IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> <br /> CC 325/09 DATED 14.10.2009<br /> ORDER<br /> <br /> Complainant Mannur Gurappa (G.J. Mannur) LIG-159, Gangothri, Saraswathipuram, Mysore-570009.<br /> <br /> (In person)<br /> <br /> Vs. <br /> Opposite Party The Manager, Syndicate Bank, Saraswathipuram Branch, Mysore-570009.<br /> <br /> (By Sri. B.T.S. Advcoate)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 29.08.2009<br /> Date of appearance of O.P. : 15.09.2009<br /> Date of order : 14.10.2009<br /> Duration of Proceeding : 29 days<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the compliant seeking a direction to the opposite party to pay a sum of Rs.12,000/-, the amount that has been debited in his account, though the complainant did not withdraw the said amount through ATM.<br /> <br /> 2. In the complaint, it is alleged that the complainant has a debit card of the opposite party bearing No:40939817300050226. On 02.06.2009 the complainant got the entries made in the pass book. It indicated that on 17.03.2009, 10.04.2009 and 04.05.2009 withdrawal of Rs.6,000/- on all the occasions, totally Rs.18,000/-. The complainant objected for the same. On 03.06.2009 the complainant lodged the complaint with the opposite party and also at Bangalore. As per the first two entries, amount has been paid but so for concerned to last entry, amount was not paid and hence, that amount has been credited into the account of the complainant. It means after one month from the date of the complaint of the complainant the mistake was rectified. The complainant has questioned about code figures 000, 110 and 116 and the time required, to operated the ATM machine 10 times and 7 times. Also it is stated that if the complainant himself had attempted to withdraw the amount on the last occasion or third transaction and was not able to withdraw the amount, he could have immediately complained to the opposite party situated in the same premises. Hence, the person who made the attempts to withdraw the amount must be some other person. It is stated, on all the three occasions balance was ascertained but the complainant never ascertain the balance before withdrawing the amount in ATM. Further it is stated, complainant and his wife only are residing in the house and the wife does not know the banking business. Hence, ATM card will be with the complainant safely. Also it is alleged that in spite of the request made, E.D.C Xerox copy was not supplied by the opposite party. Hence, it is prayed to allow the complaint.<br /> 3. In the version, the opposite party has denied almost all the material allegations made in the complaint. It is contended that, the complainant has not produced the receipts of the three dates in question with oblique motive to make wrongfully gain. It is contended that the first two transactions were successful. As regards, last transaction it is stated, 17 attempts were made to draw the amount but it was not successful. This excess amount was found in the ATM due to be debited in the account, but the ATM machine did not dispense the cash and hence, that amount of Rs.6,000/- has been re-credited into the account of the complainant on 09.06.2009. Further, it is stated, the opposite party informed the complainant through the letter dated 10.06.2009, regarding meaning of code numbers. It is contended that the opposite party showed EDC records to the complainant when he had personally visited the bank and if at all complainant had paid Xerox charges, the copy could have been supplied. It is stated that the ATM machine was working properly. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. In respect of their contentions, both the parties have filed affidavits and produced certain documents. We have heard the complainant and learned advocate for the opposite party and perused the material on record.<br /> <br /> 5. Now, the points for our consideration are as under.<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to any reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in affirmative <br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The complainant complains that he has not at all withdrawn the amount through his ATM card on 17.03.2009, 10.04.2009 and 04.05.2009. On the other hand the opposite party has contended that so for concerned to first two withdrawals, the transactions were successful and the complainant has withdrawn the amount of Rs.6,000/- each. As regards third transaction, it is contended that though in all 17 attempts were made to withdraw the amount, the transaction was not successful, for the reason 10 attempts cash not dispensed, because of jam and the next seven attempts undivisable amount.<br /> <br /> 8. Now, first let us consider so for concerned to two withdrawals in question. The complainant has filed his affidavit stating that he has not withdrawn the said amount, where as the opposite party has filed counter affidavit stating that, the complainant has withdrawn the said amount. In such a situation particularly, considering the contentions of the parties in the case on hand, we have to consider the documents and the circumstances.