DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 23_ OF ___2017
DATE OF FILING : 21.02.2017 DATE OF PASSING JUDGEMENT: 15.03.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Anup Kumar Naskar, son of late Dhananjay Naskar of Vill. Karimpur, P.O Amgachia, P.S Bishnupur, South 24-Parganas, Pin-700 104.
- VERSUS -
O.P/O.Ps : 1. The Bank Manager, United Bank of India, Pailan Branch (06230) ,Pailan Hat, Rashpaunji, 700104.
2. United Bank of India (Head Office), 11, UBI Tower, Hemanta Basu Sarani, 700001.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
The quintessence of the complaint filed by the complainant is that he has a Saving Account being no. 623010107525 maintained with UBI, Pailan Branch i.e O.P-1. On 6.9.2016 at about 6.17 p.m he made an endeavour to withdraw Rs.10,00/- from his aforesaid account with the help of ATM Card bearing no. 4213190623011958 from the RAGABPUR NEPALGUNJ ATM machine of UBI but the transaction failed ; he could not withdraw the money. He again tried at 6.21p.m and this time also no money was available but Rs.10,000/- was debited from his account by the concerned bank i.e O.P-1. Repeated requests of the complainant for credit of that amount to his account also fell flat upon the O.Ps. Hence, the case praying for return of money etc.
The Bank authority i.e the O.ps are contesting the case by filing written statement, wherein it is stated that complainant lodged complaint only on 26.9.2016. Thereafter an enquiry was conducted and it was found on enquiry that Rs.10,000/- was withdrawn by the complainant on 6.9.2016 at 6.47 p.m having used the ATM Card and, therefore, the amount has been rightly debited from the account of the complainant. According to them, the complaint is devoid of any merit; there is no deficiency in service on their part and, therefore, the complaint should be dismissed in limini with cost.
Upon the averments of the parties the following issues are formulated for proper adjudication of the matter in dispute.
ISSUES
- Is there any deficiency in service on the part of the O.Ps for not crediting the amount to the account of the complainant?
- Is the complainant entitled to relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Pleadings filed by both the parties have been treated as their evidences vide order no.5 dated 25.5.2017 and order no.8 dated 30.8.2017. The questionnaires, replies and BNAs filed herein are kept in the record for consideration.
DECISION WITH REASONS
Point nos. 1 and 2:
Heard the submissions of Ld. Lawyers for both the parties. Perused the complaint, written statement and the evidences on record along with the questionnaires , replies and BNAs.
Considered all these.
Ld. Lawyer appearing for the O.Ps has contended that the complainant is guilty for suppression of fact. He withdrew the amount of Rs.10,000/- on 6.9.16 at 6.47 p.m from his account in his third time attempt . But he has not disclosed this fact in the petition of complaint. The material fact having been suppressed, the complaint should be dismissed.
The complainant withdrew Rs.10,000/- on 6.9.2016 by using his ATM Card and it is so alleged by the Bank. The complainant’s case is different ; he denies such withdrawal. Even it is not the case of the bank that SMS of such debit was sent to the complainant. This being so, it cannot be said that the complainant suppressed the aforesaid fact.
Now to see whether the complainant actually withdrew Rs.10,000/- on 6.9.2016 or not. While scrutinizing the evidences on record we come across some undisputed facts. The undisputed facts are that the ATM Card was used on 6.9.2016 by the complainant at 6.17 p.m and it was again used at 6.21 p.m that day. Both the transactions were unsuccessful and the complainant could not withdraw any money. It is the version of the O.P Bank that the complainant used the ATM Card that day again at 6.47 p.m and withdrew Rs.10,000/- and that is evident from ATM record filed on behalf of them.
In the context of above submissions of the Bank, it is to be seen whether the complainant actually withdrew Rs.10,000/-at 6.47 p.m by using his ATM card. The ATM record is filed herein on behalf of the Bank and the same shows that
Rs.10,000/- was withdrawn on that day at about 6.47 p.m by using ATM Card of the complainant. To get a correct answer to the above question, we should scrutinize the normal human conduct, because unless it is done the correct answer will not be available in as much as no direct evidence can be had in this regard. The first attempt for withdrawal of money was made by the complainant at 6.17 p.m and this attempt failed. Thereafter, he tried for the second time at about 6.21 p.m. Both the attempts were unsuccessful, as there was some mechanical problem in the ATM machine. That there was some mechanical problem in the ATM machine is evidenced by ATM record filed herein on behalf of the Bank. Now the ATM record shows that the complainant withdrew Rs.10,000/- at 6.47 p.m i.e about 26 minutes after his second attempt. The question is whether a person will keep waiting 26 minutes long, relying on uncertainty of the ATM machine being functional again. No. Normal human conduct does not subscribe to such waiting of an unsuccessful customer. Normal trend and tendency of human being does not give out that a human being will keep waiting there for third attempt. Regards being had to common sequence of event, normal human conduct, trend and tenor of human behaviour, a presumption under section 114 of the Evidence Act may be drawn to the effect that the complainant left the ATM after two unsuccessful attempt and did not receive the money which is shown to be withdrawn in ATM record produced on behalf of the Bank.
The next question which is likely to follow is : who took the money which is shown to be withdrawn in ATM record. The answer is : there is no dearth of any element in our world to grab that money. The complainant has discharged the initial burden by proving that he did not accept the money from the ATM on that day. The onus shifts now to the Bank and the Bank was be able to prove the aforesaid fact of acceptance of the money by none but the complainant by production of the CCTV footage. CCTV is now maintained in each and every ATM counter for the purpose of detecting theft, robbery, dacoit and similar crimes. There is no averment in the written statement that CCTV is not maintained in the concerned ATM Counter. There is no averment in the written statement that the footage of CCTV has been destroyed. The CCTV footage is the best evidence to detect as to who withdrew the said money. But the Bank has not produced the CCTV footage before the Forum, inspite of the fact that the complainant has demanded the production of the same time and again vide his petition dated 25.5.2017 and his reply to question no.17 of O.P. We cannot understand why the Bank does not produce the CCTV footage before the Forum in order to unearth the truth. No answer much less any satisfactory answer is coming forth from the side of the Bank in this regard and in absence of any answer in this regard, we feel compelled to draw a presumption that the Bank has not produced the CCTV footage to prevent the cat being out of the Bag. Non-production of the CCTV footage is a clear deficiency in service. The complainant has run from pillar to post and thereby he has certainly suffered a lot of physical harassment and mental agony. He i.e the complainant is found entitled to get relief as prayed for and the relief is provided as hereunder.
Point nos. 1 and 2 are thus answered accordingly in favour of the complainant.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with cost of Rs.2000/-.
The O.Ps who were jointly and severally liable to make payment to the complainant, are hereby directed to credit Rs.10,000/- to the account of the complainant and to file a copy of the account before this Forum and also to pay compensation of Rs.3000/- to the complainant within a mon th of this order, failing which the compensation amount and the amount of litigation cost as referred to above will bear interest @10% p.a till realisation thereof.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree
Member Member
Dictated and corrected by me
President
