State Consumer Disputes Redressal Commission
Sony Abraham Kurian vs V. Sunija on 28 February, 2014
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/380 (Arisen out of Order Dated 27/02/2012 in Case No. CC/11/134 of District Palakkad) 1. ASST MANAGER,FEDERAL BANK LTD NENMARA PALAKKD KERALA ...........Appellant(s) Versus 1. V.SUNIJA NAVODAYA VIDYALAYAM,MAYYANNUR TRISSUR KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER SMT.A.RADHA MEMBER SMT.SANTHAMMA THOMAS MEMBER PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.380/2012
JUDGMENT DATED 28/02/2014
(Appeal filed against the order in CC No.134/2011 on the file of CDRF, Palakkad dated, 27/02/2012)
PRESENT:
SMT. A. RADHA : MEMBER
SMT. SANTHAMMA THOMAS : MEMBER
APPELLANTS:
1. Sony Abraham Kurian,
Assistant Manager,
Federal Bank, Nenmara-678 508.
2. The Manager,
Federal Bank Ltd.,
Nenmara Branch,
Main Road, Nenmara-678 508.
(By Adv: S. Reghukumar)
Vs
RESPONDENT:
V. Sunija, W/o. Joshi,
T.G.T. Hindi Jawahar,
Navodya Vidyalayam,
Mayannur (P.O), Thrissur.
(By Adv: A.R. Gangadas & A.S. Brijesh)
JUDGMENT
SMT. A. RADHA : MEMBER Appellants are the 2nd and 3rd opposite parties in C.C.No.134/11 on the file of CDRF, Palakkad, the respondent is the complainant.
2. The case of the complainant is that the complainant is an account holder of State Bank of India, Ottappalam Branch and was having an ATM Card. On 15/10/2010 at 13.04 hours the complainant tried to withdraw Rs.10,000/- from ATM counter of Federal Bank, Nenmara Branch. The transaction was successful as per TXN No.1120 and along with the same received TXN No.1121 stating the balance enquiry. Since the complainant received both receipts in one slip the complainant made an enquiry and received the slip bearing TXN No.1122. Subsequently at 13.07 hours made withdrawal of Rs.10,000/- which received as per TXN No.1123 slip, along with which the complainant got TXN No.1124 stating withdrawal of Rs.10,000/-. Which the complainant alleges that the said amount was not received by the complainant. Consequent to that another attempt made by the complainant was declined the transaction as per TXN No.1125. Though the complainant contacted 1st opposite party the approach of the opposite party was very rude and had not made any attempt to find out the mistake. The 1st opposite party insulted the complainant which itself is a deficiency in service on the part of 1st opposite party. The opposite parties 1 and 2 are jointly and severally liable to compensate for the loss of the complainant.
3. In the version filed by 1st and 2nd opposite party the 2nd opposite party adopted the contention of the 1st opposite party. It is contented that the complainant is not a customer of the 1st and 2nd opposite party. No consideration is received for providing the service to the complainant. Prior to filing this complaint the complainant filed a petition before the Banking Ombudsman against the 3rd opposite party, State Bank of India, for the same relief by raising the same allegation. On appreciation of the entire documents the Banking Ombudsman found that there is no discrepancy or default in the ATM machine and rejected the complaint. On that ground itself the complaint is only to be dismissed. It is also stated in the version that the complainant has used ATM of the 2nd opposite party for several transactions on the same time continuously. As per ATM log all the transactions were successful except slip No.1125 and there is no difference in ATM cash. There is provision in the ATM to do a 2nd transaction after completion of 1st transaction without taking the card outside and if a customer has used that provision details of subsequent transaction will also generate in a single slip. As per the slip produced by the complainant it is clear that the complainant got doubt regarding her own balance in the SB Account and had withdrawn the amount as per slip No.1122 and the balance enquiry as per slip No.1121 without taking the card. Hence both the transactions were generated in the same slip. It is also denied that the complainant had not received any amount as per slip No.1124. In such case, there would have been excess amount in the ATM after the transaction. Several transactions were taken place in the said ATM and no complaint regarding the machine break down of the ATM on that day. The complainant is having the Account with the 3rd opposite party and the complainant had to approach the 3rd opposite party alone. It is also clear that the complainant approached the Banking Ombudsman with the same allegation against State Bank of India and thereafter on dismissal of the petition the complainant filed this complaint. No deficiency in service can be attributed on the part of 1st and 2nd opposite parties and the complaint is filed only to abuse the process of law.
3. In the version filed by the 3rd opposite party it is contended that the 3rd opposite party has no knowledge about the non receipt of the 3rd transaction. As per the core banking system the complainant had availed the ATM facility 3 times on 15/10/2010 at 1.04 PM, 1.06 PM and 1.07 PM and the amount was debited from the account of the complainant. The 3rd opposite party denied the liability for not receiving the amount from the ATM. There is no deficiency in service on the part 3rd opposite party. The complaint filed before the Banking Ombudsman already scrutinized the details and dismissed the case as there is no merit. The 3rd opposite party is not liable for any compensation claimed by the complainant.
4. The complainant and the opposite parties filed affidavits in respect of their case and marked Exbts. A1 to A6 on the side of complainant and Exbts.B1 to B4 on the side of opposite parties. On appreciation of evidence and documents the Forum Below fastened the liability upon 1st and 2nd opposite party relying on the Exbts.B3 document against which the amount has to be debited from the complainant's account to ATM of 1st and 2nd opposite party and exonerated the 3rd opposite party.
