State Consumer Disputes Redressal Commission
State Bank Of India vs P.N. Sinha on 9 January, 2019
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 09.01.2019 First Appeal No.542/2014 (Arising out of the order dated 26.04.2014 passed in Complainant Case No.424/2011 by the District Consumer Disputes Redressal Forum (North East), Delhi) State Bank of India, a body corporate Constituted under State Bank of India Act , 1955 having its central office at Madame Cama Road , Nariman Point, Mumbai - 400021,and one of its Local Head Office (S) & Zonal Office (S) at 11, Parliament Street and one of its Branch at Seemapuri, Delhi- 110095 .....Appellant Versus Shri P.N. Sinha, S/o Late Shri B.P. Sinha, R/o B-65/2, Krishna Nagar, Bhopura, Ghaziabad (U.P.) ....Respondent CORAM Justice Veena Birbal, President Ms. Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
Justice Veena Birbal, President This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short 'the Act') wherein challenge is made to order dated 26.04.2014 passed by the Consumer Disputes Redressal Forum (North East), Delhi (in short, the "District Forum") in Complaint Case No. 424/2011, by whereby the aforesaid complaint has been allowed and appellant/OP has been directed to refund an amount of Rs. 10,000/- to the respondent/complainant. Further, an amount of Rs.2,000/- has been awarded towards cost of litigation.
Briefly the facts are that a complaint under Section 12 of the Act was filed by the respondent herein i.e. complainant before District Forum stating therein that he was maintaining a Saving Bank Account No. 1098101031729 at Canara Bank , Parliament Street. It was alleged that on 02.09.2011 at 2.25 PM respondent/complainant had approached ATM bearing ID no. 3774 of appellant/OP at Seemapuri for withdrawal of Rs. 10,000/-. The respondent/complainant inserted his debit card in the ATM machine, but no money was dispensed. Thereafter, the respondent/complainant approached another ATM machine bearing ID no. 3777 within the same premise and inserted his debit card and had withdrawn Rs. 10,000/-. It was alleged that Rs. 10,000 was debited from the account of the respondent/complainant from both the ATM machines. A written complainant was filed by respondent/complainant with the appellant/OP. FIR was also lodged by the respondent/complainant with the concerned Police Station. Being aggrieved, he filed a complaint before the District Forum wherein prayer was made for award of Rs. 10,000/- alleged to have been excessively debited from his account along with compensation and costs.
Appellant/OP had contested the complaint case by filing written statement wherein it was admitted that respondent/complainant had been maintaining the aforementioned savings bank account with Canara Bank, Parliament Street. Appellant/OP had alleged that there were two ATM machines at the SBI, Seemapuri Branch i.e. ATM-1 (ID S10A004839001) and ATM-2 (ID S10G004839002). It was alleged that on 02.09.2011 respondent/ complainant at 2.21 pm first enquired balance from his account using his ATM card at the ATM-2. After enquiry, the respondent/complainant had withdrawn cash of Rs. 10,000/- vide transaction no. 3774 and thereafter two other transactions i.e. 3775 and 3776 had been made by some other customers. It was further alleged that the respondent/complainant at 2.25 pm had withdrawn another amount of Rs. 10,000/- vide transaction no. 3777. It was alleged that both the transactions of Rs.10,000/- each were successful meaning thereby that the cash was withdrawn and dispensed from the ATM and received by the card holder. It was further alleged that both the withdrawal transactions were made at ATM-2 and not separate ATMs as alleged by respondent/complainant. A prayer was made for dismissal of the complaint.
Both parties had filed evidence by way of affidavit. Parties also filed written arguments.
After hearing the parties, Ld. District Forum found the appellant/OP guilty of deficiency in service and directed it to pay the amount as has been stated above.
Aggrieved with the aforesaid order, present appeal is filed by appellant/OP.
Ld. Counsel for appellant/OP No.1 has contended that the District Forum has failed to consider that respondent/complainant had withdrawn Rs.10,000/- from ATM-2 i.e. S10G004839002 at 14.22 and Rs. 10,000/- was again withdrawn at 14.25 from the same ATM machine i.e. ATM-2. It is contended that respondent/complainant is admitting one transaction of Rs. 10,000/- and denying the other transaction of Rs. 10,000/- which shows malafide intention of the respondent/complainant. It is further contended that as per the E-Journal log generated by Switch Center, Belapur, Navi Mumbai, the transaction no. 3774 dated 02.09.2011 was carried out from ATM-2 at 14.22 by using ATM card bearing no. 4241581098010195 and the transaction was successful and complete as response code was 000 and no excess cash was found in the ATM-2. It is contended that nobody could have withdrawn the amount when the ATM card was in possession of the respondent/complainant and the ATM PIN was in his exclusive knowledge. It is submitted that the impugned order is liable to be set aside.
