KUNDAN KUMAR KUNMAI

This is an appeal under section 15 of the Consumer Protection Act, 1986 preferred against the order and judgement passed by the Ld. DCDRF, Cooch Behar on 31/05/22 in CC/79/2017.

 Brief facts of the Appellant’s case is that, the Respondent No.1/Complainant had an account being no.0240011483839 in the erstwhile UBI and which was amalgamated with the present Appellant/bank and is presently known by the name of the present Appellant/bank. On 27/2/2017 the Respondent No.1/Complainant had tried to withdraw money by using his ATM Card from the ATM counter of the Respondent No.2/Bank located at Sagardighi, Cooch Behar, but whenever he tried each time the message “sorry unable to process”. Finally, at around 8:30 he could withdraw money from the ATM counter of the IDIBI bank to the extent of Rs.20,000/- (Rupees twenty thousand) only in two times @ Rs.10,000/- (Rupees ten thousand) each. At that time, he received the message in his mobile phone that a sum of Rs.60,120/- (Rupees sixty thousand one hundred twenty) had been debited @ Rs.10,020/- (Rupees ten thousand twenty) only each time for six times which means that an excess of Rs.40,080/- (Rupees forty thousand eighty) only had been debited from his above account, especially when as per banking rules not more than Rs.28,000/- (Rupees twenty eight thousand) could be withdrawn in a day from his account by using the ATM card. Thinking it to be a technical error of the ATM machine he waited for a few days, and lodged a complaint to the UBI, Cooch Behar Branch on 03/03/2017. As he did not get any response, he got in touch with the Appellant bank, but he was asked to refile a complaint on each occasion. Finally, in the month of June the Appellant/bank intimated that the problem could not be solved by them and he was advised to contact the customer service center of the bank. Finding no alternative, he lodged a complaint before the Ld. DCDRF, Cooch Behar with necessary prayers.

The Appellant/bank appeared to contest the claim by filing written version wherein they not only denied the Respondent No.1/Complainant’s case but also stated that the complaint had been made after the lapse of couple of months and in any case the fault occurred in the Respondent no.2 bank ATM and they were liable to compensate and claimed for disposal of the complaint.

The Respondent no.2/bank also appeared to contest the claim and filed a written version wherein they also denied the Respondentno.1/Complainant’s case and claimed that when the cash was not dispensed on the first two occasions there had been no necessity to persist with the attempts for another two times. It is further stated that as per banking rules when the card holder of one bank withdraws from the ATM of another bank then the concerned bank should report to the bank of the ATM card was used and the trouble would have been detected. But in the instant case the Appellant bank did not follow rules for which reason the Respondent no.2/bank should not be held liable and prays for dismissal of the complaint.

After going through the evidence and hearing the Ld. Advocates for the parties, the Ld. DCDRF, Cooch Behar passed the impugned order whereby the Appellant bank was directed to pay the sum of Rs.46,080/- (Rupees forty six thousand eighty) only within 30 days from the date of the order failing which interest @ 6% per annum would be levied till recovery and also permitted the Appellant bank to recover the said amount from the Respondent bank.

Being aggrieved by the impugned order the Appellant preferred the instant appeal on the ground that Ld. DCDRF, Cooch Behar had erred in facts and law, while passing the impugned order.

                                                                Decisions with Reasons

 Ld. Advocate at the time of final hearing had submitted that the Respondent no.1/Complainant had never complained to the Respondent bank regarding the dispute of Rs.40,000/- (Rupees forty thousand) only being deducted while using the ATM counter of Respondent bank. That apart the Appellant bank had made several requests for the JP Log of 27/2/17 but the respondent bank had been unable to serve the copy, to verify the contention of the Respondent no.1/Complainant. Moreover, no investigation had been done to test the veracity of the Respondent no.1/Complainant’s statement. It was further submitted that the Appellant bank had no role to play and it was the liability of the Respondent bank and prays for allowing the complaint.

 Ld. Advocate on behalf of the Respondent no.1/Complainant had submitted at the time of final that the Respondent no.1 suffered any further and the direction upon the Appellant to make good the amount delayed.

 Ld. Advocate for the Respondent/bank had submitted at the time final hearing that respondent/complainant was not a consumer of the respondent no.2 bank and therefore there was no liability towards the Respondent no.1/Complainant. Moreover, the Respondent no.2 by producing JP Log which establishes that the server of the Respondent was never hit for the claimed transactions, which could mean that the amount would have been rolled back in the internal account maintained by the Appellant bank for such transactions and therefore prays for dismissal of the appeal.

The Ld. DCDRF, Cooch Behar in the impugned judgement had mentioned on scrutiny of the JP Log the transactions from the card of the Respondent no.1/Complainant could not be found. Whereas the mini statement of the Respondent bank reflects that  six transactions had been done from the card of the Respondent/Complainant as well as the account of the Respondent/Complainant. That apart the report on transactions of the Appellant bank for the period from 01/2/17 to 28/2/17 for the account of the Respondent/Complainant and the same Savings deposit pass-book of the Respondent/Complainant for the transactions on 27/2/17 clearly shows that the transactions had been done from ATM of the Respondent bank. Moreover, from the said transactions amount also has been deducted but as observed by the Ld. DCDRF, Cooch Behar the said is not reflected in the JP Log.

 Now the question that arises is, the transactions of Rs.40,080/- has been established to have occurred from the ATM of the Respondent bank even though the JP Log entries have not reflected the same, as to whether the transactions were successful or not. Under the circumstance, the onus was upon, the Respondent Bank  to prove whether the transaction was successful or not by producing other evidence like footages from the close circuit cameras. But apparently the Respondent bank has failed to discharge such onus. As a result, the Respondent bank needs to be held responsible and liable for the compensation levied upon by the Ld. DCDRF, Cooch Behar.

Consequently, the instant of the succeeds.

                                                      It is therefore

                                                        Ordered

That the instant appeal be and the same is allowed on contest but without cost.

The impugned order is hereby set aside.

Respondent no.2 bank is directed to pay a sum of Rs. 46,080/- (Rupees forty six thousand eighty) only being the bank amount of 40,080/- (Rupees forty thousand eighty) only and 5,000/-(Rupees five thousand) only  as compensation towards deficiency in service and Rs.1,000/- (Rupees one thousand) only towards litigation cost, to be paid within 45 days from the date of receipt of this order, failing which interest @ 9% per annum would be levied till realization.

Copy of this order be sent to the Parties free of cost.

Copy of this order be sent to the Ld. DCDRF, Cooch Behar for necessary compliance.