DATE OF DISPOSAL: 19.09.2019.
Sri Karuna Kar Nayak, President.
The complainant G.Brundaban Reddy has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he is a labourer and bona-fide customer of O.P.No.1 having account number 80352200061197 since long. Since the day of the opening of the said account, the complainant transacting all his transactions through this account. The complainant also avail the ATM facility from the O.P.No.1 for day-to-day transaction. On 27.10.2012 when the complainant entered into the ATM centre of O.P.No.2 at Bhapur Bazar, Bramhapur and operated the ATM namely Sanobazar in the said ATM centre premises to withdraw the amounting of Rs.5000/-from the above mentioned account of O.P.No.2 but the said amount was not dispensed at all. The complainant after waiting for a while approached the O.P.No.3 Bank’s ATM centre on the same day. When received the ATM transaction slip, the complainant astonished who has withdraw the amounting of Rs.10,000/- from his account and how the amounting of Rs.10,000/- was debited on the same day i.e. 27.10.2012. Thereafter, the complainant informed the O.P.No.1 immediately to take steps for refund of the debited amount. On receipt of the complaint from the complainant, the O.P.No.1 informed orally that, “the said sum of Rs.10,000/- will be re-credited into your( complainant’s) account within seven days instead of re-crediting the said amount in to the account of the complainant, the O.P.No.1 after some days, sent some documents to the like ‘ATM transaction from ATM file’, ‘Chargeback is rejected by Acquiring Bank dated 01.11.2012’ and ‘statement of account from 1st October 2012 to 16th November 2012 showing the debit of Rs.10,000/- towards ATM cash W/D from CASA Remote on US’ on 17th November 2012 but failed to provide the CCTV footages of the relevant date of transaction to the complainant. After going through the documents supplied by the O.P.No.1, it reasonable doubt is being created in the minds of the complainant that, either the O.P.No.1 or some stranger might have withdrawn the said amount of Rs.10,000/- from the complainant’s account on 27th October 2012. Accordingly the complainant lodged an FIR on 13th December 2012 before the O.P.No.4. The O.P.No.1 did not resolve the complaint within the stipulated period as provided under the payment & settlement system Act, 2007 and RBI guidelines. The O.P.No.4 so far, no action has been taken on the FIR filed by the complainant. The O.P.No.1 taking the required annual fees for using the ATM card provided by it and the complainant is not a defaulter in paying the annual fees for the ATM card used by him. But the O.P.No.1 failed to provide to safe, secure and assured service to the complainant which speaks volumes against the service deficient of O.P.No.1. The O.P.No.1 to 3 are rendering of deficient services and having nexus with “Gabar Singh” and due to soft corner, leaking out the PIN number of ATM card of the complainant to him. To gain more the O.P.No. 1 to 3 are using defective software and machines for ATM centers installed at Bramhapur. The O.P.No.1 to 3 are aware that an ATM holder is not entitled to withdraw exceeding Rs.10,000/- per transaction through ATM centre of other banks. But in this instant case, an amount of Rs.15,000/- has been withdrawn on 27.10.2012 which speaks volumes against the service and conduct of the O.P.No.1 to 3 as they failed to prevent such withdrawals through ATM. Alleging deficiency in service against the O.Ps the complainant prayed to direct the O.Ps to re-credit the amount of Rs.10,000/- in the account of the complainant with 18% interest since the date of debit, Compensation of Rs.20,000/- towards agonies suffered by the complainant physically, mentally and financially together with cost and litigation expenses of Rs.2500/- in the best interest of justice.
3. Notices were issued against the Opposite Parties but the O.P.No.4 neither preferred to appear nor filed any written version as such the O.P.No.4 set exparte on dated 19.04.2016.
