Karnataka

Gadag

CC/87/2019

Smt. Mallava W/o M Mallannavar - Complainant(s)

Versus

The Manager, State Bank Of India and Others - Opp.Party(s)

P.K.Patil

18 Nov 2020

ORDER

-::O R D E R::-

 

BY: SRI.B.S.KERI, MEMBER

 

 

1.       The complainant has filed ther complaint claiming direction to the OPs to pay an amount of Rs.7,000/- towards the debited amount, Rs.50,000/- towards mental and physical loss, fine of Rs.10,000/-  on account of deficiency of service and such other relief.

 

 

 

-::Brief facts of the case are as under::-

2.      The case of the complainant is that, she had an SB A/c No.10323855785 and ATM facility with the OP No.1 and drawing the money from the ATM for the last 4-5 years and as such, complainant is a consumer under OP No.1.  It is further submitted that, on 01.11.2018 when the complainant tried to draw Rs.7,000/- for her personal necessity by using the ATM Card at OP No.2’s ATM Center, she received the receipt for having drawn Rs.7,000/- but, the amount was not received from the ATM machine pertains to OP No.2.  As such, complainant orally submitted a complaint with OP No.1 and 2, but they did not respond properly.  Thereafter, complainant sent a request through RPAD on 07.01.2019 seeking reason for the said incident.  On 07.01.2019, OP No.2 sent a letter to OP No.1 for clarification about the disputed amount.  But, OP No.1 failed to respond to the same.  Thereafter, on 14.02.2019, complainant sent an application to OP No.4 through RPAD, but OP No.4 neither failed to answer the same nor paid the amount.  Complainant requested the OPs orally and by writing several times but, it went in vain, which shows the deficiency in service on the part of OPs.  Complainant is a consumer under OP No.1 and all the OPs have committed deficiency in service jointly and failed to do their service and therefore, the complaint is liable to file against all the OPs.         The cause of action for the complaint arose on 01.11.2018, when the complaint tried to draw the amount from the ATM Center of OP No.2 and on 28.03.2019 when the legal notice was issued to OPs.   Hence, the OPs are liable to pay an amount of Rs.7,000/- towards the debited amount, Rs.50,000/- towards mental and physical loss, fine of Rs.10,000/-  on account of deficiency of service. 

3.      Registered the complaint and notice was ordered, as such OPs present before the Forum and filed written version, the contents are as follows.

Written Version of the OP No.1

The OP No.1 contended that, the complaint filed by the complainant is not true and correct, the same is not maintainable either in law or on facts and filed with an oblique motive to make gain from OPs.  It is true that, complainant is a consumer under OP No.1 and holding an ATM Card, the same is to be proved by the complainant that, she is using the ATM card for 4-5 years.  It is false to state that, complainant has used the ATM on 01.11.2018 at OP No.2’s ATM machine to draw Rs.7,000/-, whereas the ATM machine has not disbursed the said amount but, only a receipt is received mentioning that the amount is disbursed.  The burden of proving is upon the complainant that, there is a deficiency of service on the part of OP No.1. 

It is further submitted that, the complainant has used the ATM machine of OP No.2 and transacted through ATM card on 01.11.2018, the slips shows the amount is withdrawn an amount of Rs.7,000/- by debiting the same from complainant’s account under response code “000”, which means amount is withdrawn.  Further it means the amount is dispensed from the ATM and it is received by the person present at that time i.e., the complainant or other person.  It is further submitted that, the letter issued by the OP No.2 on 07.01.2019 shows that, as per the CCTV footage, the amount is not disbursed, that means the amount has not come out of the ATM machine as per their own letter, it goes to show that, the amount is lying with the ATM machine only and on the end of the day the balance in the ATM machine will be to the extent of Rs.7,000/-, which belongs to the complainant and could have been returned to the complainant upon the complaint.  As per the allegation of OP No.2, the amount is wrongly debited to the complainant’s account which is not true.  There is a standard procedure in the case of manual as well as mechanical payment that, first the amount is debited to the customer account and after its confirmation, the amount is dispenses.  When the amount is not dispense at the ATM machine as per the CCTV footage, it means the amount is lying with the ATM machine due to some technical or internet connectivity problem.  It is further submitted that, to know the exact position of OP No.1 and 2, the CCTV footage of the transaction for a period of 5 to 10 minutes before and after the transaction should be produced to the Commission so as to come to the conclusion that, actual payment is made or not.  It is the duty of OP No.2 to produce the CCTV footage to disprove her liability as it is available with it.  Sometimes, it so happens that, after few minutes of transaction, the amount is disbursed, the same may be received by the party present at that moment.  The letter of OP No.2 dated 07.01.2019 clearly shows that, the CCTV footage is checked by the said party and it is found that, there was no amount dispensed through the ATM and in such a situation, the ATM machine should show excess cash to the extent of Rs.7,000/-, the same should credit to the account of complainant.  Therefore, there is no deficiency of service on the part of OP No.1 and hence, prayed for dismissal of the complaint.    

