This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Smt Kalyani Ray.
The case of the complainant’s in short is that on 08.08.2016 for her business purpose tried to withdraw Rs.20000/- by two transactions by using her ATM card of Bandhan Bank, linked with A/c no.50150002171665 in each transactions Rs.10000/- from the ATM counter of IDBI Bank at J.C. Khan road, Chandannagore, Mankundu, Dist- Hooghly. The first transaction was successfully made and the petitioner received the amount of Rs.10000/- vide txn No.3793 at about 10:39 am but the petitioner did not receive any amount from the 2nd transaction vide txn No.3794 at about 10:41am from the said ATM machine. Due to some mechanical problem the ATM machine was unable to dispense the requisite money to the petitioner and after waiting a long no cash was disbursed from the ATM machine then he pressed the cancel button and left the said counter.
On the same day after 30 minutes when one Soumodeb Ghosh proforma OP went to withdraw money amounting to Rs.9000/- by using his ATM card linked in the account of IDBI bank. Instead of getting his desired amount he received Rs.10,000/- and he refunded the said amount to the IDBI bank Chandannagore branch informing the incidence the petitioner lodged a complaint before the Branch Manager, Bandhan Bank, Mankundu Branch and after receiving the complaint the bank authority informed her that for her 2nd request Rs.10000/- was disbursed and advised the petitioner to contact with the IDBI Bank but the Bandhan Bank authority did not take any steps to return the petitioners money of Rs.10,000/-. The complainant being the legitimate owner of the above Rs.10,000/- wrote a letter on 20.10.2016 to the Branch Manager IDBI bank Chandannagore Branch to refund her the said amount. The IDBI Bank Chandannagore branch refused to receive the said complain letter from this petitioner by hand and the Branch Manager misbehaved with the complainant and used filthy languages and literally thrashed the petitioner out of the Bank then she was compelled to send the same to the bank authority by DTDC courier. The complainant also informed the matter to the branch manager Bandhan bank Mankundu branch. Then the complainant went to the IDBI bank authority various times and lastly on 04.02.2017 to know about further proceeding of her complaint but the OP behaved brutally with her and stated that they will not refund the said amount no way. Getting no alternative the complainant filed the instant complaint before this Forum praying direction upon the OP No.1 to disburse the said amount of Rs.10000/- and interest accrued thereby with immediate effect and compensation of Rs.50000/- for the sufferance of the petitioner and further direction upon the OP No.2 to pay a sum of Rs.30000/- for the sufferance of the petitioner for negligent service and direction upon the opposite parties to pay a sum of Rs.50000/- for damaging the goodwill of the business and further direction upon the opposite parties to pay a sum of Rs.30000/- for negligent service of the bank and litigation cost amounting to Rs.10000/-.
The opposite party No.1 appeared by filing written version denied the allegations as leveled against him and stated that he is specifically denied the visit of bank by this complainant on 09.8.2016 and filing a complaint and received the copy. This answering opposite party denied that he has no deficiency of service and the complainant petition filed by the complainant is liable to be rejected with cost.
The opposite part No.2 in his written version averred that it was found that the savings bank account of the complainant was debited twice on 08.08.2016 by an amount of Rs.10000/- each due to transaction done by the card number 5087530182421009 at ATM ID TC 040111. That on the basis of complaint and as per prevalent National Payments Corporation of India guideline dated 18.7.2016 for resolution of disputed ATM transaction between banks in case for non receipts of cash by the card holder in or more transaction done from same ATM on the same day, the OP-2 raised a single dispute Multiple Transaction charge book refund request on opposite party No.1 through the Dispute Management System of National Payment Corporation of India on 12.8.2016. But the OP No.1 rejected the charge book request on 18.8.2016 stating that the transaction was successful one. The OP No.1 provided EJ report as proof of successful transaction. As the complainant was still disputing and not satisfied at the response of the OP No.1 so a pre arbitration request was raised through the NPCI DMS portal on 02.9.2016 but the OP no.1 rejected the pre arbitration request through NPCI DMS on 19.9.2016 stating that the transaction was successful one. So the opposite party No.2 has no deficiency of service towards this complainant as such the complaint petition is liable to be rejected.
