F.A.No.806  OF 2013 AGAINST C.C.NO.13 OF 2012 DISTRICT FORUM NELLORE

Between:

The Chief Manager

                                                                Appellant/opposite party

Vangal S/o

Respondent/complainant

Counsel for the Appellants             M/s

Counsel for the Respondent           M/s

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE I/C PRESIDENT

                        SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

&

S.BHUJANGA RAO, HON’BLE MEMBER

 THURSDAY THE TWENTY EIGTH DAY OF NOVEMBER

                                   TWO THOUSAND THIRTEEN

Oral Order (As per Sri

                                        ***

1.            The opposite party is the appellant.  The respondent   is having savings bank account    with the appellant as also he was provided   ATM card facility.  On 31.10.2011 the respondent withdrew `15,000/- from ATM and when the respondent again attempted to withdraw the amount of `10,000/- from the ATM, it had shown that he had already crossed the limit and the transaction could not be processed.   After repeated attempts he was successful in withdrawing `5,000/-.  The balance in his account was shown as `39,925/- out of the total balance of `64,925/-.  The respondent made representation to the appellant.  The  informed that somebody on his behalf might have withdrawn the amount of `20,000/-.  When the respondent insisted for showing the photograph image the appellant informed that the not available. The respondent addressed letter to the Banking Ombudsman and as he was unsuccessful, he filed the complaint before the District Forum.     

2.             The appellant resisted the case contending that the complaint is not maintainable.  The images of the transaction No.5075 from the ATM counter are not available due to software problem.  The award of the Banking Ombudsman is reasonable.  If the ATM card was stolen and PIN was made known to other persons, money could be withdrawn.  The appellant prayed for dismissal of the complaint.  

3.             The respondent   filed his affidavit and the documents, Exs.A1 to A10.   .  On behalf of the respondent a third party affidavit of    On behalf of the appellant-bank, the Chief Manager filed his affidavit and the documents, Exs.B1 and B2.     

4.             The District Forum allowed the complaint directing the appellant to credit `20,000/- to the savings account of the respondent. 

5.            The opposite party has filed appeal contending that the District Forum recorded erroneous finding that the appellant had not proved withdrawal of a sum of `20,000/- from ATM machine even when the withdrawal of the amount is admitted by the respondent. It is contended that withdrawal of the amount from the ATM is not possible without the respondent disclosing information of PIN and the ATM card to any other person and that the respondent made several times withdrawal of the amount and he had not complained at any time. It is contended that the appellant bank cannot be held responsible in terms of the ATM guidelines.

6.             The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?

7.             It is an admitted fact that the respondent is savings bank account holder with the appellant-bank and he had availed Debit Card facility provided by the appellant-bank.  The respondent’s  case is that he withdrew an amount of `15,000/- at 10 a.m. by using ATM card and immediately he made transaction for withdrawing an amount of `10,000/- and the second time money could not be paid on account of exceeding the time limit for the day.

8.             The respondent again attempted for third time and he could withdraw an amount of `5,000/-. The balance in the account of the respondent was shown as `39,925/- instead of `64,925/- whereby there was deficit of `20,000/-.  The respondent requested the appellant-bank to show him transaction details and photo images recorded by the CC cameras and the technicians informed him that the details of transaction No.5075 and the log details were not available with the appellant-bank.

9.             The appellant’s contention is that failure of CCTV functioning does not mean that money could be withdrawn fraudulently without using ATM card and the PIN number. It is contended that in case the ATM card is stolen and video footage is available, the CCTV footage could have helped in identifying the person who had fraudulently withdrawn the amount used the ATM card.

10.            The copy of statement of account filed along with the Appeal would indicate the date as 31.12.2011.  While the copy of transaction slip issued by NCR India  was due to software problem, the “No Excess Cash Certificate’ issued by the appellant-bank would show that ‘the transaction number 5075 dated 31.10.2011 for `20,000/-   in ATM ID S10A000887021 is successful and no excess (cash) was found in the ATM’. The appellant bank has furnished the details of ATM No.5075 DT 31.10.11 for Rs.20

“we have to inform you that the details

Opening balance on 30.10.2011 was Rs.14

100 x 304200/-

500 x 1173500/-

Cash replenishment on 30.10.2011 was Rs.10

                                    100 x 1                                    500 x 9                        Closing balance as on 24

                                    100 x 404200

                                    500 x 2073500

Opening balance on 31.10.2011 was Rs.14

                                    100 x 309000/-

                                    500 x 1109000

Cash replenishment on 31.10.2011 was Rs.11

                                    100 x 100000/-

                                    500 x 1000000/-

Closing balance as on 31.10.2011 was Rs.25

                                    100 x 409000

                                    500 x 2109000/-

11.            Thus, it cannot be said that there was no withdrawal of `20,000/- from the ATM on 31.11.2011 by using the ATM card bearing number  issued to the respondent. The learned counsel for the appellant-bank has contended that as per the guidelines of the User’s Guide the appellant cannot be held liable in case of loss caused to the customer for failure of ATM to dispense or if the customer is unable to withdraw cash from the ATM for any reasons whatsoever or in case the customer is unable to avail any of the facilities offered or promised thereto. The relevant terms of the User’s Guide read as follows:

“c)       Debit to Customer’s Account :  The Bank has the authority of the Cardholder to debit the designated account of the Cardholder for all withdrawals and payments effected by the Cardholder by using the Card, as evidenced by the Bank’s records which will be conclusive and binding on the Cardholder.  The Cardholder authorizes the Bank to debt the designated account with service charges any notified by the Bank from time to time.)

(d)        Transactions:  The transactions record generated by the ATM or POS will be binding on the Cardholder and it will be conclusive unless verified otherwise and corrected by the Bank.  The verified and corrected amount will be binding on the Cardholder.

e)  Closing of Account:  The Cardholder wishing to close the   
         designated account and surrender the Debit Card will give the   
        Bank notice in writing and surrender the Card along with the 
         notice.

f)          Validity of Card:  The State Bank Gold Debit Card will be valid   for 5 years from the month and year of issue.  The month and year of expiry is preprinted on the Card.  The card is valid through to the last date of the month of expiry. 

12.            The District Forum came to conclusion that there was no withdrawal of an amount of `20,000/- on 31.10.2011 and the transaction was not successful and as such the appellant-bank was held liable to pay the amount of `20,000/- to the respondent. The appellant-bank has filed the transaction slips and copies of statement of account pertaining to the respondent besides the certificate issued by NCR India    As such the order of the District Forum is liable to be set aside. However, this Commission would expect the appellant bank to take all possible steps to find the person who made the transaction on 31.10.2011 for withdrawal of the sum of `20,000/-.

In the result, the appeal is allowed setting aside the order of the District Forum. Consequently, the complaint is dismissed.  There shall be no separate order as to costs.  

                                                                                                                                I/  PRESIDENT

                                                                                                                                             MEMBER

                                                                                                                                             MEMBER

                                                                  Dt.28.11.2013

KMK*