Order-19.

Date-05/01/2016.

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that complainant is the holder of Saving Bank Account No.3171038380 and also an ATM Card No.5044370107404505 with the OP Central Bank of India.  On 10-07-2014 at about 5.30 to 6.00 p.m. complainant went to ATM counter of Central Bank of India situated at Howrah Mullick Fatak to withdraw a sum of Rs.10,000/- through ATM and inserted the ATM Card into the machine but that ATM machine neither dispensed any money nor any slip came out from the machine.  Subsequently he went to another ATM of OP situated at Howrah Maidan and inserted the ATM Card and also pushed the button but same incident occurred and only a slip came out with remarks “sorry cannot be processed”.  Suddenly, thereafter a message received from the OP Bank that Rs.10,000/- debited from the complainant’s account on 10-07-2014 at about 6.19 p.m.

          Complainant called on 11-07-2014 to the concerned officer, Central Bank of India, Main Branch and officer advised him to submit an application narrating the fact and accordingly complainant submitted an application to the Officer and Officer asked the complainant to visit after 3 days to the officer but no receipt was issued by the officer for the said application and after 3 days when complainant went to the Bank he found that the officer took leave and that matter was looked after by another officer and that office told the complainant to give fresh application and complainant made the application and handed over to the said officer but that officer also declined to issue receipt.  After this complainant wrot4e a letter on 19-08-2014 to the General Manager and Senior Manager, Central Bank of India, Main Branch and also issued reminders letter dated 12-09-2014 and 29-08-2014 but all are in vain and despite recipt of letters the OP did not care to credit of an amount of Rs.10,000/- which was illegally debited from the complainant account.  Complainant filed a general diary on 18-11-2014 to O.C. Howrah P.S. vide GDE No.1522 dated 18-11-2014.  Complainant drew the matter under attention to the Assistant Director, Consumer Affairs and Fair Business Practices, Howrah, RO for redressal the issue vide letter dated 10-09-2014 but the mediation failed and the Assistant Director advised the complainant to approach to Legal Forum for redressal of grievance and finding no other alternative complainant has filed this complaint before this Forum for negligent and deficient manner of service and unfair trade practice practiced by the OP and praying for refund of Rs.10,000/- along with compensation and litigation cost etc.

          On the other hand, OP by filing written version strongly denied that an amount of Rs.10,000/- illegally debited from the complainant’s account and the OP did not care to credit the same and in this regard the amount was debited from the complainant from the ATM of Central Bank of India which clearly shows from the report of the help desk of the OP and from the said report it is found that the transaction of the complainant was successful at the ATM of Central Bank of India and there is no multiple transactions took place.  Now it is clear that the complainant after receiving the amount from ATM of Central Bank of India for his unlawful monetary gain leveled the allegations against the OP in the petition.

          OP is strongly denied the allegation that complainant made any application to officer of the OP but no receipt was issued to the complainant, no such application was made by the complainant and as such the question of issuance of receipt cannot arise and the slip regarding transaction at Central Bank of India at Howrah Maidan that a slip with remark “sorry cannot be processed” came out from the machine was not produced before the Ld. Forum.

          It is further stated by the OP that after receiving the complaint from the complainant i.e. the Assistant Director, Consumer Affairs & F.B.P., Government of West Bengal, Howrah Regional Office called for a mediation meeting on 31-10-2014 and after the said meeting the matter was sent to the Cyber Crime Section of Howrah Police for their observation and the same is still pending.  Therefore complainant with some ulterior motive filed this complaint with unclean hands and is not entitled to the reliefs as prayed for.  So, the OP prayed for dismissal of the complaint.

Decision with Reasons

On careful consideration of the material including the complaint and the written version and further considering the argument as advanced by the parties it is found that it is undisputed fact that complainant is a holder of Savings Bank Account No. 3171038380 and also an ATM Card No.5044370107404505 of Central Bank of India, Netaji Subhah Branch.  It is also admitted position that on 10-07-2014 at 5:14 p.m. complainant went to Central Bank of India, Howrah Mullick Fatak to withdraw a sum of Rs.10,000/- through ATM and inserted the ATM Card into the machine on pushing the button but that ATM machine neither dispensed any money nor any slip came out from the machine so complainant went to another ATM of OP situated at Howrah Maidan and inserted the ATM Card and also pushed the button but same incident occurred and only a slip came out with remarks “sorry cannot be processed”.  Subsequently, he received a message on 10-07-2014 at about 6.19 p.m that an amount of Rs.10,000/- has been debited from his account and complainant was astonished because complainant did not get any service of the said ATM machine when he went to withdraw the sum of Rs.10,000/- from ATM machine or counter of Central Bank of India, Howrah Mallick Fatak and subsequently, when he went to another counter of Central Bank of India the same incident occurred and only a slip came out with remarks “sorry cannot be processed”.  If it is believed in that case it can safely be said that the machine did not work or somehow or otherwise it was controlled by some hackers from outside.

