1.                 This is a petition filed U/S 12 of the consumer Protection Act, 1986 praying for recovery of money, compensation and other reliefs. The petition is filed by the petitioner Md Saiyad Ahmed Laskar against the opposite parties, namely, State Bank of India, Hojai Branch and Others.

2.                The petitioner’s case in brief is that the petitioner Md Saiyad Ahmed Laskar who is a permanent resident of village Jugijan under Jamunamukh P.S. in the District of Nagaon and a consumer of the opposite Party No.3 bearing  Account No.31493125052 and he has been regularly running the said account. He stated that on 24-02-2015, he tried to withdraw money from the A.T.M. of Nagaon Town, opposite to the Morigaon Bus Stand and initially tried to withdraw Rs.20,000/-(Rupees Twenty Thousands)only after due formalities and after pressing the button, when the amount did not come out from A.T.M. Machin, again tried to withdraw the same amount but no money came out from the machine, however, it was shown that he withdrew amount of Rs.20000/-+ Rs.20000/- in total an amount of Rs.40,000/- and the said amount had been withdrawn from his account and he received message of withdrawn of Rs.40,000/- in his mobile No.9435210466 but in fact he did not receive a single amount from the A.T.M. machine after trying for two time.  Petitioner’s further case is that after the said incident, he being confused and nervous and being a lay man did not inform about the occurrence at the nearby  S.B.I. branch and immediately, rushed to his native place and thereafter, reached Hojai in the evening and informed his family members about the incident  and after discussion with his family members and neighbors, approached and complained before the Manager of the S.B.I. Branch of  Hojai on the next morning who assured him that the money would be returned to his account within 2/3 days and asked him not to worry. He stated that when the money was not refunded, he again went to the S.B.I. Branch of Hojai after three days but again send bank with assurance that the matter would be solved within few days and in the meantime, he checked the A.T.M. twice and withdrew money but the previous amount of Rs.40,000/- which was shown to be withdrawn was not refunded to his account. The petitioner stated that ultimately on 09/03/2015, he gave a written complaint before the Chief Manager of  the S.B.I. Branch of  Hojai and approached him to resolve the matter and again on 20/03/2015 filed another written complaint before him who then asked him to file complaint before the A.G.M. of S.B.I., Nagaon and thereafter, on 25-03-2015, he filed a written complaint before the A.G.M. of S.B.I., Nagaon. Petitioner further stated that in spite of several approach, the Bank authority did not resoled his issue and being unsuccessful to get  back his money, he approached before the District Legal Service Authority, Nagaon and accordingly, Advocate Mukul Barthakur was appointed by the District Legal Service Authority, Nagaon to take necessary step in favour of the petitioner and then the appointed counsel issued notice upon opposite party No. 1 to 4  on 23-04-2015 to resolve the matter of the complainant. Thereafter  A.G.M., Nagaon informed Advocate that notice was received by them and S.B.I., Hojai Branch had undertaken to resolve the issue but till 31-07-2015 when the matter was not resolved by the Bank Authority, the learned counsel again issued notice to A.G.M., Nagaon asking  to resolve the matter within seven days and finally on 07-09-2015, the Chief Manager, Hojai Branch inform complainant’s Advocate that after scrutiny both the transaction made by the complainant on 24-02-2015 were found successful and hence, unable to refund the amount of Rs.40,000/- in the account of the complainant. Hence, the petitioner filed this petition U/S 24 of the Consumer Protection Act, 1986 praying for passing order for refund back of his money along with other consequential relief.

3.                   The opposite parties filed written statement denying all the claims of the petitioner.  By their written statement, the opposite parties submitted that there is no cause for the petitioner for filing the petition against the opposite parties, that the complaint petition is barred by the principle of weaver estoppel and acquiescence, that the petition is not maintainable and liable to be dismissed etc. The opposite party stated that on 24-02-2015, the complainant withdrew Rs.40,0000/-  from ATM No.SI0A000146010 situated at opposite to Morigaon Bus Stand, Nagaon Assam under S.B.I. Nagaon Branch through two transaction  of Rs.20,000/- and Rs.20,000/- each being transaction No.3290 time 14:32 IST and transaction No.3291 time 14:34 IST and both the transaction was successful with respond Code No.0.00 and accordingly, complainant got SMS alert on his registered mobile No. The answering opposite party further stated that after receiving complaint from the petitioner that he had not received the money, opposite party No.3 and 4 immediately lodged a complaint with complaint Management System i.e ATM Switch Centre on 26-02-2015 on 26-02-2015 Vide Number AT429216905369 and AT429216905352 and both complaint was closed by ATM Switch Centre as both the transaction were found successful and hence, the question regarding deficiency of service  on the part of the opposite party does not arise at all. Further case of the opposite party is that after receiving notice from the counsel of the petitioner on 23-04-2015, the opposite party again lodged complaint with complaint Management System i.e ATM Switch Centre on 28-04-2015 and ATM Switch Centre after verification reported that the two transaction  of Rs.20,000/- and Rs.20,000/- each being transaction No.3290 time 14:32 IST and transaction No3291 time 14:34 IST made by the complainant on 24-02-2015 were successful and a total amount of Rs.20,000/-+ Rs20,000/- were successfully dispensed with and the same has been communicated to the complainant and his counsel. Hence, the answering opposite parties prays for dismissal of the petition filed by the petitioner.

