D.O.F:2/11/12

 D.o.O:30/6/2014

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                            CC.NO.294/12

                        Dated this,   the   30^th        day of June  2014

PRESENT:

SMT.P.RAMADEVI            : PRESIDENT

SMT.BEENA K.G               : MEMBER

SMT.SHIBA.M.SAMUEL    : MEMBER

Roy Antony,

Madathil Kuzhingoor Veedu,                           : Complainant

Po.Chayyoth, Via.Nileshwar

(in person)

1. The Manager, SBT,Kadumeni,

               Po.Kadumeni .(Exparte)

1. The Manager,IOB,Kasaragod Branch     : Opposite parties

                 Kasaragod

 (Adv.T.K.Kunhiraman,Payyanur)

                                                                    ORDER

SMT.SHIBA.M.SAMUEL    : MEMBER

       The gist of the complainant’s case is that he maintained an SB account in  SBT Kadumeni branch .  On 16//3/12 at about 2.18 p.m  the  complainant tried to withdraw an amount of Rs.7000/- for an emergent purpose.  But instead of Rs.7000/- an amount of Rs.1000/- was delivered to the complainant but  an amount of Rs.7000/- was debited from this account and an amount of Rs.18,676 was the available  balance after withdrawal.  Though at 2.37 p.m  the complainant again tried to withdraw  an amount of Rs.100/- but surprisingly a slip came out stating that  Dispenser failure request not serviced and thereby the complainant had  financial stringency which resulted in mental agony.  Thereafter even though he made complaint before  Ist opposite party and since  there was no response the complaint approached Ombudsman, Reserve Bank of India and Ombudsman closed the complaint with a direction to  approach the  Forum for the  redressal  for his grievance.  Therefore the complainant is liable to get an amount of Rs.6000/- and Rs.5000/- as  an amount of compensation for  his mental agony due to the deficiency  in service from the side of the 2^nd opposite party.

    Notice to opposite parties issued.  Even though it was served on Ist opposite party, he remained absent and set exparte. For 2^nd opposite party Adv.T.K.Krishnan filed vakalath and  version .  As per the  version, 2^nd opposite party had no knowledge about the details of SB account of the complainant, but he admits that the complainant has operated the ATM of 2^nd  opposite party.  The complainant had withdrawn Rs.7000/- as per automated  log journal maintained  with ATM machine the transaction was recorded as successful and Rs.7000/- was dispensed.  The 2^nd opposite party specifically  denies the allegation of the complainant that he received only Rs.1000/- against his request for  Rs.7000/- as 2^nd opposite party’s ATM has dispensed cash for Rs.7000/-, there was a failure of transaction for the request of Rs.100/-and further contended that the opposite party is neither liable to  pay any amount to the complainant nor any compensation for mental agony etc as claimed in his complaint.

3. The complainant filed proof affidavit in lieu of his chief examination.  He  was examined as PW1 and Ext.A1 to A9 marked.  Opposite party was examined as DW1 and Ext.B1 to B5 were marked.  Both sides heard and the documents were carefully perused.  The allegation of deficiency in service was raised against 2^nd opposite party.

4.   Points for consideration :

1. Whether there is any deficiency in service  from the part of 2^nd opposite party?

 2.  If so what is the relief?

5.Point No1:   While considering this point it is absolutely necessary to evaluate evidence  tendered by PW1 and the Exts.A1 to A9 were closely perused.  The main allegation of PW1 is that while he tried to withdraw an amount of Rs.7000/- he got only Rs.1000/-  But surprisingly eventhough he received  only Rs.1000/-, an amount of Rs.7000/- was debited  from his account.  Ext.A1 is the withdrawal slip for  proving the transaction of PW1.  Moreover the transaction as per evidence before the Forum is  shown as successful also.  Thereafter  on the same day itself PW1 again tried to withdraw an amount of Rs.100/- and it was failed with an  endorsement as Ext.A2 ‘ Dispenser failure request not serviced’.  As per the  testimony of PW1 while adducing evidence, the total amount outstanding  in the SB A/c of PW1prior to alleged transaction was Rs.25676/- and  after the transaction on 16/3/12 the balance amount was shown as 18676/-.  It is highly pertinent to  note that while cross examining PW1, he categorically stated that on the same day itself PW1 gave complaint before  2^nd opposite party  and the 2^nd opposite party corroborated the same during cross examination.  While perusing the exhibits, Forum convinced that PW1 never gave up his complaint, he approached  Ist opposite party as per Ext.A3 within one  week itself and thereafter gave a detailed complaint as Ext.A4.  PW1 approached Ombudsman  with a request to credit the amount which he lost and Ext.A6 is the letter issued by  Banking Ombudsman directing the PW1 to approach other Forum for redressal of his grievance since want of elaborate documentary and oral evidence and  proceedings for proper adjudication.  Hence PW1 approached this Forum. 

