The Branch Manager,

    State Bank of India,

    Treasury Branch, 3/14, Brodiepet,

    Guntur – 522 002.                                  … Opposite parties

              This complaint coming up before us for final hearing on                      30-06-11 in the presence of Sri P.V.Ramana, advocate for complainant, 1^st opposite party remained exparte and Sri J.Nageswara Rao, advocate for 2^nd opposite party,  upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following: 

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

                This complaint is filed under section 12 of the Consumer Protection Act, 1986 praying to pass an award for Rs.27,050/- (comprising of ATM cash Rs.15,000/-, interest Rs.1050/-, for mental agony Rs.5000/-, compensation Rs.5000/- and legal expenses Rs.1000/-) in favour of the complainant and against the opposite parties.

The averments of complaint in brief are as follows:

                The complainant is having savings bank account with 1^st opposite party who issued ATM Card for that account. The complainant used to draw his salary through ATM Counter. On 19-01-2010, complainant inserted the ATM Card at the ATM Counter annexed to 2^nd opposite party for withdrawal of Rs.15,000/-.  But he could not receive the amount from the socket due to faulty transaction but the amount of Rs.15,000/- was debited in his account on the same day.  Complainant lodged a report before the 1^st opposite party, where he was having salary savings account.  After two days when the complainant approached 1^st opposite party to know the status of his complaint, the Branch Manager requested for fresh complaint on the ground that the complaint given earlier on 19-01-10 was misplaced by his officials.  Again complainant gave a report to 1^st opposite party bank.  The complainant and his son visited, opposite parties 1 and 2 regularly as 1^st opposite party advised to meet 2^nd opposite party. The complainant met 2^nd opposite party and requested to rectify the faulty transaction for which 2^nd opposite party stated that no written complaint was forwarded from 1^st opposite party and both the opposite parties are blaming each other and no effective steps were taken for rectifying the faulty transaction. 

                The opposite parties ought to have responded within 12 days from the date of complaint as per the guidelines of RBI.  The complainant also sent e-mail complaint on 28-01-2010.  No positive or substantial effort was taken from opposite party’s side.  Hence, the complainant lodged a complaint before Banking Ombudsman, Hyderabad.  The said complaint was rejected by the Banking Ombudsman with an endorsement “bank evidences that the transaction was a successful one”.  The complainant asked the opposite parties to furnish the details of cash inserted in ATM chest on 19-01-2010 and total withdrawals on that day and cash balance by the end of that day.  But the opposite parties failed to furnish the same.  Both opposite parties are jointly and severally liable for causing inconvenience.  The opposite party officials have not acted diligently and neglected the issue and poor service rendered to the complainant.  Hence, they are liable under CP Act.   Hence, the complaint.

The 2^nd opposite party filed its version and the same was adopted by 1^st opposite party, which is in brief as follows:

                The complainant is holding SB account with 1^st opposite party.  The complainant has withdrawn an amount of Rs.15,000/- on 19-01-2010 from his savings bank account through ATM and the same was automatically debited to his account.  After two days the complainant went to 1^st opposite party and submitted a report, as if he did not receive the amount from ATM. On verification of the records such as E.J. log etc. it has observed that the daily cash and ATM log evidences that the transaction was successful one.  The same was informed to complainant.  Not satisfying with it, the complainant filed a case before Banking Ombudsman, AP.  After due enquiry, the ombudsman passed an order dt.18-06-10 stating that the transaction was successful and dismissed the complaint.  The complainant has not challenged the said order and it became final.  Now the complainant came forward with this complaint without any basis.  The complainant is not a consumer and the present complaint filed by him is not maintainable.  Hence, the complaint may be dismissed with costs.

                The complainant and 2^nd opposite party filed their respective affidavits in support of their versions reiterating the same. 

                On behalf of complainant Ex.A1 to A10 were marked and on behalf of opposite parties Ex.B1 to B3 are marked.  

Now the points for consideration are

1. Whether there is any deficiency of service on the part of opposite parties?
2. To what relief the complainant is entitled to?