     Written Version of the OP No.2

The OP No.2 contended that, the complaint filed by the complainant is not true and correct, the same is not tenable either in law or on facts and the averments made in the complaint are false, frivolous and vexatious in nature and as such it needs to be dismissed with costs.  It is true that, the complainant is a consumer of OP No.1 having SB A/c. and using ATM Card to withdraw the amount.  It may be true that, when complainant was used the ATM Card, she has not received the cash but, received a receipt regarding withdrawal of the amount.  It is submitted that, due to some technical difficulties, the ATM was unable to remit the amount as per the requirement of the complainant.  It is true that, complainant has issued notice in the regard, which has not been replied by the OP.  OP No.2 is not negligent in discharging its duty and also not committed any deficiency in discharging the service.  Immediately after the knowledge, the OP No.2 has wrote a letter to OP No.1 stating that, there may be a technical problem in network connectivity and since, the complainant is having an SB A/c with OP No.1 through which complainant was intending to receive her amount and requested to settle the issue, the OP has discharged its duty properly and there is no deficiency of service on its part.  The complainant is having her SB A/c with OP No.1, the said Bank is only responsible to settle the matter.  It is further submitted that, since the matter is pending before the Ombudsman, the Commission has no jurisdiction to entertain the complaint, unless and until it is disposed off.  Therefore, there is no negligence or deficiency in service on the part of the OP and hence, the present complaint is to be dismissed with cost.        

4.      The son of complainant has filed her affidavit evidence and filed 12 documents.  The Branch Manager and Manager of OP No.1 and 2 have filed their respective affidavit evidence and 02 documents have been produced.

COMPLAINANT FILED DOCUMENTS AS follows

	Particulars of Documents	Date of Document
C-1	Statement of account
C-2	Letter from OP No.2 to OP No.1
C-3	Letter by complainant to OP No.3
C-4	Postal acknowledgement
C-5	Letter by complainant to OP No.4
C-6	Postal acknowledgement
C-7	Legal Notice
C-8 to 8(c)	4 Postal receipts
C-9 to 12	4 Postal acknowledgements

 

OPs FILED DOCUMENTS AS follows

	Particulars of Documents	Date of Document
OP-1
OP-2	Certified copy of frequently added questions

 

5.     On the basis of above said pleading, oral and documentary evidence, the following points arises for adjudication which are as follows:

1.       Whether the Complainant proves that, the complaint filed      by the complainant is maintainable?

2.       What order?

6.      Our Answer to the above points are:-

1.  

                     

2.  

 

REASONS

7.      Point No-1:- The complainant has filed the complaint against the OPs seeking relief that, while withdrawing the amount from the ATM which belongs to OP No.2.  Complainant holds an account with OP No.1 with ATM facility.  The complainant’s son went to the ATM for withdrawal of the amount.  During that time, for a mechanical defects, the amount had not been withdrawn, but it had been debited from the account of the complainant. 

8.       OPs filed objections stating that, the complainant had not gone to ATM for withdrawal of the amount.  Instead of that, she handed over the ATM card to her son which is illegal as per the RBI Rules. The withdrawal itself is not acceptable and hence, they are not liable for the payment.

9.      On going through the records on file, it is simply very clear case that, the complainant’s son went to the ATM machine for withdrawal of an amount, unfortunately, it has been declined.  Due to that, the complaint has been raised.  It is also an undisputed fact that, the complainant’s son had been gone to ATM machine for withdrawal of the amount.  Moreover, complainant filed a complaint before the Ombudsman before filing this complaint, it has been produced by the complainant himself.  The said complaint had been closed due to pendency of this complaint.  Hence, Commission comes to the conclusion that, before disposal of the complaint before the Ombudsman, complainant cannot approach another Commission for the relief.  Hence, complainant is directed to approach the Ombudsman for the relief.  Hence, we answer point No.1 in Negative.

10.    Point No.2:-        For the reasons and discussion made above we proceed to pass the following:-

6698606.  

          1.       The complaint filed by the complainant is dismissed.  No       order as to costs.

          2.       However, complainant is at liberty to file a fresh complaint     before the ombudsman.

          3.       Send a copy of the order to the parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 18^th day of November-2020)

 

 

 (Shri B.S.Keri)                                        (Smt.C.H.Samiunnisa Abrar)

       MEMBER                                                      PRESIDENT