IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 23rd day of March, 2022.
Filed on 01.10.2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.R Sholy, B.A., LL.B (Member) In
CC/No.239/2020
between
Complainant:- Opposite parties:-
Sri. Ravikumar, 1. The Manager,
11/52 A-Sivakripalayam, Punjab National Bank,
North Aryad PO., Sadar Bazar, Jabalpur- 482001,
Komalapuram, Madhyapradesh.
Alappuzha -688 538.
Ph:9407058103. 2. The Manager, State Bank of India
Kalavoor, Alappuzha.
(Party in person)
3. The Manager,
Punjab National Bank,
Mullackal, Alappuzha.
4. The Officer in charge
Information and Technology . Division, Punjab National Bank -
Circle Officce, 1227, Nepler Town,
Jabalpur, Madhyapradesh.
5. The Chief General Manager,
Punjab National Bank,
Plot No.4, Sector-10,
Dwaraka, New Delhi -110 075.
(O.Ps 1,4 & 5 Rep. by Adv.
Sri.P.K.Mathew,
O.P2 Rep.By Adv.Sri.C.Parameswaran,
O.P3 Rep by its Senior Manager)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
1. The complainant’s case briefly stated is as follows:-
Complainant is a retired defense personal and was working at Jabalpur. While so, he opened a joint SB account with 2nd opposite party M/s Panjab National Bank, Jabalpur branch. Though after retirement complainant came back to Kerala the account is still maintained. On 04.04.2020 there was a balance of Rs. 22156.02/- in the said account. At about 10.48.13 AM he approached the ATM of 2nd opposite party M/s State Bank of India at Road-mukku and withdrew an amount of Rs.10,000/- using his ATM card. He received a message showing that Rs.10,000/- was withdrawn and the balance amount in the account is only Rs.12,156.02/-. Though complainant waited for about 10 minutes the cash did not came out. Since two other persons were waiting outside to withdraw cash he came out. In the complainant’s mobile also received a message at 11.30 AM debiting the amount.
2. Immediately complainant approached SBI Kalavoor branch who is maintaining the ATM and informed non receipt of cash. However they told their inability since the account is maintained with the Panjab National Bank. Complainant requested to verify the CCTV footage. However the manager disagreed with it and requested to approach the PNB officials and even refused to accept a written complaint. Though complainant contacted the 3rd opposite party, Manager M/s PNB, Mullackal, Alappuzha he was requested to contact later. However it was informed that there will be delay in view of corona. Later complainant filed a complaint with Reserve bank of India, Trivandrum and Bhopal. Though complainant approached the banking ombudsman he was directed to follow up with the bank. On 31.07.2020 complainant received a letter from 1st opposite party stating that they had took up the matter with head office and from the details it was revealed that the transaction was successful. However since the complainant did not receive the money, the complaint is filed to realise an amount of Rs.10,000/- along with interest, Rs.3 lakhs as compensation and Rs.1 lakh as cost.
3. 4th opposite party filed version for and on behalf of opposite parties 1 and 5 also mainly contenting as follows:-
The complaint is not maintainable since it is frivolous, vexatious and scandalous. There is no defective service on the part of Panjab National Bank. It is true that complainant is holding an ATM card issued from the 1st opposite party to his SB account. On getting complaint alleging non receipt of money from 2nd opposite party the 4th opposite party took up the matter before the SBI and they rejected the complaint on the ground that transaction was successful. Demand for CCTV footage to the 2nd opposite party is not yet complied. Complainant has no cause of action with these opposite parties and hence the complaint may be dismissed.
4. 2nd opposite party filed version mainly contenting as follows:-
Complainant had availed the services of this opposite party without any consideration and hence he has no locus standi to approach this Commission. There is no deficiency of service from the part of this opposite party. The monitory transactions alleged in the complaint are between complainant and 1st opposite party and this opposite party has no role. There is no privity of contract between complainant and this opposite party.
5. Though ATM card holders of the 1st opposite party can withdraw money from the ATM counter of this opposite party no monetary benefit is passed on to the 2nd opposite party in the matter of sharing of ATM. On 04.04.2020 complainant tried to withdraw Rs.10,000/- through ATM of this opposite party and the amount was dispensed by the machine to the complainant. Subsequent to the alleged incident there was no query from complainant in this matter. The allegation that the manager of the 2nd opposite party had denied the facility to the complainant to the CCTV footage is utter falsehood and baseless. Complainant is not entitled for any relief and hence the complaint may be dismissed.
