BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 80/2012.
THIS THE 8th DAY OF NOVEMBER 2013.
P R E S E N T
1. Sri. Prakash Kumar B.A. LLB. PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Kishanrao Kulkarni, Age: Major, Occ;
Government Employee as Teacher, R/o.
H.No. 8-11-181/817, Vidyanagar, Raichur.
//VERSUS//
OPPOSITE PARTIES :- 1. The Branch Manager,
State Bank of India, Raichur.
2. The Branch Manager,
AXIS Bank, Raichur.
Date of institution :- 26-09-2012.
Date of disposal :- 08-11-2013
Complainant represented by Sri. T.M. Swamy, Advocate
Opposite No.1 represented by Sri. S.K. Purohit, Advocate.
Opposite No.2 represented by Sri. I.M. Patil, Advocate.
ORDER
By Sri. Prakash Kumar, President:-
The complaint is filed by the complainant against the Respondents U/sec. 12 of Consumer Protection Act 1986.
2. The complaint in brief is that, the complainant is having S.B. Account with Respondent No-1’s bank provided with ATM card facility. On 05-03-2012 at 7:55 hours the complainant went to the ATM of Respondent No-2’ Bank to withdraw money by using ATM card and inserted the ATM card into the ATM and attempted to draw the money. But to his surprise he received only the debit slip and not the amount. As per the said slip Rs.10,000/- was deducted from his account though he had not received the amount of Rs.10,000/-. However the complainant again tried to withdraw the money and inserted the ATM card operated the ATM. At that time he received debit slip for Rs.6,300/- without money being dispensed with and the said amount was debited to his account, thereby totally Rs.16,300/- was debited in his account and immediately he approached the Respondent No-2’s bank which advised him to approach Respondent No-1. The complainant immediately approached Respondent No-1’s bank and informed about the money being debited in his account without being dispensed with. But Rs.16,300/- was not credited to his account has promised by Respondent No-1. Therefore the complaint got issued legal notice to the Respondent No-1 dt. 23-06-2012 for which Respondent No-1 gave reply denying the claim of the complainant as false and baseless. The computerized statement issued by the Respondent No-2’s bank shows that complainant has tried to withdraw the amount on 05-03-2012 at 17:55 to 17:58 hours which was also clarified by the Log. The Respondent No-2 replied that the matter was referred to its ATM Nodal Cell for further enquiry. Even till today there is no response from Respondent Nos. 1 & 2. Therefore the complaint for the reliefs as prayed for in the complaint.
3. The Respondent No-1 filed written version stating that the complaint is not maintainable either in law or on facts. The complainant had not given the true facts of the case. He has not approached this forum with clean hands. The contents of Para 3 & 4 of the complaint are partly true. The complainant operated the ATM of Respondent No-2’s bank to withdraw the money of Rs.10,000/- and again another amount of Rs.6,300/-. The complainant is claiming that he had not received both the said amounts. The Respondent No-1 is not in knowledge of receipt of only debit receipt of Rs.16,300/- from ATM of Respondent No-2’s bank. It is true that, he had approached the Respondent No-1 for making enquiry of his account. It is specifically denied that the Respondent No-1 is responsible for not receiving any amount from Respondent No-2’s ATM. The SB account of the complainant maintained in the usual course of business shows that there was withdrawal of an amount of Rs.10,000/- on 05-03-2012 at about 5.33 hours. Again the said account shows that there was withdrawal of an amount of Rs.6,300/- on the same day at about 17.48 hours. After receiving the complaint from the complainant Respondent No-1 had made a correspondence with Respondent No-2’s bank. The mechanical computerized statement issued by Axis Bank clearly shows that, there is withdrwal of the above said amount on 05-03-2012 at record No. 748 to the tune of Rs.10,000/- at about 17.33 hours and again on record No. 749 withdrawn an amount of Rs.6,300/- at about 17.49 hours. The E.J. Log clearly shows the transactions of the complainant including other transactions at the relevant time. Therefore the contentions raised by the complainant are not tenable in the eye of law. Axis Bank has confirmed that the amount was disbursed as per E.J. Log. The contents of Para-5 & 6 of the complaint are partly true. The Respondent No-1’s bank never assured the complainant the payment of an amount of Rs.16,300/-. The question of illegal deduction by this Respondent No-1 does not arise and the complainant is misleading this aspect of the matter. The letters of the complainant were suitably replied. Considering the transactions question of crediting an amount of Rs.16,300/- by the Respondent No-1 into the account of the complainant does not arise. There is no deficiency in service on the part of the Respondent No-1’s bank. The contents of Para-7 of the complaint are partly true. The legal notice issued by the complainant was suitably replied. The contents of Para-8 of the complaint are false. Whatever the claim it has to be claimed from the Respondent No-2 as he has withdrawn the amount from the ATM of Respondent No-2. The Respondent No-1 had lodged a complaint with CMS, and Axis bank has closed the complaint stating that the transaction was successful as per EJ Log. The Respondent No-1’s Bank is doing business without any malafide intention against the complainant. The complainant has no cause of action to file the complaint against the Respondent No-1. Therefore the complaint be dismissed with cost in the interest of justice.
