This appeal is directed against the Final Order delivered by Ld. DCDRF Malda Dated 22/12/2020 in reference to CC No. 69 of 2017. The fact of the case in nutshell is that the one K. Alam a man of village kahala of Matuabari P.S, District Malda having savings account No.32656058902 lying at SBI Uttar laxmipur branch. And also enjoying an ATM debit card Bearing No.45…….985. He registered a Consumer Complaint to the score that on 24.07.2017 while he swapped the ATM card at kaliachawk matuabari SBI ATM to withdraw Rs.40,000 from his SBI account but the atm neither released cash nor any printed message. Subsequently, while he updated his passbook from the bank counter he found that on that day Rs. 40,000 was debited from his account. He reported the matter to SBI Bank Authority on 08.08.2017 with written complaint, but the bank Authority did not make any response to Credit the said Rs. 40,000/- into his account and for that reason, he registered the Consumer Complaint. The Complaint was admitted in due course and notice was sent to the SBI Authority who has contested the case by filing W.V and contained that the ATM machine and its card was covered with robust system and the machine and the card was in very safe condition and if the transaction was not successful it was to be shown on screen of ATM and also a slip to be issued by the ATM if ATM machine failed to disburse the cash. But if amount was debited from the account without release cash, then the transaction would be credited reverse to the account holder in due course. According to the, Opposite Parties the allegation of Complainant was false and frivolous and liable to be dismissed. Ld. Forum after recording the evidences and after hearing the arguments came into conclusions that the Complainant could not produce any cogent evidence to substantiate that he had any right cause of action or he made any allegations before the SBI authority about the incident in writing and CC TV footage was also not wanted on the part of the Complainant from the banking Authority and for that reason, the Consumer Complaint was dismissed. Being aggrieved with this Order this appeal follows on the ground that the appreciation of fact and evidence of the case on the part of Ld. Forum was not in proper and the decision of Ld. Forum was based on the surmise and conjecture and liable to be set aside. The Appeal was registered in due course and after admission of the same notice was send to the SBI/ respondent who has contested the Case through Ld. Advocate Mr. P. Joardar. The case of the Complainant/ Appellant was conducted for hearing by Ld. Advocate Mr. J. Choudhary.

 Admitted position is that the Complainant / Appellant is a regular customer of SBI Laxmi Bari Branch who used to hold an ATM card issued by the Bank. The Complainant/Appellant has attempted to withdraw Rs.40,000 by one time swapping of ATM card on 24.07.2017 at 12.12 P.M. The bank produces some printed message generated from the computer system which reflects that on 24.07.2017, the complainant swapped the said ATM card at 12:12 PM and the message shows that the Complainant withdrew Rs.40,000 from his account and available balance remained Rs.50,246.84. The next massage on that very date and time 12:13 PM that is just after one-minute of first swapping shows that he again swapped the said card for withdrawing money from the said account, but the response of the ATM machine shows unable to process and regretted. Now, the question is if one person by swapping the atm card at 12:12 PM could collect Rs.40,000/- had any possibility to swap the said card again within a minute. It is quite impossible to believe. Moreover, if any person or customer of a bank lodged any written complaint before the banking Authority the system of supplying the receipt copy of complaint is not there and this system is prevailing for a long time. So, if the Complainant fails to show any written complaint lodged on his part before the bank about the incident, then it should not be considered or take into granted that he did not lodge any written complaint. Moreover, CC TV footage always lies within the custody of Bank Authority and any customer have no access over the Footage of CC TV.  Cause of action in this case certainly arises since 24.07.2017 that is the day of incident and there is no lacuna on the part of the Complainant that he did not specifically mentioned the date of cause of action in his Written Complaint. In this case the Bank has produced printed copies of ATM status on that day (24.07.2017) for the period between 12.07 P.M and 12.15 P.M. the Bank had the opportunity to produce on that day the opening balance of Atm and the closing balance of the said ATM to proof that no excess money was lying in the ATM machine beyond the entire transactions held on that day. If, the Bank shows that after meeting out all the withdraw orders on that day in that ATM there remained no excess beyond the transacted money, then we can assume that actually and physically Rs. 40,000/- was released by the said swapping at 12:12 P.M from the said ATM machine on that very day. The Bank has failed to avail the said opportunity. On the other hand, the Complainant also could not produce the relevant pages of his passbook to show that the said 40,000/- was not reverse credited to his account. We know very well that generally ATM machine sometimes disfunctions and if any transaction is not successful then it is shown on screen of ATM as well as a slip issued by the ATM machine showing the regret. Even if some money is transacted but not delivered, same is reverse credited to account of ATM card holder. On the contrary in some occasions, we have experienced that sometime without releasing the cash swapping money are debited from the account and sometime reverse credit is also there. In some occasions in spite of false debit no reverse credit takes place. Sometimes for want of paper no ATM slips are released. Sometimes the ATMs are not functioned in a proper manner and in view of such situations some protections should be there for the interest of the Consumers or customers who use the ATM Debit Card. Here in this case one customer of Bank makes allegation that in spite of not releasing the money his account was debited and he had to suffer a lot. His allegations only for want of evidence should not be improperly addressed. Therefore, the order of Ld. Forum though appreciable has some defects in merit and the grievances of a bonafide Consumer has not been redressed in a proper manner. So, in order to, protect the interest of a bonafide customer the hearing of his instant Consumer Complaint should be reopen with opportunity to be given to both sides to prove their case. Accordingly, the instant appeal should be allowed otherwise, the very purpose of Consumer Protection Act will be frustrated.

Hence, it’s ordered

That the appeal be and the same is allowed on contest without any cost. The order of Ld. D.C.D.R.F., Malda dated 22.12.2020 in CC No 69 of 2017 is hereby set aside. The Ld. D.C.D.R.F., Malda is requested to reopen the case by giving opportunity to the Bank to furnishes the full details of the said ATM machine and the entire transactions in details on that day and the opening balance and closing balance of the said ATM dated 24.07.2017 to be furnished before the Ld. Forum and the Complainant should get an opportunity to produce the relevant documents like copy of Written Complaint and the copy of a printed passbook showing the instant transaction and thereafter Ld. Forum shall give an opportunity of making argument to the parties to the case and shall deliver a Final Order afresh in the merit of the case. The parties to the case are asked to appear before the Ld. Forum on 30.12.2021 for next course of action to be determined by the Ld. D.C.D.R.F., Malda.

Let a copy of this order be handed over to the parties free of cost and the same to be communicated to the Ld. D.C.D.R.F., Malda.