CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 30th July, 2016
PRESENT : SMT. SHINY.P.R, PRESIDENT
: SMT. SUMA. K.P, MEMBER Date of filing : 31/1/2014
: SRI.V.P.ANANTHA NARAYANAN, MEMBER
CC /16/2014
Suresh Kumar alias Suresh,
S/o.Kumara Menon,
Residing at Gopa Sadanam, Puduppariyaram Amsom,
Muttikulangara, Palakkad, Palakkad Taluk : Complainant
(By Adv.P.Ratnavally)
Vs
1. The Regional Manager, : Opposite parties
UCO Bank, Zonal Office,
Ravipuram, Ernakulam.
2. The Manager, UCO Bank,
Big Bazaar, Palakkad
(By Adv.Mohanram)
O R D E R
By Smt. Suma. K.P, Member,
The complaint is filed seeking compensation for the injuries alleged to have been sustained to the complainant while trying to operate the ATM counter of UCO Bank, Big Bazaar, Palakkad on 17/10/2013. The specific case put forwarded by the complainant is as follows. On 17/10/2013 at 5.30 p.m, the complainant entered the ATM counter of the UCO Bank, situated at Big Bazaar, Palakkad by opening the glass door of the ATM counter. On entering the ATM room, when the complainant was standing in front of the ATM Machine to draw money, suddenly the complainant heard a big sound from the glass door of the ATM counter, which facts has been recorded in the CCTV fixed in the ATM room. On hearing a big sound the complainant was greatly frightened and without completing the process of drawing money immediately stepped out from the ATM counter to save his life. In the meanwhile, before he could stepped out of the ATM room, the glass door was broken automatically and fell down on the body of the complainant causing serious cut injuries including vein injuries in his left forearm and hand. Immediately the complainant was taken to the SAI Hospital, Olavakkode by the people who gathered in the accidental spot, but the injuries being very serious he was referred to Malabar Hospital, Palakkad. When the complainant was taken to Malabar Hospital, they on seeing the grievous nature of the injuries, referred to Global Speciality Centre, Coimbatore for better treatment. The complainant was treated as inpatient and operation was done on 18/10/2013 in the said hospital. Wound debridement, muscle and tendn repair was done and he was discharged with the advice to take complete rest till 31/11/2013. The complainant was also advised by the doctor to undergo physiotherapy to his left forearm and left hand for four to six weeks from 14/11/2013 until his hand recovers functionally well. Eventhough the complainant had undergone physiotherapy for six weeks from 14/11/2013 as advised, the flexible and free movement of the left hand still remains impossible and the complainant is even now undergoing treatment of the local doctors. The complainant is subjected to severe pain and dislocation and disability in his left hand which is the direct result of the injuries sustained in the said accident, which is absolutely on account of improper maintenance of the ATM counter by the opposite party. Had the door of the ATM counter been properly maintained, this incident would not have occurred. The complainant has already spent more than 1 lakh rupees for treatment and still more amounts are required for future treatment. The complainant requires further treatment, as he was not fully recovered from disability caused to him. He is subjected to great mental agony by this, as he is unable to attend his agricultural work and related matters, besides his family and personal affairs. From the date of accident he is handicapped to attend his things. He has claimed for a sum of Rs.5 lakhs as compensation.
Upon notice from the Forum the opposite parties entered appearance and filed version disputing the allegation put forward by the complainant. According to the opposite party there is no deficiency of service on their part. The ATM counter and its doors are properly maintained by the opposite party. Infact the complainant has tried to open the glass door without pressing the switch for opening the door, which is closing automatically when one enters the ATM counter. He has applied exorbitant force on the glass door for opening the same without applying the switch meant for opening the door. The exorbitant pressure used by the complainant for opening the door has resulted in breaking up of the glass door and a piece fell on the left hand causing injuries. Immediately after the accident, the bank officials made enquiry at three hospitals where he was reportedly admitted, but could not find him there. The accident has occurred due to the negligent and reckless handling of the ATM counter door by the complainant which has resulted in great loss for the opposite party. There was no mechanical defector lack of proper maintenance for the glass door of the ATM counter. The true facts of the case is recorded in the closed circuit camera, connected inside the ATM counter. It is clear from the scenes of the CD that the glass door has broken due to the exorbitant pressure used by the complainant on the door, to open the same. There is no deficiency of service on the part of the opposite parties and hence the complaint has to be dismissed.
