State Consumer Disputes Redressal Commission
The Manager,State Bank Of ... vs M.Periyanan,Madurai Dist. on 31 January, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: - THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.10/2015
(Against the order made in C.C.No.183/2011, dated 08.04.2014 on the file of the
District Commission, Madurai.)
TUESDAY, THE 31st DAY OF JANUARY - 2023
The Manager,
State Bank of India,
North Veli Street,
Madurai - 625 001. Appellant/Opposite Party
Vs
M. Periyanan,
S/o. Mookkan Periyasamy,
Door No.2/136,
Keelakuyilkudi,
Nagamalai Pudukkottai - Post,
Madurai District. Respondent/Complainant
Counsel for the Appellant/ Opposite party : M/s. J. Prabakaran, Advocate.
Counsel for the Respondent /Complainant : M/s. P. Muthukumar, Advocate.
This appeal is coming before us for final hearing on 23.12.2022 and on hearing
the arguments of both sides and upon perusing the material records, this Commission
made the following:-
ORDER
THIRU. N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This appeal has been filed under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 (Replaced with section 41 r/w section 47(1) (a) (iii) of the Consumer Protection Act 2019) by the against the order of the District 2 Commission, Madurai made in C.C.No.183/2011, dated 08.04.2014, allowing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they had ranked in the District Consumer Disputes Redressal Commission, Madurai.
3. The factual matrix culminating in this appeal is as follows;- The complainant is maintaining a savings bank account in the opposite party bank for six years. On 21.05.2011, the complainant tried to withdraw an amount of Rs.35,000/- from the ATM machine maintained by the opposite party bank. But, money was not disbursed by the said ATM machine. The ATM machine also responded a mini statement. The complainant also tried to withdraw the amount from other ATM machine belongs to Oriental Bank of Commerce at PTR Road, Madurai. When he operated the machine for withdrawal no cash was disbursed and again he visited the ATM machine of State Bank of India near Vadalamalyan Hospital, Madurai and operated for the supply of mini statement and he shocked to see the mini statement shown that the amount of Rs.35,000/- was debited from his account. On the same day, the complainant visited another ATM machine of State Bank of India and withdrew money in two installments such as Rs.2,000/- and Rs.3,000/- later on 23.05.2011, he filed a written complaint with the Assistant Manager, Thirumurugan in the opposite party bank and he assured to take necessary action and requested the complainant to come after 10 days. The Assistant Manager was transferred to Bangalore and a new Assistant Manager M. Arunachalam also not taken any action on the complaint. On the instruction of new Manager, the complainant filed a new complaint before the Assistant 3 Manager and no proper action was taken by the opposite party officials have not furnished any proper information about the complaint. The complainant was dragged for two months without proper action by the opposite party. The complainant issued a pre-suit notice to the opposite party on 02.08.2011 and a reply was also received from the opposite party. The act of the opposite party amounts to deficiency in service. Therefore, the complainant filed a consumer complaint before the District Commission claiming Rs.35,000/- which was wrongly debited from his account by the opposite party and also Rs.1,00,000/- as compensation for mental agony with costs.
4. The opposite party entered into appearance before the District Commission through their counsel in the first hearing itself on 07.12.2011 and they have not filed any written version till 30.04.2013. Therefore, the learned District Commission set them as ex-parte and passed the impugned order on merits in favour of the complainant directing the opposite party to pay wrongly debited amount of Rs.35,000/- and Rs.25,000/- as compensation for mental agony and Rs.5000/- towards costs.
5. Being aggrieved against that order, the opposite party challenged it by filing this appeal stating that the District Commission found that there was no representation on the side of the opposite party for a long time, a Nationalized Bank might have been given an opportunity by issuing a notice to them. But, the District Commission failed to consider it and further the complainant has not proved that he did not withdraw a sum of Rs.35,000/- from the ATM centre of the appellant bank and also failed to consider the averments stated in the reply notice issued on behalf of the appellant/opposite party bank.
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6. No additional evidences were adduced by both parties in this appeal.
7. The point for consideration is;-
(1) Whether the order passed by the District Commission, Madurai passed in C.C.No.183/2011 dated 08.04.2014 is sustainable under law or not?
