal amount which the complainant had allegedly withdrawn.  We find force in the contention of the appellant/complainant that she had transacted with the bank almost 15 times after 13-5-2003 and all the entries are reflected in her pass book.  In the absence of any such transaction in the pass book and in the absence of any documentary proof to establish that the complainant has indeed withdrawn Rs.10,000/- on 13-5-2003 and also in the absence of any such intimation by the bank to the complainant till the complainant’s husband visited the bank on 28-7-2003, the act of the bank in dis-honouring the cheques dated 19-7-2003 and 24-7-2003 respectively is an act of deficiency of service.

            We, therefore, allow this appeal directing opposite party to refund to the complainant an amount of Rs.10,000/- together with compensation of Rs.1,000/- and costs of Rs.1,000/-.  Time for compliance four weeks.

PRESIDENT.            MEMBER.

JM                                                                               Dated.08-9-2008.