Date of filing : 29.06.2016
Date of order : 29 .09.2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc., B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER-II
THURSDAY THE 29TH DAY OF SEPTEMBER 2022
CONSUMER COMPLAINANT NO. 16/2016
1. Miss Annie Lincy,
D/o. J.P. Joshua,
A.L. Nimas General Hospital,
Abha, Assir,
Region Ministry of Health,
Kingdom of Soudi Arabia,
K.S.A.
2. J.P. Joshua,
C.M.C. Hospital, Vellore,
No.1, Balaji Nagar,
Opposite to NTTF,
Katpadi Road, Tharapadavedu,
Katpadi Taluk,
Vellore District – 632 007. …Complainants
-Vs-
The Chief Manager,
State Bank of India, Vellore Town Branch,
No.65/1 and 2, Ida Scudder Road,
Vellore – 632 004. …Opposite party
Counsel for complainants : Thiru. K.A. Sankarasivam
Counsel for opposite party : -
ORDER
THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L. PRESIDENT
This complaint has been filed Under Section 12 of Consumer Protection Act 1986. The complainant has prayed this Hon’ble Commission to direct opposite party enquire into the matter with reference to the CCTV image of the ATM machine where the first complainant ATM card was used to withdraw the sum of Rs.40,000/- on 27.11.2015 and other relevant material records maintained by the opposite party in respect of the said ATM machine and to delete false debit entry of Rs.40,000/- made in the 1st complainant’s S.B. Account No.3076004813 in the opposite party bank and to pay a sum of Rs.50,000/- as damages for their mental agony and to pay cost of this proceeding.
1.The case of the complaint is briefly as follows:
The first complainant is having a saving bank account No.30760004813 in the State Bank of India, Vellore Town Branch the opposite party herein. The second complainant is the father of first complainant. The opposite party issued an ATM card to the first complainant to enable her to withdraw the money from the State Bank of India ATM machine. Since, the first complainant is employed in the hospital at Saudi Arabia she has authorised her father i.e., the second complainant herein handed over ATM with necessary instruction to operate the same for withdrawal of money from her State Bank of India account with the opposite party. On 27.11.2017, the second complainant wanted to withdraw a sum of Rs.40,000/- by inserting the ATM card in the opposite party ATM machine at CMC hospital premises. On insertion of ATM card the machine showed in the screen as “unable to process”. Hence, he retook the card and there was no dispense with cash of Rs.40,000/-. The CCTV Footage on 27.11.2015 at 12.47 PM also does not show any image of inserting ATM Card of withdrawal of the money by the second complainant. To their utter shock and dismay the S.B. account of first complainant shows a false entry of debit of Rs.40,000/- on 27.11.2015 when no payment was dispensed on 27.11.2015 on the insertion of the first complainant’s ATM card. The claim of the opposite party that the CCTV footage claiming the transaction on 27.11.2015 was successful is false. The protection of CCTV footage of ATM machine will show the entire transactions of the bank the total amount dispensed with on the particular disputed date. In spite of several letters to the authorities concerned there was no proper enquiry made after notice to the second complainant and in his presence. The opposite party bank is falsely claiming payments of Rs.40,000/- on 27.11.2015 by use of ATM card by the first complainant. Because of the fault in the functioning of the ATM machine, the second complainant was not paid the amount on 27.11.2015 falsely debited of Rs.40,000/- paid to the complainant which amounts to deficiency in service on the part of the opposite party. Further failure of proper ATM machine and inaction to redress the complainants grievance despite their repeated attempts, the amounts to deficiency in service on the part of the opposite party. Hence, the complainant issued legal notice on 10.05.2015 to the opposite party. The opposite party gave a reply notice on 17.5.2016 with false allegations. Because of the aforesaid incident the complainant was put to mental agony and untold hardship resulting in financial loss as well. Therefore the complainant is entitled to claim damages for mental agony loss of which they estimate of Rs.50,000/-. Further the complainant wanted to refund of amount Rs.40,000/- which has wrongly debited the opposite party. Hence, this complaint.
