This Complaint coming up before us for hearing on 31-01-12 in the presence G. Joseph Ravi Kumar, advocate for the complainant and of Sri. K.N.M. Kishore, advocate for opposite party, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Smt. T. SUNEETHA, Member :-

        The complainant filed this complaint u/s 12 of Consumer Protection Act seeking  direction on Opposite Party to refund of Rs.20,000/- and to pay Rs.50,000/- as compensation for mental agony. 

2.  In brief the averments of the complaint are these:

The complainant is working as male nurse in Govt. General Hospital, Guntur, and he is having savings bank account No. 10145342729,  with the Opposite Party.  On the complainant’s request the Opposite party issued an ATM Card No. 622018102780001993.  The complainant is using the said ATM Card ever since it was issued to him and drawing the amounts from time to time.  The complainant was granted GPF loan from the hospital authorities and the amount was credited to the account of complainant on 19.12.09.   When the complainant wants to withdraw a part of amount from his SBI account, the complainant went to ATM Centre situated at 2/14, Brodipet, SBI campus, Guntur.  The security guard on duty at the ATM centre told to the complainant that there is no amount in the ATM centre and the complainant thought of drawing the amount from another ATM centre.  But the complainant wanted to confirm about the balance in his account and told the security guard that he would use the ATM only for the purpose of balance enquiry.  The complainant operated the ATM only to ascertain the balance enquiry and got the slip from ATM counter disclosing that the complainant had Rs.50,422/- in his account.  The said account slip is herewith filed.  As the guard earlier informed that there is no amount available in the ATM, the complainant did not try for any withdrawal from the ATM centre and went away. 

3.     On 20-12-09, the complainant went to Kannavarithota, Andhra Bank ATM  and withdrawn Rs.22,000/-(Rs.10,000/-+Rs.10,000/-+Rs.2,000/-) and as per the last withdrawn slip the balance was shown Rs.28,422/-.   Next day i.e. on 21-12-09, when the complainant approached the opposite party for the withdrawal of an amount Rs.27,000/-,  the staff of the opposite party informed the complainant that the complainant had only Rs.8,422/- and accordingly rejected the complainant’s withdrawal voucher.  To the surprise of the complainant an amount Rs.20,000/- was found missing in the account of complainant.  Subsequently the complainant lodged a written complaint with the opposite party and the opposite party gave a reply through their letter dated 22-01-2010, that their ATM slip showing an amount of Rs.20,000/- was withdrawn at 23:28 hours on 19-12-2009 through ATM SIA No. 00630701 i.e. 20 minutes later after the complainant enquired his account balance. The complainant did not withdraw the amount as alleged by the opposite party and the subsequent transactions discloses that at Andhra Bank ATM, the amounts withdrawn and the balance to the credit of the complainant’s account.  Without using the complainant’s ATM card withdrawal of Rs.20,000/- from his account is nothing but deficiency of service on the part of the opposite party.  Due to the acts of the opposite party, the complainant suffered untold mental agony, which cannot be calculated in terms of money.  Hence the complaint. 

4.  VERSION FILED BY THE OPPOSITE PARTY

        The opposite party submits that even according to the complainant he was allowed to operate the ATM No. SIAN 00630701 by using ATM card              on 19.12.2009 at 23:28 P.M. and therefore any attributions against the security guard is utterly false.  This opposite party has thoroughly enquired into and investigated about the grievance of the complainant and found that there is no truth or genuineness of the allegations made in the complaint.  The EJ Log Report drawn in respect of the ATM and other material papers clearly reveal that the complainant has withdrawn a sum of Rs.20,000/- on 19.12.2009 at 11:28PM through the ATM No. 00630701 by using his ATM Card.  The customer advise slip dated 19.12.2009 furnished by the complainant is pertaining to the ATM Machine I.D.No. 00630703 and it clearly reveals that the complainant operated the said machine by using his ATM Card for the purpose of enquiring his balance amount available as on 19.12.2009 at 23:08 P.M. But, where as again the complainant operated another machine bearing ATM No. 00630701 which is installed besides the above machine and he had successfully withdrawn a sum of Rs.20,000/- on 19.12.2009 at 11:28 P.M. Suppressing the same the complainant has been misrepresenting and playing fraud for getting unlawful gain, if possible. 

