Date of Filling:      14.06.2017

                                                                                                                       Date of Order:      19.11.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CC No.29/2017

MONDAY, THE 19^th    DAY OF NOVEMBER 2018

K.Venkataraman,

S/o, N.V.Krishnan,

Old No.9, New No.4/175,

Kungumapoo Street,

Poonga Nagar,

Thiruvallur Town and Taulk,

Thiruvallur District.                                            ……Complainant.

                                                 //Vs//

1.The Branch Manager,

    IOB, Thriruvallur Branch,

   CV Naidu Salai,

   Thiruvallur Town - 602 001.

2.The Branch Manager,

    IDBI Bank, Thiruvallur Branch,

    J.N.Road, Thiruvallur Town - 602 001.          …. Opposite parties.

The complaint is coming upon before us finally on 09.11.2018 in the presence of Thiru.A.R.Poovannan, counsel for the complainant and Thiru.E.S.Murali, counsel for the 1^st opposite party and M/s. R.Dhamodaran, counsel for the 2^nd opposite party and upon hearing arguments having perused the documents and evidences on both sides, this forum delivered the following.

ORDER

PRONOUNCED BY THIRU S.PANDIAN, PRESIDENT.

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite parties for seeking direction to re-credit a sum of Rs.10,000/- with interest and to pay a sum of Rs.50,000/- towards compensation for causing mental agony and hardship due to the deficiency of service on the part of the opposite party and with cost.

2.The brief averments of the complaint are as follows:-

The Complainant is a customer with IOB, Thiruvallur Branch and is having his saving bank account No.19751000003523 and inturn he is also having debit card facility over the said account.  That on 02.09.2016 at about 12.38 hours the complainant had entered into an ATM centre of the IDBI Bank, Thiruvallur Branch, Situated at More super Market at Rajajipuram, Thiruvallur to withdraw a sum of Rs.10,000/- and processed for the same and waited for the cash for a long time and it was found that the machine was out of service.

3. The complainant had not withdrawn the amount from the ATM machine on that day as it was out of service but the complainant shock and dismay the complainant received a message from the IOB that a sum of Rs.10,000/- was debited from the complainant’s account as if the complainant had withdrawn from the ATM.  The complainant immediately reported the same to the 1^st opposite party and the 1^st opposite party pacified the complainant that if the amount was not actually withdrawn it will be re-credited within two days.  That even after two days the amount was not re-credited to the complainant’s account and thus the complainant, on 07.09.2016 made a complaint to the 1^st opposite party regarding the wrong debit and there was not reply so for.  Therefore the complainant is put to great mental agony and hardship because of any proper reply or response from 1^st opposite party. 

4. Then the complainant approached the 1^st opposite party to take steps to get CCTV footage from 2^nd  opposite party and the application was rejected on the reply of the 2^nd opposite party and thereby the complainant is unnecessarily dragged without knowing the fact as to how his account was debited with a sum of Rs.10,000/-.  The opposite parties action amount to dereliction in their duty and deficiency in their service and therefore the complainant on 23.03.2017 issued a legal notice to the 1^st and 2^nd opposite parties and in spite of the receipt of the legal notice on 24.03.2017 by the opposite parties, they had not credited a sum of Rs.10,000/- or not given any reply.  Hence this complaint.

5. The contention of written version of the 1^st opposite party is brief as below:-

The complaint is not maintainable either in law or on facts.  The 1^st opposite party does not admit any of the allegations contained in the complaint save those that are specifically admitted herein.  The complainant gave complaint to 1^st opposite party stating the complainant was tried to withdrawn Rs.10,000/- from ATM maintained by 2^nd opposite party on 02.09.2016, but as per statement the complainant was not received money from ATM and his account was debited wrongly, so the transaction is failed one and money has not been received.  Afterwards the 1^st opposite party lodged a complainant through their central office Chennai to 2^nd opposite party.  After some time a reply was received from 1^st opposite party central office stating as the request of the 1^st opposite party was rejected by 2^nd opposite party and the same was also informed to complainant. 

6. Again on the request of the complainant requested the 1^st opposite party to lodge another complaint on 14.09.2016 stating the complainant was not accepted the first complaint rejection of his claim and provide CCTV footage.  The said massage was duly informed to 2^nd opposite party but till date the 2^nd opposite party has not been provide CCTV image.  In these circumstances the 1^st opposite party could not provide CCTV image to complainant, it is duty of the 2^nd opposite party.

