JAINANDRA KUMAR vs BRANCH MANAGER, STATE BANK OF INDIA

Despite service and the matter having been passed over once, the Respondent, viz. the State bank of India (for short "the Bank") remains unrepresented. Accordingly, we have heard the learned Amicus Curiae.

The Revision Petition is directed against the order, dated 29.08.2014, passed by the State Consumer Disputes Redressal Commission, Bihar at Patna (for short "the State Commission") in First Appeal no.355 of 2010. By the impugned order, the State Commission has overturned the order, dated 03.04.2010 passed by the District Consumer Disputes Redressal forum, Jehanabad (for short "the District Forum") in Consumer Complaint No.35 of 2009. By the said order, the District Forum had directed the Bank to pay a sum of Rs.20,000/-, being the amount alleged to have been withdrawn from his account by misuse of his ATM Card, issued to him by the Bank, along with interest @ 8% p.a. and costs of litigation of Rs.250/-.

Briefly stated, the facts material for disposal of the Revision Petition are that the Petitioner claims to have used his ATM Card on 20.04.2009 and withdrawn an amount of Rs.10,000/- but on the Journal Print Roll (JP Roll), two transactions of Rs.20,000 and Rs.10,000/- on the said date were printed. He immediately requested the Bank to have the ATM checked up and reverse the entry of Rs.20,000/-. Having failed to elicit any positive response from the Bank, the Petitioner filed the Complaint before the District Forum praying for a direction to the Bank to pay to him a sum of Rs.50,000/- as compensation for committing deficiency in service.

The Complaint was resisted by the Bank mainly on the ground that in view of the Clause, governing the terms and conditions of the Agreement relating to the ATM facility, which stipulates that "the record of the ATM will be conclusive and binding between the parties unless found to be otherwise on verification and corrected by the Bank, the transactions reflected on the JP Roll are final and binding on the account holder.

On Petitioner''s filing his passbook, on 16.11.2009, the District Forum directed the General Manager of the Bank to hold an enquiry and produce the statement relating to the withdrawal of the amounts from the ATM, from Mumbai Head Office. However, the General Manager did not submit any report to the District Forum. Rather, the order records that the General Manager even refused to receive the communication sent by the District Forum to him. Taking into consideration the said lapse on the part of the General Manager, the District Forum accepted the version of the Complainant and allowed the Complaint with the aforesaid directions to the Bank.

Being aggrieved, the Bank carried the matter in Appeal to the State Commission. As noted above, the State Commission has allowed the Appeal and reversed the order passed by the District Forum.

In coming to the conclusion that there was no deficiency on the part of the Bank, the State Commission has relied on the aforenoted condition in the Agreement and has held that the JP Roll is sacrosanct for all purposes.

Having perused the material on record and bearing in mind the fact that the Bank had failed to hold an enquiry into the functioning of the ATM machine and submit its report as per the directions issued by the District Forum, it can safely be inferred that the Bank had no material to rebut the allegation of the Complainant regarding malfunctioning of the machine. Perhaps for the same reason, the Bank has chosen not to contest the present Revision Petition. We are of the view that serious doubts having been raised about the functioning of the ATM machine, by the Complainant and some other persons, the Bank was obliged to have it thoroughly checked to satisfy the Complainant that all was well with the machine. Having regard to the wide definition of "deficiency" in Section 2 (1) (g) of the Consumer Protection Act, 1986 (for short "the Act"), we are of the opinion that Bank''s failure to file enquiry report before the District forum amounts to deficiency in service.

Accordingly, we allow the Revision Petition; set aside the impugned order and restore the order passed by the District Forum. The Revision Petition stands disposed of with no order as to costs.

Before parting with the case, we place on record our appreciation for the valuable assistance rendered by the learned Amicus Curiae. A sum of Rs.10,000/- shall be paid to her from the Consumer Legal Aid Account as out of pocket expenses.