BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.1388/2012

DATED THIS THE 5^th JUNE 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainant: -             

                                                Sri.P.S.Govind Rau,

                                                R/a Brigade Gardenia,

                                                Jasmine Block F-104,

                                                9^th cross, RBI layout,

                                                8^th Phase, J.P.Nagar,

                                                Bangalore - 78     

V/s

Opposite parties: -                 

1.     The Manager,

State Bank of India,

RBI layout branch,

80 feet road, 7^th phase,

J.P.Nagar, Bangalore – 78

                                                2. The Manager, ICICI Bank,

                                                    RBI layout branch,

                                                    No.75, 100 feet road,

                                                    6^th phase, J.P.Nagar,

                                                    Bangalore-78

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OPs no.1 and 2, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OPs to pay Rs.10,000=00 wrongly debited from the account, and to pay compensation Rs.10,000=00 towards harassment and mental agony and cost of the complaint.

2. The brief facts of the complaint can be stated as under.

The OPs no.1 and 2 are the banking institutions governed by the Reserve Bank of India. The OP no.2 is functioning ATM counter at J.P.Nagar, 7^th Phase, Bangalore. The OP no.1 is having its local head office at No.65, St.Marks Road, Bangalore and the OP no.2 is having its corporate office at ICICI bank towers, Bandra-Kurla complex, Mumbai – 51. The complainant is a customer of the 1^st OP and having SB account bearing account no.30324118810 with the 1^st OP. On 29-6-2011 around 6 p.m. the complainant has withdrawn a sum of Rs.500=00 through ICICI ATM counter, RBI layout, 7^th phase, J.P.Nagar, Bangalore connected to the 2^nd OP. Subsequently, the complainant visited his banker i.e. 1^st OP for the purpose of updating his SB account pass book and he found that there was erroneous entry of Rs.10,000=00 apart from Rs.500=00 debited from his SB account on 29-6-2011. The complainant immediately brought to the notice of the OPs with regard to erroneously debited Rs.10,000=00 from his SB account. Though, the OPs took time to rectify the mistake occurred but failed and neglected to rectify the same rather directed the complainant to approach the banking ombudsman.  As per the direction given by the OPs, the complainant approached the banking ombudsman for Karnataka at Bangalore by filing a complaint dated 3-8-2011. The Ombudsman based on the complaint filed by the complainant directed the OPs to produce the documents concerning the disputed transaction of the complainant. The OPs produced the relevant documents to the Ombudsman. It is pertinent to mention that the time of disputed transaction mentioned in the two separate balance sheets issued by the 2^nd OP differs. Though the 2^nd OP admitted the excess amount of Rs.2,500=00 laying excess in the cash tally report of ATM S1CW3691 dated 29-6-2011 vide letter dated 16-8-2011 and Rs.8,200=00 ling excess in the cash tally report of ATM S1CW3691 dated 30-6-2011 vide letter dated 16-8-2011 and instead of adjusting wrongly debited amount to the complainant’s account, the 2^nd OP issued a letter wrongly mentioning that the transaction was successful vide letter dated 19-8-2011 addressed the Secretary, office of Banking Ombudsman, RBI building, Nrupatunga Road, Bangalore. Ombudsman issued a letter dated 25-9-2011 addressed to the complainant confirming that they are not proceeding with the complaint of the complainant with an observation that no excess cash was found at the ATM centre though admittedly there was excess amount lying in the cash tally on both 29^th and 30^th June 2011 at the ATM centre of the 2^nd OP as per two separate letters both dated 16-8-2011 issued by the 2^nd OP. Banking Ombudsman vide letter dated 15-9-2011 confirmed that the decision is not appealable and directed the complainant to approach other grievances Redressal forum/court for relief. The complainant had not withdrawn the disputed amount of Rs.10,000=00 from the ATM centre of the 2^nd OP and wrongly debited to the account of the complainant by the 1^st OP and the said entry is due to negligent act of the OPs and hence there is deficiency of service on the part of the OPs. Hence, the present complaint is filed.

