This complaint coming up before us for hearing on 21-03-12 and 20-04-12 in the presence of Sri V. Nagaraju, advocate for complainant and of Smt K. Padmaja, advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking payment of Rs.10,000/- (being the amount  not withdrawn from ATM); Rs.10,000/- towards legal expenses; Rs.50,000/- towards mental agony and suffering; Rs.50,000/- towards deficiency of service and Rs.1200/- being the interest at 6% p.a., from 08-11-09 to 08-11-11.

  2.  In brief the averments of the complaint are these:

        The complainant is having SB Account with the opposite party from 25-02-09.  The opposite party had been giving satisfactory service to the complainant.   On 08-11-09 at 14-40 hrs the complainant went to ATM of the opposite party to withdraw Rs.10,000/- from the 1^st ATM machine. But the operation failed.                       The security guard informed the complainant that the 1^st ATM machine was flattering and advised the complainant to try in the second ATM machine.   On 08-11-09 at 14-41 hrs., the complainant withdrew Rs.3,000/- from the 2^nd ATM of the opposite party and obtained transaction receipt.   The complainant at 14.42 hours, on 08-11-09 took mini statement which showed the balance as Rs.15,744.32 ps.   The complainant on 09-11-09 noticed withdrawal of Rs.10,000/- on           08-11-09.   The complainant on 10-11-09 lodged a complaint with the opposite party and the same was recorded in the complaint book.  The opposite party on 17-11-09 issued reply to the complainant contending that the disputed transaction was a successful one.  The complainant was shocked to receive such information from the opposite party.   The complainant met officers of opposite party many a time in this regard.   The opposite party expressed its helplessness.   The complainant issued a notice on 08-11-11 to the Appellate Authority i.e., the Chief Manager, SBI, Local Head Office, Bank Street, Hyderabad for proper enquiry marking a copy to Ombudsman.   On 16-11-09 the complainant got issued a notice to the opposite party.   Due to the act of the opposite party the complainant suffered much mental agony, for which the opposite party is liable to pay Rs.50,000/- as compensation.

3.      The contention of the opposite party in brief is thus:

        The complainant is having salary account with the opposite party.   The complainant withdrew Rs.3,000/- from her account through ATM ID No.SIAN00630703, Treasury Branch at                   14.41.17 hours on 08-11-09.   The complainant also obtained receipt after that transaction which showed the balance as Rs.15,744.32 ps.   The complainant again withdrew Rs.10,000/- from adjacent ATM               ID No.SIAN00630701 at 14.43.32 hours successfully. The complainant suppressed the above fact and filed this complaint with false allegations.   The opposite parties spontaneously responded and gave a written reply on 17-11-09.  Subsequently the complainant never approached the opposite party.   The Banking Ombudsman (AP) informed the complainant that her complaint was barred by limitation.     The opposite party never committed deficiency of service, as alleged by the complainant.  Rest of the allegations contra mentioned in the complaint are false.   The complaint therefore be dismissed.

4.     Exs.A-1 to A-7 and Exs.B-1 to B-4 on behalf of complainant and opposite party were marked respectively.

5.     Now the points for consideration in this complaint are:

1. Whether withdrawal of Rs.10,000/- by the complainant on  08-11-09 through ATM of the opposite party was true?
2. Whether the opposite party committed deficiency of service?
3. Whether the complainant is entitled to compensation?
4. To what relief?

6.  Admitted facts in this complaint are these:

1. The complainant is having SB account with the opposite party.
2. The complainant withdrew Rs.3,000/- on 08-11-09 at 14.41 hours through ATM and obtained mini statement on the same day at 14.42 hours (Ex.A-1).
3. The statement obtained by the complainant on 09-11-09 revealed withdrawal of Rs.10,000/- on 08-11-09 (disputed transaction) (Ex.A-2).
4. The complainant gave a written report to the opposite party on 16-11-09 (Ex.A-3).
5. The complainant gave registered notice (Ex.A-5).
6. The Ombudsman passed an order on the complaint given by the complainant in December, 2011 (Ex.B-3).

7.   The complainant filed IA 157/11 on 26-04-12 to reopen the case for receiving memo filed by her and it was dismissed on 08-06-12. 

