Order dictated by:
Mr.Anoop Sharma, Presiding Member
1. Present complaint has been filed by Sudesh Sharma under the provisions of the Consumer Protection Act alleging therein that he is saving bank account holder bearing No. 1647387825 in the bank i.e. opposite party Central Bank of India. In the said account, he is having one ATM card bearing No. 044371422400996 .On 29.12.2015 complainant operated his ATM card for the withdrawal of the amount from the ATM machine which is installed at Katra Baghian, Amritsar . The complainant was surprised to know that the amount was not withdrawn from the said machine but it was debited in the saving account of the complainant. Immediately the complainant approached the opposite party and narrated the whole incident. At that time, the official of the opposite party assured the complainant that the amount of the complainant will be credited in his account within two days. The official of the opposite party further stated that he will see the CCTV footage of the ATM for the relevant period and if amount has not been withdrawn by the complainant, he will send the mail in this regard to the superior officials of the bank for crediting the amount in the account of the complainant. Thereafter the complainant approached the official of the bank many times and asked about his payment, but the said official dilly dallying the matter on one pretext or the other . the opposite party assured the complainant that they have sent e-mails to their superior officials and amount of Rs. 10000/- will be credited in the saving account of the complainant very soon. The official of the opposite party handed over the copies of e-mails to the complainant and requested the complainant to wait for 10-15 days and assured the complainant that the amount will be credited in the account of the complainant. Despite the aforesaid assurances of the officials of the opposite party, amount of Rs. 10000/- has not been credited in the account of the complainant . Vide instant complaint, complainant has sought for the following reliefs:-
- Opposite party be directed to refund the amount of Rs. 10000/- alongwith interest @ 12% p.a.
- Compensation to the tune of Rs. 25000/- alongwith adequate litigation expenses may also be awarded to the complainant.
Hence, this complaint.
2. Opposite party appeared and filed written version taking certain preliminary objections therein inter alia that the present complaint is not legally maintainable ; that an ATM cannot be operated without ATM card and pin Number . In the present case also, the complainant operated with his ATM card and pin number and entry was successful and cash of Rs. 10000/- was duly withdrawn as shown in the statement ; that the alleged story put forward by the complainant cannot be decided in summary proceedings by this Forum as it requires evidence and under these circumstances, the case can only be decided by Civil Court. On merits, it was submitted that complainant made the ATM entry by using the ATM card and pin number and the ATM was duly operated with ATM card and pin number and entry was successful and cash of Rs. 10000/- was duly withdrawn by the complainant on the said day. It was stated that any transaction made through ATM card is directly from the online services from the head office and automatically the amounts are being debited in the account as and when the ATM card is used and the branch has nothing to do with the said process. It was further submitted that as and when the complainant approached the opposite party, he was told that his request is being processed to head office for checking the system and he will be informed accordingly and after checking the system, the head office informed that the entry of withdrawal was successful and the complainant duly withdrawn the amount from the ATM machine which is evident from the JP Roll statement and account statement. Even the copy of statement of opening balance and closing balance of the ATM card is also enclosed which shows that there was no excess amount than the transactions done on the said date and had the amount not received by the complainant, there should have been excess amount at the time of closing of ATM machine. The copies of e-mails are regarding the fact that his request has been sent to the head office for clarification and this does not amount that any liability is admitted and the amount is to be credited to the account of the complainant . While denying and controverting other allegations, dismissal of complaint was prayed.
3. In his bid to prove the case complainant Sh.Amit Bhatia,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-7 and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence opposite party tendered into evidence affidavit of Sh.Sanjeev Kumar Bholla, Sr. Branch Manager Ex.OP1, copy of request detail Ex.OP2, copy of cash telly statement Ex.OP3, copy of transaction report Ex.OP4 and closed their evidence.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
6. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant is holder of saving bank account No. 1647387825 in opposite party bank and is also having ATM card bearing No. 5044371422400996. It has been alleged by the complainant that on 29.12.2015 he used his abovesaid ATM card for the withdrawal of Rs. 10000/- from the ATM machine. But the complainant was surprised when the said amount was not physically withdrawn, however the same was debited in the saving account of the complainant. The complainant immediately approached the opposite party and the official of the opposite party assured that the amount will be credited in his account within two days. The said official also stated that he will see the CCTV footage of the ATM for the relevant period and if the amount has not been withdrawn by the complainant, he will send mail in this regard to the superior officials of the bank for crediting the amount in the account of the complainant. Thereafter the complainant visited the opposite party many a times and at last opposite party assured the complainant that they have sent e-mails to the superior officials and the amount of Rs. 10000/- will be credited in saving account of the complainant very soon. The said official also handed over the copies of the e-mails and requested the complainant to wait for 10-15 days and assured the complainant that the amount will be credited in the account of the complainant. But till date despite the assurance of the officials of the opposite party the amount of Rs. 10000/- has not been credited in the account of the complainant.
