State Consumer Disputes Redressal Commission
The Branch Manager, Canara Bank, Theni. vs M. Sarveswaran, Theni Dist. & 3 Others. on 10 October, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
PRESENT: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER
F. A.No.154/2018
(Against the order made in C.C.No.32/2015 dated 02.03.2017 on the file of the
District Forum, Theni.)
MONDAY, THE 10th DAY OF OCTOBER 2022
The Branch Manager,
Canara Bank,
Theni - Madurai Road,
Theni Town,
Theni District. Appellant/1st Opposite Party
-Vs-
1. M.Sarveswaran,
S/o Muthurajan,
Door No.90, East Street,
Uppukottai Village,
Bodinayakanur Taluk,
Theni District. 1st Respondent/Complainant
2. The Branch Manager,
State Bank of India,
Cumbum-Theni Main Road,
P.C.Patti, Theni Town,
Theni District. 2nd Respondent/2nd Opposite Party
3. The Superintendent of Police,
Theni District Police Office,
Theni. 3rd Respondent/3rd Opposite Party
4. The Inspector of Police,
P.C.Patti Police Station,
P.C.Patti Village,
Theni District. 4th Respondent/4th Opposite Party
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Counsel for Appellant/Opposite party-1 : Mr.C.Jawahar Ravindran, Advocate.
Counsel for Respondent-1/Complainant : Served Called Absent.
Counsel for Respondent-2/Opposite Party-2 : Served Called Absent.
Counsel for Respodents-3&4/Opp.Parties-3&4 : Given-up.
This appeal coming before us for final hearing on 11.07.2022 and on
hearing the arguments of appellant side and upon perusing the material records,
this Commission made the following:
ORDER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER.
1. This appeal has been preferred by the 1st opposite party against the award passed by the District Consumer Disputes Redressal Forum, Theni, made in C.C.No.32/2015 dated 02.03.2017.
2. The facts of the case is as follows:
The complainant is having an account in the first opposite party bank. He obtained an agricultural loan and it was credited in his account. The complainant on 31.01.2015 withdraw Rs.10,000/- from Karur Vysya Bank ATM machine at Uppukottai. On 01.02.2015 the complainant went to second opposite party / State Bank of India ATM machine at P.C.Patti for withdrawing Rs.40,000/-. The watchman at the ATM booth informed the complainant to withdraw Rs.10,000/- each for four times, instead of withdrawing the total amount of Rs.40,000/-at one stroke. Hence, he withdraw Rs.10,000/- at 6.55 a.m. and second time withdraw Rs.10,000/- at 6.57 a.m. and third 3 time withdraw Rs.10,000/- at 6.58 a.m. But, on his fourth attempt at 6.59 a.m. the amount was not delivered to him but a slip came out showing a deduction of Rs.10,000/- Immediately the complainant along with his friend went to first opposite party and made a complaint. Though the manager agreed to take action. No development was subsequently made. So, he complained to the Superintendent of police the third opposite party and it was enquired by the Inspector of Police the fourth opposite party. No CCTV footage was produced by the bank authorities. Hence, they committed deficiency of service and the complaint is filed seeking the refund of Rs.10,000/- with interest at the rate of 12% p.a., and to pay Rs.50,000/- compensation for mental agony and to pay Rs.25,000/- compensation for deficiency of service and also to pay Rs.14,000/- as cost of the proceedings.
3. The first and second opposite parties filed their written versions stating that, the amount was only withdrawn by the complainant and as per the entry in the Pass Book cum ATM machine the amount has been withdrawn only by the complainant and there is no deficiency of service.
4. Similarly, the third and fourth opposite parties filed their written version stating that they are police officials and there is no privity of contract between them and the complaint is liable to be dismissed against them.
5. The District Forum after perusal of evidence and arguments, partly allowed the complaint and directing the first and second opposite parties are jointly and severally liable to return a sum of Rs.10,000/-, and to pay a sum of Rs.10,000/- towards 4 compensation for mental agony and also to pay a sum of Rs.10,000/- towards compensation for deficiency in service (totally Rs.30,000/-) with interest at the rate of 9% P.A. from the date of complaint till realization of the amount and also to pay a sum of Rs.3000/ as costs.
6. Aggrieved with the above order the appeal has been preferred by the first opposite party on the following:
Ground of Appeal: The order of the District Forum is erroneous and illegal. The District Forum failed to note that the complainant admitted the withdrawal of Rs.10,000/- three times and there is no fault in the ATM machine. The District Forum failed to give importance to Ex.B3 the ATM journal which proved that the amount was withdrawn only by the complainant. The District Forum even failed to note Ex.B4 endorsement that there was no excess amount in the ATM machine at the end of the date. Hence, he prayed the appeal may be allowed and to set aside the District Forum order.
