ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

Earlier this complaint was disposed by my learned predecessor and members of this Commission on 24.07.2013 by dismissing the complaint. Afterwards, the complainant preferred an Appeal No.1270/2013 before the Karnataka State Consumer Dispute Redressal Commission, Bangalore against the dismissal order of the complaint in CC/599/2013. The Hon’ble State Commission by its order dated 31.07.2019 allowed the appeal and set aside the order of dismissal and remanded the complaint to reconsider the case of the complaint by looking into the document produced by the complainant and to dispose the matter in accordance with law. In view of this, this matter has come up for our decision.

2.   The complainant has filed this complaint alleging deficiency in service on the part of the OP and praying for direction to the OP 1 to refund of Rs.10,000/-, along with penalty and compensation for mental agony. 

3.   The brief facts of the complaint are that, the complainant is customer of the Syndicate Bank having SB Account along with the facility of ATM Card bearing No.5046810488308351. On 10.04.2012, the complainant approached the ATM counter of State Bank of India for withdrawal of money.  On inserting the ATM card in the ATM Machine, the complainant did not get the money; whereas he got transaction slip of declining the transaction. The complainant approached other ATM Machine located in the same counter and withdrew Rs.8,000/- and got a printed slip after withdrawal. The complainant noticed that, there was debit of Rs.10,000/- from his Account. Thereafter, on 12.04.2012 the complainant has approached OP 1. Even after 25 days, complainant did not receive any reply and OP 1 did not credit the amount to his account. On 05.05.2012, the complainant again wrote a letter to OP 1, but OP 1 did not take any action. On 08.05.2012, the complainant approached the Banking Ombudsman, but he was informed to approach legally, either to Consumer Court or Civil Court. On 14.07.2012 and 06.08.2012, the complainant once again requested OP 1 to re-examine and settle the claim, whereas OP 1 did not give any response. On 05.09.2012, the complainant issued a letter to Chief Vigilance Office, Syndicate Bank, Bangalore, and Central Vigilance Commissioner, New Delhi and they have rejected the complainant request.  Hence this complaint.

4.     In the version of OP 1 it is contended that:

Complainant is one of its customers having ATM card. The ATM card is a privilege to the customer to draw money from their respective accounts. The withdrawal of money through ATM card is an online process with connectivity to the ATM machine and it is also having the connectivity to withdraw the money through other Bank ATMs. Immediately, on receipt of complaint from the complainant on 12.04.2012 alleged non-receipt of the money from the ATM Machine of Rs.10,000/- on 10.04.2012, the OP 1 through its vigilance department made enquiries with OP 2 and found that the disputed transaction as successful and treated the said complaint as closed. The banking Ombudsman made a detailed enquiry and rejected the complaint from it. The transaction of 10.04.2012 reflected that the complainant has withdrawn a sum of Rs.10,000/- and thereafter Rs.8,000/- and it has been reported by the cash tally report forwarded by the OP 2. The complainant has received the cash from ATM of the OP 2. Under these circumstances the OP 1 has not committed any deficiency of service and prayed to dismiss the complaint.

5.     In the version of OP 2 has contended that on 10.04.2012, the complainant has withdrawn an amount of Rs.10,000/- through ATM machine maintained by it, evidenced  through Electronic Journal Switch Report and cash report generated at the ATM. Therefore allegation with regard to non-dispensation of the money in the ATM Machine maintained by it is not true. It is not aware with regard to complaint filed by the complainant on 12.04.2012 with OP 1 and also it is also not aware with regard to letter dated 08.05.2012 by the complainant. The complainant has approached the Banking Ombudsman and his case was rejected.  As per Electronic Journal Switch Report and Cash Report, it is revealed that transaction in ATM has been successful and money has been dispensed. Hence the OP is not liable. Denying all other averments of the complainants, prayed to dismiss the complaint.

6.     To substantiate the case, the complainant and OPs have filed their evidences.  We have heard the arguments of respective parties to the case.