4.                         Upon the claims of both side the points for consideration points for consideration in this case are found as follows:-

1. Whether the petitioner was unsuccessful to receive money amounting to Rs.40,000/- on last 24-02-2015 from ATM No.SI0A000146010 situated at opposite to Morigaon Bus Stand, Nagaon Assam under S.B.I. Nagaon Branch through two successive transaction which was shown to be withdrawn from his bank account and whether the service rendered by the opposite parties inside the ATM house amounts to deficiency?

2. Whether the plaintiff is entitled to any relief as prayed for?

5.                      Both parties filed evidence in affidavit of one witness each and also exhibited several documents in support of their claim. The witnesses were cross-examined by the opponents.

6.                       Written argument filed by the parties and advance oral arguments in support thereof.

7. Decision and reasons theref:-

8.                   Point (i) is first taken for discussion and decision.:-

9.                 The claim of the petitioner is that he did not receive the amount of Rs. 40000/- from the ATM Machin on last 24-02-2015 as the Machin did not disburse the amount after trying twice but a sum of Rs.40,000/- was shown to be withdrawn from his account and he received message in this regard in his registered mobile phone. In support of his claim, the petitioner as P.W.1 adduced evidence to the effect that on last 24-02-2015, he tried to withdraw money from the A.T.M. of Nagaon Town, opposite to the Morigaon Bus Stand and initially tried to withdraw Rs.20,000/-(Rupees Twenty Thousands)only but after pressing the button, when the amount did not come out from the A.T.M. Machin, he again tried to withdraw the same amount but no money came out from the machine. He further deposed that he received message in his registered mobile number that he withdrew Rs.20000/-+ Rs.20000/- in total an amount of Rs.40,000/- in successive two transaction and the said amount had been withdrawn from his account and thereafter, on the next morning he approached and complained before the Manager of the S.B.I. Branch of  Hojai  who assured him that the money would be returned to his account within 2/3 days but when the money was not refunded, he again went to the S.B.I. Branch of  Hojai after three days but again he was send back  by the bank with assurance that the matter would be solved within few  days but he did not received back his money. He also deposed that 09/03/2015, he gave a written complaint before Chief Manager of  the S.B.I. Branch of  Hojai and approached him to resolve the matter and again on 20/03/2015 filed another written complaint before him who then asked him to file complaint before the A.G.M. of S.B.I., Nagaon and thereafter, on 25-03-2015, he filed a written complaint before the A.G.M. of S.B.I., Nagaon. Petitioner further evidence is that in spite of several approach, the Bank authority did not resoled his issue and being unsuccessful to get  back his money, he approached before the District Legal Service Authority, Nagaon and accordingly, Advocate Mukul Barthakur was appointed by the District Legal Service Authority, Nagaon to take necessary step in his  favour. He also deposed that the appointed counsel issued notice upon opposite party No. 1 to 4 for twice and finally on 07-09-2015, the Chief Manager, Hojai Branch inform complainant’s Advocate that after scrutiny, both the transaction made by the complainant on 24-02-2015 were found successful and hence, unable to refund the amount of Rs.40,000/- in the account of the complainant. He exhibited his petition before the Bank Authority vide EXT.1, Ext.2 and Ext.4. He also exhibited the advocate’s notice vide Ext.4 and Ext.9.

9.              The opposite party adduced evidence in affidavit of one.  Nina Bairagi, Asstt. General Manager State Bank of India, Nagaon Branch as D.W.1. In her evidence in affidavit, this D.W deposed that on 24-02-2015, the complainant withdrew Rs.40,0000/-  from ATM No.SI0A000146010 situated at opposite to Morigaon Bus Stand, Nagaon Assam under S.B.I. Nagaon Branch through two transaction  of Rs.20,000/- and Rs.20,000/- each being transaction No.3290 time 14:32 IST and transaction No3291 time 14:34 IST and both the transaction was successful with respond Code No.0.00 and accordingly, complainant got SMS alert on his registered mobile No.  Her further evidence is that after receiving complaint from the petitioner that he had not received the money, opposite party No.3 and 4 immediately lodged a complaint with complaint Management System i.e ATM Switch Centre on 26-02-2015 Vide Number AT429216905369 and AT429216905352 and both complaint was closed by ATM Switch Centre as both the transaction were found successful. Further evidence of this witness is that after receiving notice from the counsel of the petitioner on 23-04-2015, the opposite party again lodged complaint with complaint Management System i.e ATM Switch Centre on 28-04-2015 and ATM Switch Centre after verification reported that two transaction  of Rs.20,000/- and Rs.20,000/- each being transaction No.3290 time 14:32 IST and transaction No3291time 14:34 IST made by the complainant on 24-02-2015 were successful and a total amount of Rs.20,000/-+ Rs.20,000/- were successfully dispensed with and the same has been communicated to the complainant and his counsel. This witness also exhibited the following documents in her evidence in affidavit

