J U D G E M E N T         

             Claiming himself as a consumer, under the C. P. Act, 1986, the Complainant has sought for interference of this Forum in respect of fact complained of. 

              In laconic, the case stated in the complaint, is that, the Complainant is a customer of the Opposite Party No. 1 since 06.07.1979  having an account being No. 10410100000711  and has been using the ATM Card cum Debit Card vide No. 4029850202474844 as provided by the Opposite Party No. 1 against the said account of the Complainant since 2007/2008.  On 03.02.2011, at about 12.30 p.m. the Complainant tried to withdraw a sum of Rs. 10,000/- only from the ATM counter maintained the Opposite Party No. 2 but neither received any money nor did he receive any transaction Receipt/Slip. On the next day on 04.02.2011 the Complainant further attempted to withdraw the said amount of Rs. 10,000/- only from the Opposite Party No. 2 counter and this time the Complainant had successfully withdrawn the said amount along with a Transaction Slip No. 9464 and surprisingly found that his available balance was shown more less than actual balance after deducting the said withdrawal amount of Rs. 10,000/- only and the Mini Statement shown that on 03.02.2011 a sum of Rs. 10,000/- only was debited from his account vide a Transaction No. 7410.

             Immediately the Complainant informed the matter and filed a complaint to the Opposite Party No. 1 and the Opposite Party No. 1 had referred the said complaint to their Card Complaint Cell and the said Card Complaint Cell by e-mail refused to refund the said amount as the said alleged transaction is shown as ‘successful’ and also advised the Complainant to inform the matter to the Opposite Party No. 2 and on 05.03.2011 the Complainant had personally intimated the matter to the Opposite Party No. 2 who refused to accept the same and compelled the Complainant to informed the matter through e-mail to the GM of the SBI Bank (the Opposite Party No. 2) which the Complainant had done on 18.03.2011 and further sent a notice on 19.04.2011 by hand but of no reply yet. The Complainant also informed the matter to the Banking Ombudsman on 05.07.2011 but of no result. At last the Complainant had complained before the Consumer Affair Dept. on 05.12.2011 but also of no result, what amounts deficiency and/or negligence in rendering service towards him, for which he has to suffer harassment and mental agony and prayed for compensation. Hence, this case is filed seeking adequate redressal.

              Resisting the complaint, both the Opposite Parties filed the separate Written Versions denying each and every allegation made by the Complainant in the petition of complaint contending inter alia, that the Complainant has no cause of action, the case is bad for non joinder and mis joinder of parties and is not maintainable either in fact or in law and is totally false.

             The specific case of the Opposite Party No. 1, in terse, is that, the Complainant is an account holder of the Opposite Party No. 1 Bank and as per the record of the Bank Statement, the Complainant had successfully withdrawn a sum of Rs. 10,000/- only on 03.02.2011 and had further withdrawn another sum of Rs. 10,000/- only on 04.02.2011 from the ATM counter of the Opposite Party No. 2. So the question of sheer deficiency in service did not arise at all on part of the Opposite Party No. 1. The Complainant had filed a written complaint on 05.07.2011 to the Banking Ombudsman which was subsequently rejected by the said authority for which this Forum has no jurisdiction to entertain the instant case. Moreover, the alleged matter, if anything, is occurred is lies / related between the Complainant and the Opposite Party No. 2 and the Opposite Party No. 1 has unnecessarily been implicated in this case. As this Opposite Party No. 1 never intended to deceit the Complainant by any means, therefore there was no negligence or deficiency on part of the Opposite Party No. 1 in rendering the service towards the Complainant. Thus, the Opposite Party No. 1 prayed for dismissal of the case against them.

              The whole case as stated by the Opposite Party No. 2 in gist is that the Complainant wrongly instituted the case against them as the Opposite Party No. 2 has no fault in manner whatsoever. The Opposite Party No. 2 denied and disputed the main allegation of the Complainant regarding the withdrawal of amount from the ATM counter of the Opposite Party No. 2 Bank for which the Opposite Party No. 2 strictly denied any deficiency and negligence in rendering the service towards the Complainant and this Opposite Party No. 2 has prayed for dismissal of the case against them.

                                                                                                 Points for Consideration  

   1. Is the complaint maintainable under the C. P. Act ?

   2. Was there any negligence or deficiency in service on the part of the O.P ?                            

   3. Is the complainant entitled to get the relief as prayed for ?

                                                                                                   Decision with reasons

              All the points are taken up together for consideration for convenience and brevity.