7. Whereas the case of the opposite party is that an ATM cannot be operated without ATM card and pin number . In the present case also , complainant operated with his ATM card and pin number and entry was successful and cash of Rs. 10000/- was duly withdrawn as shown in the statement. It was further submitted that any transaction made through ATM card is directly from the online services from the head office and automatically the amounts are being debited in the account as and when the ATM card is used and the branch has nothing to do with the said process. It was denied that any such assurance was given to credit any such amount in the account of the complainant . It was rather submitted that as and when complainant approached the opposite party, he was told that his request is being processed to head office for checking the system and he will be informed accordingly. However, after checking the system, the head office informed that the entry of withdrawal was successful and complainant has duly withdrawn the amount from the ATM machine . The copies of the e-mails are regarding the fact that his request has been sent to the head office for clarification . As such the complainant is not entitled to any refund and there is no deficiency in service.
8. From the facts and circumstances of the case, it becomes evident that the complainant is holder of saving bank account No. 1647387825 as well as ATM card No. 5044371422400996 of the opposite party bank. It was the case of the complainant that when he operated his ATM card on 29.12.2015 for withdrawal of Rs. 10000/-,the amount was physically not withdrawn, however the same was debited in the account of the complainant . Complainant immediately approached the opposite party where the official of the opposite party that assured the complainant that he will see the CCTV footage of the ATM for the relevant period and if the amount has not been withdrawn by the complainant , he will send the mail to the superior officials of the opposite party for crediting the amount in the account of the complainant . But, however, the complainant thereafter visited the opposite party many a times and the said official assured that they have sent the mails to the superior officials and the amount of Rs. 10000/- will be credited in saving account of the complainant very soon. The said official also handed over the copies of e-mails to the complainant , copies of which are Ex.C-2 to Ex.C-5 on record. However, the amount of Rs. 10000/- has not been credited in the account of the complainant. The only plea of the opposite party that the complainant has withdrawn the amount after operating his ATM card and applying pin number and the withdrawal was successful and cash of Rs. 10000/- was duly withdrawn . The other plea of the opposite party that the copies of the e-mails sent to the superior officials of the opposite party are regarding the fact that his request has been sent to the head office for clarification. But, however, from the perusal of the copies of e-mails Ex.C-2 to Ex.C-5, it fully proves that the opposite party bank has sent mail to their superior officials confirming that “complainant has used his ATM at Katra Baghian at 1.35 p.m on 29.12.2015 for withdrawing Rs. 10000/-. ATM machine has debited Rs. 10000/- from the account of the complainant but physically cash was not delivered by the machine to the complainant. It has further been confirmed that the opposite party has verified the physically cash of ATM and also took the CCTV footage and noted that the physically cash was not delivered to the customer”. So it is proved beyond doubt that the opposite party itself has confirmed that the physically cash was not delivered to the customer, however the same was debited in the account of the complainant. So the complainant was successful in proving his case .
9. From the entire above discussion, we have come to the conclusion that the complaint is liable to be allowed and the same is allowed accordingly. The opposite party is directed to debit Rs. 10000/- in the account of the complainant. Besides that opposite party is also liable to pay a sum of Rs. 3000/- as compensation on account of mental tension, harassment and inconvenience caused to the complainant by the illegal act of the opposite party. Cost of the litigation are assessed at Rs. 2000/-. Opposite party is given 30 days time to comply this order ; failing which, awarded amount shall carry interest @ 9% p.a from the date of passing of the order until full and final recovery . Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Dated: 5.4.2017
