Date of Filing : 13.12.2011
Date of Order : 16.04.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
Dated 16th APRIL 2012
PRESENT
Sri. H.V. RAMACHANDRA RAO, B.Sc., BL, ……. PRESIDENT
Sri. T.NAGARAJA, B.Sc., LLB. …….. MEMBER
Smt. K.G.SHANTALA, B.A., LLB. …….. MEMBER
CC No. 221 / 2011
Sri. P. Loganathan,
S/o. Late Padavattan, 57 years,
Working as Training Officer,
Govt. ITI, Bagepalli,
R/o. D.No. 45/6, “Gowda Complex”,
Dasara Hosahalli, Dodda Karappanahalli Post,
Bangarpet Taluk,
Kolar District.
(By Sri. B.S. Sathyanarayana, Adv.) ……. Complainant
V/s.
1. The Branch Manager,
State Bank of Mysore,
Bagepalli Branch, Bagepali,
Chikkaballapur District.
2. The Branch Manager,
State Bank of Mysore,
KGF Branch,
K.G.F.
(By Sri. V. Sreedhara Murthy, Adv. for OP1)
(By Sri. J. Simon, Adv. for OP2) …… Opposite Parties
ORDER
By Sri. H.V. RAMACHANDRA RAO, PRESIDENT
The brief antecedents that lead to the filing of the Complainant made u/s. 12 of the C.P. Act seeking direction to the Ops to reverse wrong debit of Rs.15,000/- to his S.B. Account and also to pay compensation of Rs.15,000/- with interest to the Complainant are necessary:
Complainant is having S.B. Account with OP1 bearing No. 54031561811 and also has ATM Card. At OP2, there are two ATM machines in same place. On 13.11.2011 Complainant went to ATM-1 of OP2 and withdrew Rs.1,000/- at 7.32 AM. He received statement slip which showed the balance in his account as Rs.19,868.32. At 7.33 AM, he used ATM-1 Machine to get the mini statement. Since the statement was not proper, he tried with ATM-2 Machine at 7.35 AM. To his surprise, he saw debit of Rs.15,000/- in his account. He was shocked and surprised. Immediately he contacted OP2 and requested them to show video footage coverage by CC Camera or to take video footage record to know the real facts. OP2 negligently responded with loud voice and refused to receive written Complaint and dodged & told him to give complaint to OP1. On 15.11.2011, Complainant lodged written Complaint with OP1 and also gave written complaint on 16.11.2011. OP gave journal record to show transaction was complete. There is deficiency in service. Hence this complaint.
2(a). In brief the version of OP1 are:-
Account of the Complainant and Complainant using the ATM Card are admitted. Two ATM machines in the same place are also admitted. The Complainant has withdrew Rs.1,000/- from ATM-1 at 7.32 AM and balance was Rs.19,868.32 is correct. There is time gap between 7.32 & 7.35 AM. Rs.15,000/- has been drawn and hence amount has been debited. As per journal print log, 17 attempts were made for cash request on 13.11.2011 between 7.31 AM & 7.34 AM through ATM Card. Unless the Complainant operated the ATM for 17 times, journal print log will not show the same and the allegations made by the Complainant to the effect that he had not withdrawn Rs.15,000/- is absolutely false. All the allegations to the contrary are denied.
2(b). In brief the version of OP2 are:-
Complainant has withdrawn Rs.1,000/- at 7.32 AM. Bank starts at 10.30 AM and the Manager will be at his seat at 10.30 AM. Hence Complainant contacted the Manager and he shouted etc. are all false. Complaint should be lodged only at the Brach where the Card holder maintains the account. Then that branch will lodge the complaint in the ATM website with all particulars and they wait for 15 days to get reply. If there is any extra cash in the particular ATM, then that money will be transferred to the concerned Bank branch. Complainant had withdrawn Rs.15,000/- on 13.11.2011 from ATM-2. Probably Complainant might have left the ATM Card in the machine itself at 7.32 AM and at 7.35 AM he might have come to take back his ATM Card. By that time, fraudster might have operated 17 times and when the Complainant operated the Card again fraudster might have observed the same and then he might have taken money. It is clearly seen in the video footage that amount has been withdrawn in the presence of Complainant at 7.35 AM. All the allegations to the contrary are denied.