7. We heard appellant side arguments and perused the written arguments.
8. Now the point for consideration is:
Whether the appeal is to be allowed or not?
Point: It is alleged by the complainant that on 01.02.2015 he withdraw the amount of Rs.10,000/- from the State Bank of India ATM machine three times but on his fourth attempt the amount was not delivered by the ATM machine but a slip came out as if the amount was deducted in the savings account of the complainant. To show 5 the deductions Ex.A1 is produced. Similarly, the complaint sent by the complainant is produced as Ex.A4. Moreover, the complainant clearly stated in his complaint that he immediately on 02.02.2015 gave a complaint to the first opposite party along with his friend and this fact was not denied by the first opposite party. The very next day the written complaint Ex.A4 was presented to the first opposite party. The first opposite party though has stated that immediately he contacted the second opposite party with regard to this complaint no proof has been filed by the first opposite party. No communications have been ever sent to the complainant with regard to his grievance. When a consumer alleged some grievances with regard to the banking service is it not the duty of the bank officials to rectify it or atleast to send communications regarding their efforts taken thereto? when no proof is filed, in this regard that the consumer's grievance was rightly approached by the first and second opposite parties then, even this amount to deficiency of service on the part of 1 & 2 opposite parties.
9. It is the contention of the opposite parties that the amount was really withdrawn by the complainant. It is their version that as per the journal statement obtained from ATM machine as well as entries made in the Pass Book the complainant alone withdrawn the amount. They did not accept the fact or allegations of the complainant that the ATM machine did not deliver the amount on the fourth attempt.
10. Now, we are put in a dilemma whether we have to believe the machine? or we have to believe the statement of the complainant?. In other words, the complainant stated that Rs.10,000/- was not delivered by the 6 machine. On the other hand, the machine statement stated that the amount was delivered. Then, which one is to be true ? Now a days we received these types of complaints often and we come across simillar grievences. It is also an admitted situation that Banking frauds such as particularly ATM frauds, online frauds are rampant. To our knowledge no special mechanism or procedures evolved by the banks to address these complaints. In every case the banks took the stand that it is for the customers to be vigilant to safe guard their money though the banks operated their accounts. Whether the banks can say so? To answer this question we have to analyze the entire procedures and the technological know how of the ATM banking.
11. The Procedures To make it easier and convenient for the public, banking transactions can now be made even without going to the Bank. Banking services are expanded from personal banking to core banking and then further developed to online banking. Now a days the customer of a bank need not enter into the Bank for withdrawal of money from his account. Automatic Teller Machines, ATM in short, are also standing in different areas to disburse money to the ATM cardholders against their accounts. To operate the ATM machine, ATM cards are used which are issued by the concerned Bank to the account holders against their accounts in the Bank. For obtaining money through ATM counter, one has to swipe his ATM Card in the machine, and then to command for paying the required amount following the directions correctly. The machine then dispenses the 7 notes of the said amount from inside. The currencies inside ATM were filled by the banks which installed ATM or else the banks engaged other outside agencies.
12. One need not search for his bank's ATM to withdraw money, he can withdraw money from other banks ATM also for which also charges are deducted from the customer's account. Technology advancement made this possible, as all the banks are inter connected among themselves and also with customer accounts, ATM transactions etc. It is a chain of communications. As per system, all the transactions are recorded both in respect of one's individual account and against each ATM. Whole transactions are held with date and time and the amount given along with the deposit of money to the ATM machine. The ATM machines are guarded by security people and CCTV cameras were fixed inside for safety purposes.
13. While the banking technologies are so advanced, are they foolproof and beyond any defects? The answer is an emphatic "No" The ATM Machines run with the help of electric power as well as Internet services. The machine unable to function sometimes, due to some mechanical defects or want of notes in stock inside the machine, power failure or slow down of Internet connection. These factors can disturb the proper transactions and function of an ATM machine.