POINT No.1

                   The case of complainant is that he is having SB account with 1^st opposite party and ATM Card for that account. On 19-01-2010, he went to ATM counter annexed to 2^nd opposite party for withdrawal of cash of Rs.15,000/- and inserted the ATM card and tried to withdraw Rs.15,000/- but he could not receive the amount from the socket due to faulty transaction but the amount of Rs.15,000/- was debited from his account and on that he lodged complaint before 1^st opposite party with whom he was having account and 1^st opposite party advised to meet 2^nd opposite party for rectifying the transaction.  Inspite of his repeated visits to opposite parties 1 and 2, they failed to comply the request of the complainant and that he filed a complaint before Banking Ombudsman, Hyderabad who rejected his complaint with an endorsement “bank evidences that the transaction was a successful one”.  Thus there is deficiency of service on the part of opposite parties.

                The 1^st opposite party remained exparte. The case of 2^nd opposite party is that on verification of the records such as EJ Log etc. it was observed that the alleged ATM transaction of the complainant was a successful one and the same was informed to the complainant.  But not satisfying with it, the complainant filed a complaint before Banking Ombudsman, who passed order dt.18-06-10 stating that the transaction was successful one and dismissed the complaint and thus there is no deficiency of service on their part.

                Admittedly complainant is having account with 1^st opposite party and that an ATM Card was issued to him in that connection.  Ex.A2 letter of 1^st opposite party to 2^nd opposite party reveals that the complainant gave complaint to 1^st opposite party regarding the alleged unsuccessful transaction made by him on 19-01-10 and the same was forwarded to 2^nd opposite party to settle the same within 12 days as per RBI Guidelines.  As seen from Ex.A3, complainant has also given e-mail complaint regarding the alleged unsuccessful transaction made by him 19-01-10 to the helpline of opposite parties.  As seen from Ex.A1 an amount of Rs.15,000/- was debited from the account of complainant on 19-01-10.  On 06-03-10, the complainant has also addressed a registered letter under Ex.A4 to 1^st opposite party requesting to settle his complaint.  The complainant has also given notice to Banking Ombudsman on 19-03-10 under Ex.A8 and later lodged a complaint before the Banking Ombudsman under Ex.A7 on 26-03-10.   The Banking Ombudsman had rejected the complaint of complainant on 18-06-10 and informed the same under Ex.A9 wherein it was mentioned that it is observed that ATM log submitted by the bank evidences that the transaction was a successful one.  Therefore, the complaint was closed under clause 13(c) of Banking Ombudsman Scheme, 2006 which reads as follows:

Rejection of the complaint

The banking ombudsman may reject a complaint at any stage if it appears to him that the complaint made is;

(c) requiring consideration of elaborate documentary and oral evidence and the proceedings before the banking ombudsman are not appropriate for adjudication of such complaint;

                As seen from Ex.A2, the complainant lodged a complaint regarding the alleged unsuccessful ATM transaction before 1^st opposite party and 1^st opposite party in turn forwarded the same to 2^nd opposite party but either 1^st opposite party or 2^nd opposite party have given any reply to the complainant regarding the transaction in question.  Even though it was mentioned in the version of 2^nd opposite party that they have informed the complainant on verification of ATM log, no proof to that effect was filed by opposite parties. As seen from Ex.B2, the 2^nd opposite party has given a reply to 1^st opposite party stating that it is evident from the EJ log of the transaction that the said transaction was a successful one and that 2^nd opposite party confirmed that there is no excess cash found on the day of said transaction in ATM.  Thus the 2^nd opposite party has given reply to 1^st opposite party under Ex.B2.  But the same was not informed to the complainant.  The opposite parties have not placed any evidence before this Forum that they have informed anything about the alleged transaction to complainant.  Subsequent to the order of the Banking Ombudsman under Ex.B1, the complainant approached this Forum with this complaint. 

