The case of the complainant in brief is that the complainant has maintained a Savings Bank Account before the O.P. No.1 Bank i.e. ICICI Bank and his account No.018701506237. On 23.03.2017 the complainant visited the ICICI Bank ATM at Bandel, Hooghly (Opp. of Bandel Gurudwarah) at about 4.38 P.M. for withdrawal of Rs.20,000/- by using ICICI Bank Visa Debit Card No.4181570187025395. After using ATM Card Rs.20,000/- instantly got debited from the account of the complainant but money did not come out from the ATM machine. A system generated e-mail came from the ICICI Bank to the E-mail ID of the complainant at 4.38 P.M.
Immediately the complainant lodged a complaint before the ICICI Bank Customer Care and complainant was assured by the person of the Customer Care that the transaction would be reversed within two working days. The complainant received a confirmation SMS in his mobile. The complainant waited inside the ATM till 4.47 P.M. but the money did not come out. It is pertinent to mention here that ATM Counter has no security personnel. Thereafter the complainant mailed to the ICICI Bank Customer Care in detail on the same day. On 24.3.2017 at around 1.24 PM the complainant received an SMS from ICICI Bank. After perusing the mail it is came to know that the transaction would not be reversed as because the complainant has received the payment. The complainant immediately went to the ICICI Bank at Chowringhee Branch on 24.3.2017 and lodged a complaint and asked for detailed CCTV footage of 23.3.2017.
On 26.3.2017 the complainant went to the Chinsurah Police Station and lodged a written complaint vide No.GDE 2295 dated 26.3.2017. On the same day the complainant mailed to the ICICI Bank Head Office narrating the entire event along with all the annexure and relevant photos of the ill fated ATM. On 27.3.2017 the complainant handed over a letter to the ICICI Bank, Chinsurah Branch and asking for the CC TV footage. On the same day the complainant got a mail from the ICICI Bank Head office advising the complainant to lodge a complaint before the Grievance Cell. The complainant does the same.
On 3.4.2017 the complainant got another mail from the ICICI Bank Head office, stating that since the complainant received the payment, the money would not be refunded, but they tried to retrieve the CCTV Clipping for the transaction. At last the complainant sent legal notice to the ICICI Bank, Chowringhee Branch, ICICI Bank Chinsurah Branch and ICICI Bank, Mumbai but no reply has yet to be come. Finding no other alternative the complainant filed this case before this Forum for relief directing the O.Ps. to refund Rs.20,000/-, to pay Rs.2000/- for failing to make payment on due time to the travel agent along with 24% interest on total amount i.e. Rs.22000/-, to pay Rs.65,000/- as compensation for mental pain and agony and to pay Rs.10,000/- as litigation cost.
O.Ps. contested this case by filing written version denying inter-alia all the material allegations as leveled against them. The O.ps. submitted that complaint was received by these O.P. bank to which the bank reverted that the O.P. bank will look into the matter and if deduction is found to be erroneous, the amount will be refunded back. Complainant’s mail was suitably responded that as the transaction was successful the O.P. bank will not be able to revert back the amount so deducted. O.ps. further submit that there is a requirement of both EJ Report and Switch report to indicate that the transaction was unsuccessful and there was excess of cash and as both the reports were not affirmative, the money was not reversed back to the complainant. As per policy of the O.P.s bank whenever a customer is not satisfied by the service, the customer can escalate the matter and the matter will be referred for further investigation. On mail dated 3.4.2017, the O.ps. bank replied to the complainant that the details have been forwarded to the concerned team for retrieval of CCTV clippings vide reference number SR 125688898.
OPs. further submit that the complainant was adequately replied on 3.4.2017 that as the transaction was successful the money cannot be reverted back. An excess cash to the tune of Rs.88,000/- was found in switch report which might be indicative that cash was not dispensed but the same stand alone cannot be conclusive proof as the money in excess does not specifically point out to the fact that money was not dispensed for the specific traction by the ATM. It has been held by various forums that EJ Report and Switch report has to indicate that the transaction was unsuccessful and that there was excess of cash. As presently both the reports were not affirmative due to which the money was not reversed back to the complainant. The burden of proof lies on the complainant to prove that money was not dispensed. The complainant was never denied access to CCTV clippings and the same was informed to the complainant that it is in the process of retrieval. Also, not providing CCTV clippings to the complainant does not amount to deficiency of service.
