DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

      C.C. CASE NO. _176_ OF ___2015

DATE OF FILING : 7.4.2015                       DATE OF PASSING JUDGEMENT:  6.6.2018_

Present                        :   President       :   Ananta Kumar Kapri

                                        Member(s)    :    Subrata Sarker 

COMPLAINANT        :    Mrs. Ajanta Majumder, wife of Sri Mrinal Kanti Majumder of 18A, East Road, Santoshpur, Kolkata – 75, P.S Survey Park.

• VERSUS  -

O.P/O.Ps                            : 1.  The Secretary, The Banking Ombudsman, Reserve Bank of India, 15, N.S Road, Kolkata – 700 001, P.S Hare Street.

                                   2.    The Branch Manager , ICICI Bank Ltd. Golpark Branch, 38/3A, Gariahat Road, near Golpark, Kolkata – 29, P.S Gariahat.

                                   3.     The Manager, Service Quality, ICICI Bank Ltd. ICICI Phone Banking Centre, ICICI Bank Tower, 3^rd floor, Survey no.115 of 27, Plot no.12, Nanakramguda Seri Lingath Pally, Hyderabad 500032.

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                                                            J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

     The nub of the facts leading to the filing of the instant complaint by the complainant is that complainant maintains a Savings Bank Account bearing no.090101500759 with O.P-2 Bank with ATM facilities. On 11.4.2014, she came to find upon examination of account statement that a sum of Rs.9000/- was withdrawn from her account. But, she did not withdraw the said amount . Then and then, she lodged a complaint with the concerned Bank , O.P-1 i.e Banking Ombudsman and also before the local P.S, but to no effect. Therefore, she has filed the instant case , praying for payment of Rs.9000/- , damage of Rs.2 lac, compensation of Rs.3 lac etc. Hence, the case.

     O.P-1 i.e the Ombudsman has filed written statement, wherein it is contended that he is not service provider and, therefore, the complaint is not maintainable against him.

     The O.P nos. 2 and 3 have also filed written statement, wherein it is contended inter alia that O.P-2 called for (1) E.J Report, (2) Switch Report, (3) CCTV Footage, (4) Machine Breakdown report ,(5) No Excess Cash Certificate of Indus Ind Bank ATM which was used by the complainant and after  having examined those documents, it was found that the transaction on 1.4.2014 having used the ATM Card of the complainant, was successful. That apart, it was also found on examination of the documents as aforesaid that there was no excess cash found in ATM on 1.4.2014. So, to them, there is no cause of action, nor any deficiency of service as alleged by the complainant and, therefore, the case should be dismissed in limini with cost.

     Upon the averments of the parties following points are formulated for consideration.

POINT FOR DETERMINATION

1. Are the O.Ps  guilty of deficiency in service as alleged by the complainant?
2. Is the complainant entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

Evidence on affidavit is filed by the complainant. Written statement filed by the O.P nos. 2 and 3 is treated as their evidence, vide their petition dated 20.4.2017. Questionnaires, replies , BNAs filed by the parties are also kept in the record for consideration.

DECISION WITH REASONS

Point no.1 & 2 :-

Already heard the submissions of Ld. Lawyers appearing for the parties. Perused the complaint, written version of statement filed by the O.Ps and the evidences adduced by the parties. Considered all these.

First of all, we take up the matter whether the case is maintainable against the O.P-1 i.e the Banking Ombudsman. The Banking Ombudsman is seen to have provided no service to the complainant; he is not service provider of the complainant and this being so, the instant complaint appears to be not maintainable against him.

Now to see, whether the O.P nos. 2 and 3 are guilty of deficiency in service as alleged by the complainant.

It is the allegation of the complainant that she did not ever withdraw the money from the ATM by using her ATM Card. But, the O.P nos. 2 and 3 have deducted a sum of Rs.9000/- from her savings account maintained in the bank of the O.P on the plea that the complainant has withdrawn the said amount. The case of the O.Ps is that the complainant has withdrawn the said amount , as the transaction on that very date i.e on 1.4.2014 is found to be successful from the records of ATM machine. In the midst of such claim and counter claim it is to be seen how far the complainant has discharged the primary burden of proof which is entrusted on her. The complainant will have to prove first that, ATM Card remains exclusively in her safe custody and that she , but none, uses it. There is no such averment of the complainant in her petition of complaint. There is no such statement given by the complainant in her evidence also.

That apart, it is not the case of the complainant that she lost the ATM Card,that the ATM Card was stolen from her house. Under such circumstances, we feel no hesitation to hold that the ATM Card remains in exclusive possession of the complainant and it is none but the complainant who is responsible for withdrawal of the money as alleged by using her own ATM Card. There is no deficiency in service on the part of the O.P nos. 2 and 3 in so far as withdrawal of money from the account of the complainant is concerned.

It has been argued on behalf of the complainant that the bank authority should have produced the CCTV Footage before the Forum to prove that the money has been withdrawn by the complainant and by none else. The production of CCTV Footage seems to be not necessary in this case. It may be so that the complainant may send any authorized person to the ATM Counter for withdrawal of money ,giving him/her ATM Card and in that case, it will not be possible for the CCTV Camera to detect whether the withdrawal of money is by the complainant or not. That apart, complainant herself has failed to discharge her initial burden. Production of CCTV Footage appears to be of no avail in the facts and circumstances of the instant case.

Upon what has been discussed above it is found that the complainant has failed to prove deficiency in service on the part of the O.Ps and ,therefore, the case deserves dismissal in limini .

In the result, the case fails.

Hence,

                                                     ORDERED

That the complaint case be and the same is dismissed on contest against the O.Ps, but without cost.

     Let a free copy of this order be given to the parties concerned at once.    

                                                                                                                   President

I / We agree

                               Member                                                    Member                                                                      

Dictated and corrected by me

                        President