PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The Complainant has prayed that the Opposite Party be held guilty for deficiency in service and it be directed to pay Rs.6,0000/- with interest @ 18% p.a. till the realization of the payment. The Complainant has also prayed for legal expenditure and compensation for mental harassment and agony.

2)        According to the Complainant, he is having Saving Account No.10594880243 in the Parel Branch, Mumbai – 12 of the Opposite Party i.e. State Bank of India and he is consumer of the Opposite Party.  It is submitted that the Complainant went to ATM Swargadwar Branch of the Opposite Party at Puri on 11/05/2011 to withdraw Rs.3,000/-.   The Complainant found that no money or statement was coming out from the machine despite presenting all necessary information. The Complainant then waited for 3½ minutes approximately and left the ATM after pressing cancellation button because the other customers were waiting and insisting for their transactions.  It is submitted that after reaching by the Complainant at Mumbai when the Complainant checked his account he came to know that Rs.3,000/- were debited by ATM at Puri.  The details of the transactions are Annexed at Exh.‘A’. According to the Complainant, when the Complainant complained to the Customer Service Department i.e. to the Opposite Party, the Puri Branch of the Opposite Party sent the CCTV Footage and the Manager of the Parel of the Opposite Party had shown the footage to the Complainant on 04/08/2011.  The letter of the Manager of Parel Branch is Annexed as Exh.‘B’.  It is submitted that the ATM of the Opposite Party was not functioning properly and had released the money much late and because of that Rs.3,000/- went to the wrong hand.  It is the case of the Complainant that thus, it was fault of machine which released the money delayed by more than 3 minutes.  According to the Complainant, he requested the Opposite Party for taking necessary action as fault lies with ATM.  The copy of the said letter is marked as Exh.‘C’. The Complainant has submitted that the Local Head Office of Bhubaneswar of the Opposite Party sent a letter to the Complainant dtd.20/10/2011 in which it was mentioned that the complaint of the Complainant is being looked into and further advised will be sent to the Complainant shortly. The copy of the said letter is marked as Exh.‘D’.  It is alleged that the Complainant again wrote letter to the Opposite Party on 30/10/2012 but the Complainant did not receive any response to it. It is submitted that the Complainant has therefore, filed this complaint for the reliefs mentioned in para 1 of this order.> 

3)        The Opposite Party contested the claim by filing written statement. It is contended that the complaint is unfounded and frivolous and the same has been filed with malafied intention. According to the Opposite Party, banking facilities were made available to the Complainant by Parel Branch and not by General Manager, Customer Service Department, State Bank of India, Nariman Point, Mumbai. It is contended that instead of impleading State Bank of India, Parel Branch as the Complainant has made General Manager, Customer Service Department, State Bank of India, Nariman Point as Opposite Party thus, this complaint is bad for non joinder and misjoinder of necessary party, the complaint is therefore, liable to be dismissed.

4)        It is denied that the ATM at Swargadwar Branch on 11/05/2011 had malfunctioned.  It is alleged that the said ATM was accessed by many of the bank’s customers on 11/05/2011 and no complaint of whatsoever of any nature was received from any of the bank’s customer.  It is submitted that on receipt of the complaint from the Complainant at Parel Branch, it contacted it’s Puri Branch and obtained relevant CCTV Footage from them. The clippings from the said CCTV Footage clearly show that there was no problem whatsoever with the ATM on 11/05/2011 and that whoever accessed ATM that day could withdraw cash using the ATM Cards smoothly.  It is contended that there is no deficiency in service on the part of the Opposite Party as alleged by the Complainant.  It is submitted that the ATM Transaction for withdrawal of Rs.3,000/- was shown as successful at 19.51.13 hrs.  It is submitted that the CCTV Clipping clearly shows that the Complainant entered the ATM Booth in question on 19.50.55 hrs. on 11/05/2011.  The CCTV clippings also show that the Complainant left the ATM booth at 19.51.40 hrs. and he was not seen inside the ATM Booth at 19.51.43 hrs.  According to the Opposite Party, as per the visual evidence available from CCTV Footage clearly indicates that the Complainant was not present inside the ATM Booth for even a minute.  It is the case of the Opposite Party that from the footage it also reveals that the Complainant got a call on his mobile inside the ATM Booth and was seeing talking on his mobile at 19.51.28 hrs. and left the booth in twelve seconds thereafter.  It is thus, contended that the Complainant’s allegation that he had waited for about 3½ minutes for the money to come out cannot be relied upon.  It is thus, contended that the Opposite Party’s Parel Branch had correctly debited Rs.3,000/- the amount which has been withdrawn by the Complainant.  It is submitted that there is no cause of action whatsoever has arisen in favour of the Complainant and the complaint is liable to be dismissed. 