5. This appeal is preferred by the 1st and 2nd opposite parties against the order passed by the District Forum. The 3rd opposite party was not a party in the party array at the appellate stage. The submission made by the counsel for the appellant is that the respondent is not a customer of the appellant and no service was rendered by accepting consideration. A complainant can allege deficiency in service if there is any promise or any consideration accepted by the parties. In this case no consideration was received for the service rendered by the appellants. It is true that the ATM facility of the appellants were availed by the respondent under the Core Banking System. Admittedly, the complainant is the account holder of the State Bank of India who was the 3rd opposite party in the complaint filed by the complainant before the District Forum. The Forum Below exonerated the 3rd opposite party from any liability. If the respondent got any grievance being the customer of the 3rd opposite party it should be against SBI who was the 3rd opposite party before the Forum Below. The Banking Ombudsman already dismissed the complaint filed by the respondent after going through all the documents and details of transaction on 15/10/2010 at the ATM. The entire documents were produced before the Ombudsman and no discrepancy or fault found out by the Ombudsman in ATM machine and dismissed the complaint. After closing that complaint the complainant preferred a case before the Consumer Fora which is hit by resjudicata and is not maintainable under law. The complaint is filed by abusing the process of law and it is to be dismissed. From the documents it is very clear that the respondent used the ATM of the appellant for several transactions on the same day continuously and as per ATM Log all the transactions were successful except slip No.1125 and it is also clear that there had no difference in the ATM cash. Further there is no other complaint raised by any other customer with regard to the ATM or its transaction took place on 15/10/2010 of the appellant. It is to be pointed out that the customer can have the 2nd transaction after completion of 1st transaction without taking card outside. If a customer uses a 2nd transaction without taking card the details of subsequent transaction will also get generated in a single slip. It is very clear from the complainant's transaction of slip No.1120 and 1121, 1123 and 1124 were done without taking card outside the machine. The complainant was not sure of her own balance and requested for balance enquiry as per slip No.1121 without taking the card. Hence the transactions were generated in the same slip. The allegation of the complainant that the respondent had not received any amount as per slip No.1124 was not correct and no excess cash after the transaction caused to the further transaction of the ATM. There is no complaint with regard to the ATM centre or machine break down reported on that date which clearly shows that the ATM of the appellant was fully operational on that day at that point of time. It is pertinent to point out that Ombudsman had already discussed and gone through the documents in detail and rejected the relief claimed by the complainant. So the present complaint for the same relief is not at all entertainable. It is the prime duty of the customer to approach her own bankers and file the complaint before her bankers itself. In this case the banker of the complainant is the SBI, Ottappallam. We would like to point out that the complainant approached SBI and filed the complaint before the banking Ombudsman against the SBI and the case on scrutiny was dismissed and thereafter filing the complaint against this appellant is also not entertainable. Mere pleading of non receipt of Rs.10,000/- through the ATM cannot be taken in as evidence and the complainant has not proved her case with sufficient documents. It is also to be pointed out that as per Exbt.B2 it is reported that there had no excess cash in ATM on that day. The Federal Bank, Nenmara ATM has no excess cash against the mentioned transaction with regard to TXN No.1120 to 1125 dt 15/10/2010.
6. The counsel for the respondent vehemently argued that the transaction made by the complainant was through the ATM of the appellants. The complainant made certain transactions and the complainant could not take delivery of Rs.10,000/-. It is true that the respondent is not having an Account with 1st and 2nd appellants. Since the appellants are functioning on the Reserve Bank of India norms the appellants are in contract with the customers and can use the ATM centers of other banks. Hence the complainant is an implied customer of the appellants. The contention that the complainant is not a consumer does not lie under the Core banking System the customer of one Bank and the customer of other bank while using the ATM cards is governed by Reserve Bank of India Rules. The complainant used the ATM for withdrawal of Rs.20,000/- on two times and he was having the TXN No.1120, 1121, 1122 & 1123. The grievance of the complainant is that he cannot use the ATM facility as the transaction was declined by the ATM of Federal Bank. The ATM counters are having fixed camera and the appellant had not produced any transactions made by the complainant through the devise of camera. The complainant lost Rs.10,000/- at the time transaction made through the ATM of the appellants and prayed for payment of Rs.10,000/- by the complainant. The Forum Below allowed Rs.10,000/- along with the compensation and cost.
7. As the 3rd opposite party before the Forum Below was not made a party before this Commission on exoneration from the party array of the appeal, we are not in a position to fasten liability upon the 3rd opposite party. Mere allegation of the complainant that he had not received the amount and the transaction declined does not amount to deficiency in service as it was not proved in evidence. Nothing is made out to prove the allegation made by the complainant and the Banking Ombudsman verified the technicalities of ATM which does not support the allegation of deficiency in service on the part of the appellants.
In the result, we find no ground to fasten liability upon the appellants and appeal is allowed setting aside the order passed by the Forum Below.
The office is directed to send a copy of this order to the Forum below along with LCR.
A. RADHA : MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.380/2012
JUDGMENT DATED 28/02/2014
Sa.
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER
[ SMT.A.RADHA] MEMBER
[ SMT.SANTHAMMA THOMAS] MEMBER