Date of Filing : 07.10.2020
Date of Disposal: 25.08.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.J.JAYASHANKAR, B.A,B.L., .....MEMBER-I
THIRU.P.MURUGAN,B.Com. ....MEMBER-II
CC. No.27/2020
THIS THURSDAY, THE 25th DAY OF AUGUST 2022
Mr.K.Prasath,
No.389, Kunnathur Village,
Nabalur Post, Thiruthani Taluk,
Thiruvallur District. ……Complainant.
//Vs//
1.The Branch Manager,
Indian Overseas Bank,
C.V.Naidu Salai,
Thiruvallur Taluk & District.
2.The Branch Manager,
Equitas Small Finance Bank,
No.3676, Kakkalur Bye Pass Road,
Thiruvallur Town, Thiruvallur District. ..........Opposite parties.
Counsel for the complainant : Mr.A.R.Poovannan, Advocate.
Counsel for the 1st opposite party : Mr.K.V.Srinivasan, Advocate.
Counsel for the 2nd opposite party : Mr.S.Sushil Kumar, Advocate.
This complaint is coming before us on various dates and finally on 03.08.2022 in the presence of Mr.A.R.Poovannan, Advocate counsel for the complainant, Mr.K.V.Srinivasan Advocate counsel for the 1st opposite party and Mr.S. Sushil Kumar Advocate counsel for the 2nd opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service with regard to ATM transaction along with a prayer to direct the opposite parties to re-credit a sum of Rs.10,000/- into the complainant’s account with interest and to pay a sum of Rs.50,000/- towards compensation for the mental agony, hardship, strain, inconvenience, monetary loss caused to the complainant and to pay a sum of Rs.5,000/- towards the cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-
It was the case of the complainant that he was a customer with the 1st opposite party with account No.197501000006246 along with debit card facilities. On 11.11.2019 at 12.06 am the complainant withdraw a sum of Rs.10,000/- in the ATM machine of the 2nd opposite party. The transaction was successful and also a receipt was generated. When the complainant tried to withdraw a further sum of Rs.10,000/- the cash was not dispensed and the complainant waited for a long time but of no use. However to the shock and surprise of the complainant a sum of Rs.10,000/- was debited twice from the his account but the complainant received only a sum of Rs.10,000/- and that the another transaction was declined. The complainant immediately reported the issue to his banker and through them to the 2nd opposite party who had informed that the amount will be re-credited shortly. As the amount was not re-credited to the complainant’s account, he lodged a complaint with the 1st opposite party which was negatived by them stating that the 2nd opposite party has rejected the claim. It is submitted that the CCTV footage available with the 2nd opposite party ATM would clearly establish that the complainant had withdrawn only Rs.10,000/-. Thus aggrieved after issuing a legal notice to both parties the present complaint was filed alleging deficiency in service and for the reliefs as mention above.
Crux of defence by the 1st opposite party:-
The 1st opposite party filed written version disputing the allegations made by the complainant stating that on 11.11.2019 the complainant had withdrawn a sum of Rs.10,000/- each under 2 transactions in the 2nd opposite party ATM machine as per the statement and denied that one transaction was failed as contended by the complainant. It is admitted that on the complaint made by the complainant the 1st opposite party made a complaint to the 2nd opposite party through electronic mode on 14.11.2019 with regard to the non dispensation of the amount for which the 2nd opposite party rejected the claim stating that the transaction was successful and no excess cash was found. It is further submitted that they cannot view or reiterative the CCTV footage of the 2nd opposite party and thus contending that the allegation of deficiency in service by the opposite party as false, they sought for the dismissal of the complaint.
Crux of defence by the 2nd opposite party:-
The 2nd opposite party filed written version stating that the complaint was a malicious, frivolous and vexations one and that both the transactions made by the complainant from the kakkalur Bye Pass ATM was successful. It is submitted by them that even after two transactions the complainant again tried to withdrew Rs.10,000/- for which he had received response in the form of message from the ATM as “63 cash was not dispensed”, which means that the amount had not been debited from the complainant’s account and only after receiving the said message the complainant had withdrawn his debit card from the said ATM machine. It was found that the 1st and 2nd transactions were successful. The 2nd opposite party admitted that the 1st opposite party had made a complaint with regard to the 2nd transaction for which after due enquiry and verification it was replied that the transaction was successful and hence the complaint was closed. On that basis, the 2nd complaint on 22.11.2019 received from the complainant was rejected by the 1st opposite party. It is submitted that if the cash was not dispensed from the ATM machine, there would be a failure message or receipt in the ATM machine. As the complainant had withdrawn and received the cash from the ATM, only then he withdrew his ATM card out of the ATM machine. The complainant had not produced the messages or receipts before this commission. Thus it is submitted that in the 2nd transaction the complainant had received four currency notes of Rs.2000/- denomination and four currency notes of Rs.500/- denomination. Thus the 2nd opposite party sought for the dismissal of the complaint.
