BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT.

Complaint No. : CC/10/27

Date of Institution : 1.2.2010

Date of Decision : 10.9.2010

Rajinder Kaur aged about 53 years wife of Late S. Jagbeer Singh, resident of Canal Colony, Quarter No. 7-J, Faridkot.

...Complainant

Versus

State Bank of Patiala, Main Branch at Faridkot, through its Branch Manager.

...Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh. Ashok Kumar President

Dr. H.L. Mittal Member

Present: Sh. Gurmeet Saini counsel for the complainant.

Sh. R.P. Goyal counsel for the opposite party.

ORDER

Complainant has filed the present complaint against the opposite party for wrongly and illegally withdrawing the amount of Rs. 20,000/- from Saving Bank Account of the complainant bearing No. 55100542725 with the opposite party and for directing the opposite party to make the payment or to deposit the said amount of Rs. 20,000/- in the account of the complainant which has been wrongly withheld from the account of the complainant and to pay Rs. 50,000/- as damages/compensation on account of harassment, mental tension and due to deficiency of service on the part of the opposite party and to pay Rs. 11,000/- as litigation expenses.

2. Briefly stated, the case of the complainant is that the complainant is having his Saving Bank Account No. 55100542725 with the opposite party, so the complainant is the consumer of the opposite party. The complainant has been issued a pass book and ATM card against the said account by the opposite party. The complainant was having an amount of Rs. 22,405.55 paise in her account with the opposite party and she was in need of money as such she tried to withdraw Rs. 10,000/- from her account through ATM card on 20.9.2009 from ATM Machine installed opposite GGS Medical Hospital, Faridkot but the said ATM machine was not functioning properly, so the complainant tried to withdraw the said amount of Rs. 10,000/- from another ATM Machine, installed Near State Bank of Patiala, Main Branch, Faridkot then instead of making the payment of Rs. 10,000/- to the complainant the said ATM machine gave a slip whereby a balance amount of Rs. 2405/- were shown in the account of the complainant. On the receipt of the said slip from ATM Machine the complainant was surprised and suffered mental tension because an amount of Rs. 22,405.55 paise were left in the account of the complainant but an amount of Rs. 20,000/- could not be withdrawn. On the next day, the complainant moved an application to the opposite party to enquire into the matter about the missing of Rs. 20,000/- from the account of the complainant but no response was given by the opposite party to the application of the complainant. Thereafter, on 6.10.2009 the complainant sent a registered notice through his counsel to the opposite party but no satisfactory reply was given by the opposite party to the said notice, which amounts to deficiency in service and unfair trade practice. Complainant is also entitled for compensation of Rs. 50,000/- and litigation expenses of Rs. 11,000/-. Hence this complaint.

3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 2.2.2010 complaint was admitted and notice was ordered to be issued to the opposite parties.

