Orissa

Debagarh

CC/9/2018

Mrs. Pabani Sahu, aged 40 years, W/O-Umashankar Sahu - Complainant(s)

Versus

The Branch Manager, Bank of Baroda Deogarh Branch - Opp.Party(s)

K.B. Meher & S.Dehury

07 Aug 2018

ORDER

IN THE COURT OF THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DEOGARH.

COMPLAINT CASE NO:09/2018.

Present-       Sri Dipak Kumar Mahapatra, President, Smt. Jayanti Pradhan, Member (W) and Smt. Arati Das, Member.

 

Mrs. Pabani Sahu, aged 40 yrs,

W/o. Umakanta Sahu,

P.O/P.S/Dist/- Deogarh.                                       ….                Complainant.

                              -Versus-

The Branch  Manager,

Bank of Baroda, Deogarh Branch,

Kargil Chowk,

Post/P.S/Dist/-Deogarh-768108.                         ….                Opp.Party.

 

For the Complainant      : -       Sr. S.Dehury, Advocate.

For the Opp.Party           :-       Sri S.Mishra. Advocate.

 

          DATE OF HEARING: 23.07.2018, DATE OF ORDER: 07.08.2018.

SMT. JAYANTI PRADHAN, MEMBER(W):- Brief facts of the case is that, the complainant having his saving account with  the Opp. Party bearing S.B. Account No.40700100006116 with  A.T.M. facility. It is alleged that on dtd. 25.10.2017 the complainant had visited the O.P Bank to update her passbook and found that there is a deficit of Rs.7000/-in her passbook due to three withdrawals through A.T.M. As the complainant has never received any ATM card against the passbook she intimated the matter to the O.P and requested to check the video footage of that particular day to identify the person made the withdrawal. Due to non-cooperation of the O.P, she lodged a F.I.R in Deogarh P.S regarding this matter. But the O.P claims that the ATM card has been send through registered post which was received by one Minu Sahu. But the complainant denies knowing Minu Sahu as any of her family member who may have withdrawn the money. As the C.C.T.V footage are being erased/deleted after every 90 days intervals so it is impossible for the O.P to check it and it is the duty of the police to trace out the offending person. As the complainant is a bonafide consumer she has made several personal contacts with the Opp. Party but the Opp. Party did not co-operated her but harassed her various ways. So, the complainant sustained financial loss, mental pain and agony due to deficiency in service caused by the Opp. Party.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act.1986?
2. Whether the O.P has committed any Deficiency in Service to the Complainant?                 

          We have gone through the averments of the complaint petition, which is filed with an affidavit, copy of the documents relied by the complainant and arrives to a conclusion that the Complainant is a bonafide consumer and there is true consumer dispute so as to attract the provision of Consumer Protection Act, 1986.  The copy of bank transactions pass book relating to the saving account No. 40700100006116 standing in the name of the complainant shows that and time of the updating the pass book on dtd. 25.10.2017 withdrawal of Rs.7,000/- has been observed but the complainant stated that she has not withdrawn the aforesaid amount. The Opp. Party has the responsibility to show sufficient materials including the photo copy of secret camera to falsify any in genuine claim advanced by a person. In broader sense the very purpose of installation of the secret camera inside the ATM counter is to identify the person during transaction and in some sense to avoid chances impersonation by unscrupulous persons. Now a day in the age of digital computerization technology the value of secret camera photographs plays a vital rule and those are considered as a part of Technical Evidence under different laws, it may be merit mentioned that, after passing of Information Technology Act, 2000 (Act-21 of 2000) the Evidence Act in Section-35 and Section-85(B) has incorporated the value of relevancy, presumption and admissibility of secure electronic, records to accept the genuineness attached to the same. Had the Opp. Party could have filed the relevant copy of the secret camera photograph held on the self same days in different time concerning the ATM card which the complainant bears to negative the claim of the complaint, we could have consider the case in another aspects. Since, a vital documents which could have produce by the Opp. Party is withheld and kept in abeyance we presume an existence of a true factual aspects relating to the case of the complainant and draw an adverse inference against the case of Opp. Party . Such a presumption is contemplated in Section-114 of the Indian Evidence Act,1872.The adverse inference which could be attributed in the fact  and circumstances of the in stand case on hand is supported by the illustration mentioned in Clause-(g) of Section-114 of the Evidence Act,1872 in the illustrations.

On the foregoing discussion and observation we consider that, there is a “Deficiency in Service” caused by the O.P for the financial loss consequent to the in-genuine deduction of an amount of Rs7,000/-(Rupees Seven thousand) from the S.B. Account of the Complainant and the Complainant is entitled to a compensation including litigation costs. In the fact and circumstances, the Opp. Party is liable to pay compensation as per the order as follows:-

                                                        ORDER

Petition is allowed. The Opp. Party is directed to pay Rs.7,000/- (Rupees Seven Thousand) to the complainant, the amount which has been debited from the account of the complainant  along with @ 9% interest per annum to the complainant . The interest shall be calculated from the date debit of the amount i.e. on 25.10.2017 till its realization. The Opp. Party is also directed to pay Rs.5, 000/-(Rupees Five Thousand) only towards compensation for mental pain and agony and Rs.2,000/- (Rupees Two Thousand) towards the cost of litigation expenses within 30 (Thirty) days of receiving of this order, failing which, the complainant is at liberty to proceed in due process of law.  

          Order pronounced in the open court today i.e, on 7^th day of August, 2018 under my hand and seal of this forum.

 

                                                            I  agree,                                            I agree,        

 

MEMBER.(W)                                MEMBER.                                        PRESIDENT.

                                                Dictated and Corrected

                                                                By me.

 

                                                     MEMBER.(W)