The complainant has filed proof affidavit and documents Ex.A1 to Ex.A8 were marked. On the side of 1st opposite party, proof affidavit and documents Ex.B1 to Ex.B4 were filed and also on the side of 2nd opposite party proof affidavit was filed along with documents Ex.B5 to Ex.B9.
Point for consideration:
Whether the act deficiency in service as alleged by the complainant against the opposite parties has been successfully proved by him by admissible evidence and if so to what relief the complainant is entitled?
Point:
On the side of the complainant the following documents were filed in support of the complaint allegations;
The IOB Bank pass book of the complainant was marked as Ex.A1;
Bank Statement was marked as Ex.A2;
Complaint made by the complainant to the Manager, IOB Bank, Thiruvallur Branch dated 04.12.2019 was marked as Ex.A3;
Complaint’s claim rejected by the IOB Bank dated 02.12.2019 was marked as Ex.A4;
Legal notice issued by the complainant to the opposite parties dated 14.12.2019 were marked as Ex.A5;
Acknowledgement card for proof of service was marked as Ex.A6;
Cover returned from the 2nd opposite party was marked as Ex.A7;
2nd opposite party address proof with photo was marked as Ex.A8;
On the side of 1st opposite party following documents were filed in support of their contentions;
Complaint letter given by the complainant was marked as Ex.B1;
Complaint raised by 1st opposite party and status report with reply of 2nd opposite party was marked as Ex.B2;
Reply notice issued by the opposite parties to the complainant’s counsel dated 02.01.2020 was marked as Ex.B3;
Statement of Account was marked as Ex.B4;
On the side of 2nd opposite party following documents were filed in support of their contentions;
Call log of ATM was marked as Ex.B5;
Complaint raised by 1st opposite party and status report with reply of 2nd opposite party was marked as Ex.B6;
Cash Balance Report was marked as Ex.B7;
Online EONCH024 Report was marked as Ex.B8;
CCTV Footage CD was marked as Ex.B9
Heard the oral arguments and perused the documents and written arguments submitted by both parties. The crux of the arguments made by the counsel for the complainant is that in the 2nd ATM withdrawal transaction the money was not dispensed to him and it was a failed transaction. However the amount was debited from his account, which could be amply proved by the CCTV footage available with the 2nd opposite party. Thus it is submitted that he had withdrawn only one Rs.10,000/- out of two withdrawals. He argued that both the opposite parties blame each other for the disputed amount for not re-crediting the disputed Rs.10,000/- into the complainant’s account. Thus he sought for the complaint to be allowed as prayed for.
At the same time, the crux of the arguments by the counsel for the 1st opposite party is that there is no negligence on their part and the complaint given by the complainant was closed as per the reply given by the 2nd opposite party stating that the transaction was successful and that no excess cash was found in the ATM. He argued that if the transaction was failed or the money is not dispensed a receipt would be received as “failure” and message will be sent to the mobile. Thus it was submitted by him that there is no deficiency in service on their part and they have acted promptly on the complaint made by the complainant and as no amount was re-credited by the 2nd opposite party to the account of the complainant with the 1st opposite party, it is submitted that there is no deficiency in service on their part and sought for dismissal of the complaint.
However, the counsel appearing for the 2nd opposite party argued that the complainant attempted ATM transactions four times and in which 3rd and 4th times were failed. He argued that the CCTV footage would clearly show the complainant had withdrawn the cash and if the cash was not dispensed from the ATM there would be a failure massage or receipt. Further it is argued by him that for the 2nd transaction the complainant had received four currency notes of Rs.2000/- denomination and four currency notes of Rs.500/- denomination and thus submitted that this is a false complaint and sought for the dismissal of the same.