14. Against each transaction, the machine provides a slip to the drawee account holder to see about his transaction. Sometimes for any reason, ATM machine does not comply with the command of the customers for which as per system put to it, it expresses "Sorry, unable to process". When emitting of currency is processed inside the 8 ATM machine, the intending amount is debited from the account holder's account. Sometimes the amount which was not delivered, again absorbed by the ATM and separately kept in a box or a tray inside the ATM. Only the person engaged by the bank who subsequently came to ATM to fill the currencies can find it out and bring to the ATM account. Sometimes, even after the said amount is debited, the machine may not eject the money, although transaction may appear successful. In that situation, it is generally seen that machine automatically credits the debited amount to the account at the same time from which the amount was debited. If it happens, a bank customer expresses no grievance. But occasionally a customer alleges that though he did not get money from the ATM machine, but the slip coming out from the ATM machine reflects that the amount he demanded has been debited by the ATM machine from his account. Immediately thereafter, he may make complaint to the Branch Manager of the concerned Bank where the account of the customer lies that he wanted to draw some money from the ATM machine, but though the transaction appeared successful and the amount was also debited from his account, practically, he did not get any amount of money from the ATM machine.
15. In this case the complainant alleged that only three times amount has been emitted from the ATM but on the fourth time an amount of Rs. 10,000/- was not delivered from the machine but the receipt alone came as if the amount was debited from his account as if the ATM delivered Rs.10,000/- on the fourth time also. The customer/ complainant immediately reported this matter to the bank, the first opposite party .
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16. At this juncture is it sufficient for the bank to say simply, that the amount was shown as withdrawn in the personal pass book entry as well as in ATM Journal Statement, or else what was their obligations and expected duties from them in this respect?
(i) The service provider/ customer's bank immediately called and informed this fact to the bank or to the outsource agency who maintained the ATM .
(ii) The customer's bank must rule out mechanical defect in the ATM at the relevant time.
(iii) The customer's bank must ascertain the power connection and internet connectivity was proper at the time.
(iv) The customer's bank must ascertain that the amount was not absorbed again by the ATM by enquiring the person who filled the currencies subsequent to the transaction that no amount was found in the box or tray.
(v) The customer's bank must ascertain that there was no ATM card fraud such as card shimming, card skimming, card, jamming etc.
(vi) The customer's bank must immediately gone through the CCTV footage and ascertain the amount was taken out by the customer alone.
(vii) They ought to have referred the matter to Bank Ombudsman or other Inter dispute management system.
17. Here the opposite parties/the banks, did not do anything mentioned above. While the customers keeping their hard earned money with the banks, the banks acted as their agents and trustees. They must assure and take necessary care for the safety 10 of customers money. While a complaint was made about an unauthorized deduction, the opposite parties banks should act swiftly to ascertain the real facts and offer a satisfactory reply to the complainant. They not only failed to respond swiftly but also failed to reply properly to the complainant in this case. Even they failed to satisfy this commission that they took proper steps to resolve the issue. No expert or person in charge of ATM and person who filled the cash filed their proof affidavit. Even they failed to explain why CCTV footage or the hard disc were not examined immediately. While the complainant alleged that the failure of not receiving money on his fourth attempt was immediately reported to the security guard of the ATM, his affidavit was not filed by the 1 & 2 opposite parties to clarify this fact. Those failures on the part of the banks clearly proved their deficiency in service. Apart from it, the observation of the National Consumer Disputes Redressal Commission in T.N. Ravi Prakash -Vs- The Manager, State Bank of Mysore.
on 8 June, 2018 From the above examination, I reach to the conclusion that even if the JP log are to be believed to be true and the money has been withdrawn by using ATM card by him from ATM-2, there is deficiency on the part of the bank for not producing the video footage of these dates relating to these two machines.
Accordingly, it is not possible to confirm the assertions made by the opposite party bank with respect to withdrawal from ATM -2 by using ATM card of the complainant, particularly when there were more similar cases as observed the District Forum and when the respondent bank has not properly investigated the 11 matter. In this way, clearly the opposite party bank is deficient in its service for not maintaining and providing video footage of these dates for these ATMs and for this deficiency atleast, the complainant is entitled to get compensation.
Is also supported our views. The District commission also came to a correct finding and passed an award.
18. So, we hereby confirmed the finding and award of the District Forum. Moreover, the second opposite party did not prefer any appeal. The first and second opposite parties did not move the dispute Management system among themselves. So, in every respect we confirmed the District Forum order and dismiss the appeal. We also awarded cost of Rs.5000/- in this appeal and answered the point accordingly.
19. In the result,
1. The appeal is dismissed.
2. The order passed by the Learned District Forum, Theni, made inC.C.No.32/2015, dated 02.03.2017 is hereby confirmed.
3. The appellant/1st opposite party is directed to pay additional cost of Rs.5000/- to the respondent/complainant in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 10th day of October 2022.
Sd/-xxxxxxxxxxxxx Sd/-xxxxxxxxxxxxxxx
S.KARUPPIAH, N. RAJASEKAR,
JUDICIAL MEMBER. PRESIDING JUDICIAL MEMBER.
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Corrected