3. After service of the notice, the OPs no.1 and 2 have appeared through their counsels and filed version separately.

4. The averments of the version filed by OP no.1 can be stated as under:      

The complaint of the complainant is not maintainable either in law or on facts. Except the facts expressly herein, the rest of the allegations in the complaint are not admitted by the 1^st OP, the complainant is put to strict proof of the same. The complainant is an account holder in the 1^st OP bank having SB account no.30324118810. The complainant has also availed ATM card. The ATM facility could be used with ATMs of other banks also. The complainant lodged a complaint during July 2011 that on 29-6-2011 he had withdrawn a sum of Rs.500=00 from ATM of ICICI located at RBI layout, 7^th phase, JP Nagar, Bangalore and later on when he checked the entries of his pass book he found that total sum of Rs.10,000=00 had been withdrawn through ATM transaction no.6976 on 29-6-2011. On receipt of the above complaint, on 1-7-2011 the 1^st OP herein forwarded the complainant to ICICI bank for enquiry, and in response to which the 1^st OP has been informed by ICICI that on verification as per their electronic journal log the transaction has been successful and immediately thereafter the 1^st OP has intimated the same to the complainant/customer. The allegation in the complaint regarding negligence/deficiency of service on the part of the 1^st OP is false and misleading. The 1^st OP has acted as per the records available with the ATM and as furnished by ICICI. The complainant has not produced any records to show that the ATM transaction was unsuccessfully. The request of the complainant for various clarifications was immediately forwarded by the 1^st OP to 2^nd OP for necessary action, and as there is no deficiency of service is made out against the 1^st OP, the 1^st OP is not liable to pay any amount to the complainant. Hence, it is prayed to dismiss the complaint, in the interest of justice and equity.

5. The averments of the objection of OP no.2 can be stated as under: 

The complaint of the complainant is not maintainable either in law or on facts and it is deserved to be dismissed in limine. The complainant has willfully made false allegations knowing such allegations as false with the malafide intention of securing unlawful gains. The complainant is SB account holder of the SBI at RBI layout, 7^th phase, JP Nagar, Bangalore. On 29-6-2011, the complainant swiped his SBI debit card twice for withdrawing Rs.10,000=00 and Rs.500=00 respectively at the ATM of ICICI bank ATM, RBI layout, 7^th phase, JP Nagar, Bangalore. The complainant alleges that, he has not withdrawn Rs.10,000=00 on 29-6-2011 from the ATM of ICICI layout, 7^th Phase, JP Nagar, Bangalore. On receipt of the complaint from the complainant regarding the transaction pertaining to Rs.10,000=00, the 2^nd OP has acted swiftly and initiated an internal investigation wherein it was found that the transaction of Rs.10,000=00 was indeed done by the complainant. Further OP no.2 has also shown all the relevant records to the complainant which proves that the complainant’s ATM card was swiped for withdrawing Rs.10,000=00 on 29-6-2011. The Electronic Journal is showing the transaction of withdrawal of Rs.10,000=00 by the complainant. The complainant filed a complaint before the Banking Ombudsman on 3-8-2011, and after perusal of the relevant records the banking ombudsman has confirmed vide letter dated 25-9-2011 that a successful ATM transaction of Rs.10,000=00 was carried out on 29-6-2011 by the complainant. Now the complainant has come up with the false complaint before this forum. Rs.2,500=00 lying excess in the cash tally report of ATM S1CW3691 dated 29-6-2011  does not indicate that the complainant has not withdrawn Rs.10,000=00 from the ATM of ICICI bank on 29-6-2011. The transaction of the complainant on 29-6-2011 clearly shows that the complainant was successful in withdrawing Rs.10,000=00 from the ATM counter of ICICI bank, RBI layout, 7^th phase, JP Nagar, Bangalore. The evidence provided by the OP no.2 is clear proof that the complainant’s transaction was successful. The ATM facilities are extended to the customers to facilitate easy withdrawal of money without depending on bank branches and the ATMs are all fully automated and there will not be any manual interruption. The transactions details of the ATM can be retrieved from the EJ rolls of the ATM which reflects the details of the amount dispensed, time, date, card number, declined, details. Further at the time of transaction ATM also provides the receipt of the transaction to the customers for their reference also. In the instance case also the EJ rolls of the ATM clearly shows that on e transaction was dispensed and another was retracted. Hence, the OP no.2 has not committed any deficiency of service and the complainant is not entitled for return of any amount with damages. The intention of the complainant is to make unlawful gain from the bank. Nothing on record is placed elucidating the reason behind claiming the compensation nor has been brought to the notice of the forum with regard to the deficiency of service on the part of the OP no.2. The other allegations and contentions therein are denied in toto as being false, baseless and vexatious, and any allegations or contention of the complainant not specifically denied should not be treated as admitted. Hence, it is prayed to dismiss the complaint, in the interest of justice and equity. 

6. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration.

1.                           Whether the complainant proves that, the OPs are negligent and there is deficiency of service on the part of the OPs?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

7. Our findings on the above points are;

          Point no.1:  In the Negative

Point no.2:  In view of the negative findings on the

point no.1, the complainant is not entitled 

to any relief as prayed in the complaint

          Point no.3:  For the following order

REASONS

          8. So as to prove the case, the complainant has filed his affidavit by way of evidence, and produced 16 documents with list dated 9-7-2012. On the other hand, one D.Muralidhar, Chief Manager working in OP no.1 office has filed his affidavit on behalf of the OP no.1; and one Purba Roy, Manager Legal working in OP no.2 office has filed his affidavit on behalf of OP no.2 and produced two document with list which are marked as annexure-A and B. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties meticulously. 

9. One P.S.Govind Rau s/o. Col. P.R.S.Rau, who being the complainant has stated in his affidavit that, the OPs no.1 and 2 are the banking institutions governed by the Reserve Bank of India. The 2^nd OP is functioning ATM counter at J.P.Nagar, 7^th Phase, Bangalore. The 1^st OP is having its local head office at No.65, St.Marks Road, Bangalore and the OP no.2 is having its corporate office at ICICI bank towers, Bandra-Kurla complex, Mumbai – 51, and he is a customer of the 1^st OP and he having SB account bearing account no.30324118810 with the 1^st OP. On 29-6-2011 around 6 p.m. he had withdrawn a sum of Rs.500=00 through ICICI ATM counter, RBI layout, 7^th phase, J.P.Nagar, Bangalore connected to the 2^nd OP. Subsequently, he visited his banker i.e. 1^st OP for the purpose of updating his SB account pass book and he found that there was erroneous entry of Rs.10,000=00 apart from Rs.500=00 being actual withdrawal debited from his SB account on 29-6-2011, and same was brought to the notice of the OPs by him immediately with regard to erroneously debited Rs.10,000=00 from his SB account. Though, the OPs took time to rectify the mistake occurred but failed and neglected to rectify the same, and directed him to approach the banking ombudsman., and then he approached the banking ombudsman for Karnataka at Bangalore by filing a complaint dated 3-8-2011, and the Ombudsman directed the OPs to produce the documents concerning the disputed transaction of the complainant and the OPs produced the relevant documents. The 2^nd OP admitted the excess amount of Rs.2,500=00 lying excess in the cash tally report of ATM S1CW3691 (JP Nagar) dated 29-6-2011 vide letter dated 16-8-2011 and Rs.8,200=00 lying excess in the cash tally report of ATM S1CW3691 (JP Nagar) dated 30-6-2011 vide letter dated 16-8-2011 instead of adjusting wrongly debited amount to his account, and the 2^nd OP issued a letter wrongly mentioning that the transaction was successful vide letter dated 19-8-2011 addressed. The Secretary, office of Banking Ombudsman, RBI building, Nrupatunga Road, Bangalore, Ombudsman issued a letter dated 15-9-2011 addressed to him confirming that they are not proceeding with the complaint filed by him with an observation that the decision is not appealable and directed him to approach other grievances Redressal forum/court for relief. He requested the banking ombudsman to return all the relevant original documents connected to his complaint, but he received only photocopies of the originals by registered post. He had not withdrawn the disputed amount Rs.10,000=00  from the ATM center of the 2^nd OP and it is wrongly debited to his SB account by the 1^st OP and the said entry is due to negligence act of the OPs and there is deficiency of service on the part of the OPs. Hence the present complaint is filed praying to pass an order directing the OP no.2 to pay 10,000=00 to him at 18% interest per annum and to pay Rs.10,000=00 for harassment, mental agony and cost of litigation, in the interest of justice and equity.

