J U D G E M E N T

                  Interference of this Forum has been sought for by the Complainant contending gross negligence, deficiency in service and unfair trade practice in rendering necessary service towards the Complainant by the Opposite Parties. 

               In essence, the case of the Complainant as stated in the complaint, is that, the Complainant is a customer being a Savings Bank Account holder vide Account No. 20037999703 under the Opposite Party No. 2 (SBI Bank) with ATM facilities. On 09.08.2011 the Complainant went to the ATM Counter of  HDFC  Bank at Chinsurah Bus Stand for withdrawing a sum of Rs. 6,000/- only but after scratching the said ATM  Debit Card in the said ATM Machine no physical cash was disbursed from the said ATM Machine to the Complainant whose ATM No. was 5810. Thereafter after some times the Complainant again scratched her ATM Card in the said ATM Machine being No. 5812 and this time the Complainant has actually got the physical cash of Rs. 6,000/- only from that ATM Machine.

               But after up date her Pass–Book on 12.08.2011 the Complainant came to know that a sum of Rs. 12,000/- only had already been deducted from her Savings Bank Account on 09.08.2011 by ATM withdrawal. But actually on that day the Complainant had withdrawn a sum of Rs. 6,000/- only and she never got the amount of Rs. 12,000/- only from the said ATM machine of that  HDFC  ATM Counter.

                The Complainant immediately lodged a complaint on 12.08.2011 by Docet No. 42922110621, before the Bank concern (Opposite Party No. 1 and Opposite party No. 2) and asked to deposit the said amount of Rs. 6,000/- only which amount she never got from that ATM Counter but no Opposite Parties credited the said amount to the account of the Complainant. Ultimately the Complainant sent the legal notice to the Opposite Party No. 2 (SBI Bank) on 21.01.2012, on 31.07.2012  and  on 22.03.2013 for intimating the said Bank authority  and on receiving the same the Opposite Party No. 2 (SBI Bank) has informed her to contact with the Manager of the Opposite Party No. 1 (HDFC Bank) by a letter dated 05.04.2013. the Complainant did the same but ultimately  no positive result has been come out, what amounts to negligence and deficiency in service on part of the Opposite Party and caused mental agony and harassment to the Complainant for which he had asked for compensation. Hence, this case is filed for seeking adequate redressal before this Forum.

              Resisting the complaint, the Opposite Party No. 1 and the Opposite Party No. 2 has filed the separate Written Versions denying each and every allegation made by the Complainant in the petition of complaint contending inter alia, that the Complainant has no cause of action, and is not maintainable.

               The specific case of the Opposite Party No. 1 in gist is that the Complainant is not the ‘Consumer’ under the Opposite Party No. 1 within the meaning of the C.P. Act, 1986 as the Complainant is not the account holder/customer/consumer under the HDFC Bank. The Complainant does not have any jural relationship with this Opposite Party No. 1. As per the Guideline of the RBI vide No. RBI/2010/11/547 DPSS. PD. No. 2632/02.10.002/2010–11 dated 27.05.2011 the issuing Bank is under obligation to provide resolution to the customer and in the instant matter the Opposite Party No. 2 (SBI Bank) is the issuing Bank not this Opposite Party No. 1 (HDFC Bank). So this Opposite Party No. 1 (HDFC Bank) cannot be held liable for this mishap, if any, and the Complainant cannot be termed as a ‘Consumer’ under this Opposite party and the complainant has no locus standi to file this case against this Opposite Party No. 1 (HDFC Bank).

                The Complainant had never lodged any complaint before this Opposite Party No. 1 regarding the money withdrawal dispute dated 09.08.2011 whereas at material point of time the Complainant has received the ‘Mini Statement’ from the said ATM Machine on the same day. The Complainant did not issue any letter towards this Opposite Party No. 1 till date. Moreover, no amount has ever been debited by this Opposite Party No. 1 (HDFC Bank) from the account of the Complainant. The ATM Machine is an electronic device which facilities the ATM Card holder to carry out cash withdrawal (upto specific limit) from their own account. At any point of time using the ATM machine installed even by any other Bank wherein there is no physical role of any Bank in processing the transaction.

