COMPLAINT FILED ON:10/09/2019

DISPOSED ON:17/04/2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

C.C.NO:52/2020

DATED: 17^th April 2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                  Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER        

  Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER       

::ORDER::

By Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER.

        This is a complaint filed by the complainant Under Section 35 of the Consumer Protection Act 2019 seeking relief against the OP to refund the amount of Rs.1,000,00/- with nominal interest from the date of incident and to pay compensation of Rs.25,000/- towards mental agony, towards cost of litigation 5,000/- and for such other relief as this commission deems fit.

The brief facts of the complaint is as follows:

        1. Complainant is the permanent customer of OP, Bank having S.B Account No:10002200031060 and was also having atm facility.

        2.On 28/04/2020 at around 11:38 a.m. complainant have used his atm card in the atm counter of S.B.I. Atm branch at  Holalkere Road, Chitradurga tried to withdraw sum of Rs.10,000/- but the complainant did not receive the amount from the said ATM machine.  Then the complainant made one more attempt to withdraw the amount of Rs.10,000/-  but then also complainant not received any amount from the said atm machine, without any alternative waited for some time and returned with empty hands.  Thereafter complainant visited OP1 Bank and gave a complaint to OP 1 Bank on 30/04/2020.  On verification of accounts statements given by the OP 1 Bank it was very shock and surprising that an amount of Rs.10,000/- was shown as withdrawn on 28/04/2020.  When the amount has not been received by the complainant but it was shown as withdrawn.  Furthermore complainant once again approached the OP 1 on 02/07/2020.  Then complainant enquired about the transaction made with the OP 1 Bank.  In complainants account and on verification made with OP1, but OP1 remained silent and refused to clarify the same and dragged the matter in one or other pretext.  Complainant also made a complaint before the C.E.P.C office R.B.I. Bangalore on 16/07/2020 but till date complainant have not got any proper response from the OPs.  Finally on 11/08/2020 complainant got issued the legal notice to the OPs to take suitable action to refund the amount even inspite of the repeated follow ups with the OPs but till today OP have not refunded amount and being aggrieved by the said act of the OPs the complainant have filed this present complaint.

3. After issuance of notice to OPs. OPs appeared through their counsel and have filed their version.  In the version of OP 1 it is contended that complainant was permanent customer of OP 1 Bank having S.B account with atm facility on 28/04/2020 complainant had used his atm card at atm counter of S.B.I branch Holalkere Road, Chitradurga and tried and succeeded to withdraw sum of Rs.10,000/- but it is false that complainant have not received the amount from the atm machine thereafter complainant raised the complaint with OP 1 bank.  OP 1 Bank provided accounts of statements which reflects that complainant has withdrawn the amount of Rs.10,000/- from his account from S.B. account of OP 1 Bank, but the said amount was withdrawn through atm machine of the OP 2 Bank and hence to answer the questions raised by the complainant should be clarified by the OP 2 Bank and not by the OP 1 Bank. Further, OP 1 contended that complainant have misconceived and have filed complaint against OP No.1 which is false frivolous and also the complaint is barred by the limitation and hence prays for the dismissal of the complaint against OP No.1 and prays to hold OP No.2 liable to pay compensation to the complainant.

        4. In the version of OP 2 it is contended that complaint is not maintainable either in law or on facts. Complainant is the customer of the OP 1 Bank and have inserted the atm card with S.B.I atm center Holalkere Road, Chitradurga, for withdrawing the amount of Rs.10,000/-but complainant not received the same, in the said atm of S.B.I that is OP No.2 and on verification complainant found that there is a debit of Rs.10,000/- from is account which was maintained at OP 1 bank  i.e., Syndicate Bank Chitradurga.  The amount of Rs.10,000/- might have been disbursed by the atm of OP 2 may be due to technical issues and also server problem.  OP 2 contended that they are only a service providers to the OP 1 but the technical issues and server problem may be with OP 1 Bank and hence OP 2 is not responsible to pay any amount of compensation etc.. to the complainant and also there is no nexus between the complainant OP No.2. 

         5. The nonpayment of Rs.10.000/- is to be paid by the OP No 1.  since the complainant is the customer and consumer of the OP 1 Bank and OP 2 is only giving service to all the atm holders without any discrimination as per R.B.I guidelines and hence OP 2 prays this commission to dismiss the complaint with examplory cost.

         6. Affidavit evidence of complainant is filed got marked Exhibits A-1 to A-6 and closed their side evidence.  OP 1 have also filed this affidavit evidence by one Sri Mr.Amol Deep Tigga and no documents were marked.  Affidavit evidence of OP 2 is filed by one Sri. Udayakumar H.K. and no documents were marked and have closed their side evidence.

7. Written arguments of complainant and OP 2 is filed and heard the arguments of complainant and OPs.

8. Points that arise for our consideration are as follows:-

1. Whether complainant proves deficiency in service on the part of the OP?
2. Whether complainant is entitled for the relief as sought in the complaint?
3. What Order?

