OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.96/2010
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Sri Upendra Nath Deka - Member
Sri Arabindra Sarkar - Complainant
S/O Late Hiralal Sarkar,
Asstt.Manager,ASEB,Kahilipara Power
House,132 KV Grid Sub-Station,Guwahati-781019
-vs-
1) The Chief General Manager, -Opp.Parties
State Bank of India,
Dispur,Guwahati.
2) The Branch Manager,
State Bank of India,Dispur Branch,
Guwahati-781006
Appearance-
Learned advocate Mr.Swapan Sarkar for the complainant
Learned advocates Mr.Nilotpal Barooah for the opp.parties.
Date of argument- 29.4.2016
Date of judgment- 13.5.2016
Judgment
1) This is a proceeding u/s 12 of Consumer Protection Act,1986.
2) The complaint filed by Sri Arabinda Sarkar was admitted on 11.10.10 and notices were served upon the opp.parties and they also filed their written statement. Thereafter, the complainant filed their evidence through his affidavit and the affidavit of one Sri Arindam Sarkar, and both of them are cross examined by the opp.party side. The opp.party side filed the affidavit of one Sri John L.Hauhnar and he was cross- examined by the complainant side. This forum also called Sri Upen Ch.Sarma as court witness and his oral evidence was recorded. After closure of hearing of both sides’ evidence, Ld counsels of both sides filed their respective written argument. Finally, we, on 29.4.2016, heard the oral argument of Ld advocate Mr.Swapan Sarkar for the complainant and of Ld advocate Mr.Nilotpal Baruah for the opp.parties. WE deliver the judgment today which is as below-
3) The complainant’s case in brief is that on 2.6.2010 at about 1-30 P.M. he entered into the ATM of State Bank of India installed at Hatigaon Chariali with his son Sri Arindam Sarkar to draw Rs.20,000/- and initially ATM responded normally and released a slip No.6718 showing debit of Rs.20,000/- from his account, but the money did not come out. Then, he took out two mini-statement which are No.6720 and 6722 and both the statements showed that Rs.20,000/- were debited from his account, and then he again used his card to take out Rs.200/- , but failed to do so. Then, he immediately rushed SBI, Dispur Branch where his account exists and informed them about the matter in writing and also in a prescribed format, and he also went to Currency Administration Cell (CAC) of SBI at Guwahati Panbazar Branch and informed them the matter in writing, and they assured him that ATM would be checked on or before 7th /8th June, and the debited amount, if not paid, would be credited in his account. He also met the CAC officials, the BM of SBI, Dispur Branch,(OPp.Party NO.2), Mr.John the dealing official of Opp.Party No.2 branch, and the ATM Complaint Cell –Officials of local Head Office of SBI (Opp.Party No.1) as well as the officials of Zonal Head Office, Bhangagorh (Guwahati) , but he was informed by the officials of the opp.parties that he had taken out Rs.20,000/- and the computer showed “successful Transaction” and the CAC official told him that if the excess money would be found in the said ATM, he would be paid from that surplus money because it would be Banks property as the machine showed successful transaction. He, then applied for copy of C.C.T.V footage of the said ATM of the relevant time, the printout of banks’ copies of ATM slips (TXN No. 6718,6719,6720,6721 and 6722) from Opp.Party No. 2 vide his letter dated 10.6.16 (Annex.-3). The slip No. 6720, which is with him, showed that the request for another amount of Rs.200/- was unsuccessfully transacted and the said slip did not show any mini-statement. Thereafter,on 9.6.2010, he received SMS messages from the opp.party which reads “Your complaint has been attended by the competent authority and hence is closed in the system. To get the details please contact the branch “; and after receiving the said message he contacted the Branch Manager of Opp.Party No.2 who said to him that he did not know anything about the message. Thereafter, he lodged a complaint with Bank’s Ombudsman on 25.6.2010 (Annex.No.6) and the Ombudsman issued notice to the opp.parties calling certain documents and they sent some papers (four pages) the print of three pages were partly hidden, not clear and legible (Annex 8,9,10) and thereby the opp.parties cheated him, and finally the Ombudsman vide his order (Annex.11) in (Case No. Guwa.BKG.OMB.No. 767/523/2009-10) declared and opined that the complaint made is requiring consideration of elaborate documentary and oral evidence and the proceeding before the Ombudsman are not appropriate for adjudication of such complaint. The said amount was required for admission of his son in IIT Institute, and he had to run hither and thither in search of money for admission of his son and also to be busy in meeting so many bank officials in connection with the incident and thereby, he, during those days, suffered from mental agony , harassment and anxiety .Annex.12,13,14 are paper as to selection and admission of his son. The opp.parties failed to supply the copy of the footage of CCTV as well as printout of transaction slips as asked by him. These acts of the opp.parties are a clean case of deficiency of service, fraud, illegally and against all civilized norms of banking business, and so the opp.parties are liable to credit Rs.20,000/- which had been illegally deducted by the said faulty ATM machine to his account and they are also liable to pay him compensation for loss, mental agony and harassment. He prays to the forum to direct to refund Rs.20,000/-, to pay Rs.50,000/- as compensation for causing mental agony and harassment to him and also the cost of the proceeding.
