BEFORE THE DISTRICT CONSUMER FORUM: MEDAK AT SANGAREDDY
PRESENT: SRI P.V.SUBRAHMANYAM, B.A,B.L., PRESIDENT.
SMT U.SUNITA, M.A., LADY MEMBER.
Wednesday the 25 day of March, 2009Between:CC.NO.36/2008
Mohd. Abdul Majeed S/o Mohd. Ameenuddin,
Aged: 42 years, Occ: A.R. H.C. No. 27,
R/o H. No. 5-7-114, Maqdoom Nagar,
Sangareddy town, Medak Dist.
The Chief Manager, State Bank of Hyderabad,
Branch Sangareddy, District Medak.
… Opposite parties.
This case came up for final hearing before us on 23.03.2009 in the presence of Sri. Md.. Anwar Ali, Advocate for complainant and Sri. Joshi Narayana Rao, Advocate for opposite party, upon hearing the arguments of both sides, on perusing the record and having stood over for consideration till this day, this forum delivered the following.
O R D E R( Per Sri. P.V. Subrahmanyam, President)
The complaint is filed Under Section 12 of Consumer Protection Act, 1986 to direct opposite party to pay Rs. 15,000/- to the complainant with interest at 18% p.a. from 17.08.2007 and to award compensation of Rs. 20,000/- and damages of Rs.20,000/-, as the complainant did not receive Rs.15,000/- from ATM even though Rs.15,000/- was debited from his savings bank account in connection with the said operation, due to technical defect.
The contents of complaint in brief are as follows:--2-
1). The complainant is working as A.R. Head Constable, Sangareddy. He has savings bank account in the bank of the opposite party and he avails ATM facility. On 17.08.2007 at 10:23 A.M. the complainant inserted his ATM card in the machine at the opposite party bank ATM center and operated the machine to withdraw Rs. 15,000/-, but he neither received the amount nor receipt . Immediately the complainant reported the matter to the opposite party stating that there was some technical problem in the ATM box. But no action was taken. Having waited for some time, the complainant got a legal notice issued on 19.11.2007. Opposite party sent a reply stating that there was no technical problem in the ATM box and that the complainant was successful in operating the ATM. In fact the complainant has not withdrawn the amount from the ATM and the reply is brought into existence for the purpose of this case. As responsible officer has not understood how the ATM box was not functioning ,it amounts to deficiency in service. Even though the complainant made representations and issued legal notice to the opposite party ,so far there is no response and the issue is not settled due to which the complainant faced lot of difficulties and mental agony. So the opposite party is liable to pay the lost amount of Rs.15,000/-, exemplary damages of Rs.20,000 and compensation of Rs.20,000/-. Hence the complaint.
2). Opposite party resisted the claim by filing its version to the following effect:
It is true that the complainant used the services of ATM of opposite party bank to withdraw RS.15,000/- on 17.08.2007 but deny that he approached the opposite party bank for withdrawal of the amount and further deny that after putting the ATM card the complainant neither received the amount nor receipt. They are false allegations and so denied. It is also denied that the complainant reported the matter to the opposite party that there was technical problem in the ATM box and the opposite party has not taken any action. They are all false and created story to file this complaint. A befitting reply was sent to the complainant’s legal notice. The transaction of the complainant on 17.08.2007 at 10.23 A.M. was successful, since there was no technical problem in the ATM box. The allegation of not withdrawing the amount is a false story setup up the complainant in order to extract further amount from the opposite party. The further allegations that responsible officer of opposite party bank has not understood that ATM box was not functioning and the complainant has not withdrawn the amount and therefore there was deficiency in service are all denied. It is denied that the complainant made several representations to the opposite party and that there was no response.
On receipt of notice from the complainant’s advocate, the bank officials have verified the transaction from their ATM switch center, Mumbai who informed that the transaction was recorded successfully and there was no technical problem, therefore not drawing the amount does not arise. Thus there is no deficiency in service on the part of the opposite party and hence the opposite party is not liable to pay the various amounts claimed by the complainant. The complaint may therefore be dismissed with exemplary costs.
3). Complainant’s chief affidavit is filed to prove the contents of the complaint. Like wise the chief affidavit of opposite party filed to prove the contents of the version filed on his behalf. Exs.A1 to A3 documents are marked on behalf of the complainant and Exs.B1 and B2 are marked on behalf of the opposite party. Written arguments of the complainant filed. Advocate for opposite party filed a memo to treat the version and counter affidavit of the opposite party as written arguments. Oral arguments of both sides heard. Perused the record.
4) The point for consideration is whether the complainant did not receive cash of Rs.15,000/- from ATM on 17.08.2007 and whether he is entitled to the various amounts claimed in the complaint?
5). The case of the complainant is that on 17.08.2007 at 10:23 A.M. he operated the ATM of the opposite party bank which is located at the bank itself, to receive Rs.15,000/- but cash did not come out from the ATM box and immediately he has reported the matter to the opposite party but there was no proper response and no action was taken. The opposite party admitted the transaction but denied that the complainant did not receive cash from the ATM and in fact the transaction was successful and the complainant has withdrawn cash of Rs.15,000/- in the transaction on 17.08.2007 at 10:23 A.M. In view of the rival contentions, let us now see the documents marked on either side.
6). Ex.A1 is office copy of legal notice issued by the complainant’s advocate to the opposite party through registered post and Ex.A2 is postal registration receipt. Ex. A3 is reply dt.26.11.2007 of the opposite party there to. Exs.B1and B2 are statements of complainant’s account maintained by the opposite
party bank showing the debit entry in the transaction in question with the help of ATM card and withdrawal of the amount of Rs. 15,000/- from savings account.-4-
7). The transaction dt.17.08.2007 at 10:23 A.M. is not in dispute. The learned counsel for the complainant has stated at the time of arguments that the complainant along with another went to the ATM center and operated the machine but failed to get cash from the machine and immediately the complainant has reported the matter to the opposite party but they did not take action. When the opposite party denied the contentions of complainant and stated that the complainant has withdrawn the cash and the complainant did not make any report to the opposite party about the alleged technical defect in the ATM box, the complainant, in support of his contentions, should have filed evidence affidavit of the person who accompanied him, or at least should have produced any other convincing and acceptable evidence. But the only documentary evidence produced by the complainant is notice and reply only.
8). If really the complainant did not receive cash from ATM due to technical defect in the machine, the usual conduct of a person is to report the matter immediately to the branch in which the account is maintained. Even though the complainant stated that he has reported the matter, it is only a self serving version and not supported by even evidence affidavit of his associate. Very leisurely ie. more than two months after the transaction, Ex. A1 notice was sent on 19.11.2007 which cannot be said to be normal course of conduct of a person in the given situation. It is to be observed here that the complainant is not an illiterate. He is working as Head constable. His residence is at a walkable distance from the bank in which he has account. As already stated above the ATM center is at the bank itself. It is to be further noted that 17.08.2007 is Friday ie. working day of the bank and the time of operation of ATM was 10:23 A.M. ie. almost at the beginning of the working hours of the bank.
9). In the above stated circumstances the normal expected conduct of a person is to bring to the notice of the bank manager or to any of its responsible officers about not withdrawing amount from ATM. But the complainant failed to prove that he has followed any such procedure. From the circumstances the contention of the complainant that he has not received cash from ATM in the transaction on 17.08.2007 at 10:23 A.M. cannot be believed. He has failed to prove his contentions. It is therefore held that the complainant is not entitled to
any amounts claimed in the complainant. The point is answered against the complainant.
10). In the result the complaint is dismissed. No costs.