5.     The allegations made in the complaint that the complainant did not withdraw the amount and the subsequent transactions through the Andhra Bank ATM discloses that he did not withdraw the amounts without using his ATM card are utterly false.  It is submitted that it is the practice, procedure and functioning during the regular and normal course of business that any ATM transaction is made after commencement of CBS-EOD appearing in the ATM Log will be automatically posted in customer account on the next day.  Therefore, there is no deficiency in service on the part of this Opposite Party in rendering proper services to the complainant.  The complainant is not entitled to claim any damages from this opposite party as there is no fault or deficiency in services towards the complainant.  The complainant has no cause of action, nor any grievance against this opposite party.  The complainant has approached the Hon’bel District Forum with unclean hands and with utterly false case and therefore, the complainant is liable to be dismissed with costs.

6.     This opposite party prays this forum to dismiss the complaint with costs.  Both the parties filed their respective affidavits.  Ex.A1 to A5 marked on  behalf of the complainant and Ex.B1 to B6 were marked on behalf of the      Opposite party.   

7.     This forum dismissed the complaint 244 of 2010 on 06-05-11 with an observation that the complainant is not interested in prosecuting the case.  The complainant proceeded for A.P. State Commission with F.A.No. 936/11 against CC No. 244 of 2010.  The A.P. State Commission allowed the appeal and passed order on 23-11-11 with a result the order of District Forum is set side and District Forum is directed to restore the complaint to its original file, directed both parties to lead their evidence and dispose off the matter according to law. 

8.      Admitted facts in the case are

1. The complainant is holding SB A/C. bearing A/C No. 10145342729 in their bank. 
2. The complainant was issued ATM Card bearing No 622018102780001993

9.   Now the points that arose for consideration in this complaint are: 

          1.  Whether there is deficiency of service on the part of the

            opposite party?

         2.  To what relief the complainant is entitled to? 

10.  Point No. - 1  The allegation of the complainant is that an amount of Rs.20,000/- is found missing from his account. 

       The complainant made three withdrawals, on 20.12.09 (as seen from transaction slips of Andhra Bank ATM Ex: A-2, A-3 and A-4) for an amount of Rs.10,000/- at 10.00 hrs , Rs.10,000/- at 10.01 hrs and   Rs.2,000/- at10.09hrs respectively.  The available balance recorded as Rs.40422.38ps, Rs.30,422.38 p.s and Rs.28,422.38 p.s respectively.  The withdrawal of Rs.20,000/- was not reflected in those transaction slips. 

11. The Opposite Party contended that the complainant after making balance enquiry from the ATM ID No. 00630703 on 19-12-2009 at 23.08 hrs have again operated another ATM ID NO. 00630701 which is installed beside the machine through which he made balance enquiry and had successfully withdrawn Rs.20,000/- at 23.28 hrs.  The Opposite Party have explained in their version that in normal course of business any ATM Transaction made after commencement of CBS  ( Core Banking System) – EOD (End of the Day) appearing in the ATM Log would be automatically posted in customer’s account on the next day.  The Ex:B-1, EJ Log Report dated 19-12-2009 revealed the entry of the transaction in issue. 

12.  Condition No.1  The Terms and conditions for ATM cards of State Bank of India is extracted below:

Where the ATM is not running on-line the transactions in the ATM will be accounted for on the same day or next working day. 

The allegation of the Opposite Party that the complainant withdrew the amount from the ATM on 19-12-09 a 23.28hrs (as per Exb:-B1) can be accepted. If the ATM is not running on-line the transaction might not have been accounted for till the next working day of the bank.  Therefore it appears that the upto date account of the balance is not shown where the complainant obtained Account slips Exs: A-2, A-3 & A-4.  Simply because up to date account is not shown in those transaction slips Exs:A-2, A-3 & A-4, it cannot be said that complainant had not drawn the disputed amount from the ATM. 

13.   In these circumstances the Forum opines that the Opposite Party did not commit any deficiency of service.     

14.   How ever in State Bank of India Vs K. K. Bhala 2011(2) (PR 27(NC) it was held that without the ATM card and knowledge of PIN No. it is not possible for an unauthorized person to withdraw money from ATM.

15.   In view of the above discussion, the Forum comes to a considered opinion that there is no possibility of missing the amount of Rs.20,000/- from the account of the complainant without his knowledge        . 

16.  POINT–2 :- The Opposite Party did not commit any deficiency of service.  Therefore the complainant is not entitled to any compensation. 

17.    In the result the complaint is dismissed. 

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 14^th day of February ,  2012. 

MEMBER                                  MEMBER                                    PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

FOR COMPLAINANT:

FOR OPPOSITE PARTIES:

                                                                                                                                    PRESIDENT