C.F. CASE No.                      :            CC/2013/114

COMPLAINANT                    :   1      Rakhal Ch. Ray, S/o Late Matilal Ray

                                                  2           Manorama Ray, S/o Rakhal Chandra Ray

                                                 3)          Anirban Ray, S/o Rakhal Chandra. Ray,

                                                All are permanent residents of Sukul Road,

                                                P.O. Krishnagar, P.S. Kotwali, Dist. Nadia

• Vs  –

OPPOSITE PARTY/OP   :               Sr. Branch Manager, Bank of Baroda,

                                                                                Krishnagar Branch

                                                                                12, Manmohan Ghosh Street, Patra Market,

                                                                                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                         :    20^th November, 2014

:    J U D G M E N T    :

There are three petitioners in the instant case and one OP in an application under Section 12 of the Consumer Protection Act, 1986.  The facts of the case, to put in a nutshell, are as below:-

On 20.03.13 at 1.32pm Rakhal Chandra Roy an advocate practising at Krishnagar, the complainant received an SMS message in his mobile and came to know that an amount of Rs. 14,451.86 had been debited from the joint account No. 09750100008397.  Thereafter, at 4.24 pm the complainant received another SMS with intimation that Rs. 58.39 has been debited from the said account.   Being astonished with the unexpected SMS and unauthorized user of the debit card the petitioner complained to the opposite party on the same date at 5 pm.  As the OP did not take steps an email was sent to Baroda to the debit card department on 02.04.13.  The card of the complainant was blocked for security purpose.  A complaint was lodged to the Banking Ombudsman to the Calcutta but in vain.  A letter with Rs. 58.39 was credited or reversed to the account of the complainants on 31.05.13 but no credit was made about Rs. 14,451.86.  The petitioner No.1 lodged a complainant to the Inspector In-Charge Kotwali P.S. on 06.01.13 and Kotwali P.S. case No. 1245 dtd. 7.8.13 was started.  The Assistant Director, Consumer Affairs and Fair Business Practices, Nadia was informed for redressal of the grievances, but to no effect.  The opposite party is bound to refund the unauthorized debited amount of Rs.14,451.86. The petitioners has suffered a heavy loss and hence compensation of Rs.13,000/- for harassment and mental agony was prayed along with refund of Rs.14,451.86.

The opposite party bank has contested the case by filing written statement and the sum and substance of the written statements are as below:-

That the case is not maintainable as it is barred by the principle of waiver, acquiescence and estoppel.  The petition has no cause of action.  The case is false.  No cause of action arose at all.  The transaction was successful and the amount cannot be released.  The opposite party bank has intimated the petitioner about the transaction made from the online merchant FASHION CUTE.  The son of the petitioner used to handle the account and the debit card for net banking. And, there is nothing to show that he did not use net Banking.

On 19.03.13 the debit card also used to payment of Rs. 128/- to CESC online.  As the transaction was successful the claim of the petitioner falls flat.  Inquiry was done by the bank and result of the inquiry was communicated to the complainant on 27.05.13 with ulterior motive this false case was started. 

From the pleadings of the parties the following issues are framed for consideration. 

1. Are the complainants consumers?
2. Was there any deficiency in service?
3. What relief the complainants are entitled to get?

REASOND DECISIONS

            For the sake brevity and convenience all the issues are taken up for discussion. 

            Both parties file affidavit evidence which are on record.  Interrogatories are filed.  The parties are also filed relevant documents in support of their respective cases.  We have meticulously gone through the written arguments filed by both parties along with 10 exhibits filed as Firisti.  The following documents were filed by the complainant in order to establish the case:-

            We have also meticulously gone through the landmark decision reported in AIR 2005 SC 3180.  This path-breaking judgment the Hon'ble Supreme Court has held that the negligence is the breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent or reasonable man would not do.  There must be a duty and the breach of the said duty resulting damage.  These are the essential components of negligence.

            That apart, our attention has been drawn to 2001 (CPJ) 296 (CHA).  In this case Bank was held guilty of deficiency in service when the amount was withdrawn from the complainant’s personal account without any authority or instructions.  Our attention has also been drawn to AIR 1997 AP 53.  It has been argued with reference to 1997 decision that the best evidence was withheld by the OP in the instant case.  CID’s letter dtd. 29.10.13 was not produced by the Bank.  The Hon'ble AP High Court has held that adverse inference can be drawn for withholding an important document or witness.  We have also gone through Section 81 of the Evidence Act regarding admissibility of a document along with reported decision (1977 CRL 1300).   In the instant decision of 1977.  It has been held that the Hon'ble High Court that the copy of Newspaper is admissible under Section 81 of the Indian evidence Act. 

In the case at hand the newspaper comes as exhibit 10.  In the affidavit filed by the Sr. Branch Manager, Krishnagar Branch of Baroda, we find that the debit card was used to make payment from online merchant FASHION CUTE.  So it was duly intimated on 27.08.13 by the letter of the OP.  The claim of the petitioner has been denied by way of filing affidavit.  We have also gone through interrogatories filed by the parties and replies thereto.  The document of DCA/NDA/CG/62 dtd. 20.11.13 was also called for and we have meticulously gone through such official record of A/D, CA & FBP, Nadia.  We have gone through the complaint of Rakhal Chandra Ray, exhibit-8 and other exhibits in the background of the written argument filed by both parties. 

            Exhibit – 4 is the first information report received by Kotwali police station on 07.08.13.  The police officer did not mention anywhere that bank did not co-operate him in the matter of investigation.  The bank letter dated 10.12.13 goes to show that the transaction was successful and the bank expressed inability to reverse the amount of Rs. 14451.86.  The bank document also shows that card No. 4029850249028249 was used for the transaction in question.  We are convinced with the argument of Ld. Advocate for the OP that the amount in question was debited as the transaction was successful.  We agree with the submission of the OP that the petitioners in the instant case are not entitled to get relief as prayed for as they failed to establish their case of negligence and deficiency in service. 

            Hence, those points are disposed of against the petitioners as no negligence could be proved on the part of the OP as per AIR 2005 SC 3180.

Hence,

Ordered,

That, the case CC/2013/114 be and the same is dismissed on contest.  No cost.

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