O.Ps. submit that the CCTV clipping has being obtained and the same is annexed here to Annexure-B. The complainant is seen coming to the ATM at the specified time but whether the amount was taken or not is not clear from the clippings. As the same cannot be ascertained from the clippings and as the EJ Report is also affirmative, the onus resides on the complainant to prove that the amount was not dispensed by the ATM. Presently as no loss has been proven to have accrued to the complainant as the amount which was so deducted is proposed to be returned by the O.Ps. bank as a service gesture and no prima-facie case has been made out to such extent by the complainant, the complainant is not liable to get compensation to the tune of Rs.97,000/- plus interest at the rate of 24%. Hence, as there is no subsisting cause of action, the complaint is liable to be dismissed.
Complainant filed evidence on affidavit which is nothing but replica of complaint petition. OP filed no evidence on affidavit.
From the discussion herein above, we find the following Issues for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Dipanjan Majumder is a ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency in service on the part of the O.Ps.?
4. Whether the complainant is entitled to get any relief as prayed for ?
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.
- Whether the Complainant Dipanjan Majumder 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 bank is maintaining a savings bank account and operating an ATM card before the OP bank, 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 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?
The case of the complainant is that the he has been maintaining a Savings Bank Account before the O.P. No.1 Bank. On 23.03.2017 the complainant visited the ICICI Bank ATM at Bandel, Hooghly (Opp. of Bandel Gurudwarah) at about 4.38 P.M. for withdrawal of Rs.20,000/- by using ICICI Bank Visa Debit Card No.4181570187025395. After using ATM Card Rs.20,000/- instantly got debited from the account of the complainant but money did not come out from the ATM machine. A system generated e-mail came from the ICICI Bank to the E-mail ID of the complainant at 4.38 P.M. He lodged a complaint before the ICICI Bank Customer Care who assured him that the transaction would be reversed within two working days. The complainant received a confirmation SMS in his mobile. It is pertinent to mention here that ATM Counter has no security personnel. Thereafter the complainant mailed to the ICICI Bank Customer Care in detail on the same day. On 24.3.2017 the complainant received an SMS from ICICI Bank that the transaction would not be reversed as because the complainant has received the payment. The complainant immediately went to the ICICI Bank at Chowringhee Branch on 24.3.2017 and lodged a complaint and asked for detailed CCTV footage of 23.3.2017.
That on 26.3.2017 the complainant went to the Chinsurah Police Station and lodged a written complaint vide No.GDE 2295 dated 26.3.2017. On the same day the complainant mailed to the ICICI Bank Head Office narrating the entire event along with all the annexure and relevant photos of the ill fated ATM. On 27.3.2017 the complainant handed over a letter to the ICICI Bank, Chinsurah Branch and asking for the CCTV footage. On the same day the complainant got a mail from the ICICI Bank Head office advising the complainant to lodge a complaint before the Grievance Cell. He got another mail from the ICICI Bank Head office, stating that since the complainant received the payment, the money would not be refunded, but they tried to retrieve the CCTV Clipping for the transaction. At last the complainant sent legal notice to the ICICI Bank, Chowringhee Branch, ICICI Bank Chinsurah Branch and ICICI Bank, Mumbai but no reply has yet to be come. Getting no alternative he filed the instant complaint before this Forum praying directions upon the Ops.
The OPs submitted that complaint was received by these O.P. bank, in which the bank reverted that the O.P. bank will look into the matter and if deduction is found to be erroneous, the amount will be refunded back. O.ps. further submit that there is a requirement of both EJ Report and Switch report to indicate that the transaction was unsuccessful and there was excess of cash and as both the reports were not affirmative, the money was not reversed back to the complainant. As per policy of the O.P.s bank whenever a customer is not satisfied by the service, the customer can escalate the matter and the matter will be referred for further investigation. On mail dated 3.4.2017, the O.ps. bank replied to the complainant that the details have been forwarded to the concerned team for retrieval of CCTV clippings vide reference number SR 125688898.
