Date of filing : 29-06-2015
Date of order : 31-10-2018
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC. 162/2015
Dated this, the 31th day of October 2018
PRESENT:
SRI.ROY PAUL : PRESIDENT
SRI.RADHAKRISHNAN NAIR.M. : MEMBER
M.Narayanan Nambiar
CC 58,Ganga
Chinmaya Colony :Complainant
Vidyanagar Post, Kasaragod
(Adv: Swathi.M.S)
- Manager
Corporation Bank
Jalsoor Road, Kasaragod. : Opposite Parties
- Manager
Dhanalaxmi Bank
Bank Road, Kasaragod.
(Adv: Ashok Kumar.A.C)
O R D E R
SRI. ROY PAUL: PRESIDENT
This is a complainant filed under section 12 of Consumer Protection Act for an order directing the opposite parties to pay a sum of Rs. 3000/- with interest compensation cost to the complainant
The case of the complainant in brief:-
The complainant is a SB account holder of opposite party No. 1 having ATM facility. On 14/04/2014 the complainant had tried to withdraw Rs. 3000/- from the ATM counter of opposite party No. 1 bank Kasaragod . But he could not get money, so he has tried the nearby ATM of Dhanalakshmi Bank Kasaragod for withdrawing Rs.3000/- . There also he could not get money , but a transaction slip of Rs. 1000/- obtained. So he informed opposite party No. 2 and thereafter opposite party No. 1 also about the said development. From opposite party No. 1 he could realise that Rs. 3000 has lost from his account. Though he requested both opposite parties to verify the CCTV footage, they did not do so. So he was constrained to report about the loss of money to the chairman of both opposite parties on 23/04/2015. Through the representatives the chairman of opposite party No. 2 informed that they are not responsible for money lost form the account at opposite party No. 1. There was no reply from the chairman of opposite party No. 1 bank . The complainant believes that the money which was struck in the machine itself had misappropriated by the opposite party No. 2 staff. So the opposite parties are jointly and severally liable to make good the loss sustained to the complainant. There is deficiency of service on the part of the both opposite parties. The complainant has suffered much hardships, mental agony, loss of time and money. Hence the complaint.
Both the opposite parties entered appearance before the Fora and submitted their written versions. Opposite party No. 1 admitted that the complainant is an account holder in their bank as per the bank records a sum of Rs. 3000 was withdrawn from his account on 11/06/2014. According to the complainant he has used the ATM facility of opposite party No. 2 and the amount has allegedly loss from the ATM of opposite party No. 2. This opposite party No. 1 has no role in the transaction took place in the premises of opposite party No. 2. The opposite party No. 1 has conducted an enquiry in this matter and found that money was withdrawn from the account through ATM of opposite party No. 2. So there is no deficiency of service on the part of opposite party No. 1 and complaint may be dismissed. opposite party No. 2 contented that complainant is not a consumer undersection2 (1)(d) of Consumer Protection Act. This complaint is not maintainable against opposite party No. 2. There is no deficiency of service on the part of opposite party No. 2. The alleged transaction took place on 11/16/2014, not on 14/06/2014 as stated in the complaint. The opposite party No. 2 denied the averment in the complaint, no amount was disbursed through the tray and complainant waited for some time etc. The complainant never approached the opposite party No.2 with a request to verify the transaction through camera facility . As per the verification of EJ (Electronic Journal) as per the request of opposite party No.1, it is revealed that the cash was withdrawn on 11/6/14 at 10..37..24. Hence the transaction was successful one. The opposite party No. 2 is strictly following the instruction of National Payment Corporation of India given through the circular. The CCTV footage was available for 3 months only. Nobody including the complainant or opposite party No. 1 requested for verification of camera footage during the period. The opposite party No. 2 is not liable to pay any amount to the complainant. Complainant may be dismissed with cost.
On the basis of the rival contention of the pleadings the following issues were framed for consideration
- Whether there is any deficiency service on the part of the opposite party?
- Whether the complaint is entitled for the any reliefs?
- Reliefs and cost?
The evidence consist of the oral testimony of the pw1 and Ext A1 to A7 documents. The opposite party had adduced evidence through Dw1 and Exts B1 to B5 documents also were marked .
Issue No: 1
The complainant adduced evidence by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contention in the version. He was cross examined as Pw1 by the opposite party No. 2. He relied on Ext A1 to A7 document also to substantiate his case. According to him he had used the ATM of opposite party No. 2 for withdrawing Rs. 3000/-, but no amount was disbursed through the tray. But as per the Ext A2 statement of account of opposite party No. 1 bank Rs. 3000/- debited in his account. So he has loss money from his account while using the opposite party No. 2 ATM. According to the complainant he could receive a transaction slip of Rs. 1000/- .