2. The written version of opposite party is as follows:
The opposite party as per the terms and conditions governing the issue of ATM Card to first complainant, the card was issued to the first complaint for her exclusive use. So the alleged use of the cad by the second complainant on behalf of the first complainant is a violation of agreed terms and conditions for issue of ATM card. The first complainant cannot authorize the second complainant by parting with ATM card and compromising the secrecy of PIN. The card, therefore, should remain in card holder’s possession and should not be handed over to anyone else. The card is issued on the condition that the Bank bears no liability for the unauthorized use of the card. This responsibility is fully that of the card holder. As per ATM CMC Hospital campus Log Journal the transaction was entered for the ATM card No.6220180161800018947 issued to first complainant for operating her account No. 30760004813 with this opposite party branch on 27.11.2015 at 12.46-39 and at 12:47.07 amount of Rs.40,000/- was entered and cash of Rs.40,000/- was withdrawn from ATM CMC campus at 12.47 p.m. showing the balance of Rs.12,574.58/- after such withdrawal of Rs.40,000/- from ATM. The allegation made in the complaint the ATM machine on insertion of card showed in the screen unable to process and hence the ATM machine did not pay Rs.40,000/- to the second complainant or to the person who used the said ATM car. The allegation that the CCTV footage on 27.11.2015 at 12.47 p.m. does not show any image of inserting ATM card or withdrawal of money from the account of first complaint is false. The allegation that a false entry of debit Rs.40,000/- on 27.11.2015 since no amount was presented and taken on 27.11.2015 on the insertion of ATM card of first complainant is denied by this opposite party and the said allegation made in para 7 of the complaint is most vexatious and not true. The ATM card issued to first complainant was presented on 27.11.2015 and cash of Rs.40,000/- was withdrawn from the account of first complainant as reflected in the certified copy of accounts filed and the CMC campus log journal herewith. This opposite party states that as per ATM CMC hospital campus log journal the transaction carried out with ATM card on 27.11.2015 was successful and cash was presented by ATM at 12-47 p.m. and cash was also taken. Further the authorized officials of the Bank who replenished cash at the machine, subsequently did not find any excess cash of Rs.40,000/- representing the alleged undisbursed portion of cash withdrawal made on the account of first complainant. Therefore, there is no deficiency of service on the part of this opposite party. Hence, this complaint to be dismiss with cost.
3. Proof affidavit of complainant filed, Ex.A1 to Ex.A17 were marked. Proof affidavit of opposite party filed. Ex.B1 to Ex.B11 were marked. Written argument of both sides filed. Oral argument of complainant side heard.
4. The points that of arises for consideration are:
1. Whether there is any deficiency in service on the part of the opposite
party?
2. Whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief complainant is entitled to?
5. Point Nos. 1 & 2: The first complainant having saving bank account number is 30760004813 in opposite party branch. The said complainant also have a ATM Card facility with the opposite party. Since, she has gone abroad for a vacation she has handed over the ATM Card with her father for maintaining their family. The second complainant who is the father of the first complainant had attempted to withdraw a sum of Rs.40,000/- on 27.11.2015 ATM at CMC Hospital Campus, Vellore. But the ATM screen it showed as “unable to process and there was no cash dispensation from the ATM Machine. The allegation of the complainant is that the subsequently in her State bank of India account pass book there was debit entry of Rs.40,000/-on 27.11.2015 when she was questioned with the opposite party about the false entry. The opposite party contended that on the particular date when they verify with the log journal. The ATM card No.30760004813 the first complainant was entered and at 12.47.07 a amount Rs.40,000/- was withdrawn. A balance of hours 12.57,4.58 was shown after deducting the Rs.40,000/- from the ATM. Therefore, there is no deficiency in service on the part of the opposite party. The allegation of the complainant is that after the incident was took place she has verified with the CCTV footage which shown by the bank official stating that there is no such incident of withdrawal of Rs.40,000/- or dispensing of Rs.40,000/- was shown in the CCTV footage when we put the specific question with regard to the protection of the CCTV footage they relied upon the Service Level Agreement for AMC Ex.B11 and stating that the records of the 27.11.2015, the CCTV footage record were deleted. Since, the incident was took place more than 90 days. As per clause 4.5 which says with read as follows “The check availability of 90 days recording for all cameras in motion – deducting mode”. The subsequent clause itself, on going through the entire documents of Ex.B11 we find at clause 4.10 there is special clause says CCTV footage which shows that if the bank is called for any particular disputed CCTV footage the service agencies should handed over the dispute with regard to the footage that the immediately. After the non dispenses of the cash, the complainant father and subsequently the complainant had also made several complaint when the dispute was pending. The bank should preserve the CCTV footage still the dispute has resolved. Further, in view of the clause 4.10 at any point of time the recording will be redrew. The bank did not take any steps to redrew the CCTV footage and produce these Hon’ble Commission. Therefore, we interfere that, if the CCTV footage has produce the before the Hon’ble Commission it may adverse to the opposite party. Therefore, they are no producing for the inspection of the Commission. Further we have adverse inference against the opposite party. In view of the Reserve Bank India regulation it is for the prove that there is a deficiency in service on the part of the opposite party. Hence, these Points Nos. 1 and 2 are decided in favour of the complainant.
