Sunil Dufare vs State Bank Of Mysore & Anr

Subhash Chandra, Presiding Member

This revision petition under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 28.09.2016 in First Appeal No. 206 of 2014 of the State Consumer Disputes Redressal Commission, Bhopal, Madhya Pradesh (in short, the ‘State Commission’) dismissing the appeal of the petitioner against order dated 13.11.2013 of the District Consumer Disputes Redressal Forum, Bhopal (in short, the ‘District Forum’) in Consumer Complaint no. 504 of 2012.

The petitioner had a savings bank (SB) account with respondent no. 2 and an ATM card linked to this account. On 07.10.2010 morning he checked the available balance to be Rs 53,413/- but could not draw Rs 20,000/- a few minutes later. However, the person next in line was able to draw money on his ATM card. Later that day he attempted to draw Rs 1,000/- and found that Rs 20,000/- had been deducted from his SB account. The updation of the passbook on 11.10.2010 confirmed that the amount of Rs 20,000/- had been debited from the SB account. As both respondents denied their liability, he approached the District Forum which allowed the complaint on contest and ordered payment of Rs 20,000/- with interest from 07.10.2010 till payment, Rs 100/- per day to complainant as per RBI Circular dated 17.07.2009 and litigation cost of Rs 1,000/-. Both the petitioner and the respondent no. 2 filed appeals before the State Commission seeking enhancement of rate of interest and dismissal of the complaint respectively. The State Commission disposed the same by a common order in FA No. 206 of 2014 filed by the Bank/respondent no. 2. The State Commission concluded that there was no defect in the ATM machine used and the use of two different machines by the petitioner threw a cloud of suspicion on the complainant/petitioner’s conduct. Accordingly, the order of the District Forum was set aside. This revision petition assails this order of the State Commission on the ground that the respondents could not establish that the ATM actually dispensed Rs 20,000/- to the petitioner and the fact was reported to the respondents the same day followed by a written complaint on 12.10.2010 and hence the rule of the respondent for ATM related problems does not apply. The issue was also not resolved by 31.03.2011 as assured by the respondents. On 29.10.2010 the amount of Rs 20,000/- was remitted to his SB account by respondent 2; however, in March 2011 this amount was asked to be returned before the account could be closed as desired by the petitioner. On 30.08.2012 respondent 1 informed him on being contacted that ATM related issues were entertained only up till 6 months.

I have heard the learned counsel for both the parties and perused the records carefully.

The finding of the District Forum was as under:

Since ATM machine of Respondent No. 2 shows withdrawal of Rs 20,000/- regarding which Respondent No. 1 made entry of withdrawal of Rs 20,000/- from the complainant’s saving account, thus deficiency in service on the part of the Respondent No. 2 is proved and not on the part of the Respondent No. 1.

The State Commission’s order records its finding as below:

On perusal of verified copy of the JP roll, A/1, as well as the original JP roll produced by the State Bank of Mysore before us, we find that the ATM machine on which the complainant operated his ATM card on 7.10.2010 was first operated at 00.19 AM for withdrawal of Rs 100/. The transaction was successful as denoted by response code “000”. Second transaction on the machine was done by the complainant at 8.14 AM which has also been reflected successful by the same response code. Immediately thereafter further transactions were made at 8.15 AM, 8.40 AM and 8.50 AM and so on. Except the transaction at 8.40 AM, other transactions were for withdrawal of money, and were successful. The transaction at 8.40 AM was for balance enquiry only. It has been stated by the complainant that after cancelling the transaction he came out of the kiosk and saw another person operating the same machine, but none complained about the machine. The cash verification document, A/2, placed before us indicated that the captioned “ATM” was loaded with the cash on 29.9.2010 and further cash when it was verified on 30.9.2010. As per cash verification done on 30.9.2010, total cash found was Rs 25,38,700/-. No excess cash was found in the ATM on 30.9.2010 and physical cash also tallied with the system. There was no loading/cash verification till 8.10.2010. The complainant made cash transaction on 7.10.2010. As per slips generated by the ATM, the admit balance and physical balance mutually tallied. There was no excess cash found between 30.9.2010 till 9.10.2010. Verification report also stated that as per copy of the JP Log the response code for the subject transaction (no. 8067) was “000”. In banking terms “000” is referred to successful transaction. From the record of the impugned ATM machine filed by State Bank of Mysore, in our opinion, it is established that the said machine suffered with no technical error, and delivered the money on command given by the complainant….

