Sri Utpal Kumar Bhattacharya, Member

This Appeal has been filed by the Appellant/OP Bank u/s 15 of the C P Act, 1986. The Appeal has challenged the judgment and order dated 03/08/2017 passed by the Ld. District Forum, Hooghly in Complaint Case No.CC/135/2015 allowing the complaint on contest against the Appellant/OP with cost of Rs.2000/-payable to each Respondent/Complainant.

The Appellant/OP was further directed to pay to the Respondent/Complainant No.1 and Respondent/Complainant No.2 sums of Rs.15,000/- and Rs. 10,000/-respectively. It was further directed to pay compensations of Rs.5000/-to each of the two complainants.

Entire order was directed to be carried out within a period of 45 days from the date of the impugned judgment and order, failing which, as ordered, the OP was to pay fine of Rs. 50/- for each day’s delay and the accumulated fine, if any, should be deposited with the Consumer Legal Aid Account.

The facts of the case, in brief, were that the Respondent/Complainant No.1 on 17/10/2014 applied his ATM Card in the ATM of Chinsurah PNB located at Chinsurah bus stand for withdrawal of Rs. 5000/-from the ATM. Since the ATM failed to generate cash, the Respondent/Complainant No. 1 left the ATM centre pressing the ‘cancel’ button. Immediately thereafter, he received in his cell phone a message towards debiting from his Account an amount of Rs. 15,000/-. He rushed to the ATM centre and found a person leaving the counter. He reported the incident to the Branch Manager, PNB, and the Appellant/OP. He also lodged subsequently a complaint with the local police station. The Branch Manager, PNB, allegedly assured him of crediting back the amount in his Account but he took no effective step in the lines of his assurance even after repeated persuasion.

 In a different incident, the Respondent/Complainant No. 2, with an intention of withdrawing Rs. 10,000/-, applied his ATM card in the same ATM but, did not get any money. An amount of Rs.10,000/-, however, was seen to have been debited from his Account. The Appellant/OP, in spite of being informed about the incident and approached for taking the corrective measures, did not take any action putting the Respondent/Complainant No. 2 in a financial loss and thereby in mental agony and physical harassment.

The Ld. Advocate appearing on behalf of the Appellant/OP submitted that the complaint was filed by two separate individuals in respect of their two separate Accounts. The Respondent/Complainant No.1 had given his S.B. Account number whereas the Respondent/Complainant No.2 did not even give his S.B Account number wherefrom the allegedly fraudulent transaction had taken place nor did he lodge any FIR with the local PS. Astonishingly, as he continued, the Respondent/Complainant No. 1 managed to find time to lodge an FIR, Annexure A, with the  local police station not before 14/12/2014, that is, two months after the alleged incident. The Police Case, as submitted, was still pending.

The Ld. Advocate went on to submit that the Respondent/Complainant no. 1 referred the matter to the Ld. Ombudsman, Annexure A-1, and the Ld. Ombudsman dismissed the complaint as there was no apparent reason to corroborate the alleged deficiency on the part of the Appellant/OP. A further communication, annexure-A-2, alleging the deficiency in rendering services on the Part of the Appellant/OP was made by the Respondent/Complainant No. 1 to the Deputy Governor, consumer education and protection Department, RBI, seeking redressal of his grievances. The said complaint, as contended, was yet to be disposed of.

It was, as claimed by the Ld. Advocate, not a fact that the Respondent/Complainant No. 1 wanted to withdraw only Rs. 5000/-when Rs. 15,000/-was debited from his Account. Since there was no excess fund in the machine, as he continued, the Respondent/Complainant No.1 appeared to have taken a false plea of attempted withdrawal of a lesser amount when the fact remained that he received the entire amount of Rs. 15,000/-out of a successful transaction from the ATM. Since the subject ATM, on examination, was proved to be free from any kind of defect, there was no question of less delivery or non delivery against any bonafide transaction, as alleged.

With the above submission, the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.

The Ld. Advocate appearing on behalf of the Respondent/Complainant submitted that the complainants are consumers and preferred the complaint to secure and safeguard their common interest.

The recorded transactions were fraudulent as, what he continued, neither of the two complainants received any cash. The matter was brought to the notice of the Appellant/OP immediately after defective recording about transaction was detected. Unfortunately, as he continued, no corrective measure was taken by the Appellant/OP Bank.

There was, as he continued, lack of security in the ATM counter. The CCTV footage which, on approach, was received from the Appellant/OP made it apparent that the ATM was being operated not by the Respondents/Complainants themselves at the relevant point of time. The Appellant/OP, as contended, sat tight on the issue without acting upon his assurances in spite of knowing the fact that the transactions in question were fraudulent in nature. This brought into light the height of deficiency in service rendered by the Appellant/OP which called for appropriate penal measure as provided under the Act.

With the above submissions, the Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned judgment and order.

Perused the papers on record, consulted the LCR and considered submissions made on behalf of both sides. The record revealed that the Respondent no.1/Complainant received the message of the questionable transaction immediately after leaving the ATM counter. It was peculiar that the FIR of such allegedly fraudulent transaction was lodged on 14/12/2014 which was almost 2 months after the happening of the incident on 17/10/2014. What was more astonishing the Respondent/Complainant No. 2, as the case record indicated, did not even lodge any FIR in respect of the allegedly fraudulent transaction against his Bank Account as alleged in the complaint. The veracity of the complaint was put to question by the dilly-dally exposed from the activities of the Respondents/Complainants in taking the basic legal step of lodging an FIR with the local P.S.

Further, the non-cooperation on the part of the Appellant/OP, as alleged in the complaint, did not come into fore as the Appellant/OP extended to the Respondents/Complainants the required help, handing over to them the CCTV footage of the questionable transactions. The nature and character of the complaint acquired an altogether different dimension through the good gesture displayed by the Appellant/OP by his amenable disposition.

Moreover, the complaint was filed by two separate individuals in respect of two different transactions in respect of the Accounts maintained separately by each of them. We agreed that the ATM in both the two cases was same under the ownership of the same Bank. We also agreed that the nature of the complaint was identical and accordingly, the Complainants’ interests were also same.

We, however, did not find any prayer seeking permission from the Ld. District Forum u/s 12 (1) (c) of the C P Act, 1986 for lodging a single complaint being the consumers of the same interest nor did we find any order of the Ld. District Forum permitting the Respondent/Complainant to file such complaint under the said section.

Since the above defects tantamount to violation of the statutory provision, we are afraid, we are left with our hands tied to entertain the instant Appeal since the defect hits the root of the issue and thereby set the complaint before a challenge against its maintainability.

Hence,

ORDERED

that the Appeal is allowed. The impugned judgment and order stands set aside. Consequent thereof, the Complaint Case stands dismissed. No order as to costs.

LCR be returned immediately.