KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 503/10
JUDGMENT DATED : 30.12.11
PRESENT:
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
Rajendran K.B., presently Branch Manager,
Kozhuvallur Branch,
State Bank of Travancore, : APPELLANT
Represented by Manager,
State Bank of Travancore,Kallai Branch,
Kozhikode.
(By Adv. M. Nizamudeen)
Vs
Bindu Anoop, W/o. Anoop Kumar,
Karuppali House No. M26,
A.14, Malaparamba Housing Colony, : RESPONDENT
Calicut – 673 009.
(By Adv. Suja, amicus curiae)
JUDGMENT
SHRI.S. CHANDRA MOHAN NAIR: MEMBER
This appeal is filed by the opposite party in CC No. 137/07 before the CDRF, Kozhikode who is aggrieved by the order dated: 30.7.10. As per the impugned order the appellant is under directions to refund to the complainant a sum of Rs.10,000/- with compensation of Rs.1,000/- and cost of Rs.5,00/- within 1 month from the date of receipt of the order.
2. The case of the complainant before the Forum was that she was an account holder of the opposite party bank and that she was provided with an ATM Card and that after opening the account, she had deposited a total sum of Rs.46,000/- in her account and that on 18.3.07 when she took a mini statement of the SB account, it was seen that an amount of Rs.10,000/- was withdrawn from the complainant’s account on 16.1.07. She had alleged that though she had made a complaint regarding the withdrawal of Rs.10,000/-, the opposite party did not refund the amount and though a lawyer notice was sent it was not responded by the opposite party. Alleging deficiency in service and unfair trade practice, the complainant prayed for directions to the opposite party to refund Rs.10,000/- with interest and compensation.
3. The opposite party resisted the complaint by filing version wherein it was submitted that the complainant had withdrawn the sum of Rs.10,000/- on 16.1.07 using the ATM card and that it was by using the secret pin code issued from the branch on 15.1.07. It was also submitted that the complainant herself might have withdrawn the amount using the secret code and there was no deficiency in service on the part of the opposite party.
4. The evidence consisted of the oral testimony of the complainant as PW1 and Exts. A1 and A2 on her side. The Currency Administration Cell Manager of the opposite party was examined as RW1 and documents B1 to B3 were marked on the side of the opposite party.
5. Heard the counsel for the appellant and Advocate Suja who was appointed as amicus curiae by this commission for the respondent.
6. The learned counsel for the appellant has vehemently argued before us that the order of the Forum below is perse illegal as the Forum had failed in appreciating the evidence tendered by the opposite party. He has submitted that the complainant had no case that the cover containing the secret code was given to her after opening the secret code cover. It is also his case that District Forum ought to have appreciated the evidence of RW1 in the correct perspective and that Ext.B3 would clearly show that Rs.10,000/- was withdrawn using the ATM card issued to the complainant. He has further submitted that the complainant herself has admitted while giving evidence as PW1 that she had used the ATM Card in March and that it was wrong and unacceptable that the complainant did not know to use the ATM card. Contending for the position that there was no deficiency in service or unfair trade practice on the part of the opposite party he prayed for allowing the appeal with cost.
7. On the other hand, the learned amicus curiae submitted that the complainant did not know to use the card till March 2007 and it was prior to that date that the amount was withdrawn. It was also her case that the complainant came to know about the withdrawal only when she took the mini statement and there were many complaints regarding the ATM transactions. She has also a case that the opposite party was not able to prove that the complainant had withdrawn Rs.10,000/- on 16.1.07 by using the ATM card. Submitting that the order of the Forum below is only to be sustained, the learned amicus curiae argued for dismissal of the appeal with compensatory costs.
8. On hearing both sides and also on perusing the records, it is found that the complainant had a SB account with the opposite party and that an ATM card was issued by the opposite party to the complainant for taking money conveniently. It is also found that on 16.1.07 an amount of Rs.10,000/- was withdrawn from the account of the complainant. The complainant would say that she did not withdraw any amount on 16.1.07 using the ATM card. She would also say that she did not know the formalities of using the ATM card till March 07. But it is to be found that the ATM card is accompanied by the secret pin code. The complainant has no case that the cover containing pin code was received by her in an opened stage. While giving evidence as PW1 she has stated thus. “ "[NL ATM card %=\BT,UdT<Wm <yM 2TN ?TvUO <UkW^ EThUBUCWkW& 8VB8U )TMlBUDc& 2T<T7a =Tdpa 8WLk8a&”
From the above statement it is evident that she has received the secret code in a sealed cover. It is also not disputed that at any point of time the ATM card was not in her custody. Having found that the ATM card and the Secret code number were in the safe custody of the complainant it cannot be said that somebody else had withdrawn the amount from her account. From Ext. B3 it is further clear that the amount was withdrawn on 16.1.07 at 6.46 pm. From all the above we find that there was no deficiency in service or unfair trade practice on the side of the opposite party. In the said circumstance, the order of the Forum below is liable to be set aside and it is done so accordingly.
In the result the appeal is allowed. The order dated 30.7.10 in CC 137/07 of CDRF Kozhikode is set aside.
In the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs.
The office is directed to return the LCR along with a copy of this order to the Forum below urgently.
S. CHANDRA MOHAN NAIR: MEMBER
DA
