C.F. CASE No.                      :            CC/2013/76        

COMPLAINANT                  :           Thakurpada Mondal,

                                    S/o Late Brajakanta Mondal

                                    Vill. J.K. Saha Lane, Kanthalpota,

                                    P.O. Krishnagar, P.S. Kotwali,

                                    Dist. Nadia

• Vs  –

OPPOSITE PARTIES/OPs    : 1)   Branch Manager,

                                                AXIS Bank,

                                                Vill. Krishnagar, near Town Hall,

                                                P.O. Krishnagar, P.O. Kotwali,

                                                Dist. Nadia

                                                  2)         Branch Manager,

                                                State Bank of India,

                                                Radhanagar Branch,

                                                Vill. Radhanagar, P.O. Krishnagar,

                                                P.S. Kotwali, Dist. Nadia.

PRESENT                : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT

   : SMT REETA ROYCHAUDHURY MALAKAR, MEMBER

                 : SHRI SHYAMAL KUMAR GHOSH, MEMBER

DATE OF DELIVERY                                             

OF  JUDGMENT                         :    25^th August, 2014

:    J U D G M E N T    :

This is the case under Section 12 of the Consumer Protection Act.

The facts of the case to put in a nutshell, are as below:-

The complainant, Thakurpada Mandal uses his ATM priority card in order to get mini statement at State Bank of India ATM counter on 20.12.12 at 12.19 hrs.  The petitioner got the mini statement showing his balance amount as 2,25,776.69.  On the same day he received the massage in his mobile phone that Rs. 10,000/- is deducted for his account No. 912010063976848.  Thereafter the petitioner consulted the opposite party No. 1 & 2 to solve the problem as he never took Rs. 10,000/- from the ATM counter.  On 31.01.13 at 8.30 pm petitioner was advised to contact the OP’s bank.  Rs. 10,000/- was wrongly deducted from his account although he did not receive the same amount.  The petitioner applied for photo footage but no positive step was taken by the OPs.

The petitioner filed 7 (seven) annexed documents in support of his case. 

Hence, wrong deduction of Rs. 10,000/- the petitioner prayed and compensation of Rs. 30,000/- and cost of the suit.

The opposite parties No. 1 & 2 contested the case by filing written statement and the case of the OPs is as under:-

The allegations of the petitioner have been disputed in the written version.  Transaction was done at Bank’s ATM at SBI premises.  The journal printer shows that there was withdrawal of money and we tallied with the physical cash balance.  The OP bank No. 1 is not liable to reimburse the complaint Rs. 10,000/- and the complainant is not entitled to get any compensation.  The opposite party relied upon State Bank of India Vs. KK Bhalla’s judgement dtd. 07.04.11 and quoted the Hon'ble National Commission as below:-

“In the instant case it is not disputed that the ATM card or PIN remained in the self-custody/knowledge of the Respondent.  In view of elaborate procedure evolved by the Petitioner/ Bank to ensure that without the ATM Card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM.  The circumstances of cases where fraudulent withdrawals have happened may not be same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM Card or the PIN number fell in wrong hands.  Hence both the Orders passed by the learned Forum were set aside and the Revision petition was allowed.  Hence, on this ground the complaint is to be dismissed.”

Branch Manager, opposite party No. 2 State Bank of India also contested the case by filing written version on 19.12.13.  The allegation of the complainant has also been challenged the State Bank of India OP No. 2 in the written version dtd. 19.12.13.  The ATM card holder is having PIN No. which is confidential and he withdrew of Rs.10,000/- from ATM vide TXN No. 3293 and withdrawal was successfully. 

We have meticulously gone through the annexed documents filed by the complainant and the bank.  The CCTV footage could not be given as FIFO method is followed.  Since the disc is limited by this 6GB the footage could not be provided.  We have meticulously gone through the written argument filed by both parties along with the pleadings of the parties and affidavits.  Actually there is no relief prayed against AXIS bank.

From the pleadings of the parties the following points are framed for discussion:- 

POINTS FOR DECESION

1. Point No. 1:   Is the complainant a consumer under the OP No. 1 & 2?
2. Point No. 2:   Has the complainant received Rs. 10,000/- from the SBI ATM?
3. Point No. 3:   What relief the complainant is entitled to get?

REASOND DECISIONS

            For the purpose of brevity and convenience all the points are taken up together for discussion.

            From the pleadings of the parties it is clear that the complainant is a consumer under AXIS bank and State Bank of India.

            It is the cardinal principal that one who has approached the Forum has established his own case.  Now let us see how far the complainant has successfully established his case.  Ld. Advocate Sri Safikul Alam has orally argued the case and filed written argument.  Ld. Advocate Sri Aninda Biswas advanced the case of the AXIS Bank.  It has been argued that the OP did not submit any documents in order to establish the actual stock of the ATM cash on the disputed day.  It has been further argued that the money was not received by the complainant.  The case law reported in IV 2010 CPJ 275 was placed before us in order to substantiate the case of the complainant.  Hon'ble State Commission has held in IV (2010) CPJ 275 that the bank should have disclosed the actual amount kept in the ATM machine and mentioned how much money remained unused.  In order to counter the above case law ld. Advocate Sri Aninda Biswas placed before me a copy of order revision petition No. 3182 of 2008.   That was a case of Jonokpuri Branch and the Hon'ble National Commission has held that there was no deficiency in service on the part of the petitioner as the ATM card holder has digitized pursue with him.  The Hon'ble National Commission had further held without the ATM card and knowledge of the PIN number it is not possible money to be withdrawn by an unauthorized person from the ATM.  Thus, in the instant case the complainant could not prove non-receipt of Rs. 10,000/- from the ATM.

            Another order No. 1774 of 2011 has been filed by the OP to justify the bank was not at fault.  It has been held that JP Log of the machine reliable account of transaction in the instant case and the JP log statement provided by the bank both are against the complainant.  We have also gone through the RBI guidelines for ATM CCTV record placed before us by ld. Advocate for the bank.  After careful perusal of JP Log statement and the pleadings of the opposite parties including deposition of witness No. 1 for OP No. 2, Basudeb Bhattacharya we are inclined to hold that the complainant has not been able to prove his case by preponderance of probability.

            Mr. Basueb Bhattacharya has clearly given the deposition (vide OP No. 1 deposition filed on 17^th June, 2014).  We have also appreciated the annexures filed by the parties and the seven annexed documents of the complainant we are unable to accept the submission of the ld. Advocate that the case of the complainant is genuine.  Annexure – 6 also goes against the complainant.  Hence, all the points are disposed of accordingly with the observation that the complainant is not entitled to get any relief as prayed for.

Hence,

Ordered,

That, the case CC/2013/76 be and the same is dismissed on contest.  No cost. 

Let a copy of this judgment be delivered to the parties free of cost.