4. Upon notice the O.P.No.1 filed version through his advocate. It is stated that the complainant is having an account bearing No.80352200061197 and availed the ATM facility from the O.P.No.1 against the said account. It is true that the O.P.No.1 is doing banking business having its branch office at Ananta Plaza, Fire Station Road, Bramhapur. On 27.10.2012 the complainant used his ATM card at the ATM counter No.2 at Sano Bazar, Bramhapur of State Bank of India for withdrawing a sum of Rs.5,000/- and due to some defect the said ATM machine did not dispense the said amount and receipt and he left the ATM center presuming that the ATM machine is defective, is not true and correct. It is also not true that he received the ATM statement of account from the O.P.No.3 showing debit of an amount of Rs.10,000/- from his above mentioned account maintained by O.P. No.1 wrongly though he has not withdrawn the same through his ATM card. It is also not true that the O.P.No.1 on receipt of the complain from the complainant informed orally that the said sum of Rs.10,000/- will be re-credited into his account within 7 days and did not do so. It is further false to allege that the O.P.No.1 might have withdrawn the said amount Rs.10,000/- from the account of the complainant. The O.P.No.1 soon after received the complaint dated 30.10.2012 from the complainant lodged a dispute with their card center at Bangalore and they have enquired the matter and has reported the cash of Rs.10,000/- has already been withdrawn from the account of the complainant vide Trace No. 3900 and the card center have rejected the charges planted by the complainant vide the letter dated 10.11.2012 and said reply of the card center was sent to the complainant for his reference. Again the complainant has given another letter dated 16.11.2012 to investigate the matter and basing on such request the O.P.No.1 registered the complaint with their card center on the same day. With reference to the claim of the complainant for disputed unsuccessful transaction, the matter was enquired with the acquiring Bank who after verification has confirmed the disputed debit card transaction is a successful transaction and they have enclosed the E.J. in proof of the same. The reply of Senior Manager of the card center, Bangalore has been communicated to the complainant stating that the withdrawn of Rs.10,000/- through the ATM card No. 4033988035301349 from the account of the complainant vide Account No. 0000080352200061197 on 27.10.32012 is a successful transaction and the allegation made by the complainant is not true. As per the letter of the complaint the O.P.No.1 have written letter to SBI Main Branch to supply the CC TV footage of 27.10.2012 in relation to SBI ATM counter Sano Bazar, Bramhapur for identification of the person who has received the disbursed amount but SBI did not supply the same till date against whom the O.P.No.1 has administrative control. From both the statements made by the complainant appears to the self-contradictory and not believable. Hence the O.P.No.1 prayed to dismiss the case with an exemplary cost of Rs.5000/- in the best interest of justice.
5. Upon notice the O.P.No.2 filed written version through his advocate. It is stated the complaint is entirely misconceived, baseless and untenable in law, facts, circumstances of the case and is liable to be dismissed. The facts stated in the complaint clearly shows the alleged occurrence happened is beyond the control of the O.P.No.2 to render service and there is no contract between the complainant and this O.P. to render service, hence it could not be constituted as deficiency in service as defined under the provision of the Consumer Protection Act. This Forum has got no jurisdiction to entertain and adjudicates upon the alleged dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the provisions of Consumer Protection Act. The complainant is not paying any service charges to this O.P. and is not an ATM card holder of this O.P.No.2, hence the complainant has no cause of action against this O.P.No.2 and this O.P.No.2 is not liable to pay any of the amounts claimed by the complainant. This O.P.No.2 is not charging any transaction commission or charge for the operation made by the complainant; hence the complaint is not maintainable. The complainant is the ATM card holder of O.P.No.1 and is availing services of O.P.No.1 and also at Para 4 of the complaint alleged clearly the O.P.No.1 or some stranger might have withdrawn the said amount of Rs.10,000/- from complainant’s account on 27.10.2012. Accordingly the complainant lodged FIR on 13.12.2012 before the Inspector In-charge, Bramhapur Town Police station, Bramhapur, the O.P.No.4 herein, hence the complainant has no cause of action against this O.P.No.2 and the complaint is liable to be dismissed. The O.P.No.2 submits the statements made in the complaint shows clearly this Forum has no jurisdiction to grant any of the reliefs claimed by the complainant and the complainant is not a consumer to grant any of the reliefs against this O.P.No.2 under the provisions of Consumer Protection Act. Hence the O.P.No.2 prayed to dismiss the case with costs.
6. On the date of hearing the advocate for O.P.No.3 is present. The advocate for complainant, O.P.No.1 and 2 are absent. This is a year old case belongs to the year 2013 as such this case is decided on merit. We have gone through the case record and also perused the written version, written argument and documents available on the case record. It reveals from the materials on record that the complainant had lodged F.I.R. in Town Police Station Bramhapur on 13.12.2012 as Rs.10,000/- had been withdrawn from his Bank account without his knowledge and the said case was registered by Town Police Station, Bramhapur as P.S.Case No. 241/2012. But neither the complaint nor O.Ps has given the present status of the case which was registered by Town Police Station, Bramhapur. It also reveals that though notice was sent to I.I.C. Town Police Station, Bramhapur but he did not appear as such he is set exparte. In absence of any materials on the record regarding the present status of P.S.Case No. 241/2012, it would not be proper to reach in a conclusion.
7. Further, it reveals that the complaint as well as the written version of the O.Ps has contained several complex issues both of facts and law. Law is well settled in case of Megna Nand versus Haryana Urban Development Authority through Estate Officer Another reported in 2012(3) CPR 92 where in the Hon’ble National CDR Commission, New Delhi has held that “Consumer Forum has discretion to direct the complainant to approach civil court for appropriate relief in case of complicated issues”.
8. On foregoing discussion, it clearly reveals that this case contents several complex issues of fact and laws which are to be decided in Civil Court.
9. Considering the factual position of the case, the complainant’s case is dismissed against the O.Ps and the complainant is at liberty to file his complaint before Civil Court/any other Forum having competent jurisdiction for redressal of his grievance and he may avail the benefits under Section 14 of the Limitation Act 1963 in the best interest of justice.
The order is pronounced on this day of 19th September 2019 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of www.confonet.nic.in for posting in internet. Thereafter the file be consigned to record room.
