FINAL ORDER

Samaresh Kumar Mitra,Member.

              This complaint has been filed by the complainant’s u/s 12 of C.P. Act, 1986 praying for an order upon the OP to pay a sum of Rs.15000 along with interest @10.5% to complainant No.1 and a sum of Rs.10000 along with interest @9% to complainant No.2 till payment. And to pay a sum of Rs.5,000/- for litigation cost and a sum of Rs.50,000/- compensation for harassment and mental agony.

                The case of the complainants is that they are consumers of the OP and they are using the ATM cards. On 17.10.2014  the complainant No.1 intended to withdraw Rs.5000/- from the ATM of Chinsurah PNB but he did not get the amount from the vending machine as the said machine failed to generate cash and left there by pressing cancel button. Then he received a message in his mobile that an amount of Rs.15000 has been debited from his savings account. Then the complainant came back forthwith and found one unknown person leaving hurriedly. The complainant informed the matter to local branch manager of PNB, who assured him to credit back the amount but of no result. He made series of correspondences to the concerned authorities’ but of no avail. Although there was CC footage to prove the fraudulent transaction but the OP No.1 took no steps which tantamount to deficiency of service on the part of the OP no.1 for which the complainant sought Redressal of this Forum. The case of the Complainant No.2 is that on 02.09.2014 the complainant intended to withdraw a sum of Rs.10000/- from the ATM of PNB located at Chinsurah but he did not get the amount but the same amount has been debited from his account. The complainant suffered monetary loss of Rs.10000/- for the fraudulent transaction of OP herein. And it the duty of the OP to arrange such amount of the complainants but the OP could not arrange the same which amounts to deficiency of service on the part of the OP. In that circumstances the complainants should be compensated by awarding adequate compensation in favour of both the complainants.

  OP appeared by filing written version and denied the allegations as leveled against him and averred that he denied emphatically that the vending machine did not generate cash for reason not known to the complainant No.1 for that obvious reason the complainant no.1 left the ATM pressing cancel/clear button and also denied that the complainant No.1 came back to the said ATM forthwith and found one unknown person has left before the complainant could enquire anything from him and also denied that the complainants informed the matter to local branch manager of PNB who assured to credit back which was debited from his account and the OP no.1 did not make any attempt to investigate the matter to the fact of fraudulent transaction enunciated above for which complainant No.1 suffers loss to the extent of RS.15000/- together with accrued interest thereof. The answering OP denied that any amount has debited by the PNB, Chinsurah Branch from the account of the Complainant No.2 for which the complainant No.2 suffered loss amounting to Rs.10000/-. He asserted that OP bank provides /arranges proper security in his each and every branches as well as ATMs to ensure proper and safe transactions by customers so he has no deficiency of service regarding the transactions in the ATMs. He further assailed that no complaint regarding the ATM has come before the OP bank and no irregularities have been detected from the said ATM of the OP bank at Chinsurah bus stand and the said machine always operative and yielding nice output. As the OP has no deficiency in service so the complainants are not entitled to get any compensation and the complaint petition is liable to be dismissed with cost.

       The complainant filed written argument in which he assailed that the OP bank did not make any investigation whatsoever inspite of the CC footage clearly shows the fraudulent transaction being made by an unknown person. It was within the knowledge of OP bank that how many correspondences had been made by the complainants. The ATM of the OP bank is not properly guarded like other ATM’s of other bank in the locality.

       The OP bank in his written argument assailed that the complaint petition stated two dates of incidence happened at an interval of more than one month. So the present case is an example of misjoinder of cause of action and it is liable to dismissed on the ground of maintainability. Complainant alleged that the ATM in question generated money without the abovementioned combination of ATM card &secret code. In the instant case the ATM generated cash but the complainant has not withdrawn the amount it is possible only if the Complainant gave the ATM card & code to anyone else or he has lost the same. In this case the cardholder alleged that they have not withdrawn the amount then in that case either some other person operated the card who knew the PIN/code or the card may be stolen or the complainants withdrawn the amount either personally or with the help of some other person and forgot that. From the statement of the complainant it is crystal clear that one incident of fraud has allegedly been involved in the background so the bank has no authority to do anything without completing the investigation and without detecting the actual miscreants. If the alleged amount of money have been withdrawn or the incidents took place accompanied by a fraudulent transaction then complainant have to produce evidence to proof the deficiency of service of the OP. He assailed that the allegation and deficiency of service OP bank is baseless because the said bank is bound to follow banking rules & norms which do not permit the bank to credit the alleged amount in the account of the complainant on the basis of mere complaint.      

        The complainants and the OP filed written argument and they also advanced arguments. 

