West Bengal

South 24 Parganas

CC/249/2015

Mohasin Gazi , S/O Amirul Islam Gazi. - Complainant(s)

Versus

1. The United Bank of India , Kalash Bazar Branch (1292) - Opp.Party(s)

27 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _249_ OF ___2015_

 

DATE OF FILING : 1.6.2015.                        DATE OF PASSING JUDGEMENT:  27.02.2017

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Sharmi Basu   & Subrata Sarker

                                                                             

COMPLAINANT        :     Mahasin Gazi,s/o Amirul Islam Gazi of Vill. Dihi Kalash, P.O Kalash, Kalash Bazar, Dist. South 24-Parganas, Pin-743609

 

-VERSUS  -

 

O.P/O.Ps                            :     1.   The United Bank  of India, Kalash Bazar Branch (1292) , Vill. +P.O Kalash, South 24-Parganas. Pin-733609

                                                2.     Axis Bank Ltd. Brabourn Road Area, ING Vysya Bank Ltd. Brabourn Road Area.

                                          

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

The short case of the complainant is that on 4.9.2014 he has tried to withdraw Rs.10,000/- through his ATM Card from Axis Bank, Braborne Road Branch. But he failed to collect the said money ,although  his account no.1292010143981 has shown debited Rs.10,000/- . Thereafter, just lapse of three minutes i.e. at 3.24 p.m. he again tried to withdraw Rs.10,000/- from ING Vaiswa Bank through his ATM Card but inspite of process no money was collected . But from his account Rs.10,000/- was debited. Thereafter, on the next date i.e. on 5.9.2014 he went to his Bank and informed the same to the Manager and after perusal of the ATM Card Bank Manager observing the transaction details informed the complainant that he already received the said money. Accordingly he became disappointed and claimed the CCTV footage but Bank failed to provide the same as well as the  debited money of Rs.10,000/- in two times, for which he prays for CCTV footage of that date as well as refund of Rs.20,000/- , compensation to the tune of Rs.5000/-, cost be awarded suitably.

The O.P-1  contested the case by filing written statement  and denied all the allegations leveled him. It is the positive case of the O.P-1 that complainant falsely alleged that he did not receive any withdrawal amount from the alleged two ATM transactions but receipt shows that withdrawal transaction successfully done. It is the further case of the O.P-1 that at the point of investigation the O.P got knowledge that CCTV footage was not available as the same was out of

 

preservation period. It has further stated that one person will be present in the ATM Counter and another person who was in queue should not enter into the said ATM at any point of time. So, after entering any person he  punches his debit/credit card and after completion of transaction  he left the ATM and thereafter another person who is waiting before the ATM entered into the ATM and punch his card and after receiving withdrawal amount left the ATM. It has been further stated that if any person received successful withdrawal transaction receipt without receiving any withdrawal amount, he did never leave the ATM within a few second or within one minute and there was no chance to complete next transaction within 50 seconds and/or one minute. So, the report clearly shows that all the transactions of the said ATM dated 4.9.2014 has been successfully done and thereby O.P-1 scrutinized the statement of the said two ATM and also scrutinized report and got knowledge that there was no excess amount and from the scrutiny of inter-bank reconciliation report it got knowledge that the transactions were done  successfully on 4.9.2014 in respect of the said two ATM. It has further stated that the complainant lodged complaint before the Banking Ombudsman by letter dated 23.12.2014  and after considering all materials in respect of the allegations of the complainant and after considering the RBI guideline rejected the allegation vide letter dated 13.3.2015. It has been further stated by the O.P-1 that the Ombudsman of RBI has rejected the complaint under clause 13( C ) of the Banking Ombudsman Scheme 2006 which was informed vide letter dated 16.2.2015  and complaint was not maintainable under clause 8 and 9 sub clause (3) of the Banking Ombudsman Scheme 2006. It has stated that on that date in between 15 to 20 minutes several withdrawal  was made which was successfully done. So, the allegation is false and baseless as well as vexatious. Accordingly he prays for dismissal of the case.

O.P-2 contested the case by filing written statement and denied all the contents of the complainant. It has further stated that the complainant is not a customer of their bank and oly use the ATM facility of other bank and there is no privity of contract between the O.P-2 and the complainant. So, complainant is not a consumer . It has claimed that complainant has used their ATM counter through ATM Card for withdrawal of cash of Rs.10,000/- and the said transaction was successful one and copy of ATM report  are annexed herewith as annexure 1. O.P-2 also enclosed Electronic Journal (E.J) which s annexed as annexure 2. It has been stated that from the

 

Electronic Journal it reveals that Transaction no.1959 was successful and Rs.10,000/- was dispensed to the complainant. It has claimed that ATM is supported by the highest technology and excellent Server Line SURVEILLANCE. So, the Electronic Journal filed reveals that transaction has been carried out and cash has been successfully withdrawn. It should be mentioned here that  how the confidential Pin Number was highlighted to the Bank authority. So, without being confidential Pin Number there was no access to the ATM counter for withdrawal of money. Accordingly, considering all aspect O.P-2 prays for dismissal of the case and the O.p-2 relied the judgments of Hon’ble National Commission in case of State Bank of India Vs. K.K. Valla dated 7.4.2011.