             We have carefully considered and scrutinized  the submission made before us by the Ld. Advocate for the Complainant and also the Ld. Advocate for the Opposite Party No. 1 and Opposite Party No. 2 and also critically perused all the material documents on record.   

             The main dispute between the Complainant and the Opposite Party is that whether the Complainant is entitled to get relief by was of refunding the said alleged amount from the Opposite Parties as prayed for or not.

              In coming into conclusion regarding the present dispute we have gone through the Complaint and Written Version and also critically appreciated the material documents on record and we have gathered that admittedly Complainant is a consumer under the Opposite Party No. 1 by being an account holder of the Opposite Party No. 1 Bank and by withdrawing the cash amount from the ATM counter of the Opposite Party No. 2.

              The record reveals that the Complainant had alleged that on 03.02.2011 he tried to withdraw a sum of Rs. 10,000/- only from the ATM counter of the Opposite Party No. 2 Bank but did not receive the same as no amount was come out from the said ATM machine after put in the ATM card in the said ATM machine and thereafter on next day on 04.02.2011 when the Complainant again went to the same ATM counter and again put in his ATM card in the said ATM machine this time the Complainant was successful to withdraw the aforesaid amount of Rs. 10,000/- only from that ATM machine.

               But the fact remains as per the materials on record that the mini statement of the Bank showed that the said sum of Rs. 10,000/- only was actually debited twice from the account of the Complainant which means the Complainant had actually received a total sum of Rs. 10.000/- only but in reality, the sum of Rs. 20,000/- only was debited from his account by two transactions dated 03.02.2011 (which amount the Complainant had not received actually) and on 04.02.2011 by two transaction slips which was duly admitted by Opposite Party No. 1 and never denied by Opposite Party No. 2.             

              Now, the knowledge of a common prudent person regarding the system of withdrawal of money from any ATM machine of any Bank is that first the customer put in his concerned ATM card in the specific space in the ATM machine and press the secret ‘pin number’ to that ATM machine. Thereafter the customer have to press the amount which he wishes to withdraw from such ATM machine and after that lastly the said amount come out from that ATM machine and then the customer have to collect the money and have to press the ‘cancel’ bottom of the said ATM machine. But if any stage of this process any problem arises then and there the Customer shall have to press the ‘cancel’ bottom inhabitably and failure to press the said ‘cancel’ bottom if any mis happing happens the Bank concerned presumed to be not negligent and/or deficient in providing service towards that customer.

             But in this instant case, the fact remains that the Complainant/customer neither had specifically expressed in writing in the complaint that when no money was come out from that ATM machine on 03.02.2011 he had ever pressed the ‘cancel’ bottom of the said ATM machine before leaving the said ATM counter nor did he allege that the said ATM machine was defective at the time of operating the said ATM machine for which no money was successfully withdrawn.

               Moreover, nowhere in the said complaint and/or from the photocopies of the documents filed by the Complainant it is found that the Complainant ever demanded for C. C. TV footage from the said concerned Bank (the Opposite Party No. 2). The Complainant also never specifically stated that he ever lodged any complaint by writing before any Opposite Parties or had informed the said matter by telephone to the Bank concerned 03.02.2011 when no money was come out from the said ATM machine.

               Furthermore at the time of hearing argument on asking by the Bench of the Forum the Ld. Advocate of the Complainant could not confirm that the Complainant actually pressed the ‘cancel’ bottom of the ATM machine at the time of leaving the ATM counter.

             So, from the material evidences on record reveal that the Complainant cannot able to prove that either the Opposite Party No. 1 Bank or the Opposite Party No. 2 Bank is ever deficient and/or negligent in providing service towards the Complainant by any means.

             Therefore, in the light of the above discussion, we are of the opinion that the Complainant has not successfully proved his case and as such is not entitled to get the relief as prayed for and consequently the points for consideration are decided in negative.

             In short, the complainant deserves failure.

             In the result, we proceed to pass

                                                                                                         O R D E R 

             That the complaint be and the same is dismissed on contest against Opposite Party No. 1 and Opposite Party No. 2 but without any cost.

              Parties to bear their own cost.

             Let copies of the order be supplied to the parties free of cost when applied for.

             Written & Typed by me.  Chandrima Chakraborty.