This complaint coming up before us for hearing on 16-06-14                                in the presence of Sri K. Srinivasa Rao, advocate for complainant                         and of Sri L. Bala Koteswara Rao, advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-      The complainant filed this complaint under section 12 of the Consumer Protection Act seeking reimbursement of Rs.15,000/-; Rs.50,000/- towards mental agony, pain and suffering besides costs of Rs.5,000/-.

2.   In brief the averments of the complaint are these:

          The complainant is having savings bank account with the opposite party along with the facility of ATM card.   On 21-06-13 at 16:53 hours the complainant went to the SBI ATM counter in Piduguralla where two ATM machines were installed in the same roof.   The complainant had a sum of Rs.31,020/- to his credit vide transaction No.1322.   The complainant withdrew Rs.15,000/- at 16:54 hours and received advice showing available balance as Rs.16,020/- under transaction No.1323.  The complainant again at 16:55 hours made another transaction for withdrawal of Rs.15,000/- through the same machine.   The customer advice was shown as blank against the withdrawal column and available balance column vide transaction No.1324.   The complainant received the same advice when tried again through the same machine vide transaction No.1325.   Subsequently, the complainant made transaction at 17:01hrs and 17:02hrs through the 2^nd ATM machine situated under the same roof vide transaction numbers 9762 & 9764 respectively.   On both occasions the complainant received customer advice with an endorsement “Unable to process-inconvenience is regretted –kindly contact your branch. “ The complainant made another transaction from the 1^st ATM machine at 17:05 hours vide transaction No.1332 and obtained a mini statement of his account and it showed the balance as Rs.1020/- only showing withdrawal of Rs.15,000/- twice on 21-06-13.   In fact the complainant withdrew Rs.15,000/- only from the 1^st ATM machine at 16:54 hours.   The complainant on 21-06-13 approached the opposite party and gave a written complaint who in turn promised to rectify the error at the earliest possible.   The complainant when obtained entries in passbook came to know about the alleged withdrawal of Rs.15,000/- on 21-06-13 from the ATM vide transaction No.9754.   The opposite party did not furnish the customer advice showing transaction made from that particular ATM card, location of ATM machine and balance amount.  The complainant with a fond hope waited for about six months and his efforts became futile.   Inserting ATM machines which were not functioning properly amounted to deficiency in service.   The opposite party though received notice kept quite without giving any reply.   The complainant suffered a lot mentally and financially due to the above attitude and behaviour of the opposite party.   The complaint therefore be allowed.

3.   The contention of the opposite party in nutshell is hereunder:

          The complainant is its customer and is having savings account with it along with the facility of ATM card.   The opposite party installed two ATM with ID Nos.S10A 002783001 & S10G002783002 under the same roof for customers use.   On 21-06-13 the complainant used both the ATMs installed in the ATM centre and successfully withdrew Rs.15,000/- twice.    The complainant on 21-06-13 gave a complaint to the opposite party expressing the said grievance.   Manager of the opposite party made immediate enquiries with the help of technical manager of ATM and perused log records of ATM .In the enquiry it had became clear that the transactions of the complainant were successful.   The opposite party informed the same to the complainant and as such did not given any reply.   The complainant withdrew RS.15,000/- vide transaction No.1323 at 16:54  through the 1^st ATM and another sum of Rs.15,000/- on 16:55 hours vide transaction No.9754 through  the second ATM machine with ID Nos. S10A 002783001 & S10G002783002 respectively.   The complainant filed this complaint with false allegations to have wrongful gain.   There was no defect in the ATM machines maintained by the opposite party bank.   The opposite party did not commit any deficiency in service.   The complaint therefore be dismissed.

4.  Exs.A-1 to A-11 and Exs.B-1 to B-18 on behalf of the complainant and opposite party were marked. 

5.   Now the points that arose for consideration in this complaint are:

          1.  Whether the ATM machines installed by the opposite parties were               not functioning properly and if so amounted to deficiency of service?

2.  Whether the complainant is entitled to compensation and if so                                   to what amount?

          3.  To what relief?

6.   Admitted facts in this complaint are these:-

          1.   The complainant is having SB A/c with the opposite party vide                         account No.32115566373 with ATM card facility.

          2. The opposite party installed two ATM machines under the same roof                  with ID Nos.S10A 002783001 & S10G002783002.