Complainant filed application as IA 126/14 to examine Dr.Koya as a witness to prove the disability of the complainant. Application was allowed . Witness was summoned and examined as PW2 and disability certificate issued was marked as Ext.A10. Complainant filed chief affidavits along with documents. Opposite party filed application seeking permission to cross examine complainant. Application was allowed. The CD containing the scenes with regard to the incident recorded in the
CC camera was produced by the opposite party. Opposite party filed application for appointment of Adv.Commissioner to view the CD and to submit a detail report with regard to the incident. Application was allowed. Adv.Commissioner was appointed to view the CD and commissioner examined the CD and filed a detailed report which was marked as C1. Complainant filed objection to the Commissioner’s report. Complainant was examined as PW1. Ext.A1 to Ext.A14 series was marked from the part of the complainant. On the part of the complainant an independent witness was examined as PW3. Opposite party also filed chief affidavit. Complainant filed application as IA 163/15 seeking permission to cross examine the Commissioner and also the opposite party Manager. Application was allowed and Commissioner was examined as CW1. CD was marked as Ext.X1. Opposite party was examined as DW1. Opposite party filed affidavit of a witness who has recorded the CC TV Scenes as CD. Witness was also cross examined as DW2. Evidence was closed and the matter was heard.
The following issues are to be considered.
- Whether there is any deficiency of service on the part of the opposite parties?
- If so, what are the reliefs and cost?
ISSUES 1 & 2
We had perused the affidavit as well as documents filed the Forum. The CD containing the scenes from the CCTV, was produced before the Forum and an Advocate Commissioner after viewing the CD has filed a detail report . The report says that there are 62 clippings dated. 17/10/2013 starting from 16.37.33 hrs. The Commissioner has clearly stated that in the clippings he has seen the complainant entering in to the ATM counter after inserting the card in the card reader. In the report it is narrated as follows.
“16.37.33 എന്ന സമയത്ത് തുടങ്ങിയ വീഡിയോ ക്ലിപ്പിങ്ങില് ഹരിജിക്കാരന് ATM Counter- ലേക്ക് വരുന്നതും പേഴ്സില് നിന്നും കാര്ഡ് എടുത്ത് ATM Counter- ന് പുറത്തുള്ള കാര്ഡ് റീഡറില് ഇട്ട് വാതില്തുറക്കുകയും ഉള്ളിലേക്ക് കടന്ന് കയ്യിലുള്ള ബാഗ് സൈഡില് വെച്ച് ATM machineന്റെ അടുത്തു നിന്ന് പേഴ്സ് അരയില് വെക്കാന് ശ്രമിക്കവേ പെട്ടന്ന് തിരിഞ്ഞ് നോക്കുകയും വാതില് തനിയെ അടഞ്ഞതായി കണ്ട് ടിയാന് രണ്ടു വിരല് (ഇടതു കൈ) കൊണ്ട് ഡോറിന്റെ ഹാന്റില് പതുക്കെ വലിക്കുകയും തുറക്കാത്തതിനാല് ഇടത്തേ കൈകൊണ്ടുതന്നെ രണ്ടാമതും കുറച്ച് pressure കൂട്ടി ഡോറിന്റെ ഹാന്റിലില് പിതിച്ച് വലിക്കുകയും മൂന്നാമത് കൂടുതല് ബലത്തില് ടി ഹാന്റിലില് പിടിച്ച് വലിക്കുകയും ടി ഹാന്റിലിന്റെ തൊട്ടു മുകളില് ആയി ഗ്ളാസു കൊണ്ടുള്ള ഡോര് cross