KUNDAN KUMAR KUMAI

This is an appeal preferred against the order and judgment passed on 25/05/2022 in CC No. 103/2018 by the Ld. DCDRF, Coochbehar.

Brief facts of the appellant case are that, the respondent/complainant was a customer of the appellant bank having SB account no. 2965978896, with ATM card no. 462244291934212. On 26/07/2018 at about 1.12 am and 1.28 am, the respondent/complainant had used the ATM card, from the ATM kiosk of the proforma respondent bank situated at Jalpaimore, Siliguri, for withdrawing Rs. 10,000/- ( ten thousand) and Rs. 5,000/- ( Five thousand) only, respectively, but did not receive any cash even though, he received a SMS on his mobile phone, indicating that Rs. 10,000/- (ten thousand) and Rs. 5,000/- (Five thousand) only, had been debited from his account. Thereafter, he informed the appellant as well as proforma respondent, who assured to refund the said amount Rs. 15,000/- (fifteen thousand) only. On 03/08/2018, a written application to the appellant and the proforma respondent banks had been made but, inspite promising to show the CC TV footage and the J.P.Log, did not do so. The respondent/complainant, further made one written application,  to the appellant on 10/11/2018 and met with the proforma respondent with the said application, but the appellant nor the proforma respondent, did not do anything, thus leading to deficiency of service. The respondent/complainant then filed the instant case. Hence this case.

The appellant contested this case, by filing written version where in the main allegation was denied and that the proforma respondent was responsible, as their ATM had been used.

The proforma respondent also contested the claim by filing written version wherein, it was mentioned, that there was no cause of action and the case was also not maintainable as the respondent/complainant had suppressed major facts. It was further mentioned, that such discrepancies involving the ATM, should have been communicated within 30 days, beyond which the bank had no liability. In the instant case communication had been made after 77 days and the proforma respondent was not liable, as it was informed after 110 days.

Being aggrieved by the impugned order, the appellant had filed the instant appeal on the ground, that the Ld. DCDRF, Coochbehar, had erred in law and facts, while passing the impugned judgment. Moreover, the mischief had been done by the ATM of the proforma respondent and the appellant should not have been made liable.

Decision with reason

Ld. Advocate at the time of final hearing had submitted, that the appellant bank was only the custodian of the SB account no. 2965978896, with ATM card no. 462244291934212 and had no role to play with regard, to the missing of the amount of Rs. 15,000/- (fifteen thousand) only, at the ATM of the proforma respondent bank. Moreover, the Ld. DCDRF, Coochbehar, had made observation, that even though the transaction had been successful and had concluded, that the ‘that no money had come out from the concerned machine’ and therefore, should not have made the appellant, liable vide the impugned order. He therefore, prays for setting aside the impugned order.

The proforma respondent had filed written notes of arguments, wherein it was mentioned, that the respondent/complainant, did not intimate the bank, regarding such an occurrence, within the stipulated 30 days and prays for setting aside the impugned order.

After hearing the Ld. Advocates, as well as on going through the impugned order, the Ld. DCDRF, Coochbehar, had observed, that on 26/07/2018, at the counter of the proforma respondent bank, concluded, ‘that no money had come out from the concerned machine’. Hence when the Ld. DCDRF, Coochbehar had concluded, that the proforma respondent bank’s ATM was at fault, but the operating part the impugned order appears to be contrary to the observation made in the body of the judgment. Hence this appears to be an apt case for remanding the same to the Ld. DCDRF, Coochbehar, for writing a fresh judgment.

As a result, the instant appeal succeeds in part.

It is therefore,

Ordered

That the instant appeal be and the same is allowed in part but without costs.

The impugned order dated 25/05/2022 is here by set aside with a direction to write a fresh judgment in terms of the observations made aforesaid.

Copy of this order be handed over to the parties, free of costs.  

Copy of this order be also sent to the Ld. DCDRF, Coochbehar, for necessary information and compliance.