On the other hand, the respondent/complainant has argued that the impugned order is legal and valid and that the E-Journal Log of the appellant/ OP could be showing incorrect details. It is contended that the ATM machine has wrongly shown withdrawal of Rs.10,000/- twice, rather the respondent/complainant was successful in withdrawing Rs. 10,000 /- only the second time.
It is admitted position that the respondent/complainant is maintaining a Savings Bank Account in Canara Bank. It is also admitted position that on 02.09.2011 respondent/complainant had made withdrawal from the ATM of appellant/OP situated at Seemapuri, Delhi. There is a dispute with regard to excess debit of Rs. 10,000/- from the account of respondent/complainant. The respondent/complainant has alleged that transaction no. 3774 from ATM machine was unsuccessful where as another transaction no. 3777 of Rs. 10,000/- made from another ATM machine on the same day was successful.
As per appellant/OP both the transactions were successful. Appellant/OP has placed on record the copy of EJ Log and copy of report sent by ATM Switch Center Mumbai (TLF) and copy of admin balance at EOD log of previous day and 02.09.2011, to show that transaction no. 3774 and 3777 were carried out on 02.09.2011 at 14.22 and 14.25 respectively by using ATM Card No. 4241581098010195 issued by Canara Bank and the said transactions were made on one ATM machine only i.e. ATM-2 (ID S10G004839002). It is also admitted position that ATM card was in possession of respondent/complainant and its PIN was known to him only. In between transaction nos. 3774 and 3777 some other customers had used the aforesaid ATM-2 and their transactions were also successful. Both the transactions are carried out by using one machine i.e. ATM-2 (ID S10G004839002) and not two machines as is alleged.
It may be mentioned that as per respondent/complainant he came to know on 02.09.2011 that his account had been debited with an additional amount of Rs.10,000/- which as per him was not dispensed from the ATM, but the respondent/complainant lodged the FIR only on 27.09.2011. It is alleged that both the banks were informed. It is not stated in the complaint or in the evidence by way of affidavit as to how the banks were informed. No copy of complaint alleged to have been made to banks is annexed with the consumer complaint filed before District Forum on 15.12.2011. There is also no evidence on record by respondent/complainant to show that the said amount was not dispensed from ATM except self-serving affidavit of respondent/complainant. The appellant/OP has placed ample evidence as is discussed above to show that the aforementioned sum had been dispensed from the ATM machine and collected by the respondent/complainant. The respondent/complainant has not filed any proof to show that when he used his ATM card for the first time as is alleged, when money was not dispensed. The National commission in the matter of Satyanrayan Pandey v. State Bank of India & Ors. IV (2017) CPJ 199 NC has held in a similar factual matrix as under:-
" I have carefully considered the averments made by the petitioner and have gone through the material on record. It is found that the State Commission has allowed the appeal and dismissed the complaint on many grounds. The first ground is that the transactions have been found successful as per the electronic general file, whose copy was filed before the State Commission and the transactions are shown successful and money delivered. The State Commission has further observed that, though, the money was debited on 22.9.2012, but the complainant started complaining about the withdrawal of money only after one month. Even though complainant got his passbook completed on 16.10.2012 and came to know about the debiting of Rs. 20,000, he filed complaint in writing to the Branch Manager Axis Bank, Mumbai only on 18.12.2012. Thus, even the filing of complaint before the Branch Manager was not prompt. The consumer complaint was filed on 15.4.2013. Thus, the State Commission has concluded that the complainant was not prompt in filing the complaints and therefore, he must have received the payments. It is also seen from the judgement of the State Commission that the complainant/petitioner has not filed any document showing the proof that he did not receive the money when he used his ATM card. The complainant could have filed the ATM slip/receipt, which comes out from the ATM after using the ATM card. It is also not clear whether the complainant had his phone linked with his bank account so that any transaction by the ATM would come on his phone through SMS. The State Commission has also observed that if the money was not taken out after using the ATM card, the complainant could have registered the complaint in the customer care of the bank. Basically the complainant had not filed any proof showing that when he used his ATM card, money was not transacted. On the other hand, there is ample proof to show that the transactions were successful and Rs. 20,000 was delivered to the person using the ATM card. Generally ATM cards and ATM machines are safe and if the transaction is not successful, it is shown on the screen on the ATM as well as on the slip issued by the ATM. Even if some money is transacted but not delivered, the same is reversed to the account of the ATM card holder. As the documents of the bank showed that the transactions were successful and Rs. 20,000 was delivered to the person using the ATM card and no proof on the contrary has been filed by the complainant/petitioner, it is difficult to find any fault in the order dated 23.9.2015 of the State Commission.
For the reasons stated hereinabove, we allow the appeal and set aside the impugned order and consequently dismiss the CC No.424/2011.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information. The record of the District Forum be also sent back forthwith. Thereafter the file be consigned to record room.
(Justice Veena Birbal) President (Salma Noor) Member