Date of filing : 13.10.2017
Judgment : Dt. 28.05.2019
Mrs. Sashi Kala Basu, Hon’ble President.
This Consumer complaint is filed by Sri Ashok Kumar Thakur under section 12 of the Consumer Protection Act against opposite parties namely UCO Bank and State Bank of India alleging deficiency in service on their part.
Complainant’s case in short is that he has a Savings Bank Account with OP No.1 On or about 16.9.2013, he visited Chennai on a personal visit and owing to his necessity of money, visited a nearby State Bank of India ATM located at 6th Avenue Anna Nagar, Chennai (OP No.2) to withdraw money. He used his UCO Bank ATM Card Being No.42832007970087 to withdraw an amount of Rs.5,000/- from the said ATM Machine having an ID No.81010000800023 at about 12.53hrs. On transaction being initiated at the ATM as transaction No.9162, Complainant received only 5(five) notes which was dispensed by the said ATM Machine of OP No.2. Complainant then checked his account statement at the said ATM while using his UCO Bank ATM Card and it showed that Rs.5,000/- had been deducted from his Savings Bank Account and a receipt being transaction No. 9166 was dispensed by the said ATM. Complainant brought the matter to the notice of the guard on duty at the said ATM, who asked him to report the matter to the Regional Branch of OP No.2. Complainant when went to the Regional Branch Office, he was directed to go to Regional Branch office of OP No.1. Thereafter, on the advice of Manager of Regional Branch Office of OP No.1, Complainant reported the matter over phone to the OP No.1 on the self same day. He also submitted a written complaint to OP No.1 on his return on 18.9.2013.
Complainant tried to show that a faulty transaction had taken place but OP No.1 did not pay any heed. Thereafter, on being asked over telephone, Complainant visited the OP No.1, where he was handed over a photocopy of an email No.NFS/10589 dt.26.9.2013 from the treasury cell of the OP No.1 addressed to the Head Office of OP No.1 along with an illegible copy of a letter from State Bank. Ultimately in response to Complainant’s written complaint dated 18.9.2013, OP No.1 replied by a letter dt.10.10.2013 stating that SBI, through the transaction Banking Division of UCO Bank, had informed them that “TXN No.9162” was a successful transaction and there was no excess cash in the bin. So, your request could not be complied”. He was also not provided the CCTV footage of the transaction during the relevant time. Complainant requested for payment of Rs.4,500/- but OP No.1 did not pay any heed, thus Complaint was filed by the Complainant before DCRF Unit-I but on the ground of lack of territorial jurisdiction, complaint was dismissed. That order was challenged before the Hon’ble consumer Dispute Redressal Commission who while affirming the order passed by DCRF, Unit-I, gave liberty to the Complainant to go before the appropriate forum to agitate his grievance. Thus present complaint is filed praying to direct the Opposite Parties to return Rs.4,500/- along with interest @ 15%, to pay Rs.18,060/- towards cost of air fare incurred by the Complainant in travelling between Kolkata and Chennai in order to lodge police complaint, to pay compensation of Rs.2,00,000/- and litigation cost of Rs.25,000/-.
Complainant has annexed with the complaint petition, photocopy of transaction receipts, copy of bank account statement, copy of written complaint dt.18.09.2013, photocopy of email dt.26.9.2013 along with illegible letter of SBI, copy of letter dt.10.10.2013 sent by OP No.1, certain e-mails, copy of letter dt.28.1.2014, copy of police complaint, copy of updated Passbook, Copy of order passed by DCRF Unit-I and also the order of Hon’ble State commission.
OP No.1 has contested the case by filing written version denying and disputing the allegations made in the complaint petition contending inter alia that the ATM was of OP No.2 but Complainant did not submit any written complaint to OP No.2. No copy of e-mail dt.26.9.2013 along with copy of letter of SBI was ever handed over to Complainant by OP No.1. Savings Bank Account of the Complainant was rightly debited of Rs.5,000/- upon withdrawn from the ATM, by the Complainant and the statement annexed thereto is correct. Concocted story of short payment was verified and checked repeatedly by the concerned department of nationalized banks and found that the transaction was successful and no excess cash was found in the bin. So, the OP No.1 has prayed for dismissal of the case.
OP No.2 did not take any step on service of notice and thus case proceeded ex-parte against it.
During the course of evidence complainant and OP No.1 filed their respective affidavit in chiefs followed by questionnaire and reply thereto.
Both parties advanced their arguments and also filed written notes of argument.
OP has relied upon decision of Hon’ble State Consumer Dispute Redressal Commission , West Bengal, in First Appeal No.FA/889/2014 wherein decision of Hon’ble NCDRC in R.P.No.3182 ot 2008 (State Bank of India VS K. K. Bhalla), is also referred and another case law of Hon’ble NCDRC reported in 2015(1) CPR 143(NC).
Complainant on the other hand has relied upon the case law of Hon’ble SCDRC in FA/127/2010 (State Bank of India VS Sgt Hariom Tiwari).
So, the following points require to be determined:-
1) Whether there has been deficiency in service on the part of the opposite parties?
