Judgment & Order dt. 16.11.2017
Terribly frustrated in her attempt to withdraw money from the SBI ATM at Mangalpur, Balurghat, Dakshin Dinajpur, the complainant has come up before this Forum with the filing of the instant complaint u/s 12 of the C.P. Act, 1986, alleging deficiency in service on the part of OP-Bank.
The facts leading to the filing of the complaint may be epitomized as follows.
The complainant has Savings Bank A/c maintained in OP-Bank along with her husband and the A/c No. is 30125116749. She has ATM facilities. On 10.5.2017 she went to SBI ATM at Mangalpur for withdrawal of Rs. 10,000/-. All the formalities in the ATM were complied with by her; but neither any currency note nor any receipt came out of the ATM. Immediately after that, she got a message at her mobile phone that the said amount of Rs.10,000/- was debited from their account. The matter was verbally reported to the Manager of the OP-Bank that very day. But, no step was taken by the OP-Bank. Thereafter also several petitions have been sent and last of all on 12.6.2017 one written petition was also submitted before the OP-Bank claiming refund of Rs.10,000/- to her. But no step whatsoever was taken by the OP-Bank. On 15.7.2017 a demand notice was also sent to the OP-Bank through Advocate claiming refund of Rs.10,000/-, but the OP-Bank paid no heed. So, having no other way upon, the complainant has filed the instant case alleging deficiency in service on the part of OP-Bank and has also prayed for issuing a direction to the OP-Bank to pay Rs.10,000/-, which was wrongly debited from her account by the OP-Bank, Rs.15,000/- as compensation for mental pain and agony Rs.5,000/- as litigation cost. Hence, this case.
The OP-Bank has contested the case by filing a written statement wherein it is admitted that the complainant approached the subject ATM on 10.5.2017 on 10:45 hrs. for withdrawal of Rs.10,000/-. According to the version of its averment, the transaction was successful and the complainant received Rs.10,000/- from the concerned ATM. It is further averred in the written statement that an enquiry was conducted by the OP-Bank and it was found that there was no surplus amount left in the ATM cash. The complainant, According to the Bank, took the cash at 10:45:23 hours; transaction ended at 10:44:23 hours and next transaction started at 10:45:57 hours. There is no deficiency in service as alleged on the part of OP-Bank and therefore the complaint should be dismissed in limini.
Upon the averments of both the parties the following points are formulated for effective adjudication of the matter in dispute.
Points for determination
- Is the OP-Bank liable for deficiency in service, if any, as alleged by the complainant?
- Is the complainant entitled to relief or reliefs as prayed for?
Evidence of the parties:
The complaint is treated as affidavit-in-chief of the complainant on the petition of her. The documents filed on her behalf are marked as exhibit Nos. 1, 2, 3, 4, and 5 on admission, as detailed in the list kept in the record. On behalf of the OP-Bank the documents filed are marked as exhibit Nos. ‘A’, ‘B’, ‘C’ and ‘D’, also detailed in the list of the documents kept in the record.
DECISION WITH REASONS
Point Nos.1 & 2
Ld. Lawyer appearing for the complainant has argued that the complainant has not received the money from the ATM and OP-Bank has not also returned the said money to the complainant, despite her repeated demand placed before the OP-Bank from time to time. According to him, it is OP-Bank which has been guilty of deficiency in service for not crediting the money i.e. Rs.10,000/- to the account of the complainant.
Ld. Lawyer appearing for the OP-Bank has strenuously argued that the complainant has received the money from the concerned ATM and that it is established from ATM transaction list dt. 10.5.2017 (Ext.-C). He further submits that the aforesaid transaction list reveals that the transaction started at 10:44 hours on 10.5.2017 and it ended at 10:44:23 and the cash was taken at 10:45:23 hours that day. Next transaction started at 10:45:57 hours that day. So, according to him, it took about 1:57 minutes to complete the whole transaction. It might be that the complainant was in extreme hurry; that she left ATM site and that the cash might be collected by the next man standing in the queue. Be that as it may, as goes his submission, OP-Bank can in no any way be held liable for deficiency in service as alleged by the complainant.
We have gone through the complaint, the written statement and the documents filed on behalf of the parties. We have also considered all these documents along with the submissions canvassed on behalf of the parties.
