DEBASIS BHATTACHARYA:- PRESIDING MEMBER

Being aggrieved by and dissatisfied with the service extended by Punjab National Bank (erstwhile United Bank of India prior to merger) Aranghata and Chinsurah Branch, in the matter of an unsuccessful attempt to withdraw cash using a debit card and follow up action taken by the bank, the instant case has been filed by the complainant, u/s 12 of the Consumer Protection Act 1986.

The fact of the case in a nutshell is as follows.

The complainant, an account holder of the Aranghata Branch of the OP bank on 29.06.18 at around 7-30 p.m., along with her husband visited the ATM counter of the same bank located adjacent to the OP 2 i.e. the Chinsurah branch of the bank and the Complainant’s husband using the debit card connected to the account, made an attempt to withdraw cash of Rs.20000/-.                                                           

Now reportedly,

1. The complainant did not receive any money. A print out with a remark ‘presented money forgotten’ came out instead. On receipt of the same, the husband of the Complainant pressed the ‘cancel’ button of the machine and came out of the ATM. But the Complainant received a sms showing that an amount of Rs.20,000/- was debited from her account.
2. However the Complainant made another attempt in another ATM counter maintained by State Bank of India located in close proximity and successfully withdrew an amount of Rs.10,000/- using the same debit card.  
3. However, on the very next day i.e. on 30.06.2018 the Complainant conveyed the development to the OP 2 and having been advised by them, lodged a complainant with OP 1 and received a confirmation sms regarding receipt of the complaint.
4. On 09.07.18 the complainant was informed through SMS that the transaction was successful and the complaint was rejected. 
5. On 13.07.18 the Complainant again approached to the OP 1 and filed another written complaint.

Subsequently the complainant personally visited the OP 1 Bank branch, pursued the issue, informed the matter to the Banking Ombudsman of Reserve Bank of India through online grievance redressal system and finally on 30.07.18 lodged a written complaint with the Chinsurah Police Station.

However all the above persuasions made by the Complainant were exercise in utter futility.

Considering the above as utter deficiency of service as well as unfair trade practice on the OP Bank’s part causing financial loss, mental agony, anxiety, harassment and loss of faith and confidence in Nationalised institution like the OP Bank, the complainant approaches to this Commission and in his petition prays for imposing direction upon the OP Bank to refund the amount of Rs.20,000/- with interest @18% p.a. with effect from 29.06.18 till the date of refund, to pay compensation to the extent of Rs.80,000/- for causing harassment, mental pain and anxiety and Rs.15,000/- towards litigation cost.

                                      Issues for consideration

1. Whether the complainant is the consumer as defined in the Consumer Protection Act.
2. Whether this Commission has territorial/pecuniary jurisdiction to entertain the instant petition.
3. Whether there is any deficiency of service on the part of the opposite party.
4. Whether the complainant is entitled to get any relief.

Decision with reason

Issue No. 1

In view of the above discussion and on examination of available records it transpires that the complainant is a consumer as far as the provisions laid down under Section 2(1)(d)(ii) of the Consumer Protection Act 1986 are concerned.

Issue No. 2

Both the complainant and the opposite party 2 are resident/having their office address within the district of Hooghly.

The claim preferred by the complainant does not exceed the limit of Rs.20,00,000/-

Thus this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.

Issue No. 3 and 4

Materials on records are perused. The issues being mutually inter-related, are taken together for convenient disposal.                                                                  

The complainant in support of the allegations leveled against the opposite parties who belong to the same organization, has submitted certain documents viz. copies of 1) the relevant pages of the concerned passbook, 2) messages received from OP 1, 3) mails sent to OP 1, 4) communications made with OP Bank, 5) mails sent by the OP Bank rejecting the complaint of the Complainant, 6) status of transactions made in that ATM on the fateful day between 19:09 and 20:10, 7) evidence of online submission of grievance 8) complaint lodged with Banking Ombudsman of Reserve Bank of India and 9) complaint lodged with Chinsurah Police Station.

Evidence on affidavit and Brief notes of Argument submitted by the Complainant are almost replica of the Complaint petition. However in the evidence on affidavit the Complainant mentions that there was no security guard in the ATM at the material point of time.

On the other hand both the OPs contested the case by filing written versions, evidence on affidavit and brief notes on argument denying all the charges leveled against them.

Apart from decorating the complaint petition by some stereotype adjectives like ‘baseless’, ‘harassive’, ‘motivated’, ‘concocted’, ‘suppression of material facts’, ‘false and fabricated statements’, ‘not maintainable’ etc. the Opposite parties highlights the following issues in their respective representations.

1. The Complainant with her husband went to the ATM ‘beyond banking hours’.
2. The ATM is an offsite ATM operated and maintained by another private agency.
3. It is claimed that the amount the Complainant wanted to withdraw was successfully dispensed but the dispensed cash was not removed from the cash dispenser and as per RBI guidelines the cash was not retracted. As the cash was not removed by the Complainant, someone else who entered the ATM after the complainant’s departure removed the cash.
4. The Complainant without lodging the complaint through toll free numbers, online portal for ATM related problems or ‘security guard’ referred the problem to OP 2.
5. It is further claimed that the Complainant is not a consumer of the OP 2 in the sense that she never took any service in lieu of money from the said opposite party or maintains account therein.
6. OP 1 claims that they referred the problem to their head office through e-mail and the said authority rejected the claim of the Complainant.
7. OP 1 claims in the fourth paragraph of serial no 6 of their written version that there was no deficiency of service on the part of the OP as the Complainant allegedly ‘did not remove the cash due to a change in the location of the cash dispenser and probably had left the ATM before picking the cash which gives an opportunity to the next person visiting the ATM to pick the dispensed cash’.