          3.  The complainant on 21-06-13 itself approached the opposite party                             expressing his grievance.

          4.   The complainant withdrew Rs.15,000/- successfully vide                                 transaction No.1323 at 16:54 hours through 1^st ATM machine                     bearing No. S10A 002783001 Ex.A-2(=B3).

7.  POINT No.1:-   Ex.B-1, B-7 to B-11, B-13, B-14, B-16, B-17 did not relate to the ATM card of the complainant.   It is also the case of the complainant that he put both the ATM machines to use on 21-06-13.

8.      It is the specific contention of the opposite party that the complainant withdrew another sum of Rs.15,000/- at 16:55 hours by using the 2^nd ATM machine vide transaction No.9754.   The complainant filed Exs.A-5 and A-6 to show that he put the 2^nd ATM machine to use at 17:01 hours and 17:02 hours vide transaction No.9762 and 9764.  On the other hand, the opposite party filed transactions of the 2^nd ATM machine vide transaction No.9751, 9752 and 9754, 9756 and 9757 (Exs.B-13 to B-17).   Out of them Exs.B-15 alone pertains to the ATM card of the complainant vide 4591510035803787 (transaction No.9754).

9.   The entire evidence on either side was based on documentary evidence generated through ATM machines or attested copy of journal record filed by opposite party said to have been maintained by its head office. It is not the case of the complainant that he used the second ATM machine bearing No.S10Gn002783002 at 16:55 hours.   On the other hand, the learned counsel for the complainant contended that the complainant cannot use both the ATMs at 16:55 hours.   In Exs.A-1 to A-7 or Exs.B-1 to B-17 duration in seconds was not noted.   Unless the complainant put his ATM card in the 2^nd ATM machine located under the same roof the transaction covered by 9754 (Ex.B-15) could not have been generated.   It is also not the case of the complainant that he used the 2^nd ATM machine at 16:55 hours but could not withdraw the amount. 

10.      On 24-06-13 itself the authorities of opposite party bank endorsed on Ex.A-8 about the complainant withdrawing Rs.15,000/- vide transaction No.1323 through the 1^st ATM machine and another sum of Rs.15,000/- vide transaction No.9754 through the 2^nd ATM machine.   The contention of the complainant that the authorities did not act immediately falls to ground.                  In State Bank of India vs. K.K. Bhalla 2011 (2) CPR 26 (NC) it was held:

It is not in dispute that the ATM card was issued to the respondent and that he had kept the card in his safe custody.   Thus, no one had access to it nor was it ever missing.  Further, only the respondent was aware of the special four digit PIN number which is essential to operate the ATM card.   Despite all these facts, learned Fora below ruled in favour of the Respondent only on the grounds that the CCTV footage which was required in respect of ATM transactions was not made available and this was a major lapse on the part of the Petitioner/Bank since it breached the security and safety in ATMs and was thus, clearly a deficiency in service.

We are not convinced by this reasoning of either the District Forum or the State Commission, particularly, in view of the fact that merely because the CCTV was not working on those dates and its footage was thus not available, does not mean that the money could be withdrawn fraudulently without using the ATM card and the PIN number.   In case the ATM card had been stolen or the PIN number had become known to persons other than ATM card holder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card.   In the instant case it is not disputed that the ATM card or PIN remained in the self-custody/knowledge of the respondent.   In view of elaborate procedure evolved by the petitioner/Bank to ensure that without the ATM card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, we find it difficult to accept the Respondent’s contention.   No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM card or the PIN number fell in wrong hands.”

  In the instant case the complainant used both ATM machines located under the same roof on 21-6-2013.   As already observed unless the complainant inserted his ATM card in the 2^nd ATM machine at 16:55 hours it ought not have generated the transaction covered by Ex.B-15. Under those circumstances, the deficiency in service as contended by the complainant could not be accepted.   We therefore opine that the opposite party did not commit any deficiency in service and answer this point in favour of the opposite party.

11.  POINT No.2:-   In view of above findings the complainant in our considered opinion is not entitled to any compensation.   We therefore answer this point against the complainant.

12.   POINT No.3:-   In view of above findings, in the result the complaint is dismissed without costs.

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 20^th day of June, 2014.

   Sd/-XXX                                  Sd/-XXX                               Sd/-XXX

   MEMBER                                  MEMBER                              PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:  

                                                                                                 Sd/-XXX

PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.