The OP No.3 filed written version averred that that on 8.8.2016 the petitioner for her business purpose tried to withdraw Rs.20,000/- by two transactions by using ATM card of Bandhan Bank linked with A/C- No 50150002171665 in each transaction Rs.10000/- from the ATM counter of IDBI bank. He admitted that when he went to ATM counter of IDBI bank at J.C. Khan Road Chandannagore to withdraw sum of Rs.9000/- by using his ATM card liked with A/C No.040110400015446 of IDBI bank but instead of dispensing his money he received a sum of Rs.10000/- of TXN No.3794 linked with A/C no.50150002171665 and he realized that it was not from his account and wrongly given to him from the bank account of another person. That on 09.8.2016 the proforma OP refund the said amount of Rs.10000/- and gave written information of the incident to the IDBI Chandannagore Branch and took a receipt copy. Thus this opposite party admitted the contains of the complaint petition.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition.
The opposite party No.2 filed evidence on affidavit in which is nothing but the replica of written version.
Both sides filed written notes of argument which are taken into consideration for passing final order.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Smt. Kalyani Ray 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 Smt Kalyani Ray.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.2 bank is maintaining a savings bank account before the OP-2 bank and operated the ATM machine of the OP NO.1, so she 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?
After perusing the complaint petition as well as documents on record it appears that the petitioners on 08.08.2016 visited the ATM of OP No.1 bank to withdraw money amounting to Rs.20,000/-by her ATM card of OP 2 bank and she did not get money in the 2nd attempt being txn No.3794 amounting to Rs.10000/- but she awaited for a long time and assumed that there is any technical problem in the ATM and lastly she left the counter after pressing the cancel button although the same amount of Rs.10,000/- has been debited from her account in the concerned bank . According to the complainant the proforma defendant namely Soumodeb Ghosh went to the same ATM counter after a few minutes and tried to get withdraw Rs.9000/- but he received a sum of Rs.10,000/- of from the ATM counter and after checking the link he found that it was txn. no.3794 of A/C No.50150002171665 which is not his account. The proforma defendant realized that the machine is not working properly and wrongly disbursed the said amount so he deposited the said amount in the IDBI Chandannagore Branch on 09.08.2016 giving written information. Then the complainant lodged a complaint before the Bandhan Bank, Mankundu branch but the said bank informed that her 2nd attempt of withdrawing Rs.10,000/- has been disbursed and advised to contact IDBI bank. The complainant and the proforma defandant are resident of same locality and aware of the incident. The complainant further alleged that inspite of receiving the money from the proforma opposite party and having all proof of transaction and even after proforma opposite party own admission that the money disbursed vide txn No.3794 is not his own money the opposite party no.1 and in connivance with each other did not return the money of the petitioner which tantamount to deficiency of service. The complainant further alleged that the opposite party no.1& 2 in connivance with each other are responsible for deficiency of service and unfair trade practice upon this complainant for which she could not get her money from the opposite party.
The opposite party No.1 in his written argument averred that complainant is not the consumer of IDBI bank and he is the ATM card holder of Bandhan Bank and incident took place at IDBI, Chandannagore branch when he refused to give money claimed by this complainant. The opposite party No.1 asked the complainant to produce prima facie proof of evidence so that the bank may release the money without any doubt. The complainant in this case failed to provide sufficient evidence upto to the satisfaction of the bank for taking of that money. The opposite party No.1 assailed that the alleged money deposited by the third party to IDBI Chandannagore branch is the money of Kalyani Roy. The said Kalyani Roy neither has any account in IDBI Chandannagore branch nor got any banking transaction with said IDBI bank so without any proof of evidence how OP No.1 could handover the said money. The complainant should takeover the matter with the Bandhan Bank who should collect the money in dispute. He further averred that the money related with the account of Bandhan Bank Mankundu branch, so process of initiation should be taken by the Bandhan bank to collect the money from the IDBI with a substantial proof of documents upto the satisfaction of the IDBI. It is the allegation of the OP No.1 that the complainant without giving sufficient time left the ATM counter so the money dispensed from her account has received by the next man in the counter and for getting money the complaint should lodge complaint before the Bandhan bank. The OP no.2 in his argument submitted that the instant case against this OP is liable to be rejected and stated in his argument that on the basis of complaint and as per prevalent National Payments Corporation of India guideline dated 18.7.2016 for resolution of disputed ATM transaction between banks in case for non receipts of cash by the card holder in or more transaction done from same ATM on the same day, the OP-2 raised a single dispute Multiple Transaction charge book refund request on opposite party No.1 through the Dispute Management System of National Payment Corporation of India on 12.8.2016. But the OP No.1 rejected the charge book request on 18.8.2016 stating that the transaction was successful one. The OP No.1 provided EJ report as proof of successful transaction. As the complainant was still disputing and not satisfied at the response of the OP No.1 so a pre arbitration request was raised through the NPCI DMS portal on 02.9.2016 but the OP no.1 rejected the pre arbitration request through NPCI DMS on 19.9.2016 stating that the transaction was successful one.
