This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant, Amiya Kumar Chakraborty.

The case of the complainant’s in short is that he is an account holder of O.P. No.1 bank and his savings bank account number is 428912110000047 since 19.9.2009. On 3.11.2016 the complainant visited the ATM of Central Bank at Khadinamore, Chinsurah for withdrawing the amount of Rs.5000/-.  After operation of ATM machine the complainant did not get any money from the machine. But the said transaction No. CWDR/988319/M20T4471 shows that the amount was withdrawn on 3.11.2016.  It was also revealed in the pass book of the complainant.

It is pertinent to mention here that after said transaction the complainant again attempted for second time for an operation for withdrawal of Rs.5000/-, which was also shown as withdrawn being operation was successful but complainant did not receive the amount and subsequently the amount was reversed.

The complainant lodged a complaint on 7.11.2016 in prescribed format supplied by the O.P. No.1. The opposite party registered the complaint being docket No.S4957520 and SD802117.  But till date no response from the O.P. No.1 has been received. The complainant sent a legal notice through his Advocate requesting the O.P. No.1 to reverse the amount within seven days from the date of receipt of the legal notice but in vain.  The complainant also contacted on several days to the opposite party to solve the problem but every time the O.P. bank ignored the complainant.  The O.P. No.1 handed over a scrap of paper to the complainant on 2.1.2017 which shows that the said impugned transaction was successful and the opposite party has nothing to do so.

Finding no other alternative the complainant filed this case before this forum for relief with a prayer to direct the OPs to refund of Rs.5000/-, to pay Rs.3000/- for compensation for mental agony and harassment and to pay Rs.2000/- as litigation cost.

OP No.1 contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This O.P. further states that till date this O.P. No.1 has not received any reply or recognition with respect to the details queried from the O.P. No.2 who has not only failed to provide this opposite party to furnish with the details as is required in this case but has also outrightly rejected the claim of the complainant through Dispute Management System NPCI and the details are already informed to the complainant.

It is further submitted by this O.P. No.1 that in case if there is a failed transaction the system automatically reverses the transaction which has happened in case of second transaction but in case of first transaction the customer had approached to branch on 6.11.2016 and this O.P. No.1 has applied for reversal through our system vide DCRMS No.07116DATA3706.  However for the reason that this transaction one took place at the ATM of the O.P. No.2 Bank, such a reversal is settled by the Head Office level.  After applying for reversal this O.P. No.1 has received a mail on 13.11.2016 from the NFS-ISG stating that the complaint has been rejected by the Acquirer Bank (O.P. No.2) in Dispute Management System of NPCI and further from the report it appears that the impugned transaction was successful and therefore the complainant has falsely and in a malafide manner fabricated and manufactured this complaint against this O.P. No.1.  Hence, this case.

Opposite party No.2 appeared by filing vokalatnama and failed to file written version so the proceeding run ex-parte against him.

 Complainant filed evidence on affidavit which is nothing but replica of complaint petition so it is needles to discuss. The opposite party No.1 also filed evidence on affidavit which is the replica of written version.

 Both complainant & opposite party No.1 filed written notes of argument which are taken into consideration for passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant Amiya Kumar Chakraborty is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

    In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Amiya Kumar Chakraborty is a ‘Consumer’ of the opposite party?

     From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being a customer of the OP No.1 bank is maintaining a savings bank account before the OP-1 bank and he used the ATM counter of OP No.2  as beneficiary, so he is entitled to get service from the service provider i.e. OP bank..

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

   Both the complainant and opposite party are residents/carrying on business within the district of Hooghly. The complaint valued Rs.5000/- as reversal, Rs.2,000/- for litigation cost and a sum of Rs.3,000/- compensation for harassment and mental agony ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.   

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?         