1. Electronic Journal of ATM Switch center Belapur vide Ext.A.

2. ATM Log report of ATM Switch center Belapur vide Ext. B.

(10)            Thus, both the contesting parties admitted the facts of two transaction made in ATM No.SI0A000146010 situated at opposite to Morigaon Bus Stand, Nagaon Assam under S.B.I. Nagaon Branch by the complainant  for withdrawal of Rs.20,000/- and Rs.20,000/-. The disputed fact is that the Atm Machin did not disburse the said amount for which complainant was unsuccessful to receive the said amount which were deducted from his account. The opposite party though produced two documents Vide Ext.(i) & (ii) but the question remains whether these two documents alone are  sufficient to establish the fact that both the transaction made by the petitioner on 24-02-2015 were successful and the ATM in question disbursed the amount from the Machin and the petitioner received the said same. The Opposite parties in their pleading as well as in evidence did state anywhere that the fact of disbursing of the amount was made by the ATM and received by the petitioner was proved from the footage of C.C. T.V. Camera installed in the ATM Machin or in ATM nor they stated anywhere that C.C.T.V. camera was installed in the ATM Machin in question. Installing  C.C.TV. camera is must to prevent fraud, robbery or any kind of misuse of the ATM and it is the responsibility of concerned Bank which installed the ATM for disbursing money on withdrawal by its customer. Petitioner case is that he tried for withdrawal of the amount for two times by pressing the buttons but the money did not come out from the machine while the said amount was deducted from his account and thereafter, the same was not reverted back to his account. As per Bank authority the two transaction made by the petitioner for withdrawal of Rs.40,000/- was successful and the amount was disbursed by the ATM Machin, hence, there is no question of reverting back the amount to his account and no deficiency of service does arise in this case. However, I am unable to accept the contention of the opposite parties on basis documents exhibited vide Ext. Ext.(i) & (ii) as those are recorded by computer while disbursing of the amount and the petitioner received the amount can only be proved by the footage of the C.C.TV. camera. It is not unnatural that on many a time, after pressing the button of the ATM Machin, the money wanted to withdraw does not come out but SMS alert is received that the amount has been withdrawn. Whether the amount has been received from the ATM Machin or not, it can be seen from the footage of C.C.TV. camera installed with the Machin or installed in the ATM house to prevent fraud or any other form of misuse of the ATM money. Hence, it is the responsibility of the Bank Authority to install C.C.TV. camera and failure to this would amount to deficiency in Service.

                   Under Section 2(1)(g) of the Consumer Protection Act, 1986, deficiency in service means any fault, shortcoming, inadequacy, and imperfection of quality, nature and manner of performance of the service is a deficiency. The standard has to be maintained by or under any law for the time being in force. In the instant case, it is not disputed that the petitioner is customer of the opposite parties who are service provider and hence, the petitioner is entitled to ATM service from the Opposite Parties up to the mark to secure his money of his Bank Account. The petitioner claim is that even after pressing the button of the ATM, the money wanted to be withdrawn did not come out which can only be ascertained after seeing the footage of C.C.TV. installed with the ATM Machin to safeguard the ATM. And it is the duty of service provider i.e. the Bank to render the best service.  The opposite party anywhere in their written statement as well as in evidence have not made a single whisper regarding footage of C.C.TV. near the concerned ATM Machin to prove that the two transaction made by the petitioner were successful and the petitioner received the amount withdrawn by him. Hence, the service rendered by the opposite parties to which the petitioner is entitled is not up to the mark or is flawed, that is, does not meet the mark of laws applicable in the particular period, and thus, it was deficient.

                   In view of above, it is seen that ATM service rendered by the opposite parties was deficient and hence, the opposite parties failed to establish the facts that on 24-02-2015, the ATM No.SI0A000146010 situated at opposite to Morigaon Bus Stand, Nagaon Assam under S.B.I. Nagaon Branch disbursed an amount of Rs.40,000- in two successive transections and the disbursed amount were received by the petitioner. On the other hand from the above discussion it is found that the ATM service rendered by the opposite party in the particular period was found to be deficient. Hence, the petitioner is entitled to get back his amount of RS.40,000/- which was shown to be withdrawn from his account on 24-02-2015.

                   Hence, in view of above discussion point(i) for discussion answered in affirmative.

O   R  D   E  R

1. In view of the above discussion, it is found that the petitioner has succeeded to prove that there is a deficiency of service on the part of opposite party inside the ATM house.

Accordingly, the prayer made by the petitioner U/S 12 of the Consumer protection is allowed on contest. Issue direction to the opposite parties to refund an amount of Rs.40,000/- with interest @ 12 per annum from today till realization,   to the petitioner forthwith.

                     Inform all the parties concern.

Given under the hand and seal of this forum, we signed and delivered

this Judgment on this  …1^st  Day of December 2020.