DATE OF FILING: 6.5.2013.
DATE OF DISPOSAL: 21.6.2016.
Dr. Alaka Mishra, Member (W)
Deficiency in banking service is the sole allegation of the complainant.
2. Brief case of the complainant is that he is the customer of Opposite Party No.1 having State Bank of India S.B. Account No. 30325078704 Bhapur Bazar Branch, Annapurna Market, Berhampur. He is also availing ATM facilities and accordingly an ATM card was issued by the O.P.Bank in his favour to make his transaction and the complainant is regularly getting service from the O.P. The complainant while withdrawing the amount of Rs.20,000/- from his own account through using the ATM centre of O.P.No.1 on 30.10.2012 the said amount was not dispensed at all but a sum of Rs.20,000/- was debited from his account. Immediately on next day of the incident, the complainant made a complaint but the O.P.No.1 replied the said complaint after uncountable times of personal approach and elapse of 4 months 2 weeks 3 days that , “the transaction above of 30.10.2012 are successful”. It speaks volumes against the opposite parties. Non redressing of grievance in stipulated time as prescribed by the respected Reserve Bank of India is tantamount to deficiency in service and debit of account without dispense of money to the complainant is lead to unfair trade practice. The complainant approached uncountable times in person at the office of the O.P.No.1. On 18.3.2013 the O.P.No.1 intimated about the successful transaction vide letter No. 29/284 dated 18.3.2013 but not on the complaint filed by the complainant. The said letter also did not disclose in detail about the successful transactions. The O.P.No.1 failed to redress the complaint filed by the complainant on 1.11.2012. In contravening the payment and settlement system Act, 2007 and Banking Regulations, the O.P.No.1 did not choose to reply in time. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to return of amount of Rs.20,000/- with interest @10% which was not dispensed on 30.10.2012, compensation of Rs.10,000/- , also pay penalty @ Rs.100/- per day as per the payment and settlement system Act, 2007 in the best interest of justice.
3. In support of his case the complainant has filed certain documents which are placed on record.
4. Upon notice the O.P.No.1 filed version/argument through his advocate. It is stated the averments made in the complaint against the O.P.No.1 are not true and not admitted by this O.P. The complainant is not a “consumer” to proceed against the O.Ps in the CC cases under section 2(1)(c) of the Consumer Protection Act, 1986 “service” rendered free of charges or under contract of personal service do not come under the definition of the Act as such the complainant filed by him is not maintainable. It can not be ruled out that complainant or any other member of the family of the complainant withdrawn sum of Rs.20,000/- on 30.10.2012 and on the same date the complainant again withdrawn a sum of Rs.20,000/- on 30.10.2012 either the complainant or any member of his family members with malafide intention handled the ATM account number and withdrawn from time to time in a date in order to make fake claim against the Opposite Parties. It was the duty of the complainant to lodge a written F.I.R. in the local police station or at the Cyber Crime Cell of the police for assistance after alleged incident. As the complainant or any of his family members indulged in withdrawing the amounts from the said ATM account time to time in the same date and the complainant did not report the said incident to the police or cyber crime cell apprehending own misfortune. The O.P.No.1 check up the records and confirmed on enquiry have ascertained that the transactions dated 30.10.2012 were successful and the complainant had withdrawn the alleged amounts from his ATM account on the said date. In case the complaint allegations are true the complainant must have lodged complaint before the Banking Ombudsman, SBI Bhubaneswar under the Banking Ombudsman Scheme of 2006 and then before the Banking Lokpal, but not before the District Consumer Redressal Forum. When appropriate Forum are available for redress of loss and claim of the complainant , the District Consumer Forum, Ganjam, Berhampur has no jurisdiction to entertain and decide the consumer complaint case of the complainant of O.P.No.1 as alleged. The consumer complaint instituted by the complainant is not maintainable and liable to be dismissed. The O.P.No.1 has not committed any kind of unfair trade practice as alleged in the case. Soon after receiving complaint from the complainant the O.P.No.1 and 2 reported the matter to the ATM Channel Manager Bank and a copy submitted to the Chief Manager (Administration) R.B.O, Berhampur and also reported to the Chief Manager, B.O.P.M. and also lodged complaint in ATM CMs and system. The consumer complaint filed by the complainant is subjudiced as the complaint of the complainant is pending before the ATM Channel Manager, Bank and Chief Manager (Administration) R.B.O., Berhampur and ATM, CMs system and it is under process and not decided. In view of pending enquiry of the same complaint as stated above, the consumer case before this Forum is not maintainable and liable to be dismissed with cost. As the complaint of the complainant is a technical matter and the matter is under investigation by different channels by the dedicated team at higher level of this Bank, the O.P. No.1 is waiting for their assignment which will take some time. The above case filed by the complainant against the O.Ps is premature and not maintainable. In savings Bank deposits the complainant is entitled to receive interest @3.5% per annum, but not @10% as claimed in the case. Therefore, the malafide intention of the complainant is disclosed by claiming the interest @ 10% which is not tenable and not entitled by the complainant. The complainant is not entitled to claim compensation Rs.10,000/- and penalty @ Rs.100/- per day as the SBI is public Institutions and Bank fund is the public fund. Hence the O.P.No.1 prayed to dismiss the case with cost in the interest of justice.
5. Despite valid notice, the Opposite Party Nos 2 & 3 failed to enter their appearance and as a result they were proceeded ex-parte on 26.5.2014.
6. On the date of final hearing, we heard arguments from the learned counsel for the complainant as well as O.P.No.1. The O.P.No.2 & 3 was set exparte on 26.5.2014 hence the matter heard exparte in their absence. During course of hearing we have perused the case record and have also gone through the materials placed on record. After hearing parties at length, we feel that this is a case of failed transaction. In case of failed transaction, the Reserve Bank of India has specifically notified for reconciliation of failed transactions at ATMs, vide RBI Notification No. DPSS.PD. No.2632/2.10.02/2010-2011 dated 27th May 2011. In view of the above notification, the O.Ps are liable to credit the amount of Rs.20,000/- to the S.B. account of the complainant within two months. However, we direct the O.Ps to credit the amount within two months. Our finding is also supported by the authority of Hon’ble National Commission in the case IV (2013) CPJ 249 (NC) where it was held withdraw of amount not disbursed but debited from account is deficiency in service. As per the aforesaid citation the case of the complainant is allowed against all O.Ps. The O.Ps are jointly and severally liable to credit Rs.20,000/- to the S.B. account of the complainant within two months.
In the result we direct the Opposite Parties who are jointly and severally liable to credit Rs.20,000/- ( Rupees Twenty Thousand) only to the S.B. account of complainant within two months from the date of receipt of this order. We also allowed Rs.1000/- (Rupees one thousand) only towards cost of litigation to be paid during same period. The case of complainant is disposed of accordingly.
Order is pronounced in the Forum today on 21st June 2016.
Copies of the order be supplied to the parties free of cost.