Now to see whether the complainant had actually withdrawn the money from the concerned ATM or not. The answer is available from one document and only one document which is filed on behalf of the OP-Bank. The said document is marked as Ext.-C and this is nothing but a list of all the transactions which took place in the ATM on that very day i.e. on 10.5.2017. We know it very well from our practicable experience that the transaction in the ATM ends only when the cash is released therefrom. Ending of transaction always follows the release of money or “cash taken” as called technically. A minute scrutiny of Ext.-C i.e. ATM transaction list dt. 10.5.2017 also goes a long way to support our views, as expressed earlier, that the “transaction ends” always follows “cash taken”. In all the cash transaction as shown in ext.-C, the aforesaid sequence of the two is found to be maintained. It is found therefrom that the sequence of “cash taken” followed by “transaction ends” is all along maintained. But, to our utmost surprise, we come across that the aforesaid sequence has not been maintained in case of particular withdrawal of the complainant. The relevant portion of the transaction detailed (Ext.-C) reads as follows:
“10:44:23 – transaction end
10:45:23 – Cash taken
10:45:57 – transaction start”
It stands established from the data as given above that the transaction ended at 10:44:23 hours and cash was taken thereafter i.e. 10:45:23 hours. As soon as it is displayed at the ATM that transaction ends, nobody will wait there for availability of cash. He would either make an attempt for re-transaction or leave the ATM counter at his or her discretion. In the instant case the complainant left the ATM counter as soon as it was displayed at the ATM that the transaction ends. Cash was given about 1 minute after the end of transaction and this fact clearly
establishes that the cash was not taken by the complainant. Display of “transaction end” prior to “cash taken” is undoubtedly deficiency in service on the part of OP-Bank and the complainant is found to have fallen a victim to such deficiency in service.
Further, it is revealed from transaction list (Ext.-C) that the cash present timer expired at 10:44:20 minute. If this be so, cash can not be out of the ATM and the complainant cannot be blamed for taking the cash from the counter. The benefit of doubt must be given to the consumer.
It has been argued on behalf of the complainant that a person who has collected the said cash could have been nabbed, had the OP-Bank would have been able to produce the CC TV footage before the Forum. Inability to produce the CCTV footage, which is maintained at ATM counter, is also a clear instance of deficiency in service on the part of OP-Bank, as goes the submission of the Ld. Lawyer appearing for the complainant. To counter the aforesaid argument, it is submitted on behalf of the OP-Bank that the CCTV footage has gone corrupt by this time and, therefore, it has not been possible for them to produce it before the Forum. To prove that the said footage is corrupt, one document is produced by the OP-Bank and the same is marked as Ext.-D. It is available from the Ext.-D that the CCTV footage got corrupted upto 1.7.2017. The subject transaction admittedly took place on 10.5.2017. The OP-Bank was informed that very day of the fact of non-availability of cash from the ATM by the complainant. In the circumstances, the CCTV footage should have been preserved in order to detect the culprit. Purpose of installing the CCTV at the ATM counter is to nab the culprit involved with fraud or abuse of ATM. Had the OP-Bank properly
preserved the record of CCTV of the ATM counter, a person who collected the cash from the ATM counter would have been identified with the help of CCTV footage. But, that is not possible now, as the CCTV footage has been corrupt. It is also a kind of negligence on the part of OP-Bank. The OP-Bank has not taken proper step in respect of what they should have taken and in our considered opinion we cannot but say that this is also a deficiency in service on the part of OP-Bank. All these deficiencies in service on the part of OP-Bank have made the complainant a scape-goat now, for which she has undergone a tremendous mental harassment, as ordinary man, in similar situation, is normally expected to suffer. The OP-Bank will have to compensate for this in addition to the payment of Rs.10,000/- which the complainant wanted to withdraw from the ATM at Mangalpur, Balurghat.
In the result, the case succeeds and both the points as referred to above are decided in favour of the complainant.
Hence,
O R D E R E D
that the complaint case be and the same is allowed on contest against the OP-Bank with cost which is quantified at Rs.2,000/-.
OP-Bank is directed to credit Rs.10,000/- with interest at normal Bank rate since 10.5.2017 to the date of full realization thereof, to the Savings Bank A/c of the complainant bearing No.30125116749 and also to pay Rs.3,000/- as compensation to the complainant for her mental pain and agony within a period of 30 days from the date of this order along with the litigation cost as awarded, failing which the compensation amount will bear interest @ 10% p.a. until full realization of the said amount.
Let a plain copy of this order / judgment be forthwith furnished free of cost to the parties concerned.