4) One, Sri John L.Hauhnar, the Asstt.Manager of Dispur Branch of State Bank of India filed the written statement on behalf of Opp.Party No.1 & 2 . The gist of his written statement is that the ATM ID No. SL00007892 which was installed at Hatigaon Chariali, Guwahati is under the control of SBI CAC (Currency Administration Cell), Guwahati Branch, Panbazar and the Bank has lodged the customer’s complaint through SBI CMS (Complaint Management System) vide ticket No.AT 3030243914 dtd. 3.6.2010 and the complainant has also personally visited CAC, Guwahati Branch, and the CAC Branch replied to their branch that the complainant’s transaction was successful transaction. The detailed JP Log (ATM machine detail transaction print out) is enclosed herewith. The complainant again personally came to Dispur Branch when he received the SMS regarding his complaint Ticket No. CTN-AT 30303243914, where he was explained thoroughly regarding SMS he received from SBI CMS and he was also being informed that the transaction was successful transaction. The complainant, being unsatisfied with their response, lodged a complaint to Banking Ombudsman, and the Bank also provided all the documents sought by the Ombudsman vide letter dtd. 22.7.2010 which include “CASH REPLENISH STATEMENT ” , the certificate by the concerned Bank Official, that no excess cash was found in the said ATM on 2.6.2010; and the Ombudsman also after scrutinizing all documents provided by the Bank , opined that the said transaction appeared to be successful one and has rejected the complaint. The averments of the complainant are untenable and misconceived . No case of deficiency of service has been made out so as to invoke the jurisdiction of this forum.
5) We have perused the pleading as well as the evidence of the parties. We have also perused the submission of Ld counsels of the parties .
We have found that it is both sides’ admitted facts that i) the complainant, Sri Arabinda Sarkar has a joint account with his wife at Dispur Branch of SBI (Opp.Party No.2) and he has a ATM Card against his account bearing Card No. 6220180303000186781 ii) on 2.6.2010 at about 1-30 P.M. the complainant along with his son. Sri Arindam Sarkar entered into ATM of SBI at Hatigaon Chariali to withdraw an amount of Rs.20,000/- by using his A.T.M. and he pushed the ATM card into the ATM Machine iii) Exhibit 3 is transaction slips of using ATM by the complainant in ATM of Hatigaon Chariali and Ext. -5 is balance enquiry slip and Ext.4 is the Mini Statement which was done at 13-32 hours and Ex 3 shows that Rs.1,78,877.85 as balance at his account after withdrawal of Rs.20,000/- of at 13’32 hours of that day (2.6.2010) , but Ext.4, the mini-statement shows that on 6.2.2010, the complainant withdrew Rs.20,000/- from his account by using his ATM in Hatigaon ATM at 13’32 hours on 2.6.2010 and Exhibit 5 shows that the balance in his account is Rs.1,78,877/-at 13’36 hours on that day.
