The petitioner Kartik Roy filed a petition u/s.12 of the Consumer Protection Act for seeking relief.

The fact of the case as revealed from the petition as well as from the evidence is that the complainant is an account holder of State Bank of India, Kaliaganj Branch having account No.31135315702. He is also a holder of ATM card. On 01.03.2016 the complainant used the ATM Machine of O.P. No.2 i.e the Central Bank of India, Chopra for withdrawing Rs.20,000/- through his ATM card but the ATM Machine of O.P.No.2 shown that the machine was presently out of order. The complainant did not get the amount or any receipt from the machine. But curiously enough on 01.03.16 the complainant received a message to his mobile from the O.P.No.1 that Rs.20,044 has been debited from his account No.31135315702. But actually the amount was not delivered. Actually complainant did not receive  the money physically from the ATM. Thereafter the complainant lodged a complaint to State Bank of India Customer Centre. Ultimately there was no fruitful result. This is why he served a notice through his lawyer. From the evidence it is found that there was a gross negligence and deficiency in service on the part of the O.Ps. The complainant has prayed for refund of Rs.20,044, interest from 01.01.2016 till adjustment at the rate of 12% per annum, loss and damages for Rs.20,000/- and Rs.10,000/- as litigation cost .

The petition has been contested by the O.Ps separately by filing separate W.V contending  denying all the material allegations leveled against O.Ps contending inter alia that the instant case is not maintainable. The complainant has not come to the Forum with clean hands and as per record of the bank money was delivered. The further defence case is that the journal printer ‘is the final in deciding factor as regard to ATM withdrawal are concerned” and it is also found that the journal printer tallies with physical cash balance. It is the most authenticated document to prove  in respect of ATM withdrawal. The further defence case is that all the transactions on that day on behalf of the complainant were successful. So, he is not entitled to get any relief as prayed for. Considering the facts and circumstances the claim petition is liable to be dismissed with cost.

In order to prove the case the complainant is examined. The O.Ps also examined to prove their case. Document was filed.

Now the point for determination whether the claimant is entitled to get any relief as prayed for.

                                      DECISION WITH REASONS

At the tieme of argument the Ld. Lawyer of the complainant argued that he is not received any money from the ATM on that particular date. So he is entitled to get refund all the money. He further argued that C.C. footage has not been produced by the bank authority to prove the fact. In such circumstances the prayer of the complainant is to be allowed.

On the other hand the Ld. Lawyer for the O.Ps argued that all the transactions on behalf of the complainant on the date was successful and the statement of accounts  appeared from the documents filed by the O.Ps that there was no excess amount. If the complainant did not receive any amount from the ATM the excess amount will be shown in the account but nothing has been done. The Ld. Lawyer for the O.Ps further argued that the complainant has stated that he was the actual physical possession of the ATM card holder and he did not disclose the PIN code to anyone. So, it will be presumed that none used the ATM card besides the complainant. The Ld. Lawyer for the O.Ps refers the case law of State Bank of India Vs. Virendra Kr. Sharma. On perusal of the case law it is found that the Ld. District Forum allows the prayer for refund of the money only on the ground for non production of C.C.T.V. footage. But the State Consumer Disputes Redressal Forum of Punjab dismissed the complaint on the ground for non production of C.C.T.V. footage. This case law was passed on the basis of the judgement of Hon’ble National Commission of State Bank of India Vs. K.K.Valla reported in II 2011 CPJ. The fact of the reported case law tallies with the instant case as per journal printer/electronic journal printer log it is found that the transaction was successful and there was no excess amount was found on the closing day. Moreover, in this case the complainant did not pray for obtaining the C.C.T.V footage as and when he received the intimation to his mobile that Rs.20,044 has been debited from his account. There is no record to show that on that date ATM  was not properly working. So, considering the facts and circumstances it is found that on that day the ATM was working properly. Considering all the facts and circumstances the instant case is to be dismissed with cost.

Fees paid are correct.

Hence, it is

ORDERED,

That the instant consumer complaint being No. CC - 35/2016 be and the same is dismissed on contest with cost.

Let a copy of this order be given to the parties free of cost.