10. By a careful reading of the complaint and evidence of the complainant as mentioned above, it is explicitly clear that, the complainant has tendered his evidence in accordance with the averments of the complaint. Let us have a look at the relevant documents of the complainant, so as to know whether the oral testimony of the complainant is corroborated by documentary evidence or not. Sl. No.1 of the complainant’s list is the copy of balance sheet of the bank account of the complainant, wherein it is shown that on 29-6-2011 there was debit entry for Rs.10,000=00 and 500=00 through ATM of ICICI bank. Sl.No.2 is the copy of letter of the complainant addressed to the OP no1 dated 1-7-2011 stating that, no such withdrawal of Rs.10,000=00 was made on that particular day and it is great shock to him to see such entry, please address the matters at the earliest. Sl.No.3 is the copy of letter of the complainant addressed to the OP no.1 praying to provide all supporting documents as he wants to appeal. Sl.no.4 is the copy of letter of ICICI bank dated 14-7-2011 in the name of SBI stating that, the complainant wants to see the video footage of the transaction as customer contends that the said amount of Rs.10,000=00 is disputed one, though the transaction is said to be successful, so help the customer/complainant in providing the required documents. Sl.No.5 is the copy of letter of complainant dated 3-8-2011 addressed to the Banking Ombudsman requesting to address the issue of alleged withdrawal of Rs.10,000=00 on 29-6-2011 and he has enclosed all the relevant documents. Sl.No.6 is the copy of letter of the Banking Ombudsman addressed to the complainant stating that, they acknowledged the complaint sent by him, and the complainant was requested to quote the complaint number and the bank name in further correspondences. Sl.No.7 is the letter copy of the OP no.1 dated 8-9-2011 addressed to the Secretary, office of the banking ombudsman stating that, the complaint is about non dispensation of cash of Rs.10,000=00 at ICICI bank’s ATM on 29-6-2011 and ICICI bank has confirmed that ATM transaction was successful, so requested to treat the complaint as dealt with against them. The complainant has produced one letter of the ICICI bank dated 10-3-2008 addressed to the office of the Banking ombudsman stating that, the transaction in question was successful and in support of it, they are enclosing the cash tally report, certificate, Switch report and EJ for the same. Two copies of letter of the ICICI Bank dated 16-8-2011 were produced stating that amounts of Rs.2,500=00 and 8,200=00 lying excess in cash tally report of ATM S1CW3691 and ATM S1CW3691 dated 29-6-2011 and 30-6-2011 were identified and properly accounted for as appropriate. One copy of letter dated 30-8-2011 was produced by the complainant and that letter was issued to one Subhash stating that, they had received charge back from the issuing bank and the excess of 29-06-2011 for Rs.2500=00 and 30-6-2011 for Rs.8200=00 was utilized towards the card no.6220180711700190814 and card no.622018079700009642. The complainant has produced letter of Banking ombudsman dated 15-9-2011 addressed to the complainant stating that, they are not proceeding with the complaint under clause 13 (c) of the Banking Ombudsman scheme and the said decision is not appealable and he may approach any other grievances Redressal forum/court for redressal of his grievance. Last document of the complainant is the copy of letter of complainant addressed to the Banking Ombudsman stating that he is disappointed with the investigation conducted, he requested to reopen the case.

11. At this stage, it is relevant to have a cursory glance at the material evidence of the OPs no.1 and 2. One D.Muralidhar, Chief Manager working in OP no.1 bank has stated in his affidavit that, the complainant is an account holder in their bank. The ATM facility could be used with ATMs of other banks also. The complainant lodged a complaint during July 2011 that on 29-6-2011 he had withdrawn a sum of Rs.500=00 from ATM of ICICI and later on when he checked the entries of his pass book he found that total sum of Rs.10,000=00 had been withdrawn through ATM transaction no.6976 on 29-6-2011. On receipt of the complaint, the 1^st OP forwarded the complaint to ICICI bank for enquiry, and ICICI bank informed that on verification as per their electronic journal log the transaction has been successful, and the OP no.1 has intimated the same to the complainant immediately. The allegation of the complainant regarding negligence and deficiency of service on the part of the 1^st OP is false. The 1^st OP has acted as per the documents. The complainant has not produced any documents to show that the ATM transaction was unsuccessfully, and as there is no deficiency of service is made out, the State Bank of India is not liable to pay any amount to the complainant. So the complaint be dismissed.