ആയി പൊട്ടുകയും ആയത് പരാതിക്കാരന്റെ കൈയിലേക്ക് വീഴുകയും ടിയാന് പരിക്കേല്ക്കുകയും ചെയ്യുന്ന ദൃശ്യങ്ങള് ടി clippingല് ഉള്ളതാണ്. പരാതിക്കാരന് ഡോര് തുറക്കുന്നതിനുള്ള, ഡോറിന്റെ അരികിലായി പിടിപ്പിച്ചിട്ടുള്ള pressing button press ചെയ്യാതെയാണ് ഡോര് തുറക്കാനായി ഹാന്റില് പിടിച്ചുവലിച്ചിട്ടുള്ളത . വാതില് പരാതിക്കാരന് അകത്തു കയറി തനിയെ അടഞ്ഞ് രണ്ട് സെക്കന്റ് കഴിഞ്ഞതിന് ശേഷം ആണ് പരാതിക്കാരന് പിന്തിരിഞ്ഞ് ഡോറിലേക്ക് നോക്കുന്നതും ഡോര് തുറക്കാന് ശ്രമിക്കുന്നതും”.
It is clear from the report that the complainant had not pressed the switch meant for opening the door. Once the door is automatically closed after entry of the customer and if the customer wants to get out of it he has to press the switch before opening the door. The Commission Report makes it clear that it is because of the exorbitant force applied on the glass door without applying the switch to open the door, he has pulled it using force which had resulted in breaking up of glass door and the piece of glass falling on his left hand. The complainant has disputed the genuineness of the CD produced by the opposite party stating that CD produced is a concorted and fabricated one and not a true version of what is recorded in CCTV. The opposite party had examined the Branch Manager who is the authorized custodian of the CCTV and the person who has recorded the CD. His evidence will go to show that he had copied the scenes recorded in the CCTV to a pen drive and the same was entrusted at an internet café to get it copied on a CD. During examination the complainant had deposed that he had pressed the switch meant for opening the door but it was not functioning. But this fact was not stated either in the complaint or in the affidavit filed by the complainant. The complainant had specifically admitted that the entire incident has been recorded in the CCTV. To prove that the ATM Counter was not maintained properly the complainant had examined an independent witness . During cross examination he had stated that he had not given any written complaint to anybody with regard to the functioning of the door. He could not also explain in the defect he had experienced while operating the ATM counter. PW2 has also admitted in cross examination that he cannot say how the accident has happen and what was the cause for the same. PW1 and as well as PW2 has admitted in evidence that pressing button is installed in the door of the ATM counter to open the door. During cross examination PW1 has deposed that when he was standing in front of the ATM machine to operate the same, he heard a sound.
“A T Mന്റെ frontല് ഓപ്പറേറ്റ് ചെയ്യാന് നില്ക്കുമ്പോഴാണ് പൊട്ടി വീഴുന്ന ശബ്ദം കേട്ടത്. Glass പൊട്ടി വീഴുന്ന ശബ്ദമാണ് കേട്ടത്. അതിന് ശേഷം ഓപ്പറേറ്റ് ചെയ്യാതെ തിരിഞ്ഞ് ഡോറിന്റെ അടുത്തേക്ക് വന്നത്. A T Mഉും doorഉം തമ്മില് നാലടി ഉണ്ടാകും” he has further deposed that “ ഞാന് ഡോര് തുറക്കാന് ശ്രമിക്കുന്നതിനു മുമ്പ് ഗ്ലാസ് പൊട്ടി വീണതാണ്”.