8. Point:- The complainant is having a savings bank account with the opposite party bank, Bank of Travancore, now merged with the State Bank of India. When he wanted to withdraw Rs.35,000/- from ATM centre of the opposite party bank, he could not withdraw the amount and hence he tried to withdraw the amount from another ATM centre belongs to the Oriental Bank of Commerce at PTR Road, Madurai on the same day itself : but he could not withdraw the money from the said ATM centre also. The complainant received a statement from the ATM centre belongs to the opposite party near Vadamalayan Hospital and on seeing the statement he shocked to know that the statement revealed that the complainant had withdrawn Rs.35,000/-. Subsequently, he had withdrawn Rs.2,000/- and Rs.3,000/- in two occasions from the same ATM centre of the State Bank of India and therefore he lodged a complaint before the Assistant Manager of the opposite party bank on 23.05.2011 and after receiving the written complaint, the Branch Manager of the opposite party bank has not taken any steps to verify the fact that whether the amount was disbursed to the complainant or whether it was retained within the machine or not? But, they have raised a contention in the appeal that the complainant has not proved the non-withdrawal of the amount from ATM machine. The complainant could not be expected to prove negative. To prove his allegations, the complainant has marked Ex A1, Xerox copy of the passbook 5 which has manual entries of withdrawal of Rs.35,000/-, Rs.2,000/- and Rs.3,000/- on 21.05.2011. The statement obtained from the State Bank of Travancore ATM Machine also revealed the above entries made on the date of 21.05.2011 which has been marked as Ex A2. The copy of written complaint filed by the complainant is marked as Ex A3 and the second detailed written complaint filed by the complainant is also marked as Ex A4. The opposite party has not taken any steps to verify whether any amount was actually disbursed or retained within the ATM machine. A copy of pre-suit notice dated 02.08.2011 sent to the opposite party is marked as EX A5 and a reply notice was sent by the opposite party mentioning that the complainant is a successful withdrawer and the opposite party Branch Manager was satisfied with the verification made with the ATM transaction monitored on 26.05.2011. If it is true, the opposite party necessarily ought to have appeared before the District Commission and contested the allegations by producing available evidences with them and proved the successful withdrawal of the money by the complainant. Without taking any necessary steps, the opposite party was not appeared before the District Commission and they have not filed their written version for the period of two years. After considering the long delay in filing the written version, the District Commission passed the impugned order in favour of the complainant. Originally, the complaint was filed in the year 2011 and it was disposed of by the District Commission in the year 2014. The opposite party filed this appeal in the year 2015. After passing of 11 years from the date of filing of the complaint, the grievance of the complainant is not yet redressed or rectified by the opposite party. The opposite party has also not furnished any details about the 6 maintenance of the ATM machine whether it was maintained by the Bank Officials or by any private agencies. If the machine was maintained by the bank officials, the available registers for maintaining the particulars of depositing of currencies in the machine are available with the opposite party bank. If the Machine was maintained by the private agencies, the above particulars will be available with them. The person who opened the ATM machine for depositing of currencies would be known the detentions of failed transactions and the cash kept in the box within the machine. When the person who opened the ATM machine for depositing the currencies would have found the retained currencies with regard to the failed transactions within the machine he ought to have informed it to the Branch Manager who immediately to verify the amounts belongs to which account the failed transactions are connected and to take necessary steps to credit it in those accounts. The opposite party has not furnished any such information in this appeal also. Without furnishing the above details, the Commission is not inclined to interfere with the order passed on merits by the District Commission on available records 11 years back and to direct the complainant to approach the District Commission and contest the claim for the amount lost in the failed transactions. In my view, the lethargic attitude of the opposite party itself amounts to deficiency in service. In those circumstances, the order of the District Commission does not require any interference and hence it is sustainable under law. The point is answered accordingly.
9. In the result, the appeal is dismissed by confirming the order of the District Consumer Disputes Redressal Commission, Madurai made in C.C.No.183/2011, dated 08.04.2014.
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The appellant/opposite party shall pay additional costs of
Rs.2000/- to the respondent/ complainant in this appeal.
Sd/-xxxxxxxxx
N. RAJASEKAR,
PRESIDING JUDICIAL MEMBER.
Index: Yes/No
TCM/SCDRC/Madurai Bench /Orders/Jan 2023