7. The 2^nd opposite party is fully responsible for the loss caused to the complainant.  The 1^st opposite party is un-necessary party to the proceedings and no way responsible for the relief sought by the complainant.  The cause of action arose against the 1^st opposite party as alleged is wrong.  The 1^st opposite party could not give suitable reply notice to the complainant legal notice dated 23.03.2017 as the legal notice was mislaid with other official papers and busy official work load.  The 1^st opposite party not liable to pay any amount to the complainant as alleged in the complaint.  Hence this complaint is liable to be dismissed with cost of Rs.5000/-.

8. The contention of written version of the 2^nd opposite party is as brief as below:-

The complaint is not at all maintainable either in law or on facts.  The 2^nd opposite party does not admit any of the allegations contained in the complaint save those that are specifically admitted herein. 

9. That the complainant is having debit card facility over the said account, it is for the 1^st opposite party to admit or refuse the same.  That on 02.09.2016 at about 12.38 hours the complainant entered ATM centre of the IDBI Bank, Thiruvallur Branch situated at More Super Market at Rajajipuram and wanted to withdraw a sum of Rs.10,000/- and processed for the same and that he waited for a long time and found that the machine was out of service and that he had not withdrawn the amount that day as the ATM machine was out of service, are totally wrong and misleading.  The said ATM machine was not out of service on that day and that in fact one Mr.P.Sathyaraj having account No.0756104000055967(debit card No.45877775 013 2272) with the 2^nd opposite party withdrew a sum of Rs.100/- at 12.56p.m. from the very same machine, i.e.18 minutes after the allegedly failed transaction.  Thus the averment that the said ATM machine was out of service is baseless.  Besides it is not clear as to how the complainant was very specific that at 12.38 on 02.09.2016 he tried and could not get the amount, when his transaction has actually failed leaving him without any record.

10. That the complainant approached the 1^st opposite party to take steps to get CCTV footage from the 2^nd opposite party and the application was rejected, is bald and vague.  No request for CCTV footage as ever received either from the complainant or from the 1^st opposite party of from their authorized agent at any point of time.

11. That on 23.03.2017 the complainant issued a legal notice to the 1^st and 2^nd opposite parties, i.e., after a lapse of nearly 7 months, is true and admitted.  Since CCTV footage could be retrieved only for a period of 90 days, the 2^nd opposite party was helpless as they were put on notice after a period of 203 days only.  Moreover the said legal notice was misplaced and therefore could not be responded appropriately by this opposite party.  Had the complainant brought this allegedly failed transaction within a reasonable time to the notice of the 2^nd opposite party they could have helped to sort out the whole issue.  After approaching this opposite party by way of legal notice on 23.03.2017, i.e. after 203 days, the complainant cannot turn around now and say that the ATM machine was out of service on the said date when it was fully functional.  Hence this complaint may be pleased to dismiss.

12. In order to prove the case, on the side of the complainant, the proof Affidavit submitted as his evidence and Ex.A1 to Ex.A6 were marked. While so, on the side of the opposite parties filed as his evidence and Ex.B1to Ex.B4 were marked.

13. At this juncture, the point for consider before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint by the complainant?

2. To what other reliefs, the complainant is entitled to?

14. Written arguments filed on both sides.  While oral arguments adduced on the side of the complainant and 2^nd opposite party but 1^st opposite party has not come forward to adduced the oral argument.

15.Point No.1:-

 According to the averments made in the complaint that on 02.09.2016 at about 12.38 p.m the complainant entered into an ATM centre of the IDBI Bank, Thiruvallur Branch , Situated at More Super Market at Rajajipuram, Thiruvallur and the complainant by using his card has withdraw a sum of Rs.10,000/- and the same was processed but even waited for the cash for a long time and it was found that the machine was out of service and inturn the complainant has not withdrawn the amount from the said ATM machine.  In the meantime, complainant had shocked and received a message from the IOB bank that a sum of Rs.10,000/- was debited from the complainant account and immediately the complainant reported the same to the 1^st opposite party by means of complaint and inturn the 1^st opposite party pacified the complainant that if the amount was not actually withdrawn it will be re-credited to the complainant’s account and thus the complainant made a complaint on 07.09.2016 with the 1^st opposite party but there was not reply.

16. While being so on the side of the 1^st opposite party it is stated that the complainant’s complaint was duly informed to the 2^nd opposite party but till date the 2^nd opposite party has not been provide CCTV image which is duty of the 2^nd opposite party and also the 2^nd opposite party is full responsible for the loss caused to the complainant and 1^st opposite is un-necessary party and also there is no cause of action arose against the 1^st opposite party.