                During the course of arguments, the learned counsel for complainant argued that as per the guidelines of RBI it is mandatory for the banks to reimbursement the customers, the amount wrongly debited on account of failed ATM transactions within a period of 12 days from the date of receipt of complaint from the customer and filed a copy of said guidelines of the RBI in support of his argument.  As per the said guidelines of RBI, it is mandatory for the banks to reimburse the customers, the amount wrongly debited on account of failed ATM transactions within a minimum period of 12 working days from the date of receipt of customer complaint.  For any failure to re-credit the customers account within 12 working days from the date of receipt of complaint, the bank shall pay compensation of Rs.100/- per day to the aggrieved customer. This compensation shall be credited to the customers account automatically without any claim from the customer on the same day when the bank efforts the credit for the failed ATM transaction.  As seen from Ex.B3, copy of EJ log transaction, it shows three transactions were made by different customers on 19-01-2010 at the ATM are given.  Out of the said three transactions, the first transaction No.8967 was made at 10.08 hours relating to the account No.00000030215136876 of a different customer. The second transaction No.8968 was done on the same day at 10.13 hours relating to the account No.00000010366116493 of the alleged transaction of the complainant. The third transaction No.8969 was done at 10.40 hours and relates to the account No.00000030050502281 of a different customer.  A perusal of the above three transactions shows that the EJ log of the first and third transactions are different from the second transaction relating to the complainant.   In the EJ log relating to the transaction of the complainant the following variation is noticed

        “*463*01/19/2010*10:15*

            05pSST OFF-LINE 00P

          020t*464*01/19/2010*10:36*                          

          05pSST ON-LINE 00p”

                If all the three transactions shown in Ex.B3 EJ log are successful, the three logs should be similar except variance in the amounts and account numbers.  But there is variation in the log relating to the transaction of complainant as noted above in Ex.B3.  The opposite parties have not explained about the said variation. Further it shows there is off-line transaction at 10.15 and online transaction at 10.36.  Therefore, adverse inference can be drawn on observing the three logs mentioned in Ex.B3 that the transaction relating to the complainant is different to that of other two transactions and that it is a defective one.  As seen from the guidelines of RBI, the complaints relating to the ATM transactions shall be settled within 12 working days from the date of receipt of complaint from the customer.  As already stated above none of the opposite parties have informed the complainant that they have verified the EJ log of the alleged transaction and found that the alleged transaction is a successful one.  As seen from Ex.B2, 2^nd opposite party informed 1^st opposite party on 07-05-10 that the alleged transaction is a successful one as evident from EJ log.  But 1^st opposite party in turn has not informed the same to the complainant and both opposite parties have failed to settle the complaint within 12 days as per the guidelines of RBI.   

                In a decision reported in 2011 (2) CPR 270 between New India Cooperative Bank ltd. Vs. Yashpal Arora, wherein it was observed by Maharashtra State Commission, Mumbai that

                   “Ombudsman cannot decide what remedies shall be followed by complainant.  Section 3 of Consumer Protection Act, 1986 states that Act is not in derogation of existing law but provides additional remedy to consumer. Choice is always with consumer to select remedy.”       

                    Therefore, in view of the facts and circumstances of the case and in view of the foregoing discussion, we find that there is deficiency of service on the part of opposite parties.  Accordingly this issue is answered accordingly.  

POINT No.2

                The alleged transaction took place at the ATM connected to 2^nd opposite party.  Therefore, 2^nd opposite party is liable to reimburse the wrongly debited amount of Rs.15,000/- to the account of complainant with admissible interest on the savings bank account from 19-01-10 till the date of reimbursement.  As per the guidelines, the opposite parties are liable to pay compensation of Rs.100/- per day to the aggrieved customer if they fail to re-credit the customers account within 12 working days from the date of receipt of complaint.  But the complainant has only claimed Rs.5000/- towards mental agony and Rs.5000/- towards compensation.  Therefore, in the circumstances of case, we feel it just and necessary to direct 2^nd opposite party to pay compensation of Rs.5000/- and Rs.1000/- towards costs of complaint.  Accordingly this issue is answered.     

                In the result, the complaint is allowed in part in terms as indicated below:

1. The 2^nd opposite party is hereby directed to pay an amount of Rs.15000/- (Rupees fifteen thousand only) to the savings bank account No.10366116493 of the complainant together with interest admissible on the savings bank account from 19-01-10 till the date of payment.
2. The 2^nd opposite party is further directed to pay an amount of Rs.5000/- (Rupees five thousand only) towards compensation for the mental agony suffered by him and Rs.1000/- (Rupees one thousand only) towards costs to the complainant.
3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which, the amounts ordered in item No.2 shall also carry interest at 9% p.a. till the date of realization.     

Typed to my dictation by the Junior Steno, corrected by us and pronounced in the open Forum, this the 7^th day of July, 2011.

          MEMBER                               MEMBER                            PRESIDENT

APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:

For Opposite Parties: 

                                                                                                                                                                                                  PRESIDENT