An application has been filed by the complainant against the O.P Nos. 1 and 2 u/s. 35 of the Consumer Protection Act, 2019. The brief facts of this case is that the complainant has an savings bank account with O.P No. 1. On 15/07/2021 the complainant went to Tufanganj for his personal work and due to need of some money at about 4:00 P.M. the complainant visited the ATM of O.P No. 2 for withdrawing some money and punched his ATM card at Bandhan Bank ATM at Tufanganj and enter the amount of Rs. 10,000/- for withdrawal. When the complainant punched the above mentioned figure and proceed all other steps is required the ATM showed their transaction has been completed but no cash an amount were coming out from the said ATM. The complainant receives one message of cash deduction from O.P No. 1 then and there the complainant lodged the complaint before the authority concern but till today no cash has been received by the complainant. Thereafter the complainant on 20/07/2021 raised a written complaint before the customer care of State Bank of India (Alipurduar Branch) but no fruitful result was come out. Complainant again 01/09/2021 raised another complaint before the customer care tool free number of O.P No. 1 with regard to deduct of a aforementioned amount from the bank account of the complainant but no response was received. Thereafter, the complainant sent a legal notice to the O.P No. 2. Complainant visited the office of the O.Ps on several times but no fruitful result was come out. Finding no other alterative the complainant has filed this case with a claim of Rs. 10,000/- which has been deducted from his bank account along with Rs. 1,00,000/- for his mental agony and sufferings and Rs. 30,000/- for his litigation cost.
The O.P No. 1 has contested this case by filing written version. O.P No. 2 has filed their written version which is not within stipulated period of 45 days for which it was not accepted.
According to the O.P No. 1 he has filed all the material allegations of the compliant and it is the admitted the complainant is the customer of his bank.
O.P No. 1 further stated that the ATM ID which was supplied by the complainant to the bank was incorrect but again he has receive Annexure - B which was referred to the authority concern. O.P No. 1 also informed the matter so many occasion with his higher authority as well Bandhan Bank i.e. O.P No. 2 to resolve the matter which are Annexure – 2, 3,4 and 5. The ATM counter which was used by the complainant is the ATM of O.P No. 2 i.e. Bandhan Bank only there are the Appropriate Authority to say the after proper calculation of the ATM balance whether there was any surplus amount lying with them or not. There is no laches from the part of the O.P No. 1. O.P No. 2 did not inform the matter to O.P No. 1 for which O.P No. 1 did not act accordingly.
We have already stated that the written version filed by the O.P No. 2 has not been accepted as it was filed after expiry of statutory period of 45 days and this Commission has no power to accept the same as per direction of the Hon’ble Supreme Court in case laws reported in New India Assurance Company Limited –Vs- Hilli Multipurpose Cold Storage Pvt. Ltd. reported in Dated – 04/03/2020.
In support of this case the complainant and O.P No. 1 have filed some documents, evidence-on-affidavit as well as written argument in this case.
We have gone through the materials on record very carefully and also perused the documents which are lying an record.
In this context, the following issues are necessarily come up for the proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019 ?
- Has this Commission jurisdiction to try the instant case?
- Is there any deficiency in service or negligence on the part of the O.Ps?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Considering the nature and character of the case all these points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience. The case has been filed u/s. 35 of the Consumer Protection Act, 2019 by the complainant.
Point No. 1 & 2:- Admittedly the complainant is the customer of the O.P No. 1 and he used the ATM of O.P No. 2 for withdrawal the amount of Rs. 10,000/-. He did not receive the same amount from the ATM counter and the amount will be deducted from his account. So as per law the complainant is the consumer and if it is proved he is entitled to get some reliefs from the complaint. Complainant resides within the jurisdiction of this Commission. The O.P No. 1 runs his business within the jurisdiction of this Commission. So, there is no hesitation that the complainant is a consumer within the meaning u/s. 2(d) of the Consumer Protection Act, 2019 .It is seen from this case record that the complainant resides and the O.P No. 1 office i.e. State Bank of India, Alipurduar Branch situated within the territorial jurisdiction of this District Commission. Therefore, this Commission has territorial jurisdiction to try this case as per u/s. 11(2) of the Consumer Protection Act, 2019.
Point Nos. 3 & 4:- Admittedly the position of the complainant is an account holder of O.P No. 1. The allegation is that he tried to withdrawal the amount of Rs. 10,000/- from the ATM of O.P No. 2 at Tufanganj. After fulfill all the criteria of the withdrawal of the ATM no cash was come out from the ATM counter although the amount has been deducted from his account. He informed the matter to O.P Nos. 1 and 2 and lodged the complaint but no fruitful result was come out. O.P No. 1 stated that the amount of Rs. 10,000/- has been deducted form the account of the complainant as it was advised from the ATM of O.P No. 2 and he sent the intimation to the O.P No. 2 by Annexure 2, 3, 4 and 5 but no result was come out. O.P No. 2 did not send any intimation to the O.P No. 1 regarding the said matter. If O.P No. 2 informed that the amount has not been come out from the ATM by way of calculation of fund on that date then the amount will be return to the complainant. After considering the evidence of documents filed both the parties we find that the ATM runs by Bandhan Bank where from the dispute occurred. It was the duty of O.P No. 2 to inform the O.P No. 1 whether the amount was actually deducted or not or the transaction was completed or not. But O.P No. 2 did not pay any heed to the intimation of O.P No. 1 which is Annexure – 2, 3, 4 and 5. So there is a gross laches and deficiency in service from the part of O.P No. 2 as he did not response the intimation of O.P No. 1to them that is Annexure – 5. There is a deficiency in service form the part of the O.P No. 2 and gross negligence is there and due to their laches the complainant lost an amount of Rs. 10,000/- from his bank account. So, we find that O.P No. 2 is duty bound to return the amount of Rs. 10,000/- to the account of the complainant with O.P No. 1 or to make proper advise or response of the intimation sent by O.P No. 1 to them. The complainant is entitled to get some compensation due to the laches from the part of the O.P No. 2 which amount has been deducted from his bank account and also Rs. 20,000/- for his mental agony and sufferings and he also entitled to get Rs. 5,000/- for his litigation cost from O.P No. 2.
Thus all the points are disposed of accordingly.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and the same is allowed ex-parte against O.P No. 2 and dismissed against O.P No. 1. The complainant do get an award amounting to Rs. 10,000/- (Ten Thousands) which has been deducted from his bank account due to the laches from the part of O.P No. 2 as the concern ATM was controlled under him along with interest of 6% Per annum from the date of claim to till the realization of the amount. The complainant is also do get an award amounting to Rs. 20,000/- (Twenty Thousands) as compensation for his harassment, mental agony and sufferings and also Rs. 5,000/- (Five Thousands) as his litigation costs; total decreetal amount of Rs. 35,000/- (Thirty-Five Thousands) excluding interest. The O.P No. 2 is hereby directed to comply this order within 30 days from this day, failing which legal action will be taken against him. O.P No. 1 is directed to credit the said amount of Rs. 10,000/- to the account of the complainant after receiving the advice or payment made by O.P No. 2.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