12. So also one Purba Roy Manager Legal of the OP no.2 has stated in his affidavit that, on 29-6-2011, the complainant swiped his SBI bank debit card twice for withdrawing Rs.10,000=00 and Rs.500=00 respectively at the ATM of ICICI bank ATM, but he alleges that, he has not withdrawn Rs.10,000=00 on 29-6-2011. On receipt of the complaint from the complainant, the 2^nd OP has acted swiftly and initiated an internal investigation wherein it was found that the transaction of Rs.10,000=00 was done by the complainant, and OP no.2 has shown all the relevant documents to the complainant in this regard and the banking ombudsman has confirmed that a successful ATM transaction of Rs.10,000=00 was carried out by the complainant. Now the complainant has come up with the false complaint and the OP no.2 is not committed any negligence or deficiency of service Rs.2,500=00 lying excess in the cash does not indicate that the complainant has not withdrawn Rs.10,000=00 on 29-6-2011. The evidence provided by the OP no.2 shows that, the complainant’s transaction was successful. The main intention of the complainant is to make unlawful gain from the bank, so the complaint be dismissed.

13. The OP no.2 has produced copy of electronic journal at annexure-A, wherein it is stated that, on 29-6-20111 at 18:8 WDL cash of Rs.10,000=00 has been withdrawn by the complainant by using his card in ICICI bank ATM and on the said date at 18:12 WDL an amount of Rs.500=00 was withdrawn by the complainant and it is mentioned as cash has been taken by the complainant. Document no.2 of the OP no.2 is the copy of transaction details which is marked as annexure-B, wherein also two transactions of Rs.10,000=00 and Rs.500=00 were made by the complainant and these two transaction were successful transactions, as per the said document. The testimony of the employee of the OPs no.1 and 2 that transactions in question for Rs.10,000=00 and Rs.500=00 has become successful transaction as the said transactions were made by the complainant himself on 29-6-2011 are corroborated by annexure-A and B produced by the OP no.2. So taking into consideration, the material evidence of the complainant and compare the same with the oral and documentary evidence of the OPs no.1 and 2, it is clear that, immediately after receiving the complaint of complainant, the OPs no.1 and 2 have acted immediately and made investigation, as per records and found that transaction in question has become successful as an amount of Rs.10,000=00 was withdrawn by the complainant by using the card in the ATM of OP no.2 and provided required documents to the complainant and same has been intimated immediately to the complainant. The Banking Ombudsman has also made enquiry and has come to conclusion that, the transaction in question has become successful and they are not proceeding with the complaint of complainant. That apart from the complainant has not produced any iota of documentary evidence to show before this forum that alleged transaction of Rs.10,000=00 dated 29-6-2011 was unsuccessful transaction. Except stating oral by the complainant that he has not withdrawn an amount of Rs.10,000=00 on 29-6-2011, no scrape of paper is produced. The material evidence in relation to non drawal of Rs.10,000=00 on 29-6-2011 and entry made in the pass book in respect of alleged transaction made in the pass book is erroneous is lacking in its credibility. On the other hand, documents of the OP no.2 namely annexure-A and B go to demonstrate that on 29-6-2011, the complainant has withdrawn Rs.10,000=00 and Rs.500=00 respectively by using his card in ICICI ATM centre and transaction in question i.e. Rs.10,000=00 was successful. So viewing the case of the complainant, on the back ground of the oral and documentary evidence of both parties, we are of the considered opinion that, the oral and documentary evidence of the OP no.2 are more believable trustworthy and acted upon than the material evidence of the complainant, and thereby we inclined come to straight conclusion that, the complainant who knocks the door of the forum seeking relief has miserably failed to prove with clear cogent and consistent material evidence that, the OPs no.1 and 2 are negligent and there is deficiency of service on the part of the OPs no.1 and 2, and accordingly, we answer this point in a negative.

          14. In view of the negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is dismissed. No costs.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this the 5^th day of June 2013).

MEMBER                                 PRESIDENT