DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Tripta Sharma w/o Late Sh. Om Parkash, resident of H.No. 472, Sector 41-A, Chandigarh.

                                                                   ---Complainant

Vs

[1]     The Branch Manager, State Bank of India, Sector 22-C Branch, Chandigarh.

[2]     The Security Guard as on duty on 4/6/2010 at 10 AM through Opposite Party No. 1 (name of Security Guard to be disclosed by Opposite Party No.1)

[Deleted vide order dated 22/02/2012]

---- Opposite Parties

BEFORE:          SH.LAKSHMAN SHARMA                  PRESIDENT

MRS.MADHU MUTNEJA                    MEMBER

Argued By:      Shri N.S. Jagdeva, Advocate for the Complainant.

Shri Sumeer Bector, Advocate for the Opposite Party No.1.

Opposite Party No. 2 deleted.

PER MADHU MUTNEJA, MEMBER

1.                The instant complaint is regarding an amount of `20,000/- which did not come out of the ATM machine belonging to the Opposite Party No.1 when operated by the Complainant.

2.                This case was earlier decided in favour of the Complainant. The Opposite Party No.1 subsequently went in appeal and took up the plea that a reasonable opportunity had not been granted to it to lead evidence. The Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh, while accepting the appeal and setting-aside the order dated 09.05.2012 passed by this Forum, remanded the case back to this Forum with a direction to afford an opportunity to Opposite Party No.1 to lead evidence. The Complainant was also permitted to rebut the same, if required. Directions were given to decide the complaint afresh on merits in accordance with the provisions of law.

3.                Accordingly, both the parties led their respective evidence.     

4.                Factually speaking, the Complainant (a senior citizen) operated her SBI ATM Card on 04.06.2010 at 10:49 AM to take out a sum of `20,000/- for ongoing construction of her house. On operating the ATM, the following receipt came out:-

                   “SORRY UNABLE TO PROCESS

                   INCONVENIENCE IS REGRETTED, KINDLY

                   CONTACT YOUR BRANCH OR CALL 24 X 7

                   HELPLINE AT 1800112211 OR 080 26599990”

                   As there were two machines in the Booth, the Security Guard posted there advised the Complainant to operate the second machine. When the Complainant operated the second machine to withdraw the sum of `20,000/-, the screen became blank and no money or slip came out.

                   The Complainant again operated the same machine at 10:51 AM to draw `10,000/-. This time her attempt was successful and the Complainant was able to withdraw `10,000/- from her account (Receipt Annexure    C-4).  The Complainant thereafter checked her account from the Bank at 10:42 AM. There was a balance of `92,536/- in her account. As the Complainant required more money she again operated the ATM at 11:09 AM and withdrew `10,000/- more (Receipt Annexure C-7).

                   Due to non-receipt of the money against the first transaction of `20,000/-, the Complainant contacted the Cashier, who advised her to submit a Complaint to the Bank. On making a complaint, the Complainant received a letter dated 9.6.2010 from the Bank (Annexure C-9), wherein it was mentioned as under: -

“On the above subject, we enclose a copy of EJ/JP ROLL and its perusal reveals that Txn No. 8311dated 04/06/10 ID 324634 for Rs.20,000/- each is having response code of “000 SUCCESSFUL” and having no compensatory error. Hence no refund is to be made of these TXns.”

                   Despite pursuing her case, when the Bank did not pay `20,000/- the Complainant sent a legal notice dated 17/07/2010 (Annexure C-11) to the Opposite Party, asking for the refund of the money.  The Complainant has now filed the instant complaint with the allegation that the amount of `20,000/- has illegally been retained by the Opposite Party, due to a technical defect in the ATM machine. Hence, alleging deficiency in service and harassment, the Complainant has prayed for refund of the amount, along with interest and compensation, besides costs of litigation.    

                   The Complainant has attached her saving bank account details to show that `20,000/-, `10,000/- and `10,000/- have been withdrawn on 04.06.2010 from her account.

5.                After admission of the complaint, notices were sent to the Opposite Parties.

6.                The name of Opposite Party No. 2 was ordered to be deleted from the array of OPs vide order dated 22/02/2011, on the statement given by the learned counsel for the Complainant, which reads as under:-

“I do not press the Complaint against OP No.2 (Security Guard as on duty on 04.06.2010 at 10:00 AM). Its name be deleted from the array of the OPs.

7.                The Opposite Party No.1 in reply as well as by way of evidence placed on record the affidavit of P.K. Pandhi, Chief Manager, State Bank of India, Sector 22, Chandigarh, wherein it was stated that all ATM cards are operative with secret pin code numbers only.  The card in question was used by the Complainant in terms of the details of the JP Logs/ Roll carrying the timings and other details of its usage and the transaction was successful. The ATM has been successfully used twice for withdrawal of `10,000/- at 10:51 AM vide transaction no. 8312 and `10,000/- at 11:09 AM vide transaction no. 8320, respectively. The ATM machine is showing a withdrawal of `20,000/- which shows that the Complainant is giving wrong facts that the money is not delivered to her. All other allegations about the misbehavior of the staff have been denied. The Opposite Party No. 1 has further submitted that they have answered the legal notice served upon them by the Complainant. It has also been stated that the Complainant had earlier filed Complaint No. 486 of 2010, which was dismissed in default.  In support of its contention, Opposite Party No.1 has placed on record Exhibit R-1 to Exhibit R-6.

                   Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

8.                The Complainant also filed rebuttal evidence in the shape of affidavit wherein the averments as contained in the complaint have been reiterated and those as alleged in the evidence filed by the Opposite Party No.1 have been controverted.

9.                We have heard the learned counsel for the Complainant and learned counsel for the Opposite Party No.1 and have perused the record.

10.               The averment of both the parties are now supported by affidavits. As per the Complainant, the amount has not been received by her from the ATM machine belonging to the Opposite Party No.1. However, as per the version of the Opposite Party No.1, the transaction has been completed, as the ATM machine is showing payment withdrawal of `10,000/- each twice to the Complainant.

11.               In these set of circumstances, as the facts and evidence given by both the parties contravene each other, to our mind, more and elaborate evidence would be required to decide the issue involved in the present complaint. We would not in the summary proceedings available under the Consumer Protection Act, 1986, be able to determine what is the correct position on the evidence available by way of affidavits only.

12.               In view of foregoings, we dispose of the complaint with a direction to the Complainant to seek redressal of her grievance by leading adequate evidence to prove her case before the appropriate civil court by leading adequate evidence to prove her contentions. No costs. 

13.               Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

03^rd January, 2013                                                                        

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

“Dutt”