State Consumer Disputes Redressal Commission
State Bank Of India vs Mrs Sharmila Alhad Mayekar on 23 March, 2018
A/15/273 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/15/273
(Arisen out of order dtd.30/09/2014 in Complaint No.CC/26/2012 of
District Consumer Disputes Redressal Forum, Ratnagiri)
State Bank of India
Ratnagiri Branch,
Near Geeta Bhavan, Court Road,
Tal. and Dist. Ratnagiri,
Through its Chief Manager,
Mr. Mehandale. .....Appellant/Org. Opponent.
Versus
Mrs. Sharmila Alhad Mayekar,
R/at - G/3, Bhagirathi Bhuvan,
Khalchi Aali, Ratnagiri. ....Respondent/Org. Complainant.
BEFORE: Usha S. Thakare, Presiding Judicial Member.
A.K. Zade, Member
PRESENT: Advocate Ms. Medha Behere for Appellant/Original Opposite
Party
Advocate Mr.Digambar Thakare for Respondent/Original
Complainant
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) This appeal is filed by the Appellant-Opponent against the order dtd.30/09/2014 passed by the Learned Consumer Disputes Redressal Forum, Ratnagiri by which Consumer Complaint filed by Complainant-Respondent herein- was allowed and Opponent-Appellant herein was directed to credit into Complainant's account an amount of Rs.20,000/- alongwith interest at the rate in force with effect from 05/03/2012 and also to pay to Complainant Rs.5,000/- towards mental and physical harassment and Rs.4,000/- towards cost of complaint. The Opponent was directed to pay the said amount within a period of 45 days.
A/15/273 22) As per Complainant, facts of the case are as follows -
Complainant had saving account in State Bank of India, Ratnagiri Branch and had gone to withdraw an amount of Rs.2,000/-from it through ATM near Kandil Lodge, Ratnagiri on dtd.05/03/2012 at 5.00 p.m. Complainant took all necessary steps at the said ATM for the said withdrawal, but the said amount of Rs.2,000/- did not come out of said ATM. Thereafter Complainant pressed clear and cancel buttons. At 5.02 p.m., Complainant verified balance in her said account at the said ATM which was shown to be Rs.1,06,830.37 and it was correct. Complainant left ATM centre at 5.03 p.m. However, on 13/03/2012 when she went for updating passbook, she found that an amount of Rs.20,000/- was debited from her account on 05/03/2012. When she met concerned bank officers in bank, she was asked to file written complaint. Accordingly, she filed a complaint-cum-request on 14/03/2012 to Opponent Bank requesting to credit back the said amount of Rs.20,000/-. Complainant also requested the bank officers to show video footage of CCTV recording at the said ATM. She was shown the said Footage. But when she asked CD of the said CCTV Footage, bank officer declined to give it and said that they will give it, if asked by Court. As the bank did not credit back the said amount of Rs.20,000/-, Complainant alleged that Opposite Party is guilty of deficiency in service. Complainant therefore, prayed for directing Opponent to pay back said amount of Rs.20,000/- alongwith interest and also to pay Rs.10,000/- towards mental and physical compensation and Rs.5,000/- towards cost.
3) Opponent submitted its written version before the Ld.District Forum and denied the consumer complaint. As per Opponent, there was no deficiency in service on its part. The working system of ATM runs on predetermined (preset) computerized system and every action at the ATM is recorded in its computerized system. There is inbuilt camera in ATM also, A/15/273 3 which records every action of customer alongwith timing. Similarly after every transaction a slip is issued by ATM on which also time is recorded in hour and minutes. As per Opponent, ATM starts giving instructions only after swapping ATM card in the necessary slot. Thereafter, following instructions appearing on screen, appropriate commands are required to be given after which only the ATM works. After entering the amount to be withdrawn, machine asks whether 'yes' or 'no' for withdrawal and only after giving command 'yes', the amount gets withdrawn. If 'no' is pressed, the said process gets cancelled. As per Opponent, until the process is complete as above and message to that effect is delivered on the screen, no other card or even the same card can be inserted in the particular slot for card and no other action can be undertaken. If anybody uses ATM in wrong and improper manner and if he does not get the amount, then that person i.e. consumer is responsible for it and bank or the concerned company is not responsible for it under any act.