In the respective brief notes of argument both the OPs point out that handling of the ATM card by the husband of the Complainant without prior permission of the Bank was irregular and in violation of terms and conditions of the ATM card.

However in course of the entire proceedings there were exchanges of interrogatories and corresponding replies between the Complainant on one hand and the OPs on the other.

There are certain questions in the interrogatories of the both the OPs which are routine in nature, unnecessary repetitions and certain questions are somewhat irrelevant and redundant and some were not questions at all but statement of allegations.

Similarly The Complainant also filed questionnaires for both the OPs. OP 1 did not file reply to the said questionnaire. However, the glaring features and relevant portions of the questionnaires and the replies are being taken into consideration while passing the judgment in the instant case.

Decision with reason:- Before going into the crux of the case there are certain issues which deserve mention here.

Firstly, in the case of Arun Bhatiya vs HDFC Bank and Ors. Hon’ble Apex Court reaffirmed that a person who avails any banking service falls within the scope of the definition of ‘consumer’ under the Consumer Protection Act and can take recourse to legal remedies provided in the Act.

Thus, the OP Bank’s contention that the present Complainant is not coming under the definition of consumer under section 2(d) of the Act and the act of the parties cannot be termed as consumer dispute does not hold good.

Secondly since the inception of core banking solution in our country an account holder of a particular branch of a bank is entitled to approach to any other branch of the same bank at any corner of the country for almost all services.

Now in the instant case the focus lies on the issue that whether money was actually dispensed after usage of the card by the account holder and whether the account holder left the ATM without taking the cash.

However the issues raised by the OPs in their respective written versions, evidence on affidavit and brief notes of argument are required to be discussed.

Firstly so far as withdrawals of money from a particular ATM is concerned there is no stipulation in our country that a card holder will have to go to an ATM within the banking hours. Thus the issue regarding timing of visit to the ATM raised by the OP Bank is grossly irrelevant and somewhat blunt.

Secondly the OP has objected to the handling of the card by the husband of the Complainant on the ground that it was allegedly irregular and violating the extant terms and conditions related to usage of the card. But it is to be appreciated that in our country there is an enormous gulf between theoretical stipulation and practical application.

When an account holder gives someone a bearer cheque to withdraw money there is no irregularity as there is an authorization. But in respect of ATM card no mode of authorization has been stipulated. After all in the instant case, the Complainant, a 46 year old lady, accompanied by none other than her husband, went to the ATM to withdraw money. It cannot be proved by the OP Bank that the Complainant’s husband snatched the card from her and made an attempt to withdraw money from the ATM against her will. The ground reality is that the common folk in general in our country cannot be expected to be well aware of the exhaustive technical knowhow of an ATM but the same common folk in our country have to use ATM card. Thus there is neither any irregularity nor any violation of terms and conditions of card usage if a husband helps her wife, if a son helps her mother in withdrawing cash in an ATM counter.

OP 1 in the fourth paragraph of serial no. 6 of their written version uses the word ‘Probably’ while alleging that the Complainant left the ATM before picking the cash. Thus it is substantiated that the OP 1 before coming to the conclusion did not verify the actual happenings.

Now so far as the replies of the OP 2 to the questionnaire of the Complainant is concerned it is apparent that the bank authority did not feel it a necessity to preserve the CCTV footage of the fateful day in spite of receipt of the complaint. In fact it is not even confirmed that whether CCTV was at all installed in the ATM.

Besides, OP 2 admits in his replies that there was no security guard in the ATM at the material point of time.

OP 2 also admits that the Complainant is an account holder of their branch.     

     On meticulous scrutiny of all the aspects of the case, this Commission is of the view that there was deficiency of service on the bank’s part and the OP Bank showed considerable indifference towards the account holder’s grievances. The Opposite parties do not appear to have hard evidence in their hands to establish that the money was dispensed and the accountholder left the ATM without collecting the cash.

Hence it is

                                                ORDERED

That the complainant case no.01/19 be and the same succeeds on contest but in part.

The opposite party i.e. Punjab National Bank in general and the Branch Manager, Aranghata Branch of the said Bank in particular is directed to revert back the amount of Rs.20,000/- along with interest @9% for the period from 29.06.18 to the actual date of reverting back of the amount  to the complainant’s account maintained with that branch within 45 days from the date of this order. Besides, OP 1 and OP 2 will be jointly liable to pay to the Complainant Rs.10,000/- for mental agony and Rs.5000/- for litigation cost.                                                                               

In the event of failure to comply with this order, the opposite party i.e. Punjab National Bank Aranghata Branch and Chinsurah will pay cost of Rs.5,000/- each by depositing the same 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 and necessary action.

The final order will be available in the website www.confonet.nic.in.