7.     On the basis of the pleadings and evidence placed before us, the following points will arise for our consideration:

(1) Whether the complainant has proved deficiency in service on the part of the opposite parties?

(2) Whether the complainant is entitled to the relief prayed for in the complaint

            (3) What order?

 08.    Our findings on the above points are:-

POINT (1):-      In the Affirmative,

POINT (2):-      Partly Affirmative,             

POINT (3):-      As per the detailed order

                                       for the following,

REASONS

POINT (1) & (2)

09.   After the remand, notice was issued to both the parties. Complainant appeared and addressed his argument whereas OP did not appear before this Commission. Heard the arguments of the complainant as directed by the State Commission.

10.      After going through the contention of the complainant, there is no dispute between the parties regarding holding account with the OP 1 bank and availing the ATM facility.  It is also admitted fact, that, on 10.04.2012, the complainant in order to withdraw the amount visited the OP 2 ATM Counter, but unfortunately, the ATM Machine was not functioning after his attempt to withdraw the amount and hence he accessed other ATM counter situated next to the prior ATM counter, wherein complainant withdrew an amount of Rs.8,000/-.

11.     The grievance of the complainant, is that, though was not paid by the ATM of Rs.10,000/- on 10.4.2012, Rs.10,000/- was debited to his account, which is all done by OP, is either mischievous act or mechanical defect in ATM machine. On 12.04.2012, he made complaint to the OP regarding unsuccessful transaction and waited for their reply or remittance. In spite of regular follow ups, the same was not done. OP contention is that, the transaction made by the complainant on 10.04.2012 at 13.43 P.M was successful and he received Rs.10,000/- from ATM.

 
12.     Even Banking Ombudsman to whom the complainant had given a complaint in this regard, who found to have enquired into the matter has informed the complainant that, his withdrawal was successful and enclosed copies of the relevant documents to his information. The Complainant claims that, he operated the ATM machine, but could not get any cash although his bank account with OP 1 has debited Rs.10,000/-.

13.     OP 2 filed on record the E-Journal log sheet of the concerned ATM for the relevant day.  It discloses that the transaction in question was complete and machine had disbursed the amount of Rs.10,000/-. OP 2 has produced complainant’s savings bank account which shows that on 10.04.2012 he used his ATM card and had withdrawn Rs.10,000/-. The ATM Log of OP 2 placed on file corroborates the submission of OP 1.  ATM Log clearly shows that Rs.10,000/- were withdrawn on 10.04.2012 at 13.43 P.M  from the complainant’s account using the said ATM Card.  

14.      In the appeal it is observed in para 10 of the order that however the very printed statement on E-Journal of the Faulty Machine produced by the appellant complainant which shows that “ Sorry, unable to process; inconvenience is regretted; kindly contact your branch” and this aspect was not taken into consideration by the District Commission and in the circumstance there is ample evidence on record regarding faulty service by the ATM and it was unable to process as the printed remarks on the     E-Journal itself is sufficient to entertain the complaint and this aspect has not been considered by this Commission.

15.    On considering the above materials that too in particular the E-Journal report in respect of the transaction at OP 2 ATM, it becomes very clear that date 10.04.2012 time 13.43 hours ATM Id S10G000813126, Card No.5046810488308351, Txn No. 5702, response code 053, “Sorry unable to process; Inconvenience is regretted; Kindly contact the branch”.   Immediately in the next Journal the transaction No.5703 response code is 000 withdrawal Rs.10,000/- from A/c No. 00000488218 available balance Rs.9,259.46/-.