8.   POINTS 1&2:-   Two ATM machines bearing Nos. SICC00630703 and SIAN00630701 were functioning at one place according to both parties.   The complainant withdrew Rs.3,000/- at 14.41 hours on 08-11-09 vide ATM ID SICC 00630703 as seen from Ex.A-1.   The unsuccessful transaction was through another ATM located in the same compound.  The opposite party filed copy of statement of ATM switch Centre (TLF) and Core Banking System (CBS) (Ex.B-1) into Forum to show that the disputed transaction for Rs.10,000/- was successful on 08-11-09 at 14.43.32 hours.   The opposite party also had filed copy of electronic log showing that the transaction bearing numbers 2788 at 14.28 hours; 2789 at 14.35 hours, 2790 at 14.43 hours, 2791 at 14.57 hours, 2792 at 14.58 hours took place on 08-11-09 and they were successful.   Even according to the complainant also Ex.A-2 slip dated 09-11-09 revealed that she withdrew Rs.10,000/- on 08-11-09.

9.     The complainant filed memo into the Forum requiring the opposite party to bring compliant book from 09-11-09 to 30-11-09.   The opposite party filed Ex.B-4 showing complaints register.   It did not contain the disputed transaction of the complainant.   But in its version the opposite party in para 3 mentioned:

          “It is true that the complainant made a complaint with the Bank and the Bank authorities spontaneously responded for the same and made thorough enquiry and gave written reply on 17-11-09 with material evidence after receiving complaint from the complainant on 10-11-09, contending that the transaction made by the complainant dated 08-11-09 for amount of Rs.10,000/- at about 14.43.32 hours is a successful transaction”.

10.   The opposite party admitted about the complainant giving report to it.  Absence of name of complainant in Ex.B-4 in no way enhance the case of the complainant.  The complainant in her complaint mentioned about she approaching ombudsman.  The opposite party filed the copy of order of Banking Ombudsman (Ex.B-3) wherein it was observed that ‘the complaint was closed as not filed within the time frame envisaged under the Banking Ombudsman scheme, 2006’.   Ex.B-3 revealed that the complainant approached Ombudsman on 11-11-11 i.e., two years after disputed transaction.

11.   The complaint as well as version was silent regarding functioning of the CC cameras in the subject ATM centers.   The complainant  filed

this complaint on 15-11-11 i.e., verge of limitation (as entitled).

12.   In State Bank of India vs. K.K. Bhalla 2011 (2) CPR 26 (NC) it was held:

It is not in dispute that the ATM card was issued to the respondent and that he had kept the card in his safe custody.   Thus, no one had access to it nor was it ever missing.  Further, only the respondent was aware of the special four digit PIN number which is essential to operate the ATM card.   Despite all these facts, learned Fora  below ruled in favour of the Respondent only on the grounds that the CCTV footage which was required in respect of ATM transactions was not made available and this was a major lapse on the part of the Petitioner/Bank since it breached the security and safety in ATMs and was thus, clearly a deficiency in service.

We are not convinced by this reasoning of either the District Forum or the State Commission, particularly, in view of the fact that merely because the CCTV was not working on those dates and its footage was thus not available, does not mean that the money could be withdrawn fraudulently without using the ATM card and the PIN number.   In case the ATM card had been stolen or the PIN number had become known to persons other than ATM card holder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card.   In the instant case it is not disputed that the ATM card or PIN remained in the self-custody/knowledge of the respondent.   In view of elaborate procedure evolved by the petitioner/Bank to ensure that without the ATM card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, we find it difficult to accept the Respondent’s contention.   No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM card or the PIN number fell in wrong hands.”

13.   As the complainant failed to rebut Ex.B-2 by adducing cogent evidence we are of the considered opinion that the opposite party did not commit any deficiency of service.  We therefore answer these points against the complainant.

14.   POINT No.3:-   In view of above findings, the complainant is not entitled to any compensation and we therefore answer this point against the complainant.

15.   POINT NO.4:-  In view of above findings, in the result the complaint is dismissed without costs.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 13^th day of June, 2012.

          MEMBER                                                       PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party : 

                                                                                  PRESIDENT