5)        The Complainant has filed affidavit of evidence. The Opposite Party has filed affidavit of Ms. Shahanaz Wadia, Branch Manager, Parel Branch.  Both the parties filed their written arguments. We heard the oral arguments of Complainant and the Ld.Advocate Shri. M.G. Nadkarni for the Opposite Party. We have perused the documents filed on record                  

6)        While considering the claim made by the Complainant in this complaint, it is necessary to  be  seen whether the Complainant who made allegations that he did not receive the amount of ATM transaction dtd.11/05/2011 at ATM booth Swargadwar of State Bank of India at Puri to the tune of Rs.3,000/- for which he had fulfilled the requirements of withdrawal of the said amount can be said proved beyond doubt or not ?  In this context the Opposite Party has submitted the copies of CCTV Footage of the said transaction alongwith their written statement from page 12 to 42 which are required to be seen.  The Opposite Party has also come out with the case that the case made out by the Complainant that he had waited for 3½ minutes after fulfillment for getting withdrawal amount of ATM, cannot be relied upon.  It is submitted that the CCTV Footage placed on record by the Opposite Party show that the Complainant entered in ATM Booth in question on 11/05/2011 at 19.50.55 hrs. and thereafter, as per CCTV Footage the Complainant left the ATM Booth at 19.51.40 hrs.  As per the CCTV clippings the transaction for withdrawal of Rs.3,000/- was shown as successful at 19.51.13 hrs., thus, the case made out by the Complainant that he did not receive the amount as well as ATM statement cannot be relied upon.  Furthermore, it appears that the Complainant did not make any complaint immediately to State Bank of India, Puri Branch in whose jurisdiction that ATM Booth was functioning. From the averments made in the complaint it appears that he checked his account after reaching at Mumbai.  The Complainant did not produce the xerox copy of ATM withdrawal slip dtd.11/05/2011.  It also appears from the letter addressed to the Opposite Party’s General Manager at Exh.‘C’ that he for the first time made complaint regarding non receipt of amount of Rs.3,000/- of the ATM withdrawal transaction dtd.11/05/2011. On 26/07/2011 which necessarily shows that the Complainant was not diligent regarding his grievance.  The case made by the Complainant was inside ATM Booth of Swargadwar at Puri for 3 ½ minutes also cannot be substantiated by the copies of CFTV Footage filed by the Opposite Party.  In view of the aforesaid discussion, it appears that the Complainant who made allegations against the Opposite Party that he did not receive the amount of Rs.3,000/- of the ATM withdrawal transaction dtd.11/05/2011 at ATM Booth Swargadwar and he is therefore, entitled for that amount from the Opposite Party, in our view cannot be held proved beyond doubt.  The submissions therefore, made by the Advocate for the Opposite Party relying upon the case, Pratap Singh Mehra V/s. SBI, reported in 2010 HTPL (CL) 1158 of the Hon’ble State Commission, Chandigarh can be said applicable to the facts of this case. The submission made by Shri. Nadkarni, Advocate that  no  other person complained for not receiving money on that day and thus, it cannot be presumed that the Complainant did not receive Rs.3,000/- from ATM machine, in view of the observation in the case of State Bank of India V/s. Om Prakash Saini, reported in I (2013) CPJ 749 (NC) also can be said perfectly applicable to the facts of this case.  The Hon’ble National Commission in the aforesaid case set aside the order of the District Forum and State Commission, passed against the Bank wherein it was held by them that non-supply of video footage was held ground for passing the order against the Bank.  The Hon’ble National Commission held that as no other person complained for not receiving money on that day when many other persons had withdrawn money from ATM on that day and thus, the order of District Forum & Hon’ble State Commission is liable to set aside. In the present case the Opposite Party has filed CCTV Footage of the transaction performed by the Complainant.  We thus, hold that in view of the observations in the aforesaid case it can be held that the Complainant has failed to prove his allegation of non receipt of the amount of withdrawal of Rs.3,000/- made at Swargadwar ATM Booth at Puri. The allegations made by the Complainant as regards defect in ATM machine are also not proved.  The authority relied by Shri. Nadkarni, Advocate in the case of State Bank of India V/s. Ashok Kumar Jaiswal, reported in I (2009) CPJ 75 of Jharkhand State Consumer Disputes Redressal Commission is also perfectly applicable to the fact of this case. We therefore, hold that as Complainant has made allegations of non receipt of withdrawal of the amount of ATM transaction dtd.11/05/2011 he is expected to prove the same. However, the Complainant has failed to prove it.  On the other hand by submitting the documents of CCTV Footage the Opposite Party has brought on record that till the ATM transaction become successfully the Complainant was inside the ATM Booth at Puri.  We therefore, hold that on merit the Complainant failed to prove his case.

7)        The objection raised by the Opposite Party that the Complainant has not filed the present complaint against the alleged service provider or organization which indulged into deficient service and has not made party to this complaint and on that count the complaint cannot be entertained has also much substance.  The observations of the Hon’ble State Commission Maharashtra in First Appeal No.160/2011 in the case of Priyadarshani Polysacks Ltd. V/s. Branch Manager, State Bank of India, decided  on  08/12/2011  are  applicable in the present case as the Complainant did not join the State Bank of India as party to the complaint.  The Complainant has filed the complaint against the General Manager, Customer Service Department, State Bank of India, Nariman Point, Mumbai.  The Hon’ble State Commission the in aforesaid held that the Branch Manager of a particular branch of the State Bank of India is a separate, independent and distinct juridic person within the meaning of Sec.2(1)(m) of the Act and he is, certainly, distinguishable than his own organization, namely State Bank of India for this reason also ultimate dismissal of the complaint needs to be considered against the Complainant. In the result we find that the complaint is devoid of any substance and is liable to be dismissed with no order as to cost and accordingly the following order is passed –

O R D E R

i.                    Complaint No.64/2013 is dismissed with no order as to cost.

ii.                   Certified copies of this order be furnished to the parties.