6. 3rd opposite party filed version mainly contenting as follows:-
There is no defective service from the part of this bank. On getting a complaint 1st opposite party took up the matter before SBI since the amount was withdrawn from SBI ATM. They rejected the complaint on the ground that transaction is successful. On 04.04.2020 a mail was received and this opposite party lodged a complaint with the concerned department. On 19.05.2020 complainant directly contacted this opposite party and they again sent a mail to the dealing department and the reply was duly communicated him on the next day. The compensation claimed is highly exorbitant. SBI alone will be able to produce the CCTV footage. Hence the complaint may be dismissed with compensatory cost.
7. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service from the part of the opposite parties as alleged ?
- Whether the transaction done by complainant through the ATM of 2nd opposite party was successful?
- Whether the complainant is entitled to realise Rs.10,000/- along with interest from the opposite parties as prayed for?
- Whether the complainant is entitled to get an amount of Rs.3,00,000/- as compensation from the opposite parties as prayed for?
- Reliefs and cost?
8. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A9 from the side of the complainant. Opposite parties have not adduced any oral evidence. Ext.B1 to B4 were marked from the side of opposite parties No.1,4 and 5.
9. PW1, the complainant while working in the defense opened a SB account with Punjab National Bank , Jabalpoor Branch. It was a joint account with his wife. ATM card No. 6070936056640425 was issued to the account. On 4/4/2020 there was a balance of Rs. 22,156.02/- in the said account. On the said day at 10.48.13 AM he inserted the ATM card at the SBI ATM at Roadmukku for withdrawing an amount of Rs.10,000/-. He received a message that as TXN No. 9311 Rs. 10,000/- was withdrawn and the balance was reduced Rs. 12,156.02/-. However though he waited for about 15 minutes he could not receive the cash. Immediately he rushed to the 2nd opposite party SBI, Kalavoor branch who is operating the ATM and made a complaint. They informed that since the account is with Punjab National Bank it is for them to redress the grievance. Thereafter he approached the Punjab National Bank and also filed complaint before the banking ombudsman. However he could not succeed in his attempt and thereafter on 1/10/2020 he filed this complaint claiming an amount of Rs.10,000/- along with interest from 4/4/2020 and also claiming an amount of Rs.3 lakhs as compensation. He is also claiming an amount of Rs.1 lakh as cost. Opposite parties 1 ,4 and 5 who are the officials of the Punjab National Bank filed a version admitting the account and issuance of ATM card in the account. However according to them the transaction was done at the ATM operated by SBI and so it is for them to redress the grievance. On their enquiry it was revealed that the transactions was successful and so they have nothing to do. 2nd opposite party branch manager SBI, Kalavoor filed a version mainly contenting that they have not availed any consideration for the service offered by them and so the complaint is not maintainable. It was contented that on 4/4/2020 complainant withdraw an amount of Rs.10,000/- using his ATM card and the machine dispensed the amount. Since the transaction was successful there is no deficiency in their service and so the complaint is not maintainable. Though in para.4.(b) it was contended that disputed ATM is not manned or operated by them they did not disclosed as to which is the branch operating the ATM. 3rd opposite party filed a version more over was a similar contentions with that of version filed by opposite party 1,4 and 5. It was contented that since ATM is managed by SBI, CCTV footage will be available with them and immediately on receipt of complaint they lodged a complaint with the concerned department. Since there was no deficiency in their part they also prayed for the dismissal of the complainant. Complainant got examined as PW1 and marked Ext.A1 to A9. Opposite parties did not adduce any oral evidence Ext.B1 to B4 were marked from the side of opposite parties 1,4 and 5. Complainant who was conducting the case in person filed a detailed argument note.