4. In response to the notice, the opposite party filed written reply taking preliminary objections that from the details of the transactions dated 20.9.2009, in Saving Bank Account No. 55100542725 in the name of complainant duly maintained with the opposite party, it has been revealed that complainant has used her ATM-cum-Debit card No. 603845005100094054 and operated the same at ATM of State Bank of Patiala, Faridkot for withdrawing the cash and cash has been dispensed with. It is a successful transaction with code “000”. Before filing complaint she has been provided with complete information with documentary proof, so the present complaint is not maintainable. The ATM Card holder has agreed to indemnify the respondent bank harmless against all actions, claims, demands, proceedings damages, costs, charges and expenses whatsoever that the bank at any time incur, suffer, sustain or be put as a consequence and further Breach of any obligation of the facility specified herein and even misuse of a lost or stolen card. Against all these indemnities the dispute referred in the instant complaint is no dispute and does not call for any cognizance of this Forum. On merits, it was alleged among other things that the complainant used her ATM card for withdrawing Rs. 20,000/- on 20.9.2009 at 5.40 PM and vide transaction No. 7751 Rs. 20,000/- has been withdrawn by her. It is a successful transaction. It is admitted that the complainant submitted an application and she was immediately informed that it is ATM withdrawal by using ATM card No. 603845005100094054 vide transaction No. 7751 on 20.9.2009. Not only this, bank also represented the total matter to the Chief Manager, Link Office, Navi Mumbai which deals with ATM withdrawals etc. Since the transaction from JP Log and Account Statement and total transactions of 20.9.2009 was crystal clear, so Chief Manager returned the case alongwith transaction details, from which it is amply clear that complainant has withdrawn Rs. 20,000/- on 20.9.2009. No cash has been found excess in the ATM, as such cash too has been dispensed with to the complainant. The complainant has been provided total documents whereby it is clearly proved that she has withdrawn Rs. 20,000/- from ATM. The ATM card in question of the complainant can be used/operated at all the ATMs of SBOP as well as SBI. As complainant is having his account at SBP, Faridkot as such ATM could be used at all ATMs or SBOP or SBI. Whenever ATM card is inserted in any ATM Machine for operation, the screen asks for the PIN number, known to the user and when PIN number is entered, thereafter other queries are shown on the screen of ATM and as the user is answering, upon completion of all the queries, the process is completed and ATM dispenses the cash or the statement whatsoever the user has asked for. This is external process, which is being completed before the eyes but at the same time a fool proof electronic device is also completed internally and every process is printed on a roll inside ATM which is called JP roll and if it shown 000, it means transaction is successful. Even on the slip issued after completion of the process, transaction number, card number, account number, ATM ID, time, dated, transaction number after withdrawal and withdrawal amount is mentioned. At the same time all these entries are electronically transmitted to the account out of which the ATM card has been used. In this total process, human hands are involved only at the ATM card being used at particular machine otherwise rest all process is automatic and through electronic device and there is no chance of error. So, there is no deficiency or unfair trade practice on the part of opposite parties. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5. All the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence her affidavit Ex.C-1, copy of legal notice dated 6.10.2009 Ex.C-2, copy of application dated 21.9.2009 Ex.C-3, certified copy of account statement Ex.C-4 and closed her evidence.

6. In order to rebut the evidence of the complainant the opposite parties tendered in evidence affidavit of Harcharan Singh Ex.R-1, copy of account statement Ex.R-2, copy of JP log Ex.R-3, copy of transaction detail dated 20.9.2009 Ex.R-4, copy of screen view of account statement of relevant date i.e. 20.9.2009 of complainant account Ex.R-5 and closed their evidence.

7. We have heard learned counsel for parties and have very carefully gone through the affidavits & documents on the file. Our observations & findings are as under.-

8. Learned counsel for the complainant has vehemently argued that the opposite parties had wrongly and illegally withdrawn a sum of Rs. 20,000/- from Saving Bank Account of the complainant maintained by her with them. She has relied upon representation made by her Ex.C-3. Legal notice Ex.C-2 given by the complainant through her counsel also elicited no response.

9. Learned counsel for the opposite parties however repelled the aforesaid contentions on the ground that there is no report as to ATM used by the complainant to be nonfunctional at the appropriate time. In his view, in the light of account statement of the complainant Ex.R-2, copy of JP log Ex.R-3 and copy of transaction detail dated 20.1.2009 Ex.R-4 no deficiency of service on the part of the opposite parties nor any unfair trade practice on their part is proved. Therefore, the complaint filed by the complainant is liable to be dismissed.

10. Learned counsel for the complainant however submitted that opposite party has not produced CCT Camera footage in respect of the transaction in question. Therefore, adverse inference against them be taken.

11. After having considered the rival contentions in the light of evidence on record we are of the view that in neither of the documents namely JP log Ex.R-3 and transaction detail of particular date i.e. 20.9.2009 Ex.R-4, non functioning of ATM is reported. It cannot disputed that a transaction is successful on the basis of debit card and secret pin code. In the absence of availability of either of them no withdrawal can be made in the system operated mechanism of the banks. Therefore, in the presence of JP roll and transaction detail for the relevant date it is difficult to say that amount was withdrawn by the opposite parties as alleged by the complainant. Non production of CCT Camera footage will not cause doubt in respect of the stand taken by the opposite parties which is based on aforesaid authentic record of the transaction in question.

12. In view of above observations and findings, complainant has failed to prove the allegations in the complaint and as such complaint filed by her is dismissed. However, in the peculiar set of circumstances, there is no order as to costs. Copies of the order be sent to the parties free of costs. File be consigned to record room.

Announced in open Forum:

Dated: 10.9.2010

Member President (Dr. H.L. Mittal) (Ashok Kumar)