CC No.627/2017 Date of filing:10.04.2017
Date of Disposal:06.07.2019
BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BENGALURU– 560 027.
DATED THIS THE 6th DAY OF JULY 2019
CONSUMER COMPLAINT NO.627/2017
PRESENT:
Sri Venkatasudarshan D.R. B.Com,LL.M., …. President
Smt L.Mamatha, B.A., (Law), LL.B. …. MEMBER
COMPLAINANT:
S.Suresh Kumar,
S/o H.S.Srinivasa Murthy,
Aged about 57 Years,
No.550/B,
“Sri.Harivayu Krupa”,
6th Main Road,
Hanumantha Nagar,
Bangalore-560019.
(Inperson)
V/s
OPPONENTS:
- Branch Manager,
State Bank of Mysore,
Basavangudi Branch,
K.R.Road, Basavanagudi,
Bangalore-04.
- General Manager,
Head Office
State Bank of Mysore,
K.G.Road,
Bangalore-560009.
3. Public Relation Officer,
Head Office,
State Bank of Mysore,
K.G.Road, Bangalore-560009.
4. Public Relation Officer,
State Bank of India,
Regional Office,
St.Marks Road,
Bangalore City.
(Opponent No.1 By Sri.S.R.Sree Prasad, Advocate
Opponent No.2 to 4 ex-parte )
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Written by Sri Venkatasudarshan D.R., President
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// ORDER//
This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri.S.Suresh Kumar against the Branch Manager, State Bank of Mysore, Basavanagudi Branch and three others praying for a direction to the Opponents to refund a sum of Rs.5,000/- together with interest and also to pay the cost to the tune of Rs.10,000/-.
2. The brief facts of the case of the complainant as per the complaint are that the Complainant is a Pensioner being a retired Assistant Sub-Inspector of Police under the Government of Karnataka.
- It is the case of the Complainant that on 02.11.2016 at about 12.30 p.m he drew the amount from ATM(SBI Group). But the amount of Rs.5,000/- which he wanted to withdraw got struck in the machine and only the receipt has come and as such he could not receive the amount of Rs.5,000/-. It is contended that there was no board or display about the functioning of the ATM machine. There was no watch and ward. Though the amount was not physically received by the Complainant it was debited to his account as if he had withdrawn the amount.
- It is the case of the Complainant that within 30 minutes of the transaction he informed the Bank Branch with a written complaint along with the transaction slip provided by the ATM to the person in charge of ATM transactions who asked him to meet three or four days later. When the Complainant again met him, he was asked to contact on 29.11.2016. On that day a Xerox of the Complainant forwarded by the Branch to the ATM Nodal Officer was given to him. The Complainant has given in writing about the poor service and that he has become the victim for no fault of him. On 30.12.2016 when the Complainant again visited the Branch he was given “cash present timer and CC TV Footage” from ATM Engineer and their report addressed to ATM Nodal Officer, Mumbai. Thus the Complainant having lost the hope of getting his money has filed the present complaint.
- After admitting the complaint, the notice was ordered to be issued to the opponent No.1 to 4. The Opponent No.1 only has appeared before the Forum and he is represented by his Advocate. The Opponent No.2 to 4 have remained absent, though they were served with the notices. The Opponent No.1 has filed version.
- In the version so filed Opponent No.1 has contended that the complaint is liable to be dismissed in limine. It is however stated that the averment in the complaint that on 02.11.2016 around 12.30 p.m. the Complainant when wanted to withdraw Rs.5,000/- and operated the machine he could receive only the receipt but not the amount is false. The complaint lodged about the non-receipt of the money immediately has been admitted. It is stated that the Opponent called their technical persons and got their machine examined. Upon inspection, it was found that no excess cash was present in the ATM. However upon persistent request from the Complainant, the Opponent No.1 made several correspondences with their Head Office and the Regional Office. It is also stated by the Opponent that in case of failure of cash disbursement from the ATM the cash would be credited back to the account of the Complainant. There was a technical slag due to the merger of 5 State Banks into State Bank of India between April 2016 till April 2017. Further as per the information received no excess cash was found from the ATM. However keeping in mind of the number of requests of the Complainant and the cost involved a sum of Rs.5,000/- has already been credited along with the applicable rate of interest to the account of the Complainant on 17.08.2017. To evidence the same the Statement of Account is produced. This is without prejudice to the defence taken. The Complainant who was aware of this credit has kept quite all these days and came up with present complaint which is liable to be dismissed.