4) Opponent further stated that currency notes do not directly come out from ATM when amount is withdrawn. Customer has to pull those currency notes out of machine. If those currency notes are not pulled out, they go back in machine and stored in the separate compartment of 'rejected bin'. Also there is a PIN Number issued to each customer and without use of card and also the PIN, no operation is possible in ATM. It is the responsibility of the customer/consumer to keep the card out of reach of other person and also to keep the said PIN secret and not to disclose it to anybody else. As per CCTV footage, some other persons were also seen present in the said ATM centre at the relevant time and therefore, the consumer had not taken due precaution while using the card. CCTV Footage of ATM and the contentions of Complainant are contradictory to each other. As per Opponent, there was security guard at the said ATM Centre although it was not binding for bank to appoint security guard at every ATM Centre. Also A/15/273 4 there was no fault in the said ATM. Said amount of Rs.20,000/- had been debited from the said account and the entries were available in the computerized system accordingly. As per Opponent, Complainant was directed to submit report to police regarding presence of other persons in the said ATM and when Complainant and her husband had come to bank alongwith police, the said CCTV footage was shown to them in which it was shown that presence and behaviour of some persons in the said ATM at the very same time was doubtful. Opponent further submitted that another similar complaint bearing no.17/2012 was pending before the same Forum and that the persons who were in CCTV Footage of that complaint were also seen in CCTV Footage of the subject complaint. As per Opponent, as there is no fault of ATM or the bank in the above transaction, it is Complainant who is responsible for not receiving the said amount and therefore, Opponent is not responsible for the said amount and therefore not liable to pay the same or any interest on it or any compensation for mental harassment or any cost to Complainant.
5) Both parties submitted their affidavits of evidence alongwith necessary documents, written arguments and after hearing arguments on behalf of the parties, Ld. District Forum passed the impugned order.
6) Perused record. Heard arguments on behalf of the parties.
7) In the instant case, Complainant requested for appointment of Court Commission which was accordingly appointed. The Commission has submitted its report dtd.02/12/2013. As the report is given by Court Commission, nobody has raised any objection regarding the procedure followed. Ld. District Forum held that the said report can be accepted as evidence in the instant case. However, on the date of visit of Commission, practice of currency notes going back into the ATM, after it had come out on withdrawal, had stopped since July,2012 i.e. after the date of incident A/15/273 5 which is 05/03/2012. Also the Commission at the time of its visit found that instructions about amount more than 15,000/- could not be withdrawn were being displayed on ATM. Advocate for Appellant argued that limit of Rs.15,000/- for withdrawal on a day at ATM came into effect subsequently and therefore at the time of subject withdrawal by Complainant, no such limit was in force. It is admitted by Opponent/Appellant that presence of some persons in ATM centre and their behaviour was doubtful as seen from CCTV Footage of the said ATM of relevant time.
8) The Ld.District Forum have observed that as per CCTV Footage, Complainant had entered the ATM centre at 5.00 p.m. At 5.02 pm. she made the balance enquiry. When she used her ATM Card for withdrawing Rs.2,000/-, she got the message 'unable to process'. Thereafter she pressed the buttons 'clear' and 'cancel' after which she left the ATM centre. Transaction No.809 shows the remark 'sorry unable to process'. Transaction No.810 shows the withdrawal of Rs.20,000/- at 17.04 hour but as Complainant had already left the ATM, she did not get the said amount. The Ld.District Forum had observed that, as per rules of the bank, as the amount of more than 15,000/- rupees could not be withdrawn at ATM, bank should have enquired as to who had withdrawn amount of Rs.20,000/- and who had received it. The Ld.District Forum also observed that although Opponent contented that the said amount of Rs.20,000/- was not in the 'rejected bin', no evidence was adduced by Opponent for the same. The Ld.District Forum further observed that bank is responsible to ensure safety of the depositor's money and if there would have been security guard at the said ATM, unknown persons would not have been present in ATM. But no such precaution was taken by bank and therefore, Opponent bank was liable for deficiency in service by not ensuring safety of funds of Complainant kept in the bank. Although the bank has stated that there was no fault in machine, no expert evidence/technical evidence was adduced by the bank in A/15/273 6 support of the same and therefore defense of the Opponent cannot be accepted.