6) The complainant states in his pleadings and evidence that on 2.6.2010 at 1-30 p.m. he with his son Sri Arindam Sarkar entered into Hatigaon Chariali ATM to withdraw Rs.20,000/- and while he used the ATM Card in Hatigaon ATM at 1-30 P.M. on that day to withdraw Rs.20,000/- for admission of his son Arindam Sarkar at IIT and initially the ATM responded normally and transaction slip NO.6718 (Ext.3) came out showing debit of Rs.20,000/- (Rupees twenty thousand)only from his account, but the money did not come out, and then both of them surprised seeing that fact, and then he took out balance enquiry slip (Ex 4- slip No-6720) and again he attemted to take out Rs.200/-, but the ATM did not response. The version of P.W.1( the complainant) is supported by P.W.2 , Sri Arindam Sarkar (son of the complainant) by narrating the same thing in his evidence.
7) The complainant( P.W.1) further states that just after that incident he went to Dispur Branch of SBI where his account exists and informed them about the matter in writing and also in a prescribed bank format and he also went to currency Administration Cell (CAC) branch of SBI, Guwahati (Panbazar branch) and informed them the matter where he was assured that the said transaction at ATM would be checked up on or before 7/8th June and the amount would be credited to his account if the amount had not been paid to him ; and then he checked up his account on 8th June 2010 and found that the amount was not credited to his account.
8) We have also found that D.W.1, Sri John L.Hauhnar, admits in his evidence that on 2.6.2010 itself (on the vary day of alleged incident) the complainant informed State Bank of India, Dispur Branch ( Opp.Party No.2) about his unsuccessful ATM transaction of Rs.20,000/- in the ATM booth at Hatigaon Chariali of State Bank of India, and he was assured by Bank that the said transaction of ATM would be checked and if the amount found not paid would be credited to his account, and then the Dispur Branch lodged the complaints of the complainant through SBI CMS (Complaint Mangement System) vide ticket No. AT 3030243914 dtd. 3.6.2010 and the complainant also personally visited CAC (Currency Administration Cell), Guwahati Branch; and in that respect, the CAC, Guwahati Branch replied vide letter No. CAC/GUWA /07/425 dtd.3.9.2010 to Dispur Branch that the complainant’s transaction was successful transaction and no cash was found on that day in the said ATM. Thus, it is clear that on the vary day of alleged incident, the complainant reported Dispur Branch of SBI about the alleged incident within 30 minutes of the transaction, but Dispur Branch instead of taking step for investigation sent the complaint to SBI CMS (Complaint Management System) at Guwahati Panbazar branch on 3.6.2010 i.e. after one day of the alleged incident, meaning thereby on the vary day of incident neither the Dispur Branch, nor the CMS Branch of Guwahati Panbazar branch investigated the matter by opening the ATM machine. D.W.1 further states in evidence that the ATM was opened on 2.6.2010 at 17-45 hours by Currency Administration Cell, but he does not remember whether any letter was issued to them by their branch stating that transaction was successful. These version of D.W.1 shows that on the very day of alleged incident at 17-45 hours, the bank Currency Administration Cell replenished the said ATM before receiving any complaint from Dispur Branch. D.W.1 further states that the C.D. of the ATM which is produced before this forum shows Card No. of the complainant is visible mentioning, but the cash amount or the person receiving the cash are not visible in the photo, and in the photograph though the person is visible yet no cash is visible. Thus, it is clear that on the vary day of alleged incident, the complainant within 30 minutes after the alleged incident informed Dispur Branch of SBI (Opp.Party No.2) that he tried to withdraw Rs.20,000/- from ATM at Hatigaon Chariali and after pushing the card the ATM machine responded first, but did not release the amount, although in the balance slip it was shown that Rs.20,000/- was withdrawn and the mini statement derived just after the attempt showed that Rs.20,000/- was debited from his account., but the Dispur Branch had not taken any step on that vary day, but they lodged the complaint as per report of this complainant to SBI CAC( Currency Administration Cell) , Guwahati Branch, Panbazar only on 3.6.2010. It is also evident that the complainant on the vary day of the alleged incident, visited CAC, but neither Dispur Branch as well as the CAC took any step to investigate the matter on the vary day of the alleged incident. It is also evident that CAC replenished the cash in the said ATM at 17-45 hours of 2.6.2010 i.e. after 6 (six ) hours of alleged incident, but they did not enquire the matter about the complaint filed by the complainant having they were neither reported the matter nor asked to do any investigation. Thus, it is clear that the Dispur Branch as well as the CAC negligently did not do the investigation on the vary day of the alleged incident although Dispur Branch was reported by the complainant within 30 minutes of alleged incident and the CAC was also reported on that