KUNDAN KUMAR KUMAI

This is an appeal preferred, against the judgment and order passed by the Ld. DCDRF, Coochbehar, on 30/06/2022 in CC No. 105/2018.

Brief facts of the appellant case are that, the respondent/complainant, who had one SB account no. 3327182738 in the appellant bank, had gone to the ATM counter at Deocharai, on 05/04/2018 at about 7-8 pm, and operated the ATM card being No. 6521601006574885, for withdrawing Rs. 5,000/- ( five thousand) only, but did not receive the cash, even though, the above amount was debited from the above SB account, lying with the appellant bank. Thinking, it was a technical error, he waited for few days. But as nothing happened, he approached the appellant bank, who issued tokens on two occasions, being no. 2353217 and 2462289 respectively. But the problem was not solved. On 09/04/2018 and 10/07/2018, the respondent/complainant, lodged written complaints, but with no result. Finally, he approached the Consumer Affairs and Fair Business Practices, Coochbehar. But on the scheduled date, the appellant appeared and showed the status of the disputed transaction as ‘ Successful Transaction’ . But the appellant could not produce JP log and ATM Reconciliation report of the date of incident. Finding no alternative, the respondent/complainant filed the complaint before the Ld. DCDRF, Coochbehar. Hence this case.

The appellant contested the claim by filing written version, wherein they denied, the respondent/complainant’s case and mentioned, that without the ATM pin No. which was a secret number, known only to the respondent/complainant, the deduction from the respondent/complainant’s account could not have been possible. Moreover, the transaction from the respondent/complainant’s account being TXN No. 9895 was shown by the response code as 0051, which meant, that the transaction was successful. Hence, the case of the respondent/complainant be dismissed.

Being aggrieved by the impugned order, the appellant filed, the instant appeal on the ground, that the Ld. DCDRF, Coochbehar, erred in law and facts, while passing the impugned order.

Decision with reason

Ld. Advocate for the appellant, at the time of final hearing had submitted, that the ATM transaction being TXN No. 9895 was found to be 0051 meaning, that it was a successful transaction. Moreover, no extra cash was found from the said ATM and therefore, the respondent/complainant was responsible for the loss as the ATM card was in his possession and the pin code being a secret no., was known to the respondent/complainant only. He has also filed, the JP log report authenticated by the appellant himself and has relied in judgment passed by the Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee passed by the Hon’ble Supreme Court in criminal appeal No. 1191-1194 of 2005 with civil appeal No. 1727 of 2007 on 07/08/2009.

The respondent/complainant is present in person and has made submission in support of the impugned order.

On perusal of the impugned judgment, that the Ld. DCDRF, Coochbehar, had passed, based on the fact, that the best document, that is JP log report had not been provided for which reason, he had resorted to the provisions of Section  114(g) of the Indian Evidence Act, and drawn adverse inference against the case of the appellant and passed the impugned order. But, the Hon’ble Supreme Court in the judgment cited above categorically stated that the provisions of Indian Evidence Act, would not be applicable in consumer disputes. However, when the appellant has filed the attested JP log report, at the time of hearing and without going in to the merit of the veracity of the report, as well as the merits of the case, this appears to be a fit case for remanding the same to the Ld. DCDRF, Coochbehar, for writing a fresh judgment, after going through the JP log report, on receiving the attested copies of JP log report, from the appellant.

As a result, the instant appeal succeeds the part.

It is therefore,

Ordered

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

The impugned order is here by set aside, with the direction to  the Ld. DCDRF, Coochbehar,  to write a fresh judgment on receipt of the authenticated JP log report from the appellant.

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

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

The appellant is also directed to file authenticated copies of JP log report, before the Ld. DCDRF, Coochbehar, within 30 days from the date of this order.