It is very clear from the commission report that the glass door was broken horizontally just above the handle bar switched on the glass door. He has specifically mentioned that no cracks could be visible on the glass door prior to the incident. This is a very conclusive evidence probablising the case that the glass door was broken when the complainant applied force on the handle to open the door without pressing the button meant for it. From the facts narrated above only possible inference that can be drawn by this Forum is that the complainant had also contributed to the accident that has occurred. According to the opposite party the accident has occurred due to the negligent and wreck less handling of the ATM counter door by the complainant. The opposite party had submitted that there was no mechanical defect or lack of proper maintenance for the glass door of the ATM counter. But the dictum laid down in 2001 KHC 3355 it is stated that technical rules of evidence does not apply in proceedings before the consumer forums. Mere preponderance of probabilities may constitute adequate basis of the decision. The rigour of the rules of evidence contained in the Evidence act is not applicable to proceedings before the consumer forum constituted under the act. What is required is that, they must conduct themselves in accordance with the principles of justice equity and good conscience. Even if the complainant had also contributed for the negligence and the accident, it is an admitted fact that he has sustained injury and had attained disability for a certain period. He had to meet the hospital expenses also. According to the complainant if toughened glasses was used in the ATM doors the possibility of breaking down would not have occurred. Even if the complainant had applied exorbitant force cracks will occur on the glass and will not have fallen down.
In the light of the above discussions the complaint is allowed in part. The opposite party is directed to pay Rs.3,000/- (Rupees Three Thousand only) for the mental agony suffered by the complainant on account of the said incident and Rs.2,000/- (Rupees Two Thousand only) as cost of this litigation. The aforesaid amount shall be paid within one month from the date of receipt of this order failing which complainant is entitled to get 9% interest for the whole amount from the date of order till realization.
Pronounced in the open court on this the 30th day of July, 2016.
Sd/-
Shiny.P.R
President
Sd/- Suma. K.P
Member
Sd/-
V.P. Anantha Narayanan
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1 –Copy of Receipt dtd.25/10/2013 issued by Palakkad Town North PS
Ext.A2 – Paper cutting from Malayala Manorama Daily dtd.18/10/2013 regarding the ATM accident (Original)
Ext.A3series – Copy of Lawyer notice dtd.6/12/2013 issued by complainant’s Advocate to the OP with two acknowledgement cards (Original).
Ext.A4 - Medical Prescription from Sai Hospital, Olavakkode dtd.17/10/2013 (Original)
Ext.A5- Discharge summary from Global Speciality Hospital, Coimbatore dtd.18/10/2013 (Original)
Ext.A6- Treatment Certificate from Dr.A.Ragu, Global Speciality Hospital, Coimbatore dtd.13/11/2013 (Original)
Ext.A7- Certificate from Physiotherapist, Paalana Hospital, Palakkad dtd.30/12/2013 (Original)
Ext.A8 series- Medical bills (28 nos)
Ext.A9- Physiotherapy bills Rs.975/- from Paalana Hospital, Palakkad
Ext.A10- Disability certificate of Dr.Koya, Malabar Hospital, Palakkad dtd.01/4/2014
Ext.A10(a)- Discharge summary from Global Speciality Hospital, Coimbatore dtd.18/10/2013 (Photocopy)
Ext.A11- Receipt of Travelling expenses Rs.17,000/-
Ext.A12-True copy attested pass book account No.1509155000046333
Ext.A13- True copy attested ATM card copy
ExtA14 series – Clippings of the ATM Counter 7 nos and CD.
Witness marked on the side of complainant
PW1- Suresh Kumar.K
PW2-Dr.Y.N.Koya
PW3-V.M.Peethambaran
Exhibits marked on the side of opposite party
X1- CD containing the scenes recorded by the CC Camera installed inside the ATM Counter
Witness examined on the side of opposite party
DW1-V.R.Ganesh
DW2-Sivasubramanyam
C1- Commission Report (Adv.T.V.Pradeesh)
CW1- Adv.T.V.Pradeesh
Cost Allowed
Rs.2,000/- as cost.