- When the case was set down for recording evidence, the Complainant got himself examined as PW1. He has filed his affidavit as his evidence and closed the case. On behalf of the Opponent, one person by name K.Ramamurthy, AGM of the opponent bank got himself examined, filed his affidavit evidence and closed the case. Both parties have filed Written Arguments. Heard arguments on both sides.
- The points that arise for our determination are:-
(1) Whether the complainant proves that there is deficiency in service on the part of the opponent ?
(2) Whether the complainant is entitled for the reliefs sought in the complaint?
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- Our findings on the above points are:-
Point No.1:- In the Affirmative
Point No.2:- Partly in the affirmative.
Point No.3:- As per the final order for the following.
10. Point No.1:- It is the case of the complainant that on 02.11.2016 he wanted to withdraw Rs.5,000/- from ATM.So, on that day at 12-30 P.M., he inserted the card into the ATM machine to draw Rs.5,000/- and completed all the formalities to be made in the process.It is the case of the complainant that though the transaction was shown as successful, the amount of Rs.5,000/- was not dispensed to him and it got struck in the machineitself and the receipt only came out with thesimultaneous debit entry in the S.B, account of the complainant.Thus the case of the complainant is that the amount was not dispensed to him by the ATM, but his savings account been debited and this has reduced by Rs.5,000/-.This according to the complainant amounts to deficiency in service on the part of the opponent Bank.The complainant has reiterated the same in his evidence affidavit also.
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12. In the light of the above, the burden of proving the contention taken by the opponent is on the opponent only. This is because, here is a case where the complainant with all diligence has reported to the concerned branch and also gave complaint along with transaction slip provided by the ATM to the person in charge of ATM transactions in the bank. This aspect has not been denied by the opponent. When the complainant states on oath that the cash was not dispensed to him by ATM, the burden is on the opponent to prove that the cash has been dispensed. This burden could have been discharged by the opponent by examining the so called technical staff who inspected the ATM and found there was excess cash and also by producing the relevant report. If the contention of the opponent is really true that on inspection by the technical staff it was found that there was no excess cash in ATM, that could have been proved by producing report of the technical people and also by examining the concerned person on oath. That has not been done. No explanation offered as to why no such report is produced and no such person is examined. When a particular fact or a thing can be proved by producing a document and examining the concerned person a mere statement by the opponent that there was no excess cash found by technical team when inspected cannot be accepted. The non-production of document which could have been produced but not produced and non-examination of a material witness who could have been examined but not examined by the opponent compels us to draw adverse inference against the opponent. It is more so, when the Opponent Bank has not produced any document to show that the complainant was informed about the alleged inspection of the ATM was done and found that there was no excess cash. It is not the case of the opponent Bank that the alleged inspection of ATM was done in the presence of the complainant. No document has been produced by the opponent Bank even to show the response it gave to complainant on the receipt of the complaint, about non dispensation of cash, or to the letter sent by the complainant to the opponent. All these aspects would clearly show the lack of responsibility on the opponent Bank being a Nationalized Bank in treating its customers. The above said discussion would clearly show that there was deficiency in service on the part of the opponent No.1. Accordingly, we answer point No.1 in the affirmative and in favour of the complainant.
13. Point No.2 & 3:- The finding recorded on point No.1 above in the affirmative and in favour of the complainant, takes us to the next question as to what is the relief to which the complainant is entitled.
14. In the complaint, the complainant has prayed for a direction to the opponent to pay a sum of Rs.5,000/- together with interest and also a further sum of Rs.10,000/- being the cost.
15. In so far as the claim made by the complainant for the refund of Rs.5,000/- in the complaint dated 10.04.2017 is concerned it is worthy to note that in the version filed by the opponent on 12.10.2017 it is averred by the opponent as under
“However, keeping in view of the number of requests of the opposite party and keeping in mind the cost involved, the opposite party have credited a sum of Rs.5,000/- (alleged to have been not received by the complainant through ATM) along with the applicable rate of interest to his SB account on 17.08.2017 and the same can be evidenced from the statement of account vide document No.1”.