very day. Generally, if cash is not released by the ATM machine sometimes cash falls in the tray of the ATM due to some mechanical defect of the ATM and that amount becomes out of account of the ATM showing the amount being paid. It is already found that the complainant promptly informed the concerned authority about the matter, but authorities negligently did not do the investigation on the vary day of alleged incident. As per terms and condition of using ATM, it is the burden of the account holder to report his own branch or the CAC (Currency Administration Cell) of the Bank immediately after something wrong detected in using the ATM machine, and when such report is made to those authorities it becomes burden of them to investigate the matter promptly. In the instant case, the complainant promptly informed the concerned authorities of the opp.parties about the alleged incident, but they did not take any step to investigate the case on the vary day of the incident, meaning thereby they failed to discharge their burden and these conducts of the opp.parties infers that what the complainant states in evidence is a true fact. Secondly, D.W.1 admits that in the photographs of C.D. placed before the forum shows that although the remarks “Cash present” or “Cash taken” are visible, no cash as well as the person taking the case was visible in the said photograph. These photographs of the said C.D. do not assure us that cash was presented to the complainant and he also took the cash from the ATM. Thirdly, it is also seen from evidence of the D.W.1 that on the vary day of the incident at 17-45 hours the Currency Administration Cell opened the said ATM to replenish the cash and that was done by some personnels of that cell , but they did not investigate the matter on the basis the complaint of the complainant having they were not reported the matter. So, in such situation, it shall be presumed that if the cash of Rs.20,000/- which was not released by the ATM to the complainant might had been found in the falling state in the tray of ATM and the persons of the CAC, who opened the ATM, might had taken the amount and they might had caused the evidence of not releasing the amount wiped out.
9) It is also found that the opp.party did not supply the copies of footage of CCTV of that ATM chamber to the complainant, although he applied for that. So , it shall be presumed if it would have been supplied to him it could have revealed as to who collected the money from the ATM and the person including those who handled that machine subsequently. As these footage was not supplied to the complainant, it may be also presumed that the footages of the CCTV of the chamber of ATM of the alleged day donot reveal that the alleged amount was received by either a complainant or his son, but it reveales that the amount was taken away from the tray of the ATM by the person of the CAC who handled the machine subsequently. The complainant side states that Ex 1,2,3 & 4 which were produced before the Ombudsman by the opp.party on calling the documents by Ombudsman are not genuine documents , they were fabricated after receiving requisition from Ombudsman vide letter dtd. 18.8.2010 (Ex-9). We have perused evidence of Court witness . It is found that he stated that Mr.Sailen Gogoi and Mr.Promod Boro who are of the rank of Asstt.Manager were handling the cash for replenishment in all ATM’s of SBI within Kamrup (Metro) District. But it is found that they were not made witness by the opp.parties, and the Brinks Arya India Pvt.Ltd. who was engaged by SBI for cash handling of ATM’s, was also not made witness. The court witness also states that in cash replenishment Mr.P.K.Bhattacharjya , the manager of CAC was not present personally at the time of cash replenishment of the concerned ATM and that the copy of letter memo No. CAC/GUWA/07/301 dtd. 19.7.2010 was submitted before this forum after completion of his cross examination. He also further states that he does not know what were the amount in the said ATM on 1.6.2010 after replenishment and how many withdrawals were made, till 17-45 hours of 2.6.2010, and that he has no personal knowledge about the alleged happenings as he was in service at Rangia Branch at that time. Thus, from evidence of Court Witness, it is seen that he was not the author of the letter dtd. 3.9.2010 which is a certificate as to finding no excess cash in the said ATM on 3.6.2010, but one Sri Pradip Bhattacharjya the then manager of CAC is the author of the said certificate. The opp.party side has not examined the said P.Bhattacharjya as witness to prove that Ext. ka, Ext.kha, Ext.ga, Ext.gha and Ext.Ungo had been issued by him. So, it must be held that Ext.ka to Ext.gha have not been proved by the opp.parties by adducing evidence of their author. Secondly, all these documents were issued on 3.9.2010 i.e. after three months of alleged occurance. So it is established that these documents are forged documents and were prepared the opp.parties to substantiate their pleading before the Ombudsman. In such situation, it must be held that the opp.parties had not investigated the matter as reported by the complainant at all and their story of doing investigation is a false story.