     After perusing the complaint petition as well as documents on record it appears that the petitioner visited the ATM of opposite party No.2 bank to withdraw money by his ATM card  amounting to Rs.5000/- and he did not get money but the same amount has been debited from his account. He lodged complaint before the manager OP No.1 bank and also filed a petition before the opposite party No.2 bank and they could not solve his problem so after getting no alternative the complainant preferred the recourse of this Forum for redressal. The opposite party No.1 by appearing filed written version and denied the allegations as leveled against him. This opposite party further states that till date this O.P. No.1 has not received any reply or recognition with respect to the details queried from the O.P. No.2 who has not only failed to provide this O.P. to furnish with the details as is required in this case but has also outrightly rejected the claim of the complainant through Dispute Management System NPCI and the details are already informed to the complainant. And stated that in case if there is a failed transaction the system automatically reverses the transaction which has happened in case of second transaction but in case of first transaction the customer had approached to branch on 6.11.2016 and this O.P. No.1 has applied for reversal through our system vide DCRMS No.07116DATA3706.  However for the reason that this transaction one took place at the ATM of the opposite party No.2 bank, such a reversal is settled by the Head Office level.  After applying for reversal this O.P. No.1 has received a mail on 13.11.2016 from the NFS-ISG stating that the complaint has been rejected by the Acquirer Bank (O.P. No.2) in Dispute Management System NPCI and further from the report it appears that the impugned transaction was successful and therefore the complainant has falsely and in a malafide manner fabricated and manufactured this complaint against this O.P. No.1. In his argument the OP No.1 stated that complainant tried to withdraw an amount of Rs.5000/- from the ATM counter of Central Bank of India, Khadinamore, Chinsurah, Hooghly but the transaction failed due to cause of opposite party no.2 and not of the bank wherein the account has been held. He referred a case decision of Hon’ble State Commission, Uttrakhand in Punjab National Bank Vs. Vineet Kumar & Another, first Appeal No.196 of 2014, wherein it is held that “the ATM machine was used of the Punjab National Bank and because of the fault of ATM machine, the amount was shown withdrawn and State Bank of India has no role in the said transaction of ATM. Only the complainant was having a savings bank account in the state bank of India. The liability if any is of Punjab National Bank.” After going through the written argument it appears that the OP No.1 admitted the case of complainant except the deficiency of service on the part of him. The case of the opposite party No.1 is that till date this O.P. No.1 has not received any reply or recognition with respect to the details queried from the O.P. No.2 who has not only failed to provide this opposite party to furnish with the details as is required in this case but has also outrightly rejected the claim of the complainant through Dispute Management System NPCI and the details are already informed to the complainant. He further assailed that in case if there is a failed transaction the system automatically reverses the transaction which has happened in case of second transaction but in case of first transaction the customer had approached to branch on 6.11.2016 and this O.P. No.1 has applied for reversal through their system vide DCRMS No.07116DATA3706.  However for the reason that this transaction one took place at the ATM of the O.P. No.2 Bank, such a reversal is settled by the Head Office level.  After applying for reversal this O.P. No.1 has received a mail on 13.11.2016 from the NFS-ISG stating that the complaint has been rejected by the Acquirer Bank (O.P. No.2) in Dispute Management System of NPCI and further from the report it appears that the impugned transaction was successful and therefore the complainant has falsely and in a malafide manner fabricated and manufactured this complaint against this O.P. No.1.

     It is to be mentioned that when the bonafide customers of the banks are making complaint against the bank when they are not getting proper service as a consequence they are compelled to take recourse of this Forum for Redressal as it is a social legislation. The complainant herein being an educated person is fully aware of his rights and duties he never compromise with the injustice upon him. So he put the matter before the appropriate authorities for Redressal but when he was refused to provide service in that respect then he compelled to take the recourse of this Forum for Redressal. The complainant having reputation in the society raised his voice when he is deprived of getting his hard earned money. The OP No.2 bank failed to prove that the complainant received the money as his transaction was successful as depicted from the documents of the bank.  The opposite party No.2 bank by appearing failed to establish by producing evidence that the transaction of the complainant was successful one and the money dispensed from that successful transaction has received by the complainant. Apart from that he neither produced C.C. TV footage nor produced JP log in that respect. From the face of the case record it appears that the opposite party No.1 tried his level best to enquire the matter of the complainant after getting complaint.

But in the instant case the opposite party bank always tried to evade their responsibility on the false pretext and never tried to provide service to its customer/consumer. From the above discussion we may safely conclude that the opposite party No.2 is deficient in providing service towards its consumer for which the opposite party no.2 bank is liable to pay compensation and other reliefs as prayed in the prayer portion of the complaint petition to that extent as ascertained by this Forum.

In State Bank of India vs. Dr. J.C.S. Kataky, Revision Petition No. 3073 of 2016 order dated 3rd May, 2017 the Hon’ble National Commission held that once the complaint was made citing specific incidents of unauthorized withdrawal, it was the duty of the bank to have carried out the necessary verification in the matter, rather than washing their hands off from the whole episode.

From the above discussion we are in the opinion that the complainant proved his case by producing sufficient documents and argued on the point whether the opposite party is deficient in providing service and opposite party is under liability to pay compensation alongwith other reliefs prayed in the prayer portion of the complaint.

4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case and the Opposite Party No.2 is liable to pay compensation for mental pain and agony of the complainant.

ORDER

Hence, it is ordered that the complaint case being No.32 of 2017 be and the same is allowed on contest against the opposite party with a litigation cost of Rs.2,000/-.

The Opposite Party No.2 is directed to refund a sum of Rs.5,000/- to this complainant which the opposite party No.2 failed to dispense in the ATM counter but debited from the account of the Complainant by opposite party No.1.

Opposite party No.1 is exonerated from this proceeding.

The opposite party No.2 is also directed to pay a sum of Rs.3,000/- as compensation for mental agony and harassment.

All the payments are to be made within 45 days from the date of this order.

At the event of failure to comply with the order  the Opposite Party No.2  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer Legal Aid Account.

  Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.