4. The Respondent No-2 filed written version stating that the averments made in the complaint, except those which are admitted, are denied as false. The complainant has suppressed material facts before this forum. He has not come up with clean hands. The complainant does not come within the definition of ‘consumer’. The complainant was not a consumer of Respondent No-2 though he was using his ATM card at the ATM center of Respondent No-2 for withdrawing the money. There is no privity of contract between the 2nd Respondent and the complainant. Therefore the complainant will not come within the definition of ‘consumer’ as regards the Respondent No-2 is concerned. As per the records dt. 05-03-2011 at about 17-33-48 hours and at 17-34-08 hours the complainant operated Respondent No-2’s ATM for withdrawing cash of Rs.10,000/- and Rs.6,300/- and as per records Rs.16,300/- has been successfully dispensed with by ATM. The Respondent No-2 took up the issue with their ATM Cell and as per information received from there the complainant had used ATM of Respondent No-2 on 05-03-2012 at about 17-33-48 hours and at 17-34-08 hours. The transaction No.748 and 749 were successful and an amount of Rs.10,000/- and Rs. 6,300/- was dispensed with. The EJ file in the ATM is the final proof of the authenticity of the transaction accepted the across the world by all banks. It cannot be manipulated by any persons in any way whatsoever. The ATMs are supported by highest technology and excellent surveillance. Thousands and thousands of account holders utilize ATMs and they never failed to show the correct deposit or withdrawal. The EJ file reveals that the transactions have been successfully carried out and cash has been successfully withdrawn. The ATM transactions can be effected only by using original debit card and confidential PIN known only to the customer. Even if it is assumed that the complainant had not used the debit card then somebody having original debit card and confidential PIN might have used the same. Such a 3rd party might have withdrawn the amount using the debit card of the complainant. For all such lapses occurred elsewhere it is not justifiable for the complainant to put burden on Respondent No-2. The ATMs are fool proof system with reconciling account. The PINs have four digits which means there are 9*9*9*9 = 661 possible combinations for the PIN of any card which makes virtually impossible for a fraudster to crack it. In addition, if wrong PIN is entered thrice, then the card is not usable by the customer at the ATM for next 24 hours or till the end of day cut over the ATM takes place which is normally at 9 PM. Thus the probability of getting the PIN right is 0.0004 i.e, Zero. Thus without knowing the unique PIN there is no way any fraudster could have used the complainant’s card at any ATM for cash withdrawal. Therefore the evidence and technical details of the transactions are beyond reasonable doubt and confirms that the complainant indeed had access to disputed cash amounting to Rs.16,300/-. There is no deficiency in service and unfair trade practice on the part of the Respondent No-2. The Respondent No-2 is not liable to pay the amount of Rs.16,300/- with or without interest to the complainant. Hence the complaint be dismissed against Respondent No-2 with exemplary cost.
5. Complainant to prove his case filed his affidavit which is marked as PW-1 and relied on five documents which are marked as Ex.P-1 to Ex.P-5. The Respondent No-2 to prove his case filed one affidavit which is marked as RW-1 and relied on five documents which are marked as Ex.R-1 to Ex.R-5. Respondent No-1 to prove his case filed affidavit which is marked as RW-2. No documents are marked.
6. Arguments heard on complainant’s and 2nd Respondent’s side.
7. Respondent No-2 heard objection.
8. The points that arise for our consideration are:
1. Whether the complainant proved deficiency in service on the part of the Respondents against him.?
2. Whether the complainant is entitled for the reliefs prayed for.?
3. What order?
9. Our answer on the above points are as under:
(1) In Negative
(2) In Negative.
(3) As per final order:
REASONS
POINT NO.1 :-
10. It is the specific case of the complainant that he tried to withdraw an amount Rs.10,000/- from his SB Account maintained with the Respondent No-1 used his ATM card for the said purpose at the ATM of Respondent No-2 and to his surprise the amount of Rs 10,000/- was not dispensed with by the ATM and he received only the debit slip showing the withdrawal of Rs.10,000/- from his SB Account and therefore he once again tried to withdraw an amount of Rs.6,300/- at the same ATM which also had the same fate as that of the first one and he never received Rs.6,300/- from the ATM though he received the debit slip showing withdrawal of Rs.6,300/- from his SB Account.