9. Our answers to the above points are as follows:

1. Partly affirmative
2. Partly affirmative
3. As per final order

REASONS

       10. On perusal of the pleadings of both the parties it is not in dispute that the complainant was a customer of OP 1 Bank having S.B. Account No:10002200031060.  On 28/04/2020 complainant had used his atm card in the atm counter Holalkere Branch, Chitradurga and tried to withdrawn sum of Rs.10,000/-but complainant did not receive the amount from the said atm machine.   Thereafter complainant approached OP 1 bank and sought for statements of accounts of the complainant and OP 1 have issued statement of accounts and in which complainants account was debited for a sum of Rs.10,000/- though the complainant has not got the amount from the atm counter Holalkere Branch Chitradurga, after perusing the statement of accounts of the OP 1 bank the complainant was surprised and made efforts to get back his money but OP 1 by providing bank statement evaded the complainant by giving one reason or the other.  Also complainant gave complaint to the OP No.1 on 16/07/2016 which is marked as Exhibit A-3 stating that he has not received Rs.10,000/- from the atm machine of the OP 2 bank but complainant have received message stating that he has withdraw an amount of Rs.10,000/- and sought for the refund of the said amount  from the OP 1 bank. Complainant have also given a request to the OP 1 bank for disbursement of the amount debited from his account which is  marked as Exhibit A-4.  Complainant have also issued legal notice on 11/08/2020 to the OP No.1 and OP No.2.  The said legal notice notice was duly served on OP No.1 and OP No.2. The said Legal notice is marked as Exhibit A-5 and postal acknowledgments is marked as Exhibit A-6.  But the efforts made by the complainant went in vain but later filing of this complaint Before The District Consumer Disputes Redressal Commission at Chitradurga, OP 1 bank have reverted an amount of Rs.10,000/- to the complainants account, which reveals that OP 1 bank have wrongly debited Rs.10,000/- from the complainants account due to the reasons best known to the OP No.1 bank.  Complainant must have produced  whithdrawal receipt of the atm counter i.e., OP 2 bank to know that the transaction made by the complainant in the OP 2 bank was successful or not and also complainant have not produced the JP log to show that transaction made with the OP No.2 bank is successful or not but without producing the withdrawal receipt of the OP 2 bank the liability cannot the fixed against the OP 2 bank.  But however complainant himself in his affidavit evidence have stated that he has received the amount of Rs.10,000/- from the OP 1 bank.  However complainant have also not made any correspondence except legal notice to the OP 2 bank, but by reverting back the money the OP 1 cannot sit quit who made the complainant to run from to pillar to post and not compensating the complainant for the deficiency in-service rendered by OP No.1 bank.  Complainant have failed to produce the cogent evidence for proving deficiency against OP 2 and complainant without producing sufficient documents alleging deficiency against OP No.2.  Bank holds no water and also not sustainable in the eye of law.  Reverting back money to the complainants account from the OP 1 bank and not compensating the complainant for the efforts made by the complainant to get back his hard earned money for which complainant have to the suitably compensated by the OP 1 bank for the deficiency rendered.  No one should be enriched at the cost of others OP 1 bank have kept the complainants hard earned money for more than 6 months and have remitted the said amount after 6 months without citing for what reasons the amount have been remitted back and also not compensating the complainant is nothing but deficiency in-service on the part of the OP 1 bank.  Also not compensating the complainant for the delay caused is nothing but adopting unfair trade practice.  Hence we direct OP 1 to pay sum of Rs.3000/- for causing misery and suffering to the complainant.  OP 1 is also directed to pay a sum of Rs.2000/- towards cost of litigation as complainant have engaged services of an advocate to contest the case on merits.  Moreover complainant have failed to produce cogent evidence against OP 2 bank and hence complaint against OP 2 is hereby dismissed and hence we answer point 1 & 2 as partly affirmative.

       11. For the foregoing reasons we proceed to pass the following Order

:: ORDER ::

1. Complaint filed by complainant U/s 35 of the Consumer protection act is partly allowed.

2. OP 1 is directed to pay a sum of Rs 3000/- for causing misery and sufferings to the complainant.  OP1 is also directed to pay sum of Rs 2000/- towards cost of litigation.

3. Complaint against the OP 2 is dismissed.

4.  OP 1 is directed to comply the above said Order within 45 days from the date of receipt of this order.

(Dictated to the Stenographer, typed by him, the transcript corrected, revised and

then pronounced in the open commission by us on 17^th April 2023.)

                                                                   Sd/-                               Sd/-                                     Sd/-

LADY MEMBER               MEMBER                     PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1: C.S.Rajappa, S/o Late Somanna, by way of affidavit evidence.

Witness examined on behalf of opponents:

DW-1: Amol Deep Tigga S/o Thomas Tigga, by way of affidavit evidence.

DW-2: Uday Kumar S/o H.K. Sathyanarayana, by way of affidavit evidence.

Documents marked on behalf of Complainant:

Documents marked on behalf of opponent:

Nil

                                                                     Sd/-                               Sd/-                                     Sd/-

LADY MEMBER               MEMBER                     PRESIDENT