17. On the other hand, the 2ne opposite party vehemently contended that the allegations made in the complaint and infact that the ATM machine was out of service are totally wrong and misleading and one Mr.P.Sathyaraj withdrawn a sum of Rs.100/- at 12.56 p.m. and the same machine and therefore the machine was out of service is baseless and without any record.  The complainant made the allegations that as per the request of the CCTV footage cannot be provided because it is bleated request and infact the 2^nd opposite is no way connected to the alleged loss and as per the RBI circular and the 1^st opposite party is responsible for the alleged complaint.  At this juncture, it is foremost duty of this Forum to decide as to whether the complainant has come forward to prove the allegations made in the complaint against the opposite parties by means of consistent and reliable evidence.

18. At the outset, on careful perusal of the rival submissions putforth on either side, it is crystal clear that it is not at all disputed that the complainant is having saving Bank account in the 1^st opposite party Bank and in turn he was issued debit card facilities in connection with the above said saving account.  As per the only contention raised by the 1^st opposite party is that the complaint preferred by the complainant in respect of withdrawn the amount but it was rejected by the 2^nd  opposite party and the same was requested by the 1^st opposite party.  Again second time 1^st opposite party requested to the 2^nd opposite party to furnish the CCTV footage for the alleged date of withdrawn the ATM belong to the 2^nd opposite party Bank but it could not be provided by the 2^nd opposite party and in fact the 2^nd opposite party fully is responsible for the loss caused to the complainant and no cause of action arose against the 1^st opposite party.

19. While being so, the 2^nd opposite party has contended that as per the RBI Rules and regulations the 1^st opposite party being the Debit card issuing bank is only responsible for the ATM transaction complaint and in respect of CCTV footage request by the 1^st opposite party legally bleated one and thereby it could not be provided. 

20. Such being so, from the evidence of the complainant Ex.A1 is the account summary and Ex.A2 phone message in connection with the debited amount of Rs.10,000/- on 02.09.2018 at 12.38.35 which clearly shows about the transaction and the same was not refused by the opposite parties 1and 2 at any way.  It is further seen from the evidence that the alleged withdrawn has been brought to the knowledge of opposite parties through Ex.A4 and Ex.B1 and that being so the only way is to prove or disprove the same, the CCTV footage for consent ATM only became a proof and it was requested by the 1^st opposite party but the same was rejected by the 2^nd opposite party since it is delayed one.

21. While so, the 1^st opposite party who being the Debit card issuing Bank has not come forward to place any evidence to show that the complainant has withdrawn the said amount.  Further as per the contention raised by the 2^nd opposite party Branch no such amount was withdrawn with the complainant account, the said amount re-credited to the 1^st opposite party Bank.  As per averment of the 2^nd opposite party that if complainant had not at all withdrawn the amount from the total deposited amount in the ATM under the control of the 2^nd opposite party, the total amount of withdrawal on that date from that belongs to 2^nd opposite party’s Bank account can be easily accounted by the 2^nd opposite party to arrive the total balance amount and how much spent amount by means of withdrawn. But they are not come forward to produce the said relevant document to disprove the allegations averred in the complaint by the complainant.  Hence it goes without saying that the opposite parties 1to2 are jointly or severally liable for the loss incurred by the complainant.  Further from the version filed by the opposite parties 1and 2 it is crystal clear that both 1and 2 have shrinking their responsibilities made allegations against each other.  

22. In the light of the above other facts and circumstances this Forum without any hesitation has come to conclusion that there is a deficiency of service on the part of the opposite parties 1and2 as per the averments of the complaint.  Thus the point No.1 is answered accordingly.

23. Point No.2:-

In view of the conclusion arrived in point No.1, the opposite parties  1and 2 jointly or severally liable to fulfill the loss incurred to the complainant and also to pay a reasonable compensation for causing mental agony and hardships and also reasonable cost of litigation.  Thus the point No.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite parties1 and 2 jointly or severally  are directed  to  re-credit an amount of Rs.10,000/-(Rupees ten thousand only) in  the relevant account of the complainant  with interest at the rate of 6% per annum from the date of the complaint i.e. (14.06.2017) till the date of this order (19.11.2018) and also to pay a  sum of Rs.10,000/- (Rupees ten thousand only)  towards compensation in toto  to the complainant for causing  mental agony and hardships due to the deficiency of service on the part of the opposite parties and also to pay a sum of Rs.5,000/- (Rupees five thousand only) towards cost of litigation to the complainant.

 The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum of this 19^th November 2018.

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        MEMBER                                                                         PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite parties:-

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   MEMBER                                                                                      PRESIDENT