16.   From this, it becomes very clear that both the transaction has taken place at 13.43 hours. The earlier transaction is failed one as per the response code 053 which corresponds to failed transaction and further it is clearly mentioned that “Sorry unable to process; Inconvenience is regretted;  Kindly contact your branch”. Further complainant has also produced his bank           A/c Statement wherein it is clear that on 03.04.2012 he was having Rs.19,259.46/- as pointed out above the first transaction on 10.04.2012 has failed and according to complainant, he did not receive any money whereas the A/c Statement the said sum of Rs.10,000/- has been deducted from his A/c. Further he made an attempt to withdrawn Rs.8,000/- after the first failed transaction and the said amount was also deducted from his A/c and the balance was shown as Rs.1,259.46/- only. When all these facts are taken into consideration, it is a clear case wherein the transaction made by the complainant on 10.04.2012 on 13.43 for Rs.10,000/- is a failed one and the document produced by OP itself shows that again Rs.10,000/- in respect of the same transaction has been withdrawn.

17.      It is the burden of OP to show that the said amount has been taken by the complainant himself in the said ATM. It would have produced the CCTV camera footage to show that the complainant taking the money from the ATM. The same has not been done here. Though it may be true that the monetary transaction of the said ATM tally with the cash that itself cannot be a proof that the complainant has withdrawn the same since the first transaction failed, he drew the amount of Rs.8,000/- from some other ATM whereas his A/c has been debited Rs.8,000/- in addition to Rs.10,000/-.

18.     As stated above, the circulars of the RBI clearly places the burden on the bank to prove that the transaction has taken place at the instance of the card holder where as in this case it is a clear case wherein the ATM Machine did not disperse the amount and complainant was made to suffer.

19.    The circulars issued by RBI on 27.05.2011 provides for the bank to resolve the issue of the complaint within 7 working days from the date of receiving the complaint and failure to credit the customer A/c within the 7 working days, the bank shall make payment of compensation to customer at Rs.100/- per day by issuing bank, and the entire dispute regarding ATM failed transaction shall be settled by the issuing bank and the occurring bank through the ATM system provider only, and the compensation amount shall be credited to the customer’s account automatically without any claim from the customer, On the same day, when the bank affords the credit for the failed AMT transaction.

20.   In view of the same, we hold that though there is a failed transaction for drawing Rs.10,000/- from the ATM operated by OP 2 and debiting the amount of Rs.10,000/- from the account of the complainant by OP 1, amounts to deficiency in service and further not crediting the said amount to the account of the complainant inspite of giving the compliant and inspite of ATM machine informing the failed transaction and requesting the complainant to approach the concerned branch, and the said  branch not remitting the amount to the account of the complainant amounts to deficiency in service and unfair trade practice and hence we answer point 1 in the affirmative.

21.  In view of the above OP 1 is liable to pay Rs.10,000/- to the complainant along with compensation of Rs.100/- per day till payment of the entire amount commencing from 10.04.2012.

22.   Further the complainant was made to file this complaint by engaging advocate and paying his professional fee. We direct OP 1 to pay Rs.5,000/- towards litigation expense and further Rs.5,000/- towards damages for causing him mental agony stress and financial loss. We also direct OP 1 to pay interest @ 6% per annum on Rs.10,000/- from 10.04.2012 till the payment of the entire amount and answer point 2 partly in the affirmative and pass the following:

ORDER

1. Complaint is allowed in part with cost.
2. OP 1 is directed to pay a sum of Rs.10,000/- to the complainant along with interest at 6% per annum from 10.04.2012 till payment of the entire amount.
3. OP 1 further directed to pay to the complainant the sum of Rs.100/- per day from 10.04.2012 till the payment of the entire amount as compensation for not crediting the amount debited from his account as per the circulars of the RBI.
4. Op 1 is further directed to pay jointly and severally Rs.5,000/- as damages and Rs.5,000/- towards litigation expenses.
5. Complaint against OP 2 is dismissed.
6. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order. Failing which the same will be destroyed/ weeded out.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this 02^nd November 2020)

          MEMBER                              PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

-NIL-

Copies of Documents produced on behalf of Complainant/s:

-NIL-

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

-NIL-

Copies of Documents produced on behalf of Opposite Party/s

-NIL-

MEMBER                                PRESIDENT