Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking Rs.10,000/- being the amount not withdrawn from the ATM of the opposite parties; RS.25,000/- towards mental agony; Rs.25,000/- towards compensation and Rs.5,000/- towards costs.

2.   In brief the averments of the complaint are these:

        The complainant is having SB account bearing No.31335932716 with the 1^st opposite party and facility of ATM card No.6221080475800038972. The complainant used to draw amounts through ATM.   The complainant had balance of Rs.14,531/- to his credit as on 16-12-11.  The complainant on 21-12-11 at 17.23; 17.24; 17.24; and 17.25 hours tried to withdraw amount through ATM ID machine bearing No.0510400044028 of the 2^nd opposite party.  On all the occasions the complainant received the response as ‘sorry unable to process’.   On the advice of the security person the complainant inserted his ATM card at 17.34 hours and got the response as withdrawn.  The complainant’s enquiry slip revealed the cash balance as Rs.4531/- at 17.39.   The complainant gave a report at 17.30 hours on 21-12-11 through help line.  The complainant gave written report to the 1^st opposite party on 23-12-11.  The                       1^st opposite party gave evasive replies without conducting any enquiry about the defect of ATM machines.   The 1^st opposite party on 24-01-12 gave a reply to the notice issued by the complainant contending the transaction as successful.  The 2^nd opposite party is not properly maintaining the ATM center.  The complainant has not received any amount in the said transaction.  Due to substandard and imperfect services in maintaining ATM the opposite parties committed deficiency of service.  Due to the above attitude of the opposite parties the complainant suffered a lot mentally.  The complaint therefore be allowed.            

3.  The 2^nd opposite party remained exparte.

4.  The contention of the 1^st opposite party in nutshell is hereunder:

        Three ATMs bearing ID Nos. S10F000844027; S10G000844028; S10A000844041 were installed in the ATM center, Kannavarithota (Guntur main branch) opposite to District Court for use by customers.   The complainant used all the three ATMs installed at the said center and successfully withdrawn Rs.10,000/- from ATM bearing No. S10F000844027 at 17:23:57 vide transaction No.9241.   The complainant lodged a complaint with its help line on 21-12-11 and also personally with the 1^st opposite party on 23-12-11 alleging that he had not received any amount.  The 1^st opposite party immediately called enquiries and perused the log records of ATMs and informed the complainant on 24-01-12 that the subject transaction was successful.   The complainant did not file ATM slips which depicted true facts in this matter to have wrongful gain.   The ATM slips filed by the complainant pertaining to the ATM ID     S10G000844028 revealed the response code for transaction numbers 1509, 1510 and 1524 as 94 which relates to insufficiency of funds in account.   There were no defects in any of the ATMs maintained by the 1^st opposite party.    The 1^st opposite party did not commit any deficiency of service.   The complaint therefore be dismissed.

5.  Exs.A-1 to A-15 and Exs.B-1 to B-10 were marked on behalf of complainant and 1^st opposite party respectively.

6.     Now the points that arose for consideration are:

1. Whether the opposite parties committed deficiency of service?
2. Whether the complainant is entitled to compensation?
3. To what relief?

7.  POINT No.1:-   The point in controversy rests on the withdrawal or non drawal of Rs.10,000/- on 21-12-11 through one of the ATMs of the opposite parties.   The contention of the contesting opposite party is that the complainant successfully withdrew Rs.10,000/- on 21-12-11 through ATM bearing ID No.S10F000844027 at 17:23:57 under transaction number 9241 while that of the complainant is that he on 21-12-11 did not operate the ATM bearing ID No.S10F000844027. 

8.     Exs.A-3 to A-7 and A-9 have no relevancy to the facts of the case as they were subsequent to 17:23:57 i.e., the alleged successful transaction by the complainant.   The contention of the contesting opposite party about a person’s inability to operate ATM machine without ATM card and PIN number is having considerable force.   Transaction numbers 9240 and 9241 in Exs.B-1 and B-5 belied the contention of the complainant about he not operating the ATM ID No. S10F000844027.    In State Bank of India vs. K.K. Bhalla 2011 (2) CPR 26 (NC) it was observed:

                “In view of elaborate procedure evolved by the petitioner/Bank to ensure that without the ATM card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, we find it difficult to accept the Respondent’s contention.   No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM card or the PIN number fell in wrong hands.”         

9.     A negative aspect cannot be proved by adducing positive evidence.   The burden therefore lies on the opposite party that the complainant successfully withdrew Rs.10,000/- on 21-12-11 .  To discharge its burden the contesting opposite party relied on Ex.B-1 and B-5 log list pertaining to the ATM ID No.S10F000844027 and Ex.B-3 cash balance sheet.   The complainant contra relied on the entry made at page 5 of Ex.B-6 log list pertaining to ATM                   ID. No. S10G000844028 at 17:23.  

10.   Transaction numbers 9240 and 9241 at 17.23 in Exs.B-1 and Ex.B-5 (ATM ID.No.S10F000844027) and another transaction without number at 17.23 in Ex.B-6 (ATM ID.No.S10G000844028) related to the complainant.  In transaction No.9240 the response code mentioned as 053 related to incorrect PIN (Ex.B-4).  In Ex.B-6 response code was not mentioned though mentioned “sorry unable to process and inconvenience is regretted. Kindly contact your branch”.  In transaction numbers 1509 and 1510 of Ex.B-6                (at 17.24 and 17.25) the transaction code mentioned as 094 corresponds to insufficient funds.  Time in seconds was not mentioned either in Ex.B-1 and B-5 (pertaining to ATM ID.No. S10F000844027) and Ex.B-6 (pertaining to ATM ID.No. S10G00844028).  A person cannot operate both ATMs at one and the same time as rightly contended by the complainant.   It is quite astonishing to note as to how the contesting opposite party mentioned the time of successful withdrawal at 17:23:57 hrs., in the absence of any documents.  Unless the time in seconds were mentioned in the above log lists the contention of the contesting opposite party cannot be accepted in view of Ex.B-6.   It is not made known to this Forum whether CC TV cameras were functioning at that relevant time or not.  

11.   Exs.B-5 and B-6 log entries pertaining to different ATMs created an ambiguity for want of time in seconds in them and created an ambiguity. Under those circumstances the above decision in our considered opinion cannot help the contesting opposite party. We therefore opine that the complainant is entitled to the benefit of above ambiguity being a consumer and hence answer this point in favour of the complainant.  

12.  POINT No.2:-   The complainant claimed Rs.25,000/- for mental agony and Rs.25,000/- as compensation and Rs.5,000/- as costs.   Any compensation to be claimed and awarded should commensurate with the injury complained of.   Considering the case, awarding Rs.2,000/-     as compensation will meet ends of justice.  We therefore answer this point in favour of the complainant.

13. POINT No.3:-  In view of above findings in the result the complaint is partly allowed as indicated below:

1. The opposite parties are directed to pay Rs.10,000/- (Rupees ten thousand only) together with interest @9% p.a., from 21-12-11 till payment.
2. The opposite parties are further directed to pay Rs.2,000/- (Rupees two thousand only) towards compensation and Rs.1,000/- (Rupees one thousand only) towards costs.
3. The opposite parties are directed to deposit the above amounts within six weeks from the date of receipt of the order.

            Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 13^th day of August, 2012.

MEMBER                                             MEMBER                                         PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For 1^st opposite party:   

              PRESIDENT