After hearing the arguments and perusing the case record and documents it is crystal clear that the complainant tried to get withdrawal a sum of Rs.20,000/- from the ATM counter of IDBI bank in two transactions but one transaction successful and got money amounting to rs.10000/- and in another transaction she got no money and left the ATM counter by pressing cancel button. She subsequently got information that opposite party No.3 received the sum of Rs.10000/- in the ATM counter and he deposited the said amount before the IDBI bank, Chandannagore branch. The complainant approached the opposite party no.1 & opposite party No.2 several times but her request and approach comes into all in vain so she filed the instant complaint before this Forum praying direction upon the opposite party as incorporated in the prayer portion of the complaint petition. The opposite party No.1 by filing his version and argued that he could not handover the money to this complainant as she is not the customer of the opposite party No.1 bank and she could not produce prima facie proof of evidence so that the bank may release the money without any doubt and the complainant in this case failed to provide sufficient evidence up to the satisfaction of the bank for taking of that money. The opposite party washed his hand by stating that ATM disbursed money which is successful one and it is withdrawn by third person. The OP-2 raised a single dispute Multiple Transaction charge book refund request on opposite party No.1 through the Dispute Management System of National Payment Corporation of India on 12.8.2016, but the OP No.1 rejected the charge book request on 18.8.2016 stating that the transaction was successful one. The OP No.1 provided EJ report as proof of successful transaction. As the complainant was still disputing and not satisfied at the response of the OP No.1 so a pre arbitration request was raised through the NPCI, DMS portal on 02.9.2016 but the OP no.1 rejected the pre arbitration request through NPCI DMS on 19.9.2016 stating that the transaction was successful one. So he tried his best to provide relief to this complainant. It palpably clear that the money of the complainant was received by the opposite party No.3 and he deposited the same before the opposite party No.1. the complainant when approached the opposite party No.1 he tried his level best to avoid the valid claim of the complainant by the name of proper identification or evidence as she is not the customer of the opposite party no.1. but it appears from the case record that opposite party No.2 tried his best and made refund request through single dispute Multiple Transaction charge book to the opposite party No.1 but the opposite party No.1 refused the same and could not settle the dispute of this complainant by paying the amount of the complainant. Although the opposite party no.1 in his written notes of argument admitted that he received the money of the complainant. But opposite party No.1 nowhere in the written version as well as argument stated about the effort of OP no.2 in respect of return of money of this complainant.
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 responsible person is fully aware of her rights and duties she never compromise with the injustice upon him.
It is fact that opposite party bank getting complaint from the Complainant never tried to investigate the matter or showed good gesture upon the complainant to credit the same amounts which have been debited from her account through ATM transaction but not received by the complainant. It is the duty of the bank to investigate the matter if any crime committed in the ATM counter of the OP bank. But in the instant case the opposite party No.1 bank always tried to evade its responsibility on the false pretext and never tried to provide service to its customer/consumer/ beneficiary. The complainant by producing sufficient evidence established that the opposite party No.1 is deficient in providing service to this complainant as such the complainant suffered at the behest of negligence on the part of the opposite party No.1.
From the above discussion we may safely conclude that the opposite party No.1 is deficient in providing service towards this complainant who is a consumer of OP No.2 and availed of the ATM machine of the OP No.1 as beneficiary for which the opposite party No.1 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.
4).Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove her case and the Opposite Party is liable to pay compensation for harassment and mental agony to this complainant.
ORDER
Hence, it is ordered that the complaint case being No.81/2017 be and the same is allowed on contest against the opposite party No.1 with a litigation cost of Rs.6000/- payable to this complainant.
The Opposite Party No.1 is directed to refund the sum of Rs.10,000/- to this complainant which he received from the opposite party No.3.
The opposite party no.1 is further directed to pay compensation amounting to Rs.10,000/- within the time framed.
All the payment are to be made within 45 days from the date of passing final order.
Opposite Party No.2 &3 are exonerated from this proceeding.
At the event of failure to comply with the order the Opposite Party No.1 shall pay fine @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.