2) Whether the Complainant is entitled to the reliefs as prayed for?
Decision with reasons
Point No.1 & 2
Both the points are taken up for a comprehensive discussion in order to avoid repetition.
Admittedly, Complainant has savings bank account with the OP No.1 and on 16.09.2013 Complainant used the ATM Card of the UCO Bank/OP No.1 to withdraw an amount of Rs.5,000/- from an SBI ATM located at Anna Nagar, Chennai. However, according to Complainant on the transaction being initiated at ATM being transaction No.9162, Complainant got only 5 notes of Rs.100/- instead of Rs.5,000/- and when he checked his account statement it showed that Rs.5,000/- was deducted from his account. The transaction being No.9162 and for balance enquiry transaction No.9166 is also an admitted fact.
It is true that no withdrawal from ATM can be made unless ATM Card/Debit Card issued to the account holder is inserted in the ATM machine followed by use of ATM Pin provided to the customer and ATM Pin is only known to the customer and it is not possible for a third person to withdraw any cash through ATM. But, in this case Complainant is claiming short payment. It is not his case that he did not at all use his ATM Card but amount has been shown to have debited from his account. According to him transaction was made by him for Rs.5,000/- but he got only Rs.500/- (Five notes of Rs.100/-). So, the case laws referred to above cited by the Ld. Advocate for the OP No.1 will not be applicable in the given facts and situation of this case as in those cases Complainant had denied using of ATM Cards but deductions was made from their saving bank account.
Complainant in this case has mainly emphasized that it was a faulty transaction. There may have some fault in the ATM machine for such short payment. He has also informed to the OP that he was the first person to operate the machine after cash loading. In support of his claim that there was faulty transaction, Complainant has filed detail statement of transactions from the said ATM Machine on 16.9.2013. On perusal of this statement which is annexed with the complaint (Running page 26 and 27) that after transaction No.9162, 9163 there is transaction No.9165. Transaction No.9164 is missing. This document strengthens the argument about faulty transaction especially as the said document has not been disputed by the OP No.1 that it was not the correct statement.
It may be pointed out that an ATM Machine of any bank will not dispense any money to any person using his ATM Card at the said ATM unless and until the said transaction request is authorized by the bank, where the person has a bank account. So, in this case, the transaction transfer was authorized by the OP No.1 without which no transaction could take place. OP No.1 has stated in reply to the questionnaire by the Complainant that if any actual shortage takes place in withdrawing money from ATM it will immediately inform the account holder through SMS about such short disbursement and if the Complainant case being genuine and bona fide he should have annexed the screen shot of the SMS which he had received after withdrawal.
But, it has been submitted that the Complainant did not receive any such SMS alert. It is argued that at the relevant time Complainant account did not have such provision of getting SMS alert. OP also did not file any document in order to substantiate that Complainant’s Mobile number was linked with his said saving account and was getting SMS alert about crediting or debiting of amount from his account.
Even though Complainant has stated that he asked for C.C.TV footage of ATM during relevant time and the same has not been provided but in this case best evidence would have been the transaction register or the document showing how much money was kept in the ATM machine on the relevant date of occurrence. Opposite parties are in the possession of the said relevant register. From the said document it would have been evident how much money was kept in the ATM machine and how much money remained unused in the said ATM MACHINE. But, for the reason best known to the OP No.1, no step was taken for production of the said document. So, it can safely be said that the said document has been withheld.
The letter dt.10.10.2013 of the OP No.1 stating that SBI, through the ATM Transaction Banking Division of UCO Bank informed that TXN. No.9162 was a successful transaction and there was no excess in the bin, cannot be said to be sufficient especially when related document to this effect as referred to above has not been filed.
Even though not of much relevance to the case but the statement of account of the Complainant indicates that during the relevant period of occurrence, he had Rs.11,40,748/- in his said account. Complainant is fighting for the redressal of his grievance since 2013 for an amount of Rs.4,500/- which also suggests genuineness of the claim of Complainant.
On consideration of the order passed by DCRF Unit-I in earlier complaint and then the order by the Hon’ble State Commission, argument of OP that the case is barred by law of limitation, has no substance.
So, on consideration of the discussions as highlighted above, there has been deficiency in service on the part of the opposite parties and thus they are jointly liable. Complainant is entitled to the amount of Rs.4,500/- along with interest @ 12% p.a. from 16.9.2013. However, since interest is allowed, there is no justification to allow compensation as prayed. So far as return of the air fare, there is no material that complainant had gone exclusively to lodge the police complaint, and it was not a personal visit. So, the same is also not allowed.
These points are thus answered accordingly.
Hence
Ordered
CC/570/2017 is allowed on contest against Opposite Party No.1 and ex-parte against opposite party No.2. Opposite parties are directed to pay Rs.4,500/- to the Complainant along with interest @ 12% p.a. from 16.09.2013 to till this date within 60 days from the date of this order. They are further directed to pay litigation cost of Rs.10,000/- to the Complainant within the aforesaid period of sixty days failing which the entire sum shall carry interest @ 12% till realization.