              Thus, this Opposite Party No. 1 (HDFC Bank) has denied any negligence and/or deficiency in rendering service on his part and the Complainant is not entitled to get any relief as prayed for and the Opposite Party No. 1 prayed for dismissal of this case against them.

              The case as a whole as stated by the Opposite Party No. 2, in terse, is that the Complainant had a Savings Account in the name of the Complainant with the Opposite Party No. 1 (SBI). On receipt of the complaint from the Complainant the Opposite Party No. 2 (SBI bank) made the necessary enquiry and found that a sum of Rs. 6,000/- only has been wrongfully debited from the account of the Complainant by this Opposite Party No. 2 (SBI Bank). Having found so the Opposite Party No. 2 (SBI Bank)  had lodged a complaint being No.  42922110621 dated 12.08.2011 through the system for recovery of the said amount from the Opposite Party No. 1 (HDFC Bank) with a request to re–credit the said amount directly to the Complainant but the complaint request was closed all of a sudden. Further the Complainant did not contact with the Opposite Party No. 2 (SBI Bank) and for which it was presumed that the Complainant must have received the said amount in her account directly. But the astonishingly the Opposite Party No. 2 has received the notice of the instant case and after receiving the said notice this Opposite Party No. 2 (SBI) again proceeded with the recovery procedure from the Opposite Party No. 1 (HDFC Bank) and in response to a mail dated 28.08.2013 the said HDFC Bank (Opposite Party No. 1) has credited the said amount of Rs. 6,000/- only directly to the account of the Complainant on 30.08.2013. 

              Thus, the Opposite Party No. 2 (SBI) has done no negligence and/or deficiency in rendering service  towards the Complainant on his part and the Complainant is not entitled to get any relief as prayed for against this Opposite Party No. 2 (SBI) and the Opposite Party No. 2 prayed for dismissal of this case against them.

                          Points for Consideration

   1. Is the complaint maintainable under the C. P. Act ?

   2. Was there any negligence or deficiency in service

                           on the part of the O.P ?                            

   3. Is the complainant entitled to get the relief as prayed for ?

                                        Decision with reasons

              All the points are taken up together for consideration for convenience and brevity.

              The main dispute between the Complainant and the Opposite Parties is that whether both/any of the Opposite Parties is liable for deficiency and/or negligence in rendering service towards the Complainant and/or the Complainant is entitled to get the relief as prayed for or not and whether or not.

               In coming into conclusion regarding the present dispute we have gone through the Complaint and Written Version and also critically appreciated the material documents on record and decisively have evaluated the argument advanced by the Ld. Advocates of the Complainant and both Opposite Parties.

              On overall evaluation of the argument advanced by the Ld. Advocates of both the parties, and on critical appreciation of the case record, it is clearly evident that admittedly the Complainant is a consumer/customer under the Opposite Party No. 2 being an account holder vide Savings Account No. 20037999703 in the said SBI Bank with ATM facilities.

               Admittedly on 09.08.2011 the Complainant for withdrawing a sum of Rs. 6,000/- only in need went to the ATM Counter of HDFC Bank at Chinsurah Bus Stand. But  after scratching the ATM  Debit Card in the said ATM Machine of HDFC ATM counter  no physical cash was disbursed/dispense with from the said ATM Machine towards the Complainant  in this transaction (ATM  Sl. No. 5810).

                The record reveals that the Complainant thereafter some times later again scratched her ATM Card in the said ATM Machine of the HDFC Bank (Opposite Party No. 1) and this time the Complainant has actually got the physical cash of Rs. 6,000/- only from that ATM Machine by ATM   Sl. No. 5812.

             It is revealed from the photocopies of the document filed by the Complainant that after up date of her Pass–Book on 12.08.2011 the Complainant came to know that actually a total sum of Rs. 12,000/- only had been deducted from her Savings Bank Account on 09.08.2011 by ATM withdrawal in two transactions through ATM  Sl. No. 5810 and 5812.