9) During arguments, advocate for Appellant cited judgment of Hon'ble National Consumer Disputes Redressal Commission in Raghabendranath Sen V/s. Punjab National Bank, decided on 17/12/2014 reported in Laws (NCD)-2014-12-56 CPJ-2015-1-254. In the said case, it was held by the State Commission that ATM card is to be inserted in the machine and the ATM PIN which is known to customer only is to be used for withdrawing the amount and therefore, it was not possible for third party to withdraw any cash. As without use of ATM Card and PIN, no transaction was possible, the said card must have been used alongwith PIN and therefore, the State Commission allowed the appeal filed by the bank which was upheld by the Hon'ble National Commission by the judgment cited above. However, in the said case, the Hon'ble National Commission observed that there was a suspicious circumstance in the case that though Complainant claims to have come to know of the transaction on 03/10/2011 itself, no complaint was immediately lodged by him with the bank and it was lodged only on 07/10/2011 which could easily have been done before that. In the instant case the Complainant came to know about the said withdrawal only when she went to the bank for updating passbook on 13/06/2012 as the debit of Rs.20,000/- was shown on 05/03/2012, after which she immediately contacted the bank officers in the bank, filed written complaint and also contacted the police. Thus, facts in the instant case are different than the case cited by the Ld.Advocate for Appellant.
Ld. Advocate for Appellant also cited judgments of the Hon'ble National Consumer Disputes Redressal Commission in -
i) Rajeshwar Singh V/s. State Bank decided on 19/03/2008, reported in Laws (NCD)-2008-3-20 (CPJ-2008-3-21) A/15/273 7
ii) State Bank of India V/s. Om Prakash Saini, decided on 18/01/2013 reported in Laws (NCD)-2013-1-88 (NCDRC-2013-0-389)
iii) Dinesh Malik V/s. State Bank of Patiala, decided on 17-11-2015, reported in I(2016) CPJ 550 (NC).
We have gone through the judgments cited. But we find that the facts in the concerned cases are different than the instant case and therefore the ratio of judgments cited are not applicable in the instant case.
10) In view of the above discussion, we find that Appellant/Opponent itself had admitted that presence and behaviour of some persons in ATM was doubtful as seen from the CCTV Footage of the instant case and that same persons were found to be present in ATM at the time of similar other incident which was a subject matter of another consumer complaint. In view of this admission by Opponent/Appellant, we hold that it was the responsibility of the bank to ensure security at the ATM and also security of consumer's money in custody of bank and also to prevent presence of any unauthorized/doubtful person inside ATM centre when other customer is using ATM. Appellant Bank had failed in it and therefore it is guilty of deficiency in service to Complainant. We therefore, do not find any reason to intervene with the impugned order passed by the Ld.District Forum which is a well reasoned order and the pleadings, evidence and arguments both written and oral on behalf of both the parties have been discussed at length by Ld.District Forum in the impugned order. We therefore, hold that the appeal needs to be dismissed and the order of Ld.District Forum needs to be maintained. We therefore pass the following order -
ORDER
1) Appeal No.15/273 is dismissed.
2) The order of the Ld.District Consumer Forum, dtd.30/09/2014 in Consumer Complaint No.CC/26/2012 is maintained.
A/15/273 83) Costs of this appeal is fixed at Rs.3,000/-(Rupees Three Thousand Only) to be paid by Appellant to Respondent within a period of 60 days from the date of this order.
4) Copies of this order be furnished to the parties free of cost.
Pronounced on 23rd March, 2018.
[Usha Thakare] Presiding Judicial Member [A.K.Zade] Member aj