6. POINT NO.3: As we have decided in Point Nos. 1 and 2 that there is a deficiency in service on the part of the opposite party is hereby directed to return of Rs.40,000/- (Rupees Forty Thousand only) with interest @ 9% p.a. from 27.11.2015 to till the date of order and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant.
7. In the result, this complaint allowed. The opposite party is hereby directed to return of Rs.40,000/- (Rupees Forty Thousand only) with interest at 9% p.a. from 27.11.2015 to till the date of this order and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant, within one month from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of this order to till the date of realization.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 29th September 2022.
Sd/- Sd/- Sd/-
MEMBER –I MEMBER-II PRESIDENT
LIST OF COMPLAINANT SIDE DOCUMENTS:
Ex.A1-02.12.2015 - Copy of letter by second complainant to the respondent
Ex.A2-09.12.2015 - Copy of the complaint by the second complainant to sub
Inspector of Police, North Police Station, Vellore
Ex.A3-09.12.2015 - Copy of the receipt for petition No.337/2015 by Vellore North
Police Station
Ex.A4-26.12.2015 - Copy of the complaint by the second complainant addressed to
Assistant the Manager of the respondent
Ex.A5-12.01.2016 - Copy of the letter by the second complainant to the Manager,
“banking Ombudsman, No. 16 Rajaji Salai, Chennai – 600
108 with acknowledgement
Ex.A6-29.04.2016 - Copy of the letter by the first complainant to banking
ombudsman, No.16, Rajaji Salai, Chennai – 600 108.
Ex.A7-25.01.2016 - Copy of the reply by Banking Ombudsman, Chennai
Ex.A8-10.05.2016 - Copy of the legal notice issued by the complainants to the
Respondent
Ex.A9-17.05.2016 - Copy of reply notice by the respondent
Ex.A10 - Copy of State Bank of India Vellore town Saving Account
Ex.A11-05.042016 - Copy of second complainant letter to banking ombudsman
Chennai
Ex.A12-07.03.2016 - Copy of first complainant’s lawyer notice, principal
Administrator, State bank of India, CMC Branch, Vellore,
Assistant Public manager
Ex.A13-04.12.2015 - Copy of the second complainant letter to State Bank of India,
Vellore
Ex.A14-22.02.2016 - Copy of letter from office of banking ombudsman
Ex.A15-23.03.2016 - Copy of letter from Office of Banking Ombudsman
Ex.A16-13.05.2016 - Copy of letter from second petitioner to the Branch Manager,
Vellore Town Branch, State Bank of India
Ex.A17-16.09.2017 - Copy of Notice to produce documents by opposite party given on behalf of the complainants
LIST OF OPPOSITE PARTY SIDE DOCUMENTS:
Ex.B1 - Copy of Terms and conditions to ATM
Ex.B2-09.12.2015 - Copy of CMC Hospital Campus ATM Log Journal
Ex.B3 - Copy of Statement of Accounts
Ex.B4-09.12.2015 - Copy of complaint details account of Miss. Annie Lincy
( 1st complainant )
Ex.B5-05.02.2016 - Copy of complaint details account of Miss. Annie Lincy
( 1st complainant )
Ex.B6-23.03.2016 - Copy of letter by Banking Ombudsman, Chennai to Joshuva
(2nd complainant)
Ex.B7 - Copy of Application Form for ATM Cards issued by the
Statement Bank of India
Ex.B8 - Copy of Accounts
Ex.B9 - Office Copy of memo filed by the opposite party
Ex.B10 - Letter by the Assistant General Manager, State Bank of
India
Ex.B11 - Copy of Circular
Sd/- Sd/- Sd/-
MEMBER –I MEMBER-II PRESIDENT