10. The fact that PW1 is having an SB account with the 1st opposite party M/s Punjab National Bank at Jabalpoor Branch and that an ATM card was issued in the account is not in dispute. It is also admitted that on 4/4/2020 there is a balance of Rs. 22,156.02/- and on that day PW1 went to the SBI ATM and inserted his ATM card for withdrawing Rs. 10,000/-. The transaction started at 10.45.13 AM and he received a message in his mobile phone ie, Rs. 10,000/- was withdrawn. However the amount was not received by him though he waited for 10 minutes. The evidence on record shows that PW1 was running from pillar to post to redress his complaint. Immediately after the transaction he went to the 2nd opposite party who was managing the ATM and informed the complaint and thereafter he approached the banking ombudsman. However his complaint was rejected as per Ext.A6 dtd. 15/6/2020 on a contention that complainant has to approach the concerned bank and only thereafter he can approach the banking ombudsman. Though complainant approached the officials of the Punjab National Bank they could not redress the grievance. Ext.A4( B2) is the details of the transaction of the ATM machine of SBI. TXN No. 9311 and 9314 belonging to the complainant. Relying upon Ext.A4 the complainant pointed out that though the transaction was recorded the amount did not come out. However it is noticed that TXN No. 9311 was successful and the ATM discharged Rs.10,000/-. This is clear from the remain count of notes shown in Ext.A4. Before the transaction 178 Nos. of 500 rupee notes were available in the ATM machine whereas after the transaction number of 500 notes available was only 158. It was pointed out by the learned counsel appearing for the opposite parties 1,3,4 & 5 that response code “000” means the transaction is successful. With respect to TXN.No.9311 belonging to PW1 the transaction code is “000”. So though the opposite parties were able to prove that the transaction was successful the facts remains that complainant did not get the money. As a matter of fact in every ATM CCTV cameras are available and CCTV footage will threw light to each and every transaction. Admittedly the transaction was done in SBI ATM. According to PW1 it was operated by 2nd opposite party SBI, Kalavoor branch. However in the version para.4(b) 2nd opposite party contented that it is not manned by them. But they did not disclose as to who is operating the ATM. On 1/9/2021 complainant filed IA.No.227/21 to direct the 2nd opposite party to produce the CCTV footage. On 22/2/2022 ie, on the 6th posting date the 2nd opposite party filed an affidavit stating that the said ATM is manned by SBI Town branch and not by the 2nd opposite party. It was also contended that they will keep the CCTV footage only for a period of 180 days and since the IA is filed after that period they are unable to produce the CC TV footage. Only in the affidavit filed as reply to IA.No.227/21 2nd opposite party stated that the ATM is manned by SBI, Town branch. The affidavit is seen filed on 22/2/2022. They filed a version on 1/9/2021 in which it is stated that the ATM is not operated by them but they purposefully did not disclose as to who is operating the ATM. As discussed earlier complainant is conducting the case in person and so he may not be able to know the legal terms of non jointer of parties, misjointer of parties etc. In the affidavit which was filed in reply to IA 227/21 2nd opposite party stated that since the application was filed after a period of 180 days they are not in a possession to provide the CCTV footage. But such a contention appears to be false.
11. Ext.B4 shows that on 25/11/2020 an e-mail was sent as an urgent reminder requesting to provide the CCTV footage. But the CCTV was not produced. Thereafter on 29/6/2020 a final reminder was sent on urgent basis to provide the CCTV footage but it was not provided. So the contention of 2nd opposite party in the affidavit that they were unable to produce the CCTV footage due to lapse of time is unsustainable. The learned counsel appearing for opposite parties 1,3,4 &5 contented that immediately on receipt of the complaint they requested the SBI to supply the CCTV footage but it was not provided and so there was no deficiency on their part. It was also contended that during cross examination PW1 was exonerated Punjab National Bank and so only SBI is liable.
12. In the version filed by 2nd opposite party it is contented that they are not collecting any amount for the service availed through ATM and so the complaint is not maintainable. As a matter of fact on the basis of arrangement of RBI customers are permitted to use ATMS of other banks also. The poor customer is not supposed to know as to what is the arrangements between the bank. Both Punjab National Bank and SBI are fully owned by the Govt. of India. There may be arrangements between them and the customer is not supposed to know as to what is the arrangement regarding sharing of ATM. As a matter of fact if one is using ATM for more than the allotted free service the banks are collecting amount from them. So the contention of 2nd opposite party that they are giving gratuitous service and so the complaint is not liable against them is devoid of any merits. As discussed earlier in every ATM there are CCTV cameras and the CCTV footage if produced the dispute can be easily resolved by ascertaining whether PW1 collected amount or not. I do agree that from Ext.A4 (B2) it can be seen that the transaction was successful but PW1 has not received the money. Inspite of request by the Punjab National Bank, SBI has not produced the CCTV footage if available could have easily resolved the dispute. As held by the Hon’ble Supreme Court in Gopal Krishnaji Ketkar Vs. Mohammed Haji Latif and Others. (AIR 1968 SC 1413)
“ Evidence Act, 1872 – S.114(g), S.103 – Evidence – Doctrines – Party in possession of best evidence which would throw light on the issue in controversy with holding it – Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him.”