11. However the contention of the Respondent No-1 is that the SB Account of the complainant maintained in the usual course of business shows that there was withdrawal of an amount of Rs10,000/- on 05-03-2012 at about 17.33 hours and again withdrawal of an amount of Rs.6,300/- on the same day at about 17.48 hours. It is the further case of the Respondent No-1 that the mechanical computerized statement issued by the Axis Bank clearly shows that, there was withdrawal of an amount of Rs.10,000/- on 05-03-2012 at about 17.33 hours at record No. 748 and withdrawal of an amount of Rs.6,300/- at about 17.49 hours at record No. 749 on the same day and the Axis Bank has confirmed that the amount was dispensed with as per EJ Log.
12. The Respondent No-2 contended that as per the records on 05-03-2012 at about 17-33-48 hours and at 17-34-08 hours the complainant operated their ATM for withdrawing Rs.10,000/- and Rs.6,300/- and as per records Rs.16,300/- has been successfully dispensed with by the ATM under transaction No. 748 & 749 and EJ file confirms the said transaction and further contended that EJ file in the ATM is the final proof of the authenticity of the transaction accepted across the world which cannot be manipulated in any manner and it is supported by the highest technology and excellent surveillance and the EJ file pertaining to the complainant’s transaction reveals that the transactions have been successfully carried out and cash has been successfully withdrawn by the complainant.
13. The Respondents to substantiate their contentions that an amount of Rs.10,000/- and Rs.6,300/- were dispensed with by the ATM to the complainant on 05-03-2012 at about 17-33-48 hours and at 17-34-08 hours respectively produced the EJ copy which is marked as Ex.R-1 & Ex.R-2. The said documents clearly show the above mentioned amounts were dispensed with from A/c. No. 00000010408031851 which pertains to the complainant’s SB Account maintained with Respondent No-1 on the alleged date and time. Besides this the ATM physical cash balancing sheet, the copy of which is marked as EX.R-3, does not show that on the alleged date and time overage or shortage in the transaction in that particular ATM of the Respondent No-2 at Raichur. If the amount of Rs.10,000/- and Rs.6,300/- was not dispensed with though the slip showed that the said amount was dispensed with, Ex.R-3 could have shown the said amount in the overage column of balancing sheet Ex.R-3. But there is no such entry in the said column which also gives strength to the conclusion that Rs.16,300/- was dispensed with by the ATM to the complainant on the alleged date and time. To contradict these documents and to show that the amounts mentioned above were not at all dispensed with by the ATM to him the complainant has not produced any evidence. As far as we know and as contended by the Respondents the EJ file in the ATM is the final proof of the authenticity of the transaction accepted across the world and the same cannot be manipulated by any one in any manner. Therefore the said EJ file produced by the Respondent to prove the fact that the amounts of Rs.10,000/- and Rs.6,300/- were dispensed with to the complainant by the ATM on the alleged date and time has to be accepted.
14. Further in the light of the contention by the Respondent No-2 that somebody having original debit card and confidential PIN might have used the same to withdraw the amount mentioned above the production of the ATM slips that were being issued by the ATM to the complainant is very much necessary to know whether the complainant himself had transacted with the ATM to withdraw an amount of Rs.10,000/- and Rs.6,300/- respectively. But the complainant has not produced the said slips to show that he himself had transacted with the ATM on the alleged date and time to withdraw the money of Rs.10,000/- and Rs.6,300/-. This casts serious doubt with regard to the case put forth by the complainant. The non production of the said material document gives rise to suspicion and adverse inference that the complainant might not have used his ATM card to withdraw the money and somebody else who had access to it might have used the ATM card to withdraw the money. The penal provision of the Reserve Bank of India referred to by the complainant to be used against the Respondents does arise only in case of the Respondents were found responsible to pay the amount towards the amount that was not dispensed with by the ATM.
15. The question of producing the video footage also arises in case it is the case of the complainant that somebody has misused the ATM card to withdrew the money from his account. But here it is not the case of the complainant that somebody might have fraudulently drew the money from his account through ATM. Therefore there is no necessity of producing the video footage by the Respondent to prove fraudulent transaction. The decision reported in (2012 CJ 177 (NC) relied on y the complainant is not applicable to this case on hand. That being the case we cannot hold Respondents guilty of deficiency in service as against the complainant. Accordingly this point is answered in the Negative.
POINT NO.2:-
16. As the complainant has failed to prove his case and failed to prove deficiency in service against the Respondents he is not entitled for any of the reliefs prayed for in the complaint. Accordingly this point is answered in Negative.
POINT NO.3:-
17. As per order below:
ORDER
The complaint filed by the complainant is dismissed.
There is no order as to cost.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open court on 08-11-2013)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Prakash Kumar,
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