16. To substantiate the above aspect the opponent has produced the statement of the S.B. Account of the complainant. The same thing has been deposed in the affidavit evidence of the opponent. This conduct of the opponent Bank is rather very strange. This is because, the opponent having contended all along that there was no excess cash left in the ATM and therefore the theory put forth by the complainant about the non-dispensation of cash of Rs.5,000/- by the ATM is all false, has all of a sudden satisfied the said claim by crediting the account of the complainant with Rs.5,000/- with interest. This shows that the opponent Bank is adopting double standard in its approach. Rs.5,000/- is after all not a charity nor the opponent is a charitable institution to just pay off Rs.5,000/-. Opponent is a nationalized Bank where every transaction relating to money should be based on rules and regulations and every paisa has to be properly accounted. Under such circumstances, it is very hard to believe that the opponent has paid Rs.5,000/- to the complainant though it was not actually liable. It is public money/depositors money. Therefore the reason assigned by the opponent for making payment of Rs.5,000/- + interest to the complainant cannot be accepted. On the other hand, what is highly probable is that the fact that the complainant could not get cash from the ATM as it got struck in the machine itself is true. But bank without fairly accepting its mistake has come up with some theory which cannot be accepted. The only conclusion that could therefore be drawn is that since there was defect in ATM machine and the money got struck up and complainant could not have received the amount, the bank has owned the responsibility and paid Rs.5,000/- with interest. This payment of Rs.5,000/- + interest to the S.B. account of the complainant after the filing of the complaint has been admitted by the complainant also in his affidavit evidence and also in the written arguments. Therefore, the claim made by the complainant to this extent is satisfied.
17. The opponent Bank which knew very well that it was bound to pay Rs.5,000/- to the complainant should have acted swiftly no sooner the complaint was received by the complainant. But unfortunately in this case, the Bank seems to have not been bothered to keep the complainant informed of the steps taken to resolve the dispute. The complainant is a retired government servant. He was working as an Assistant Sub-inspector of police, Karnataka State Government, Bangalore. It is needless to say that a sum of Rs.5,000/- is really a huge amount for a pensioner. Because of the lethargic attitude of the opponent Bank, the complainant has been made to suffer. This must have necessarily caused mental agony and harassment. This also needs to be compensated by the opponent. Therefore, we award a sum of Rs.2,000/- as compensation under this head.
18. By not responding to the complaint made by the complainant properly, the opponent has driven the complainant to file this complaint before this Forum in the year 2017 and the complainant having filed this complaint had taken all the necessary steps to take this case to the logical end. Necessarily, the complainant must have incurred a reasonable sum towards expenditure which also need to be met by the opponent. Since the case is of 2017 i.e., 2 years old, we deem it fit and proper to award a further sum of Rs.2,000/- towards cost of litigation. In all the complainant is entitled to receive a sum of Rs.4,000/- from the opponent. Accordingly, we answer the point No.2 partly in the affirmative and to proceed to pass the following final order,
ORDER
The complaint filed Under Section 12 of Consumer protection Act by Sri. S. Suresh Kumar is allowed in part as under:-
The complainant is entitled to receive from the opponent a sum of Rs.2,000/- (Two Thousand only) as compensation towards mental agony sustained by him and also further sum of Rs.2,000/- towards cost of litigation.
The opponent in all pay a sum of Rs.4,000/- (Four thousand only) to the complainant within 30 days from the date of this order failing which the opponent is liable to pay interest at the rate of 10% p.a. on the above said sum from the date of this order till the date of actual payment.
Supply free copy of this order to both the parties.
(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 6th July 2019 )
(L.Mamatha) (D.R. Venkatasudarshan )
Member President.
//ANNEXURE//
Witness examined for the complainant side:
Complainant- Sri.S.Suresh Kumar has examined in chief as PW1.
Witness examined for the opponent side:
Opponent-Sri.K. Ramamurthy has examined in chief as RW1.
Documents marked for the complainant side:
Documents marked for the opponent side:
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