13. Here it is true that PW1 filed IA only on 1/9/2021 for giving direction of the 2nd opposite party to produce the CCTV footage. On 21/2/2022 a reply affidavit was filed stating that they will keep the CCTV footage only for 180 days and since that period is over the CCTV footage is not accessible (available). But as pointed out by the learned counsel appearing for opposite parties 1,3,4 &5 (Punjab National Bank) immediately on receiving the complaint they requested the SBI to provide the CCTV footage. Inspite of sending reminder it was not produced and so we have no hesitation to hold that the best evidence available was suppressed by the 2nd opposite party for the best reason known to them. Hence we are drawing an adverse inference against them. As discussed earlier PW1 himself has exonerated opposite parties 1,3,4 &5 during his cross examination. According to him when contacted Punjab National Bank took necessary action and informed the matter to SBI. He is seeking relief from SBI. So on a combined reading of the evidence on record it can be safely concluded that though the transaction was successful PW1 did not get the amount. Evidence on record shows that he was running from pillar to post to redress his grievance. Whether PW1 has collected the amount or not can be easily ascertained from the CCTV footage if it was produced by the 2nd opposite party SBI. Since it was not produced an adverse inference can be drawn against 2nd opposite party. As discussed earlier complainant is a retired defense personal and he was withdrawing the amount of pension through the ATM. It is also noticed that though 2nd opposite party filed a version running into several pages they did not examine any witness to prove their case on oath. Ext.A4(B2) are with respect to the transaction of SBI ATM. Only if a witness is entering in the witness box we will get explanation regarding the transaction. Only by marking the documents it cannot be held that the documents are proved. Sufficient explanation is to be offered regarding each and every point of the transaction which is not seen done in this case for the best reason known to the opposite parties. As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
14. Hence assessing the evidence as a whole we are of the opinion that complainant did not get the money though the transaction showed as successful. 2nd opposite party has not cared to produce the CCTV footage to prove their case and so it is to be presumed that the case set up by them is not true. Hence complainant is entitled to realize the amount of Rs.10,000/- along with interest from the date of transaction ie,4/4/2020.
15. Complainant is claiming an amount of Rs. 3 lakhs as compensation on account of mental agony. The evidence on record shows that PW1 was running from pillar to post to redress his grievance. He reached the 2nd opposite party SBI immediately after the transaction and thereafter he made several correspondence with the Punjab National Bank and the banking ombudsman. However none of them could redress his grievance on a technicality that the transaction was shown as successful. In said circumstances we are of the opinion that complainant is entitled for compensation for mental agony and considering the amount involved in this case we are limiting to Rs. 10,000/-. These points are found accordingly.
16. Point No.5.
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs. 10,000/- along with interest @ of 9% per annum from the date of transaction(4/4/2020) till realization from the 2nd opposite party
B) Complainant is allowed to realize an amount of Rs.10,000/- as compensation from the 2nd opposite party.
C) Complainant is allowed to realize an amount of Rs. 3000/- as cost from the 2nd opposite party.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 23rd day of March, 2022.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/- Smt. C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Ravikumar (Complainant)
Ext.A1 - Account Particulars
Ext.A2 - Statement of Account
Ext.A3 - Account Statement for Account-0218020100107330
Ext.A4 - Letter dt.31.07.2020 from the Punjab National Bank
Regarding transaction details.
Ext. A5 - Copy of |Gmail dt.13.8.2020 from PNB to the complainant.
Ext.A6 - Letter (Gmail) dt.15.6.2020 from the Banking Ombudsman.
Ext.A7 - Complaint dt.4.4.2020
Ext.A8 - ATM Customer Advice
Ext.A9 - Message about block debit card.
Evidence of the opposite parties:-
Ext.B1 - Final Reminder from Punjab National Bank.
Ext.B2 - Transaction details
Ext.B3 - Service Request Details from PNB
Ext.B4 - Urgent Reminder from Law Section SRMO Jabalpur.
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