6.  While dealing with the  general complaints arises in case of ATM transaction in day to day  life we cannot simply close our eyes against  the usual complaints  of  faulty ATM and  amount not disbursed but debited from the account of the customers.  In the later circumstances the only available  defense left to the  disbursing bank is preservation of  CCTV footage to justify themselves from  the allegation.  Since the disputes with regard to the ATM transaction are increasing day by day ,the Customer Service Department(CSD) of Reserve Bank of India issued a communication to National Payment Corporation of India necessitating  certain  changes in the subject of ATM disputed transaction to ensure faster resolution of customer complaints.  When in case of cash  not dispensed or partial cash dispensed from the ATM, in such  scenario there is no provision for the complainant to request for the CCTV/camera images in the  complaint form for ATM disputed transaction.  In this regard  National Payment Corporation of India issued guidelines to all the member banks are advised for  references  and compliances  to make provision  in the ‘customer complaint  Form for  request of CCTV/camera images if the customer so desires at the time of submitting the complaint  from to the issuing bank’.  In such a situation the issuing bank shall upload the request for CCTV images which raising  chargeback.  In the present case the  burden is upon the shoulder of 2^nd opposite party who is the issuing bank was bound to preserve the CCTV footage in respect of  3  transaction  before and 3 transaction after  the disputed transaction  to be submitted at the time of  representment.  There is absolutely no evidence before us  that there was CCTV footage in the disputed ATM centre.  Instead of  the above compliance the opposite party has taken to a defense that since the alleged transaction was recorded as  successful, the opposite party is not liable to compensate PW1 in any manner and there is no deficiency  in service from opposite parties part.  But since the above grievance of PW1 herein is a common complaint with regard to the ATM functioning and in  such a circumstances a  specific direction was  given by the   National Payment Corporation of India to its member banks including opposite party No.2 and  opposite party No.2 is bound to preserve CCTV footage regularly.

7.   In this regard we may profitably refer to  a decision of National Commission in the case of State Bank of Patiala vs. Sumit Kumar which was reported in CPJ Dec.2013 Part 12 Vol IV held that while withdrawing amount from ATM amount was not disbursed but debited from account.  Customer care help lines either not accessible or even after access these either made to wait/follows instruction or finally disconnect conversation-deficiency in service was proved in this case.

8  Point NO.2:  In the case of PW1, he sustained  damages due to the deficiency in service  from the 2^nd opposite party.  As we know the  importance of money for the day to day life ie,  for the  basic life necessities and we all depend upon money to  conduct every  facet of our lives.  In such facet of our life, the non functioning of ATM creates so much mental agony  and other inconveniences.  Therefore we are of the opinion that  PW1 is entitled for a compensation for his loss and mental agony due to the deficiency in service on the part of opposite party.No.2 .

   In the result  complaint is allowed and opposite party No.2 here in directed to pay an amount of Rs.6000/- which was debited from his account and also directed to pay an amount of Rs.5000/- as compensation for  the damages sustained to him and Rs.3000/- as cost of the proceedings to the complainant.  Time for compliance is limited to 30 days from the date of receipt of copy of the order.

Exts.

A1- Withdrawal slip

A2- Dispenser failure request

A3-22/3/12-complaint of PW1in prescribed form

A4-written complaint  to OP1

A5- complaint to Ombudsman

A6-reply of A5

A7-acknowledgment issued by Ombudsman

A8&A9- statement of Account

B1- Statement of account

B2-copy of automated log journal

B3- AIM slip

B4-Detailsof opposite party No.2’s  ATM

B5-Cash indent

PW1-Roy Antony-complainant

DW1- Ramakrishna Rao- Op.NO.2

MEMBER                                                         MEMBER                                     PRESIDENT

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