KUNDAN KUMAR KUMAI

This is an appeal under section 15 of the Consumer Protection Act 1986, preferred against the final order and judgment, dated 29/06/2022, passed by the Ld. DCDRF, Coochbehar in CC No. 6/2020.

Brief facts of the appellant case are that, the respondent No. 1 /complainant had opened an account, with the appellant bank being A/C Number 52180043022411, against which an ATM card bearing No. 5089683860654009, had been issued. The respondent No. 1 /complainant had used the said ATM card, to withdraw cash from the ATM of respondent No. 2 bank, being ID No. 1BBN000209013, on 09/07/2019 at 14-39:31 for withdrawing Rs. 6,000/- (Six thousand) only. But due to non-dispensing of the above amount by the ATM machine, the respondent No. 1 /complainant did not receive the above amount of Rs. 6,000/- (Six thousand) only. Subsequently, he received a message indicating, that the above amount had been debited from his above account. On instruction of the appellant bank, the respondent No. 1 /complainant sent an e-mail to the RBI, Kolkata, but the amount was not credited to his account. He then intimated the appellant bank in writing on 17/08/2019, but there was no response from the appellant bank. The respondent No. 1 /complainant filed a complaint before the Consumer Affair and Fair Business Practice, Coochbehar on 16/12/2019, but as the respondent No. 2 bank did not appear, the matter could not be disposed of. No ATM footage nor ATM ledger roll were produced before the respondent No. 1 /complainant and therefore, the appellant bank and the respondent No. 2 bank committed deficiency in service and caused mental pain and agony, following which the respondent No. 1 /complainant lodged this complaint with prayers, mentioned in the complaint. Hence this case.

The appellant bank contested the case, by filing a written version whereas, the respondent No.2 bank did not appear, following which the case was heard exparte against the respondent No. 2 bank. The appellant bank in the written version had denied the respondent No. 1 /complainant’s case in general and has mentioned, that the respondent No.2 bank and the appellant bank were two different entities, and for which reasons, the appellant bank was not responsible for the deficiency of service, caused by the respondent No.2 bank. The appellant bank had raised charge back / refund request to the respondent No. 2 bank, on 10/07/2019, but the same had been rejected on 18/07/2019, stating that the transaction had been successful. One pre-arbitration had been held, but the same had also been rejected by the respondent No. 2 bank on the ground, that the transaction had been successful.

After hearing both the sides and on perusal on the material of the record, the Ld. DCDRF had passed the impugned order, allowing the case with costs of Rs. 5,000/- (five thousand) only and directing the appellant bank, to pay an amount of Rs. 21,000/- (twenty-one thousand) only, to the respondent No. 1/ complainant within 30 days, failing which interest @ 6% per annum would be levied upon the above amount and to recover the above amount from the respondent No. 2 bank.

Decision with reason

At the time of final hearing, the Ld. Advocate for the appellant bank had submitted, that the appellant bank had no role to play in the deficiency of service and therefore, the impugned order penalizing the appellant bank ought to be set aside. Moreover, it was not feasible to collect the amount to be payable to the respondent no. 1 / complainant from the respondent No. 2 bank, as directed in the impugned order.

None appeared on behalf of the either the respondent no. 1 / complainant nor the respondent no. 2 bank failing which, the appeal was heard exparte.

On perusal of the material on record, it transpires that, the fact of the case itself reveals, that the ATM of the respondent no. 2 bank, had been used to withdraw the cash of Rs. 6,000/- (Six thousand) only on 09/07/2019, but no cash had been received by the respondent no. 1/ complainant. It is also accepted by the Ld. Forum, while deciding the point No. 2 in the impugned judgment, that the appellant bank had taken all possible measures to resolve the grievances of the respondent no. 1/complainant.  Hence in the light of the above findings, it becomes clear that, the deficiency in service, to the respondent no. 1/complainant, could have been caused only due to the un-cooperative attitude of the respondent No. 2 bank. Under the circumstance the impugned direction upon the appellant bank, passed by the Ld. DCDRF, Coochbehar, appears to be erroneous and is liable to be set aside. Hence this is a fit case to remand the appeal to the Ld. Forum below, for deciding afresh, the matter, in the light of the above observations.

As a result, the instant appeal succeeds.

It is therefore,

Ordered,

That the appeal be and the same is allowed ex-parte, but without costs.

The impugned order passed by the Ld. DCDRF, Coochbehar, is hereby set aside with a direction to the Ld. DCDRF, Coochbehar, to decide the matter afresh, in the light of the observations made in the body of the above order.

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