The O.p-3 ING Vaisya Bank did not contest the case, for which case is running against it in exparte.

Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.

 

                                                            Decision with reasons

We have carefully scrutinized the documents and from Annexure A filed by the O.P-2 which is Electronic Journal of the ATM clearly demonstrates that Card number as claimed by the complainant is identical in Transaction No. 1959 but account number appearing in the photocopy of the front page of the Pass Book is 1292010143981. But Annexure 1 demonstrates that Account number is 12920101439810. Thus one “0” digit has been added in annexure 1 which is not mentioned in the pass book.

Apart from that O.P-1 although filed written version and claimed that Ombudsman has rejected the claim of the complainant but did not submit the documents. So, all these things are required to be produced before passing judgment. Though the date of judgment is fixed on 24.1.2017 but judgment cannot be passed without clarification of all these things.

The Ld. Advocate of the O.P nos. 1 and 2 already clarified regarding the odd number already entered in the journal in relates to the account number of the complainant and stoutly stated that odd number  entered due to the system. The O.P-1 submitted that  Ombudsman order was in the record. Thus the clarification is complied with by both the Ld. Advocates of the O.P nos.1 and 2.

 

It is interesting to point out that Ld. Advocate of theO.P-2  has drawn our attention to point no.III of the order of the Ombudsman dated16.2.2015 wherein Ombudsman observed that the submission made by the Bank and the complainant have not revealed deficiency of service rendered by the O.P. Hence, Ombudsman rejected the complaint.

It is true and we are aware that Banking Ombudsman rejected the claim of the complainant. There is no single case before this Bench till today that Ombudsman’s observation goes in favour of the complainant. All these things was known by the Hon’ble Legislature, that is why C.P Act was passed and section 3 of the Act clearly demonstrates that “Provision of this Act shall be in addition to and not in derogation of the provisions of any other Law for the time being in force”. Hon’ble Legislature has passed this Act in order  to protect the consumer at large .

Herein, we find that Ld. Advocate of the O.P Bank inspite of their failure to answer one odd number in the account number of the complainant submitted in open Forum that   this is nothing but due to the system. After hearing the same it has knocked down the judicial mind of this Bench since it is a judicial proceedings in view of Section 13(5) of the C.P Act 1986 that common people like this complainant is not aware about the system and the said defective system has been operating in order to deprive the rights of the consumer, it should be stopped. This is a deficiency in service and unfair trade practice which Ld. Ombudsman failed to realize. So, the report of the Ombudsman has no merits by this Bench to consider the claim of the complainant. 

But we are aware the judgment of the Hon’ble National Commission as well as judgment of Hon’ble State Commission relied by the O.P-1, wherein one thing  is clear that until and unless the Pin Number  is known by third party, how the amount will be withdrawn from the said ATM.  It is the case of the complainant that Pin Number is stolen. Apart from that from the video footage we have minutely compared the  facial of the complainant as available documents  and we find that  facial in the video footage and photo in the voter identity card of the complainant Mahasin Gazi is identical . Moreover, submission of the Ld. Advocate of the O.P-2 cannot be thrown out regarding the odd  digit  in the account number  which is a digit “0” may be considered that the system affixed in that way. 

 

 

Accordingly, relying the judgment of the Hon’ble State Commission as well Hon’ble National Commission reported in 2011 (2) CPR 26 as well as the video footage and the series of statements of withdrawal through ATM on that date  we hold that complainant has no case and question of deficiency of service does not arise.

Hence,

                                                                                    Ordered

That the C.C.no. 249 of 2015 is dismissed on contest against the O.P  but in the sorry state of affairs we make no order as to the cost.

Let a plain copy of this order be handed over to the complainant  and the O.Ps  free of cost  .

                                                           

 

Member                                   Member                                                                      President

 

Dictated and corrected by me

                               

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

                                               

Ordered

That the C.C.no. 249 of 2015 is dismissed on contest against the O.P  but in the sorry state of affairs we make no order as to the cost.

Let a plain copy of this order be handed over to the complainant  and the O.Ps  free of cost  .

                                                           

 

Member                                   Member                                                                      President