The complainant side’s Ld advocate Mr. Sarkar submits that Rs.20,000/- was required by the complainant for admission of his son in IIT and hence on that day both the complainant and his son Arindam entered into the ATM on 2.6.2010 to draw the amount as it was a urgent matter for them, and that his son entered into ATM to get experience how to use ATM as he has to remain at district place concerned resident. This is also admitted by Arindam Sarkar (P.W.2). We have also found no wrong in the act of his entering into ATM with his father on the said day. As the opp.party side fails to prove their plea as to drawing the said amount by the complainant by adducing evidence, the presence of p.w.2 in the ATM does no way infers that the said amount was taken by him. So, the plea of the opp.party is that the amount was taken by the son of the complainant is not sustainable.
The opp.party sides’ Ld counsel Mr.Baruah submits that this case involves complicated questions of facts and law which are to be determined perusing evidence of the parties and hence this forum has no jurisdiction to adjudicate upon this complaint, and the complaint is to be referred to the Civil Court for proper adjudication. In support of his submission, he also refers the decisions of Supreme Court in Moloy Kumar Ganguli –vs- Dr.Sukumar Mukharjee & others (2009) 9 Supreme Court Cases 221 and V.Kishan Rao-vs- Nikhil Super Speciality Hospital and another, (2010) 5 Supreme Court Cases 513. We have perused the decisions of the Hon’ble Supreme Court in the referred cases and found that the said decisions of the Hon’ble Supreme Court do not come into help to the opp.party having the instant case is not a complicated case and it does not require expert evidence . Summing up our decision as above, we are of opinion that the argument of Ld counsel Mr.Baruah is not sustainable and but the submission of Ld advocate Mr.Sarkar finds supports from the evidence adduced by the complainant side. We also hold that for the negligence of the opp.parties i.e. by installing defective ATM machine at Hatigaon Chariali, the said ATM machine did not release Rs. 20,000/- from inside of it on 2.6.2010 at about 1-30 p.m. while the complainant pushed his ATM Card into that machine, although it showed the amount debited from the account of the complainant. So, we hold that the opp.parties, thereby, committed deficiency of service towards the complainant and they are liable to return Rs.20,000/- which has wrongly been showed debited from his account without releasing the amount while he used the ATM on 2.6.2010 with interest @ 12% per annum. Secondly, the complainant is found to have approached different authorities including Dispur Branch, SBI, CAC of SBI , Guwahati and bank Ombudsman of Guwahati seeking relief for such loss and thereby he had to spend certain amount of time as well as a good sum, and thereby got harassed and also suffered from mental agony . For such harassment meted to the complainant by the act of opp.parties, the opp.parties are liable to pay him atleast Rs.10,000/- as compensation. Thirdly, for no fault of him, he had to prosecute the opp.parties before this forum by paying fees to his counsels and bearing miscellaneous expenditure in attending the forum, and hence, the opp.parties are liable to pay atleast Rs.10,000/-to him as a cost of the proceeding.
10) Because of what has been discussed as above, the complaint is allowed on contest against both the opp.parties and they are directed to refund Rs.20,000/- to the complainant with interest @ 12 % per annum from the date of filing this complaint (11.10.10) and also to pay him Rs.10,000/- as compensation as well as Rs.10,000/- as cost of the proceeding, to which both the opp.parties are jointly and severally liable . They are directed to pay the amount to the complainant within one month, in default of which, the other two amounts would also carry interest @ 12% per annum.
Given under our hands and seal of this forum on this day 13th May, 2016.
Free copies of judgment be delivered to the parties.
( Md.S.Hussain )
President
( Mr.U.N.Deka )
Member
