CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 31 ^st  day of December, 2016

PRESENT  : SMT. SHINY.P.R, PRESIDENT                           Date of filing: 16/07/2014

                  : SMT.SUMA K.P, MEMBER

                  : SRI. V.P.ANANTHA NARAYANAN, MEMBER

CC/102/2014

    Pramod.M.

    S/o.Mohanan,

    Devayani House,Panayur Post,

    Athicode, Chittur,

    Palakkad, Kerala-678552

    (By Party in person)                                              :   Complainant

                                                        Vs

1. The Manager,

      Bank of India,Polpully Shaka,

      Haritha Door#111/17,Kallukuttiyal,

      Polpully,Palakkad-678552.

  2. The Manager, Corporation Bank,

      88/305, Ist floor, West Masi Street,

      P.B.No.236,                                                  :     Opposite parties

      Madurai-625001.,

      Tamilnadu.

  3. The Managing Director,

      Corporation Bank,

      Mangaladevi Temple Road,

      Pandeshwar, Mangalore-575001,

      Karnataka.

     (By Adv.S.T.Suresh)                       

O R D E R

By Smt. Suma K.P.Member

The case of the complainant is that on 3^rd April 2014, at about 6am complainant tried to withdraw an amount of Rs.10,000/- using his debit card (5576880161006281) from opposite party1. Due to a technical fault the machine got restarted and the complainant could not receive the cash of the amount but the same was debited from his account (A/c No.01610010101026897). On confirming the current status of his account with the executive of opposite party 2, which is the complainants home branch, he was informed that the amount had been debited in his account after which the complainant had registered a complaint immediately with the bank (Claim Id No:-201404150055). On further discussions with the executives of the opposite party 1, the complainant demanded a recorded CCTV footage of that day which could prove his innocence regarding the failed withdrawal amount but the executives failed to provide him the same. On repeated follow-ups with the executives of the opposite party 1, the complainant tried to explain them that the amount of Rs.10,000/- was not received by him through the Bank of India ATM and still the bank has wrongfully debited his account. The executives failed to provide any positive response. The complainant sent a letter on 9^th June 2014 to the opposite party stating in detail about his grievance but there was no response. Hence the complainant had approached before this forum seeking an order to direct the 1^st opposite party to refund the entire amount of Rs.10,000/- which was wrongfully debited from the complainant’s account and also to pay the sum of Rs.5000/- towards the mental agony suffered by him along with Rs.1000/- towards the cost.

The complaint was admitted and notice was issued to the opposite parties for appearance. The opposite parties entered appearance through their counsel and filed their respective versions. The 1^ST opposite party contended that the complainant had stated in his complaint in Para 3 of the complaint that he had withdrawn an amount of Rs.10,000/- using his debit card from Bank of India ATM, Polpully Branch. The above admission of the complaint indicates that he has received the amount. It is quite incorrect to state that due to a technical fault the machine got restarted and the complainant could not receive the cash of the amount. Only on receiving the amount the same will be debited in the account. Once debited it means the complainant has received the cash from the ATM. The recorded CCTV footage on that day would show that the complainant has entered in the ATM on that particular day. Nothing could be seen to substantiate the claim of the complainant from the footage with regard to the non receipt of the amount from the ATM. The first opposite party denies the allegations of the complaint and states that if the amount is debited in the account their unable to do anything. The aforesaid ATM has been used by umpteen number of customers. No complaint has been received from any of the customers. The opposite parties had not replied to the letter sent by the complainant because in the lawyer notice issued, it has been stated that “ he had withdrawn an amount of Rs.10,000/- from Bank of India ATM, Madhurai Branch”. There is absolutely no cause of action the above complaint. The complainant is not entitled to any of the reliefs claimed in the complaint. Hence the complaint had to be dismissed.

The 2^nd and 3^rd opposite parties filed versions denying all the allegations in the complaint. The 3^rd opposite parties submits that they are totally unnecessary party to the above proceeding and his name has to be struck off from the party array. The contention in complaint is admitted to the extend that the particular ATM was operated using the complainant’s debit card for withdrawal of Rs.10,000/- but the added contention that while on operation and in the process the machine developed the fault and restarted and complainant could not receive the amount is totally incorrect. The incident and the process of withdrawal of amount of particulars are has been successful by the person who was operating the machine at the relevant moment. The account statement of the 2^nd opposite party’s bank will show a perfect operation of the machine till the relevant cash is tendered out from the machine without any flow. Debiting of amounts from the 2^nd opposite party’s bank standing in the name of the complainant will show actual withdrawal of the sum and the contention made in the complaint to that extend is true and correct. As far as the 2^nd and 3^rd opposite parties are concerned the required amount was available in the account and the same was availed by the customer in a clean and smooth ATM operation and in his account the same has been debited also. There is no deficiency of service on the part of opposite parties 2&3 and in the enquiry it is revealed that the operation of account on particular transaction has been successfully made and that there is no excess cash remaining undebited in the hands of 1^st opposite party after the operation of impugned withdrawal. The dispute is solely occurring between the complainant and the opposite party and they are not liable for any of the reliefs claimed by the complainant.

