Landmark judgements

ATM Transactions-JUDGMENT

(Equivalent Citation:- I (2013) CPR 398 (NC))

I (2013) CPJ 749 (NC)

NATIONAL CONSUMER DISPUTES

REDRESSAL COMMISSION, NEW DELHI

Hon’ble Mr. Justice V.B. Gupta, Presiding Member & Mr. Justice K.S. Chaudhari, Member

STATE BANK OF INDIA—Petitioner

versus

OM PRAKASH SAINI—Respondent

Revision Petition No. 2382 of 2012 from Order dated 17.2.2012 in Appeal No. 860/2011 of Haryana State Consumer Disputes Redressal Commission, Panchkula—Decided on 18.1.2013

Consumer Protection Act, 1986 — Sections 2(1)(f), 2(1)(g), 21(b) — Banking and Financial Institutions Services — Withdrawal from ATM — Defect in machine alleged — Amount could not be withdrawn — Slip showing deduction from account — Refund of amount denied — Alleged deficiency in service — District Forum allowed complaint — State Commission dismissed appeal — Hence revision — Camera is fixed only on the face of user and not on the keys of ATM and delivery window — Non-supply of video footage had no bearing on claim of complainant — No other person complained for not receiving money on that day — It cannot be presumed that complainant did not receive Rs. 5,000 from ATMmachine — Impugned order set aside.

[Paras 5, 6]

Result : Revision Petition allowed.

Counsel for the Parties:

For the Petitioner : Mr. Gautam Gupta, Advocate.

For the Respondent : In person.

ORDER

Mr. Justice K.S. Chaudhari, Member—This revision petition has been filed by the petitioner against the impugned order dated 17.2.2012 passed by the Haryana State Consumer DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 860 of 2011, State Bank of India v. Om Prakash Saini by which appeal of the petitioner was dismissed andorder of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant filed complaint before the District Forum alleging that he was holding saving bank account with the petitioner/OP. On 23.5.2010, complainant went to ATM of OP to withdraw Rs. 5,000. Rupees 5,000 could not be withdrawn due to defect in the ATM machine, but received a slip showing deduction of Rs. 5,000 from his account. Complainant immediately contacted opposite party on its toll free No. 1800112211. Opposite party assured that complainant would get the money back. Complainant also demanded video footage of the transaction at the relevant time but that was not supplied. Rupees 5,000 was also not returned to him and in such circumstances alleging deficiency of service, filed complaint before the District Forum for refund of amount. Opposite party filed written submissions and submitted that ATM machine clearly shows withdrawal of sum of Rs. 5,000 on 23.5.2010 andcomplainant was given intimation of this fact along with copy of ATM record and prayed for dismissal of complaint. Learned District Forum after hearing both the parties accepted complaint anddirected opposite party to refund Rs. 5,000 as compensation and Rs. 1,100 as litigation expenses. Opposite party/petitioner filed appeal before the State Commission which was dismissed by the learned State Commission against which this revision petition has been filed.

3. Learned Counsel for the petitioner submitted that J.P. Roll contained various other transactions effected on 23.5.2010 and many persons had withdrawn money, but none other except the complainant, complained. Had there been any defect in the ATM machine, more complaints would have been received and in such circumstances, learned State Commission has committed error in dismissing appeal, hence, the revision petition be accepted and order of learned State Commission may be set aside and complaint be dismissed. On the other hand, General Power of Attorney Holder of Respondent submitted that order passed by learned State Commission is in accordance with law and as the petitioner has not supplied video footage, petition is liable to be dismissed.

4. Complainant has supported his claim only by his affidavit, but has not adduced any other evidence to substantiate his claim before the District Forum. Learned District Forum observed that “The first and foremost question before this Forum is whether affidavit of the complainant should be relied upon or the slip of the ATM Machine? Normally, machine does not lie but man may do so. But it also varies from man to man. Every person cannot be presumed to be a liar. It is reliability and trustworthiness of the person which matters. Some time machine may fail. There may be unexplainable number of reasons for the same. After perusal of the record and after hearing the complainant himself, our judicial conscience is completely satisfied that the complainant is a reliable and trustworthiness person”.

5. Learned District Forum held complainant reliable and trustworthiness only on account of judicial conscience on the ground that there was no reason for the complainant to tell a lie only for a sum of Rs. 5,000. It is true that normally a person would not tell a lie but in civil matters complainant was obliged to prove his claim by preponderance of evidence. Complainant should have called for the statement of the opposite party showing opening balance in ATM machine on 23.5.2010 and closing balance on that day along with amount withdrawn which should have proved that Rs. 5,000 were not received by the complainant and he got only a slip showing receipt of the money. When many other persons had withdrawn money from that ATM on that day andnone complained for not receiving money it cannot be presumed that complainant did not receive Rs. 5,000 from the ATM machine. Complainant has not proved any written protest made to the bank authorities immediately and has based his claim only on the basis of information given on toll-free number of the opposite party.

6. Exactly what message was given is also not on record. Learned District Forum allowed the complaint mainly on the ground that video footage were not furnished to the complainant by the opposite party and the learned State Commission also observed the same fact in the impugned order. In this case, video footage had no relevance at all because this is not the case of the complainant that he did not go to operate ATM machine of opposite party. Opposite party has also mentioned in its written statement that camera is fixed only on the face of the user and not on the keys of the ATM and the delivery window. In such circumstances, non-supply of video footage had no bearing on the claim of the complainant and on this deficiency claim could not have been allowed by the learned District Forum and upheld by the learned State Commission.

7. Consequently, petition filed by the petitioner/OP is allowed against the respondent and impugned order dated 17.2.2012 passed by the learned State Commission in F.A. No. 860 of 2011 is set aside and complaint of the complainant is dismissed. Parties to bear their own cost.

Revision Petition allowed.

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