On perusal of the complainant’s documents i.e. Statement of Accounts we could see that on 11.11.2019 there were two ATM withdrawals done at ATM-NO-3676 Kakalur Bye Pass Road and that the amount has been debited from the complainant’s Saving Bank Account No.197501000006246. It is also seen that on 04.12.2019 the complainant had made a complaint to the 1st opposite party stating that for the 2nd transaction no amount was received for the 2nd transaction and seeking for action to be taken. Further the 1st opposite party filed Ex.B3 and had stated that the acquirer bank has rejected the claim of the complainant. Thus it is seen that the complainant has filed this complaint for the act of the opposite parties in not re-crediting the amount of Rs.10,000/- that does not dispensed to him in the 2nd ATM withdrawal transaction. The 1st opposite party has put the entire blame on the 2nd opposite party stating that as no amount was re-credited from the 2nd opposite party they could not credit the amount to the complainant. The 2nd opposite party had raised defence that as per the Call log of ATM it is seen that both the transactions were successful and the amount was dispensed to the complainant on both the occasions. It is also argued by the opposite parties that not only two times but the complainant had made attempt four times for withdrawal in the same ATM at the same period but the 3rd and 4th attempts were failed. If the complainant has got the amount in the 2nd transaction there is no necessity for him to go for the 3rd and 4th attempts. Further the 2nd opposite party cited the Call log of ATM to show that the denominations in Rs.500/- and Rs.2000/- got reduced in the ATM after certain period of time and transactions but this commission of the view that it will not be an adequate proof to show that currency notes were issued only to the complainant as there is every chance of some other transactions made by some 3rd parties between the specified time duration. Further the 2nd opposite party had produced photos showing that the complainant was seen with currency notes in his hands. This Commission was of view that such photos will not be an admissible evidence to show that the amounts were dispensed twice to the complainant. In such circumstances we are of the view that the opposite parties had failed to produce any reliable and tangible documentary evidence to show that the disputed transaction was successful and that the amount was actually dispensed to the complainant. In case the transaction was successful and the amount was dispensed to the complainant by the ATM machine there arise no reason for the complainant to approach the opposite parties time and again and to knock the doors of this Commission by way of filing the present complaint for redressal of his grievance. Thus we hold that the opposite parties failed to rebut the allegation made by the complainant against them. Thus we answer the point accordingly holding that the complainant has successfully proved the deficiency in service committed by the opposite party.
As the deficiency on the part of the opposite parties has been held to be proved we are of the view that the Banks should be held liable to make the loss good suffered by the complainant. As this commission feels both the parties are liable, in the facts and circumstances we hold that the both the opposite parties should be held liable to pay the amount of Rs.10,000/- which was debited but not re-credited to the complainant’s account. For the mental agony, we order Rs.5000/- as compensation and also further cost of Rs.3000/- was awarded for the litigation expenses to the complainant.
In the result, the complaint is partly allowed. The Opposite Parties 1 & 2 are jointly and severally liable
a)to pay a sum of Rs.10,000/- (Rupees ten only) within six weeks from the date of receipt of copy of this order to the complainant;
b) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards compensation for mental agony caused to the complainant;
c) to pay a sum of Rs.3,000/- (Rupees three thousand only) towards litigation expenses to the complainant.
d) Amount in clause (a) to be paid within six weeks from the date of receipt of copy of this order failing which an interest of 6% will be levied on the said amount from the date of complaint till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 25th day of August 2022.
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MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 .............. IOB Bank Pass Book by the complainant. Xerox
Ex.A2 ............. Amount debit from the IOB Bank- Statement. Xerox
Ex.A3 04.12.2019 Complaint by the complainant to the Manager IOB Bank, Thiruvallur Branch. Xerox
Ex.A4 01.11.2019 Rejection of complaint claim by IOB Bank. Xerox
Ex.A5 14.12.2019 Legal notice by the complainant. Xerox
Ex.A6 19.12.2019 Acknowedgement card. Xerox
Ex.A7 .............. Return cover from 2nd opposite party. Xerox
Ex.A8 .............. 2nd opposite party address proof with photo. Xerox
List of documents filed by the 1st opposite party:-
Ex.B1 ............... Complaint letter given by complainant. Xerox
Ex.B2 Complaint raised by 1st opposite party and status report with reply of 2nd opposite party. Xerox
Ex.B3 02.01.2020 Reply notice to complainant’s counsel Xerox
Ex.B4 ................ Statement of Account. Xerox
List of documents filed by the 2nd opposite party:-
Ex.B5 ............ Call log of ATM. Xerox
Ex.B6 ............ Complaint raised by 1st oppostie party and status report with reply of 2nd opposite party. Xerox
Ex.B7 ............. Cash Balance Report. Xerox
Ex.B8 11.11.2019 Online EONCHo24 Report. Xerox
Ex.B9 ............. CCTV Footage CD. Xerox
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MEMBER-II MEMBER-I PRESIDENT