<br /> <br /> 9. The complainant alleges that, the ATM card was with him safely. Hence, he alleges some other person with duplicate card might have withdrawn the amount. Firstly, considering the material on record possibility of creating such duplicate card has not been established. Secondly, apart from the card, it is fact that card holder will be given secret number and the card holder alone will know that number. Hence, in the absence of non disclosure of the said secrete number even if duplicate card is created, withdrawal of the amount is not possible. In this regard, absolutely there is no evidence.<br /> <br /> 10. We will consider certain facts stated by the complainant in his affidavit about his honesty and integrity. We cannot dispute or suspect the complainant on the point of his integrity. But, so for concerned to the present case it is for the complainant to prove that he has not at all withdrawn the amount, with cogent and acceptable evidence. At the cost of repetition creation of duplicate ATM card as alleged is not so easy and even otherwise without disclosure of the secrete number, withdrawal of the amount is impossible. Hence, so for concerned to these two transactions, in our opinion, the complainant has not proved that he did not withdraw the same.<br /> <br /> 11. As regards third withdrawal, it is true as many as 10 attempts were made to withdrawal the amount and the same was not successful for the reason dispenser of jam. Thereafter, further 7 attempts were made and the cash was not dispensed for the reason undivisable amount. To substantiate this fact the opposite party has produced EDC extracts code No: 110, 116 are noted. 110 indicate dispenser jam and 116 undivisable amounts. Hence, it is submitted for the opposite party that because of dispenser jam though the amount was debited, cash was not dispensed and hence, that amount remained in the ATM machine. Considering the documents on record, to falsify the said defense or to disprove the same, there is no contrary evidence. Hence, we have to accept the said defense.<br /> <br /> 12. The complainant alleges that, despite his request, the opposite party did not supply Xerox copy of EDC. In this regard the opposite party contended that, the EDC records were showed to the complainant when he personally visited the bank. That fact is not specifically denied by the complainant. On the other hand from the letter dated 06.07.2009 produced at page 27, it is stated by the complainant that copies of the documents which were shown were not supplied. Hence, as contended by the opposite party the records or documents were shown to the complainant. As regards non supply of Xerox copy, the opposite party further contend that the complainant did not pay the charges of the Xerox copy. It is not the case of the complainant that he paid necessary charges to prepare copies of those documents. Hence, no fault could be found with opposite party in non supply of Xerox copies of the documents.<br /> <br /> 13. As regards delayed credit of Rs.6,000/-, admittedly the third transaction is dated 04.05.2006 which came to the notice of the complainant after the entries were made in the pass book and hence, the complainant complained that fact to the opposite party and even he wrote and ultimately on 09.06.2009 that amount has been credited into the account of the complainant. It is specifically stated by the complainant in the affidavit that, after more than one month of his complaint the opposite party rectified the mistake. Also it is stated that if the complainant did not complain that fact to the opposite party it was not known, whether the opposite party could have rectified the mistake on its own or otherwise. As could be same from the records and even it is the case of the opposite party that the third transaction was not successful but that amount was debited into the account of the complainant. When admittedly that transaction was not successful and there was no real withdrawal of the amount, first of all the opposite party on its own could have rectified the mistake by crediting that amount into the account of the complainant or else atleast immediately after the complainant complained in the matter. Hence, in this regard there is deficiency in service on the part of the opposite party. Accordingly, we answer the point No.1 is partly in affirmative. <br /> <br /> 14. Point No. 2:- From the discussions made above and conclusion arrived at, we pass the following order: <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to pay a sum of Rs.3,000/- to the complainant towards mental agony and other inconvenience caused within a month from the date of the order, failing which the amount will carry interest at the rate of 12% p.a.<br /> 3. Further the opposite party is hereby directed to pay cost of Rs.2,000/- to the complainant.<br /> 4. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 14th October 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar .J)<br /> Member<br /> <br />