          Fact remains complainant is a very poor fellow working in a mill factory and invariably if such sort of incident did not happen in that case complainant had his no cause to appear before this Forum, and to lodge complaint before the Central Bank of India Authority for determination and for redressal.  But truth is that complainant wrote a complaint in writing.  Thereafter complainant filed a general diary to O.C. Howrah P.S. vide GDE No.1522 dated 18-11-2014 but peculiar factor is that no reply was given by the OP even after receipt of such complaint by answering how the sum of Rs.10,000/- was debited fraudulently from his account.

          Truth is that complainant after inserting the card only with the machinefound that it was not working so, question of getting money does not arise and when it was deducted complainant went to another ATM at Central Bank of India wherefrom he wanted to collect balance but report came different on the slip “sorry cannot be processed”.  If in both occasion similar incident happened then invariably the machines were not in proper form and if actually machine would be in proper form in that case complainant must have to get result after inserting the ATM Card but all these factors are not determined by the OP but straightway they would be appeared and submitted that as per TXR report they found that Rs.10,000/- had been withdrawn but OP has tried to convince that as because the complainant used the ATM Card and Pin No. complainant has also received it but such a defence cannot be relied in view of the fact in most of the cases in such a manner even if no ATM card inserted the money has been withdrawn by the fraudster but in the present case OP has submitted that the case was transferred to Cyber Crime Section of Howrah Police but that has not been decided as yet.  But similar incident is being happened daily then it is clear that some fraudsters are here and there to control the ATM machine at different places and fraudsters are withdrawing the sum.  Even then Fora at all level are deciding such factor as because parties has used the ATM card and ATM pin then it is liability of the customer to prove that fraud had been practiced but admittedly OP has admitted that a case has been instituted to Cyber Crime Section of Howrah Police but it has not been decided but that is another factor.  It is undisputed fact that such sort of fraudulently withdrawn from the account of the customer from different ATM machine is being continued but Fora at all revealed took a different view and on the basis of the view the Fora is coming to a conclusion that there is no deficiency, negligence on the part of the OP Bank.  But we cannot accept such view in view of the fact due to development of science and technology fraudsters are doing such sort of business and withdrawing money by adopting different process and for which customer the present consumer are being deceived but Bank has already raised their hands in different Fora by producing the judgment of National Commission or State Commission but that cannot control such sort of fraudulent withdrawal of money by the fraudsters and in fact, fraudsters have got a good instrument that is the judgement of higher Fora and Bank has also followed the same procedure as accepted by the fraudsters but fraudsters have very much happy for that and have been operating their operation smoothly because there is no provision or protection of the customers from Fora in such fraudulent withdrawal.

          Anyhow after considering the entire materials on record we find that complainant never push the button of the ATM machine by pressing it by inserting the Pin no.  Using of pin complainant is very much silent then it is clear that some fraudsters withdrew the same by adopting some mechanism in respect of fraudulently withdrawal of money and in such sort of act it can safely be said that no ATM machine is safe for customer because there is no anti device to protect the fraudsters’ activities and in the present case it is proved that complainant did not get that money because he did not press button by putting his pin no. and did not use the pin no. then it is evident from the complaint, for the overact of fraudsters and for withdrawal of the same by the fraudsters complainant is deceived by the OP Bank when it is the legal and bounden duty of the OP Bank to control the fraudsters and to keep the money of the customer safely then it is sure as per guideline of the RBI it is the duty of the Bank to keep money of the customers and for any overact of the fraudsters if the money of the customers is fraudulently withdrawn by the fraudsters then it is the duty of the bank to compensate and this is the mandatory provision of RBI Guidelines and Regulations but that has not been followed.

          In view of the above facts and circumstances and considering the whole episode and the conduct of the complainant including the defence of the OP we are convinced to hold that complainant is entitled to get back said amount of Rs.10,000/- and also a litigation cost against the OP for their negligent manner of activities as banking authorities. 

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.5,000/- against the OP.

          OP Bank is hereby directed to refund and credit the refund of Rs.10,000/- to the complainant in his account along with litigation cost of Rs.5,000/- i.e. total Rs.15,000/- within one month from the date of this order failing which for non compliance of the Forum’s order OPs shall have to pay penal damages of Rs.1,000/- per month till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.

Even if it is found that OP is reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.