        Argument as advanced by the complainants and the agent of opposite parties heard in full.

        From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

 1. Whether the Complainants Bimalendu Bhattachaya & Tarun Naskar are ‘Consumers’ of the opposite party?

2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

  In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainants Bimalendu Bhattachaya & Tarun Naskar are ‘Consumers’ Of the opposite party?

           From the materials on record it is transparent that the Complainants are “Consumers”as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.

          The complainants herein are the consumers of the OP, as complainants are maintaining savings accounts before the OP bank and also using ATM cards and OP is the service provider.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

          Both the complainants and opposite party are residents/carrying on business within the district of Hooghly. The complaint valued Rs.15000 along with interest @10.5% and a sum of Rs.10000 along with interest @9% and a sum of Rs.5,000/- for litigation cost and a sum of Rs.50,000/- compensation for harassment and mental agony ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.               

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?         

                After perusing the complaint petition as well as documents on record it appears that the petitioners visited the ATM of OP bank to withdraw money by their ATM cards and they did not get money but the same amounts have been debited from their accounts. They lodged complaint petitions before the manager OP bank and also lodged complaints before the Police Station for investigation and after getting no relief they put the matter before the Ombudsman and is appellate authority who on their turn took no effective measure to mitigate the problems of the complainants. Getting no alternative the complainants preferred the recourse of this Forum for Redressal. The OP by appearing filed written version and denied the allegations as leveled against him and averred that he denied emphatically that the vending machine did not generate cash for reason not known to the complainant No.1 for that obvious reason the complainant no.1 left the ATM pressing cancel/clear button and also denied that the complainant No.1 came back to the said ATM forthwith and found one unknown person has left before the complainant could enquire anything from him and also denied that the complainants informed the matter to local branch manager of PNB who assured to credit back which was debited from his account and the OP no.1 did not make any attempt to investigate the matter to the fact of fraudulent transaction enunciated above for which complainant No.1 suffers loss to the extent of Rs.15000/- together with accrued interest thereof. The answering OP denied that any amount has debited by the PNB, Chinsurah Branch from the account of the Complainant No.2 for which the complainant No.2 suffered loss amounting to Rs.10000/-. He asserted that OP bank provides /arranges proper security in his each and every branches as well as ATMs to ensure proper and safe transactions by customers so he has no deficiency of service regarding the transactions in the ATMs. He further assailed that no complaint regarding the ATM has come before the OP bank and no irregularities have been detected from the said ATM of the OP bank at Chinsurah bus stand and the said machine always operative and yielding nice output. As the OP has no deficiency in service so the complainants are not entitled to get any compensation and the complaint petition is liable to be dismissed with cost. It is to be mentioned that when the bonafide customers of the banks are making complaint against the bank when they are not getting proper service as a consequence they are compelled to take recourse of this Forum for Redressal as it is a social legislation. The complainants herein being educated persons are fully aware of their rights and duties they never compromise with the injustice upon them. So they put the matter before the police station for investigation and lodged complaints before the appropriate authorities for Redressal but when they were refused even by the appellate authority then they compelled to take the recourse of this Forum for Redressal. These persons having reputation in the society having no criminal and cheating background raised their voices when they are deprived of getting their hard earned money. The OP bank failed to prove that the complainants received the money as their transactions were successful as depicted from the documents of the bank. The footage retained by the bank could not identify the complainants as a result  he answering OP compelled to take another resort of losing the card or supplying the four digit PIN to another person as a result their money have been withdrawn beyond their control. It is fact that OP getting complaint from the Complainants never tried to investigate the matter or showed good gesture upon the complainants to credit the same amounts which have been withdrawn from their accounts. It is the duty of the bank to investigate the matter if any crime committed in the ATM counter of the OP bank. But in the instant case the OP bank always tried to evade its responsibility on the false pretext and never tried to provide service to its customer/consumer. From the above discussion we may safely conclude that the OP is deficient in providing service towards its consumers for which the OP bank is liable to pay compensation and other reliefs as prayed in the prayer portion of the complaint petition to that extent as ascertained by this Forum.

  4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

      The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants abled to prove their case and the Opposite Party  is liable to pay compensation for harassment and mental agony to these complainants. 

    ORDER

    Hence, it is ordered that the complaint case being No.135/2015 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs.2000/- payable to each complainants.

The Opposite Party is directed to pay a sum of Rs.15000/- to Complainant No.1 and a sum of Rs.10000/- to Complainant No.2 within 45 days from the date of receiving this final order.

 The opposite party is further directed to pay a sum of Rs.5,000/- as compensation for harassment and mental agony to each  complainants within 45 days from the date of receiving this order.

At the event of failure to comply with the order the Opposite Party  shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.