… we find no reason to approve the findings recorded by the Forum to the effect that it was not established that an amount of Rs 20,000/- was withdrawn by ATM card of the complainant, and that the State Bank of Mysore committed deficiency in service by showing the said withdrawal from his account. In our opinion, by the established circumstances of the case it seems reasonably proved that the Debit Card transaction of the complainant at the ATM of the State Bank of Mysore was successful and the money was withdrawn from the ATM machine.

It is the petitioner’s case that the respondent failed to provide a copy of the CCTV recording in the ATM kiosk which would have been good evidence in the matter. He relied upon the order of this Commission in State Bank of India VS. Sansar Chand Kapoor and Anr. in CC No. 2889 of 2014 dated 15.01.2015 wherein it was held that despite request, a copy of the video footage was not provided by the respondent and it had been held that “… the bank ought to have made available a copy of the aforesaid CCTV footage to the complainant. The petitioner bank, therefore, was deficient in rendering services to the complainant, by not making available a copy of the aforesaid CCTV footage to him.” Reliance is also placed upon the order of this Commission in T.N. Ravi Prakash Vs. The Manager, State Bank of Mysore in CC No. 3369 of 2014 dated 08.06.2018 wherein it was held that “… even if the JP log are to be believed to be true and the money 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.” According to the complainant, the issue of CCTV was also raised before the District Forum and the respondent did not controvert it as is evident from the written statement filed by the respondent. The JP Log is contended to not be conclusive evidence. It is also contended that the additional documents sought to be filed by the respondent before this Commission are not admissible since they were not filed before the State Commission.

Per contra, the respondent contends that the Journal Print Log (JP Log) of the ATM indicates that there was no withdrawal of Rs 20,000/- on 07.10.2010 and therefore the order of the District Forum is clearly flawed. The impugned order of the State Commission is stated to be based on a detailed examination of the record of transactions at the ATM and is a reasoned finding and should therefore be upheld. It was argued that the issue of the CCTV footage was not even a ground taken in the revision petition and the petitioner could therefore not agitate it at this stage. The order of the District Commission was based on an erroneous finding of facts which the JP Log of the ATM clearly contradicted. The respondent claimed that the filing of the additional documents at this stage was permissible and cannot be denied. The operation of the ATM by the petitioner indicated suspicious behaviour and the claim itself was likely to be fraudulent.

From the foregoing it is evident that the moot issue is whether the respondent was guilty of deficiency in services in the operation of the ATM in not dispensing the cash of Rs 20,000/- for which the petitioner states that he operated the ATM on 07.10.2010 morning. The finding of the District Forum is in the affirmative based upon the ATM indicating withdrawal and the entry in the savings bank account of the petitioner which shows a debit of Rs 20,000/- on 07.10.2010. The finding of the State Commission, however, is based on the JP Log which records the operations of the ATM electronically and specifies the transactions by different customers. The finding of the State Commission is that the petitioner operated the ATM only to ascertain the balance available in his SB account and not for withdrawal of any cash. This finding is based upon the JP Log which is an objective and unbiased tool based upon a scientific programme. The finding of the District Forum is, however, based on an entry in the savings bank passbook and which has admittedly been corrected by it subsequently. Therefore, from a conjoint analysis of the ATM’s JP Log and the SB Passbook entry, it is manifest that the finding of the District Forum is erroneous and perverse. The impugned order of the State Commission has rightly set it right by setting aside the order of the District Forum. The issue of making the CCTV footage available to the petitioner in the present case would not be very relevant as it would only confirm the transaction history provided by the JP Log through visual record. It is not the petitioner’s case that the respondent bank is guilty of deficiency in service in not making the video footage available to him, as was the case in T.N. Ravi Prakash (supra). For the foregoing reasons, the order of the State Commission, which is reasoned and detailed, has merits and is liable to be sustained.

In view of the facts and circumstances of the case, the revision petition is found to have merits and is allowed. The order of the State Commission is hereby upheld. There shall be no order as to costs. All pending IAs, if any, stand disposed of along with this order.