3. To substantiate their respective cases, Complainant and OP2 have filed Memos stating that their pleadings and documents be read as their evidence and OP1 has filed affidavit. Arguments were heard.
4. The points that arise for our consideration are:
POINTS
(A) Whether there is deficiency in service ?
(B) What order ?
5. Our findings are:
(A) Negative
(B) As per detailed order for the following reasons
REASONS
6. Reading the pleadings in conjunction with the affidavits, Memos and documents on record, it is an admitted fact that the Complainant had S.B. Account with OP1 and also has ATM Card. It is also an admitted fact that in the ATM room of OP2 there are 2 ATM machines i.e., ATM-1 & ATM-2. It is also an admitted fact that to operate the ATM one has to have ATM Card and also he should have PIN Number i.e., password. Without these two conjunctively, nobody can operate the ATM machine and nobody can receive any money or any ATM slip. ATM Card and the password are the personal property of the Complainant i.e., Card holder and nobody will have the access to those two. The password is very secret one which will be known only to the Complainant and it should not be known to anybody else. Password can be known to others either through Card Holder directly or by negligence of the Cad holder. If the Card holder commits negligent act in divulging the password, he alone has to be blamed and not the Bank to any extent in any manner whatsoever.
7. Further in this case, merely the Complainant had operated the ATM of OP2, there is no privity of contract between him and OP2. OP2 is unnecessary added to the proceedings. If there is any mistake or any deficiency in ATM machine, it is the Bank / Branch where the Complainant has the account alone is responsible to answer and not otherwise. Here the Complainant has not purchased any goods or availed any service for any consideration from OP2. He had no direct transaction with OP2. Merely OP2 has permitted the Complainant to use his ATM Card of OP1, it does not mean that there is any privity of contract between him and the Complainant to any extent in any manner whatsoever.
8. Further the contention of the Complainant is that he withdrew Rs.1,000/- at 7.32 AM and the balance was Rs.19,868.32. Further when he tried to get mini statement since statement slip obtained earlier was not proper he tried ATM-2 at 7.35 AM, then he found in ATM slip debit of Rs.15,000/-. This has been specifically denied by the Ops. Complainant has produced ATM slip i.e., mini statement of 7.32 AM which clearly goes to show that he has withdrawn Rs.1,000/- and the balance was Rs.19,868.32. But, Complainant never produced ATM mini statement of 7.33 AM. Why? There is no answer. Further what complainant was doing between 7.33 AM & 7.35 AM ? There is no answer. Complainant had produced ATM slip of 7.35 AM which shows that he had withdrawn Rs.15,000/- on that day again. Ops have produced journal log which clearly goes to show that between 7.32 & 7.34 AM 17 attempts were made to use ATM. That means, a fraudster has used the Card which was left by the Complainant at the spot and subsequently when the Complainant came and used the password and Card, that was seen by the fraudster and when the Complainant took the Card he used password and in the presence of the Complainant drew Rs.15,000/-. This is caused owing inadvertence & negligent act of the Complainant, for which how can the Ops are held responsible. If the Complainant has any grievance he has to lodge a complaint with the Police and Police will see CCTV particulars and trace the fraudster and recover the money. For that, this Order will not come in the way. Hence, there is no deficiency in service or unfair trade practice committed by the Ops.
9. It was contended by the Learned Counsel for the Complainant that since the Complainant has Account with the OP, they are responsible. No doubt about it, but responsibility seizes when once the ATM Card and password given to the Complainant. Hence, by his inadvertence act only Complainant has lost his money. He has to blame for himself for which Ops can never be blamed. Hence, we hold the point accordingly and pass the following order:
ORDER
1. Complaint is dismissed.
2. Send copy of the Order to the parties concerned free of cost.
3. Return extra sets to the parties concerned under Regulation 20(3) of Consumer Protection Regulations 2005.
(Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 16th day of April 2012)
T. NAGARAJA K.G.SHANTALA H.V.RAMACHANDRA RAO
Member Member President
SSS
