<br /> Present: Sh. P. Betab counsel for the complainant.<br /> Sh. S.K. Dhir counsel for the opposite parties.<br /> <br /> ORDER<br /> DHARAM SINGH PRESIDENT<br /> Rajinder Kaur complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to credit the amount of Rs.15,000/- in the account of the complainant with interest and to pay Rs.50,000/- as compensation for mental tension, harassment and inconvenience with costs of the complaint.<br /> 2. The complainant averred in her complaint that she is the holder of saving account No. 5006475391 with the opposite parties. She is also holder of ATM-cum Debit Card No. 6038455066000001268, so she is the consumer of the opposite parties. On 23.7.2006 at around 2.00 P.M. the complainant and her husband Rajwinder Singh went to the ATM machine of the opposite parties installed outside the main branch at Faridkot, to withdraw an amount of Rs.15,000/-. After inserting the ATM car in the machine the complainant gave command for withdrawal of Rs.15,000/-. The computer showed the message Collect Your Cash but neither the cash nor the balance slip was delivered by the machine. At this suspicion arose in the mind of the complainant that the amount of Rs.15,000/- might have been debited in the account without delivering the cash. So to confirm the position the complainant again gave command for withdrawal of Rs.500/- and the complainant astonished that the machine showed the message to the effect that more than Rs.15,000/- cannot be withdrawn in a single day. From this it became clear that the amount of Rs.15,000/- had been debited without delivering the cash. The complainant and her husband waited for about 15 minutes during which time some other customers operated the ATM machine successfully. It being Sunday the complainant could not inform any official of the opposite parties. Next day the complainant and her husband visited the main branch Faridkot and submitted a written application to the opposite parties for intimating about the above mentioned facts and also informed the manager of the main branch about the matter. The manager assured that the matter would be looked into and an expert would be called to open the machine in the presence of the complainant. The complainant and her husband visited the opposite parties may time but each time they put off the matter on one pretext or the other. So she submitted an application dated 17.8.2006 to the Assistant General Manager State Bank of Patiala Zonal Office, Bathinda with the request to credit the amount of Rs.15,000/- in the account of the complainant. A copy of this application was also sent to opposite party No. 3 but no response was received from the opposite party No.3. The AGM Bathinda informed the complainant vide letter dated 4.9.2006 that no excess cash was found in the ATM machine on 23.7.2006. This letter is very vague and is not based on any investigation. As assured by the opposite party No. 2 the complainant was never called or informed when the machine was opened from which it is clear that no real investigation was done by any responsible officer of the opposite parties. It is deficiency in service and trade mal practice on the part of the opposite parties. The complainant has to face inconvenience, harassment and mental agony and has to waste precious time and energy in visiting the office of the opposite parties for which the opposite parties are liable to compensate the complainant to the tune of Rs.50,000/-. Hence this complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 21.9.2006 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of the notice the opposite parties appeared through Sh. S.K. Dhir Advocate and filed written reply in which they submitted that the State Bank of Patiala Head Office, Patiala is a corporate body and have a separate distinct identity. It can sue or be sured in its corporate name so the State Bank of Patiala through its Chairman/Managing Director is a necessary party. The complainant has not come before this Forum with clean hands and has been telling totally lie. On merits the opposite parties admitted that on 23.7.2006 at about 2.00 P.M. the complainant Rajinder Kaur used the ATM machine by inserting card in the machine for withdrawal of Rs.15,000/- and after that the complainant on 27.7.2006 filed an application before the opposite party No. 1 stating that on 23.7.2006 at about 2.00 P.M. the complainant inserted her car in the ATM machine for withdrawal of Rs.15,000/- and gave command but the machine failed to deliver the cash. She further averred that she again used the machine for withdrawal of Rs.500/- and the ATM machine shown that in a single day more