Dw1 adduced evidence to the tune that on 11/06/2014 a sum of Rs. 3000/- was withdrawn through the ATM. As per the RBI direction retraction facility in their ATM is disabled also. Dw1 was thoroughly cross examined by the complainant. Dw1 relied on Exts B1 to B5 documents also to substantiate their defence case. According to bank records of opposite party No. 2 the transaction was a successful one. The complainant never made any complaint before opposite party No. 2 directly. Heard both sides.
On perusal of the pleadings, documents and evaluation of the evidence tendered before the Fora , we hold that it was the primary duty of the opposite party No. 2 to verify the transaction through CC TV footage. According to op2 the CCTV footage was available for 3 months. Admittedly opposite party No. 2 was informed about the alleged defective transaction on 14/06/2014 from opposite party No. 1 within 3 days of the transaction. Even without any request for such an inspection from the complainant and opposite party No. 1, the opposite party No. 2 is duty bound to inspect the CCTV footage for verification of the genuines of the transaction. As per Ext A7 and deposition of Dw1 the cash request was made at 10..35..32 on 11/06/2014 and cash was presented at 10..35..48 . The cash present timer expired at 10..36..18. This happened when cash is not taken within the time allotted. So it is clear that the cash was not delivered to the customer within the time allotted. Here the responsibility of complainant to take money ends . It is also averred in Ext A7 reply notice from opposite party No. 2 AGM “As cash was not taken in time there is a chance that another customer would have taken it”. For the argument sake if cash was presented in the dispensing tray what prevented the customer to take money within the allotted time. According to Dw1 and as per the averments in Ext A7 reply notice, it is conspicuous that the money was not taken by the customer within the allotted time. Moreover it is clear from Ext A7 the money was taken after the allotted time. At this juncture it was very important to verify the transaction through CCTV footage. Bu the opposite party No. 2 absolutely failed to take any steps for the said inevitable procedure. From the forgoing discussion and findings we are of the considered view that there is deficiency of service on the part of opposite party No. 2. It is the duty of the opposite party No. 2 to verify whether money was dispensed from their ATM by using the card of complainant. It is also admitted by opposite party No. 2 that the complaint lodged by the complainant before opposite party No. 1 was duly intimated by opposite party No. 1 to opposite party No. 2 for necessary action. So we hold that there is no deficiency of service on the part of opposite party No. 1. Hence issue no: 1 found against opposite party No. 2 only and answered accordingly.
Issue No: 2 & 3
As discussed above it is in evident that the complainant could not get money from the ATM in the allotted time. So we hold that the complainant is entitled for the said sum of Rs. 3000/- from opposite party No. 2. We do consider the contributory negligence on the part of the complainant in handling the situation. So he is not entitled for any interest on the said sum. Under the above circumstances we the Fora hold that opposite party No. 2 is liable to pay a sum of Rs. 3000/- to the complainant along with Rs. 2000/- as compensation and litigation cost together to meet the ends of justice. Thus the issue no 2 and 3 also accordingly answered
In the result the complaint is allowed in part directing the opposite party No. 2 to pay sum of Rs. 3000/- to the complainant along with Rs. 2000/- as compensation and litigation cost together within 30 days of the receipt of the order. Failing which the said sum of Rs. 3000/- will carry interest @ 10% per annum from the date of order till realisation and the complainant is at liberty to execute the order as per the provision of Consumer Protection Act 1986.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1.11.06.2014 Xerox copy of ATM Complaint form lodged before opposite party
A2.Extract of complainant’s SB account
A3.23.04.2015 Office copy of the registered notice sent to the opposite party No.1
A4. Office copy of the registered notice sent to the opposite party No.2
A5 and A6.24.04.2015 Postal Acknowledgement
A7.Reply sent to the complainant by opposite party No.1’s Assistant General Manager
B1.26.03.2012 circular of Chief operating officer National payments corporation of India
B2.16.12.2014. ATM cash repeienishment report along with the related certificate signed by joint custodians.
B3.16.12.2014 Interbank reconciliation report for settlement of ATM transactions(Annexure 2)
B4.16.12.2014 ATM switch centre report for highlighting the disputed transactions.(Annexure 3)
B5.16.12.2014 Audit log/Electronic journal for the transaction along with three previous and three succeeding transactions. (Annexure 4)
Witness Examined
Pw1.M.Narayanan Nambiar
Dw1.Sujeesh Kumar .P.P
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