               But actually the fact remains that on that very day dated 09.08.2011 the Complainant had withdrawn and practically got a sum of Rs. 6,000/- only in last transaction by ATM  Sl. No. 5812 but never got the total amount of Rs. 12,000/- only which means the Complainant never got any money from the first transaction by the ATM  Sl. No. 5810 but it was/is evident from the photocopies of the Pass–Book submitted by the Complainant that the said two transactions were successful and the Complainant had withdrawn the total sum of Rs. 12,000/- only by two transactions from the said ATM machine of that ATM Counter of the HDFC Bank (Opposite Party No. ).

              Moreover, by filing the separate Written Version both the Opposite Parties No. 1 & 2 never denied the fact stated by the Complainant rather the Opposite Party No. 2 (SBI) has specifically admitted the fact alleged by the Complainant.

               Furthermore, it is manifestly revealed from the Written Versions of both Opposite Parties that both the Opposite Parties (SBI  & HDFC Bank) has tried to shift the liability and obligation to other from their own. The Opposite Party No.1 (HDFC Bank) stated that the Complainant is not the consumer under them as she is not the account holder under the HDFC Bank. But in fact when any person uses the ATM counter installed by any Bank (in the instant case the Complainant has used the ATM counter installed by the HDFC Bank then and there that person become the customer/consumer under the said Bank whose ATM counter he/she uses. Thus in this instant case the Complainant is the consumer/customer under the HDFC Bank (Opposite Party No. 1).

                 The Opposite Party No. 2 (SBI) stated that after getting the information from the Complainant they has done their duties by inquiring the matter and found that a sum of Rs. 6,000/- only was wrongly deducted from the account of the Complainant by the HDFC Bank (Opposite Party No. 1) and after knowing the same the Opposite Party No. 2 (SBI) requested the HDFC Bank (Opposite Party No. 1) to refund the said amount directly to the account of the Complainant but the Opposite Party No. 1 (HDFC Bank) failed to do the same. At this time suddenly the Complainant became silent for which the Opposite Party No. 2 guessed that the amount should be transfer to the account of the Complainant but after sometimes astonishingly the Opposite Party No. 2 (SBI) has received the notice of this case and again the Opposite Party No. 2 (SBI) contacted with the Opposite Party No. 1 (HDFC Bank) with a further request to re-transfer the said sum of Rs. 6,000/- only to the account of the Complainant and this time the Opposite Party No. 1 (HDFC Bank) has actually transfer the said amount directly to the account of the Complainant.

              Now the fact remains that at the time of hearing the argument the Ld. Advocate on behalf of the Complainant admitted the fact that after filing of the instant case, the said disputed amount of Rs. 6,000/- only was actually credited to her SBI Savings Account.

               Thus the unanimous decision of the Forum is that in this scenario and at present fact and circumstances the Opposite Party No. 1 (HDFC Bank) and the Opposite Party No. 2 (SBI Bank) both had/have done negligently and both of them were/are deficient in rendering the service towards the Complainant for which the Forum has decided to award compensation against both the Opposite Party No. 1 (HDFC Bank)  and the Opposite Party No. 2 (SBI).

             Therefore, in the light of the above discussion, we are inclined to hold that the Complainant has proved her case and is entitled to get the relief as prayed for and consequently the points for consideration are decided in affirmative in part.

              In short, the Complainant deserves success.

              In the result, we proceed to pass

                                                                                                    O R D E R   

             That the complaint be and the same is allowed on contest against the Opposite Party No. 1 and Opposite Party No. 2 with cost of Rs. 2,000/- only payable by both jointly and severally within one month from the date of this ‘Order’.

              The Opposite Party No. 1and Opposite Party No. 2 jointly and severally is directed to pay a sum of Rs. 2,000/- only as compensation to the Complainant within the one month from the date of this ‘Order’.

             In the event of non compliance of any portion of the executable order by the concerned Opposite Party within the above specified period, the said Opposite Party shall have to pay a sum of Rs. 100/- only per day from the date of this order till its realization, as punitive damages, which shall be deposited by the Opposite Party to the Consumer Legal Aid Fund.

              Let copies of the order be supplied to the parties free of cost when applied for.