than Rs.15,000/- are not allowed. On receipt of application the Branch Manager immediately came into action and informed the opposite party No. 2 and sent a letter to the opposite party No.2. On receipt of letter the concerned official inquired from the JP Log and found that response of the code was '000' meaning thereby the transaction was complete and successful. The opposite parties also wrote to the authorities of State Bank of India, ATM Switch Centre CBD Belapur, Navi Mumbai and received information from the centre vide letter No. ASC/KMD/8101/Oct.10, 2006 that the ATM transaction was complete and successful. There was no excess cash and the ATM had dispensed cash for this particular transaction. The official concerned i.e. ATM Officer also checked the machine jointly with custodian of cash and found no extra amount in the machine. The customer has must received the amount as per her desires. So there is no deficiency of service on the part of the opposite parties. The opposite parties suffered harassment from the hands of the complainant so the complainant is not entitled to recover anything from the opposite parties rather liable to pay compensatory costs. Hence the complaint be dismissed with special costs to the tune of Rs.50,000/-. <br /> 5. Both 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 pass book Ex.C-2, copy of ATM card Ex.C-3, copy of application dated 17.8.2006 Ex.C-4, affidavit of Rajwinder Singh husband of the complainant Ex.C-5 and closed her evidence. <br /> 6. In order to rebut the evidence of the complainant the opposite parties tendered in their evidence affidavit of Manju Galhotra, Deputy Manager, State Bank of Patiala, Main Branch, Faridkot Ex.R-1, copy of letter from ATM Switch Centre, Mumbai Ex.R-2, copy of roll of transaction Ex.R-3, copy of General Printer Roll Ex.R-4, copy of cash verifications list Ex.R-5, copy of complaint Ex.R-6, copies of correspondence Ex.R-7 to Ex.R-11, copy of letter dated 4.9.2006 Ex.RA and closed their evidence.<br /> 7. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 8. Learned counsel for the complainant has submitted that the opposite parties have illegally debited amount of Rs.15,000/- in the saving account of the complainant as no amount was delivered by the ATM machine of the opposite parties when complainant wanted to withdraw the amount of Rs.15,000/- on 23.7.2006. This amount is liable to be credited in the account of the complainant. <br /> 9. Learned counsel for the opposite parties submitted that the record of the opposite parties shows that complainant have withdrawn amount of Rs.15,000/- on 23.7.2006. There is no deficiency of service on the part of the opposite parties as ATM machine have delivered amount of Rs.15,000/- to the complainant on operation of ATM machine in this regard on 23.7.2006.<br /> 10. From the perusal of the file it is made out that the complainant have not reported such illegal debiting of the amount of Rs.15,000/- in the account of the complainant. Complainant have not reported the matter immediately to the opposite parties. From perusal of the application Ex.R-6 it is made out that the complainant moved an application in this regard to the Manager, State Bank of Patiala on 27.7.2006. As per this application so many other people were standing there when she could not get delivered amount of Rs.15,000/- from the ATM machine. As per JP roll Ex.R-4 the amount of Rs.15,000/- have been withdrawn by the complainant by operating ATM machine on 23.7.2006 at 13.42 hours and immediately thereafter at 13.48 hours another person have withdrawn amount of Rs.400/-. The complainant could have contacted that person. Complainant could examine him as a witness with regard to non delivery of the amount. As per cross examination of Smt. Manju Galhotra Deputy Manager, State Bank of Patiala, Main Branch, Faridkot also it is made out that no excess amount was found on 23.7.2006 or 24.7.2006 to show non delivery of the amount of Rs.15,000/- to the complainant. <br /> 11. Complainant also have not placed on the file two slips i.e. the mini statement of account to be delivered by the ATM machine after completion of the transaction. So adverse inference also is to be drawn as complainant has withheld the best evidence in her possession. So there is no deficiency of service on the part of the opposite parties to be provided to the complainant.<br /> 12. In view of the aforesaid facts and circumstances the complaint filed by the complainant being devoid of merits is dismissed. There is no order as to costs due to peculiar circumstances of the case. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 24.1.2008<br />