O.ps. further submitted that an excess cash to the tune of Rs.88,000/- was found in switch report which might be indicative that cash was not dispensed but the same stand alone cannot be conclusive proof as the money in excess does not specifically pointed out to the fact that money was not dispensed for the specific transaction by the ATM. It has been held by various forums that EJ Report and Switch report has to indicate that the transaction was unsuccessful and that there was excess of cash. As presently both the reports were not affirmative due to which the money was not reversed back to the complainant. The burden of proof lies on the complainant to prove that money was not dispensed. The complainant was never denied access to CCTV clippings and the same was informed to the complainant that it is in the process of retrieval. Also, not providing CCTV clippings to the complainant does not amount to deficiency of service.
OPs submitted that the CCTV clipping has being obtained and the same is annexed here to Annexure-B. The complainant is seen coming to the ATM at the specified time but whether the amount was taken or not is not clear from the clippings. As the same cannot be ascertained from the clippings and as the EJ Report is also affirmative, the onus resides on the complainant to prove that the amount was not dispensed by the ATM. Presently as no loss has been proven to have accrued to the complainant as the amount which was so deducted is proposed to be returned by the O.Ps. bank as a service gesture and no prima-facie case has been made out to such extent by the complainant, the complaint is liable to be dismissed.
We have thoroughly gone through the pleadings of the parties and have carefully perused the evidence on record. The only point of adjudication before this Forum is whether the cash was actually dispensed to the complainant when he used his ATM card on 23.3.2017 for withdrawal of Rs.20, 000/-. In the instant case the complainant alleged that the money has not been dispensed from the ATM but the OP bank debited money from the account of the complainant. After receiving complaint from the complainant the OP failed to refund the money. The complainant put the matter before the different authorities of bank but no fruitful result obtained to solve the problem. It is trite law when a complaint received from the end of consumer/customer regarding the non dispensing money it is the duty of the bank to investigate the matter in its own motion but in the instant case the bank tried to escape from his liability as the EJ report speaks that the transaction is successful. 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. And OP bank holds that the customer/consumer is not entitled to get refund of the money as the impugned transaction is successful. The opposite party bank in its written version as well as argument stated that an excess cash to the tune of Rs.88,000/- was found in switch report which might be indicative that cash was not dispensed but the same stand alone cannot be conclusive proof as the money in excess does not specifically pointed out to the fact that money was not dispensed for the specific transaction by the ATM. So the burden of proof will vest upon the OP regarding the dispense of money in the specific or alleged transaction by producing the CCTV clippings. There was excess money amounting to Rs.88,000/- so it may be presume that in the said excess money there is money of this complainant which has not been dispensed from the ATM counter during the period of transaction owing to mechanical default. The opposite party supplied the video clippings which is not clear that the complainant received the amount which he opted. So it is crystal clear that OP failed to prove that the complainant received money from the ATM counter and the impugned transaction dispensed money from the ATM. The ATM verification record speaks that there is excess amount of cash in the said ATM. There is no scope to disbelieve this complainant that after receiving money he is denying such dispense and raising further claims from the OP.
In the given scenario, therefore this Forum is in the view that the complainant needs to be given compensation seems to be correct. It has been provided in the preamble of the Consumer Protection Act,1986 as well that the objective of enacting the said legislation is to ensure better protection of the interests of the consumers. Once it is proved from the face of the case record as well as from the iota of evidence that the complainant did not receive the money himself from the ATM counter he deserves to be given the compensation, keeping in view the facts & circumstances of the case.
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 OP is deficient in providing service and he 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 bank is liable to pay compensation for mental pain and agony of the complainant.
ORDER
Hence, it is ordered that the complaint case being No.131 of 2017 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs.10,000/-.
The Opposite Party is directed to pay a sum of Rs.20,000/- to this complainant which the OP debited from the account of the complainant.
The OP is further directed to pay a sum of Rs.25000/- as compensation for mental pain & agony of this complainant.
All the payments are to be made within 30 days from the date of this order.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 30 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.