The complainant filed chief affidavit. The opposite parties also filed chief affidavit. Ext. A1 to A4 was marked. Ext B1 to B4 was also marked. The first opposite party filed application as IA 88/2015 to appoint an expert commissioner to view the CD and filed detailed report. The application was allowed. An advocate commissioner was appointed to view the CD and file the report. 

The complainant filed an application as IA 283/2015 to amend the complaint. Application was allowed and amendment was carried out. The complainant filed fresh chief affidavit accordingly. The commissioner filed interim report stating that the C.D. is not a continuous one but it is still photographs containing 48 pictures. In order to take all the 48 pictures he sought permission to take the CD into a private photo studio and take the copies all the 48 images (still photos). Permission was granted and the commission took 48 still photos from the CD and filed a detailed report. The 1^st opposite party filed objection to commission report. The commission report along with photos was marked as Ext. C1 series. The first opposite party filed additional affidavit and accordingly Ext. B5 was marked. Evidence was closed and matter was heard.

Issues that arise for consideration

1. Whether there is any deficiency of service on the part of opposite parties 1,2 and 3?

2. If so, what is the relief and cost entitled to the complainant?

Issues 1 & 2

We have perused the documents as well as commissioner’s report as well as documents produced from both side. From the Ext. C1 report we cannot come to a conclusion that whether the complainant had received an amount from the ATM by using it on the disputed date. The commissioner has stated that the photographs taken from the CD installed from the ATM does not reveal that whether the complainant gets any amount or not. He had also stated that the reason is that the camera is not exactly focused on the transactions taken place at ATM. The display board or the counter or the cash counter from where the cash comes out is not focused. The ATM machine itself is not photographed by the camera. The camera is focused only the sides and walls of ATM chamber. Hence he could not exactly state whether the complainant has received any amount from the ATM. Since the first opposite party had contended that the complainant had received the amount from the ATM, using in debit card, they are bound to prove the same before the forum. According to section 101 of Indian evidence act whoever desires any court to give judgement as to any legal right or liability depend on the existence of facts which he asserts, must prove that those facts exists. when a person is bound to prove the existence of any facts it is said that the burden of proof lies on that person. From Ext. B5 it is obvious that the amount of Rs.10,000/- has been debited from the complainant’s account. In normal course no prudent man shall initiate legal proceedings unnecessarily against a bank where he maintains his account. In proceedings before the Consumer Forums mere preponderance of probabilities may constitute adequate basis of the decision. What is required is that they must conduct themselves in accordance with the principles of justice, equity and good conscience. Moreover the CD produced from the part of opposite party does not reveal what was the transaction taken place at the ATM. In the above context the complaint is allowed and we direct the 2^nd opposite parties to credit an amount of Rs.10,000/- (Rupees Ten Thousand Only) to the complainants account which was wrongfully debited from his account and also to pay a sum of Rs.2,000/- (Rupees Two Thousand Only) towards the mental agony suffered by him along with the cost of Rs.1,000/- (Rupees One Thousand Only) towards the litigation expenses. The aforesaid amount shall be paid within 1 month from the date of receipt of this order failing which the complainant is entitled to get 9% interest for the said amount from the date of order till realization.

  Pronounced in the open court on 31^st December 2016. 

            Sd/-

     Smt. Shiny. P.R

                         President         

                           Sd/-

             Smt. Suma. K.P

                         Member                                                             Sd/-      

          Sri.V.P.Anantha Narayanan

                         Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1- Corporation Bank Pass Book Statement (Original)

Ext.A2- ATM withdrawal slips Polpully Branch, Chittur (2nos) (Original)

Ext.A3- Email –complaint send by Email and feed backs

Ext.A4- Courier Slips.(4nos)(Original)

Exhibits marked on the side of opposite party

Ext.B1- CCTV footage on CD produced dt:03/04/2014 of the Atm is furnished.

Ext.B2- Email communitcation copy dtd:-03/05/2014 from Madurai Street Branch (Corp Bank)

Ext.B3- Email communication copy dtd:-03/05/2014 from FTS Centre Bangalore

Ext.B4- Certificate issued by Senior Manager, Bank of India, ATM Reconciliation Centre,Mumbai.

 Ext.B5- Bank of India, Polpully Branch, Account Ledger Report on 03/04/2014

Commissioner’s Report

C1 Series- 2 Albums produced by Adv.K.Dhananjayan

Witness marked on the side of complainant

Nil

Witness examined on the side of opposite party

Nil

Cost Allowed

Rs.1000/-