Date of Filing: 11-03-2016 Date of Final Order: 10-01-2018
Sri Asish Kumar Senapati, President
This is a complaint U/S 12 of the C.P. Act, 1986.
One Ramsevak Prasad & Sons, Proprietor Jitendra Prasad (hereinafter referred to as the Complainant) filed this case against the Branch Manager, Bank of Baroda, Cooch Behar Branch (hereinafter referred to as the OP) alleging deficiency in service.
The complaint case, in brief, is as follows:
The Complainant has a Current Account with the OP Bank and on 13.09.15, the Complainant tried to withdraw some amount through ATM. He attempted thrice for withdrawing the amount of Rs.10,000/-, Rs.10,000/- and Rs.5,000/- respectively but his transactions were failed. Subsequently, he came to know that Rs.25,000/- had been debited from his Account and he made a complaint to the OP Bank accordingly. The Bank authority informed him that Rs.5,000/- had already credited to his Account and the rest amount of Rs.20,000/- would be credited within a few days. But, the amount had not been credited to his Account and the Complainant lodged a written complaint with the OP Bank on 16.01.16 for refund of Rs. 20,000/- but of no result.
Hence, the Complainant filed this case praying for refund of Rs.20,000/- which had been debited from his Current Account on 13.09.15 and Rs.20,000/- as compensation for mental pain and agony.
The OP put his appearance and filed W/V on 05.07.16 contending that Complainant had no cause of action to file the case against the OP and the case is motivated, vague and misconceived and liable to be dismissed. The OP had asserted that the Complainant is not a consumer according to the CP Act, 1986. It is the specific case of the OP that the Complainant made 2 transactions of Rs.10,000/- each through ATM on 12.09.15 and the two transactions were successful. It is also asserted that the said 2 transactions were entered in the Account of the Complainant on the next working day i.e. on 14.09.15 as 12.09.15 and 13.09.15 were holidays, being second Saturday and Sunday respectively. It is pleaded that on 13.09.15, an amount of Rs.5,000/- was debited from the Account of the Complainant but, as the amount was not delivered through ATM, the said amount was credited on the same day. There is no deficiency in service on the part of the OP.
Hence, the complaint is liable to be dismissed with cost.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the O.P any deficiency in service, as alleged by the Complainant?
- Whether the Complainant entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1.
The Ld. Agent for the Complainant has submitted that Complainant is a consumer of the OP as the Complainant has a Current Account with the OP Bank and the OP is duty bound to render proper services to the Complainant. In reply, the Ld. Agent for the OP has stated that the Complainant is not a consumer in terms of Section 2(1) (d) (ii) of the C.P. Act, 1986.
We have gone through the complaint petition, w/v, evidence, written argument and documents submitted by both sides. Admittedly, the Complainant has a Current Account being No.2 of 461 with the OP Bank. Let us consider whether the Complainant is a consumer of the OP in terms of Section 2(1)(d)(ii) of the C.P.Act,1986. According to Section 2(1) (d) (ii) of the C.P. Act, 1986 : hiring or availing of services does not include a person who avails of such services for any commercial purpose. In the present case the Complainant has hired or availed services of the Bank for a commercial purpose by maintaining a current account with the O.P. Bank for the purpose of business transaction. In this respect, we have placed our reliance on a decision reported in 2017 (4) CPR 810 (NC) wherein it is held that “since the Complainant/Appellant had hired or availed the services of the respondent Bank for a commercial purpose, it is not a consumer within the meaning of Section 2(1) (d) of the CP Act, 1986”.
In the present case, the Complainant has hired/availed the services to enable the Company to earn profits by undertaking and advancing its business activities. Therefore, we have no hesitation to hold that the Complainant is not a consumer u/s 2(1) (d) (ii) of the C.P. Act, 1986.
Point No.2.
The Ld. Agent for the Complainant has submitted that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint. In reply, the Ld. Agent for the OP submitted that this Forum has no jurisdiction to entertain the complaint as the Complainant is not a consumer in terms of section 2(1) (d) of the CP Act, 1986.
We have gone through the materials on record and considered the submission of both sides. On a careful consideration, we find that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant has submitted that the Complainant tried to withdraw some amount from his Current Account through ATM on 13.09.15 and he attempted thrice for withdrawing of Rs.10,000/-, Rs.10,000/- and Rs.5,000/- respectively. It was argued that the transactions were declined but the total amount of Rs.25,000/- had been debited from his Account and ultimately, Rs.5,000/- only was credited to his Account. He further urged that the OP has deficiency in service for not providing proper service to the Complainant as it did not refund the amount of Rs.20,000/- which had been debited wrongly on 13.09.15 from the Current Account of the Complainant. It is urged that the Complainant has been able to establish the case against the OP and the Complainant is entitled to get reliefs as prayed for in the complaint petition.
In reply, the Ld. Agent for the OP has submitted that the Complainant lodged a complaint with the OP on 16.01.16 (Annexure –A) alleging that his two transactions amounting to Rs.10,000/- each through ATM on 12.09.16 had been failed, for which he requested for refund of the said amount. It was urged that the OP enquired into its System and found that transactions made by the Complainant through ATM on 12.09.15 were successful and it was duly incorporated in the Statement of Account showing the transactions on 14.09.15 as 12.09.15 and 13.09.15 were holidays being 2nd Saturday and Sunday respectively. It was argued that no amount had been debited from the Current Account of the Complainant for his alleged transactions on 13.09.15 and there is no question for refund of Rs.20,000/- for his alleged transactions on 13.09.15 as no amount was debited from his Current Account for his alleged transactions on 13.09.15. It was submitted that the Complainant lodged the complaint with ulterior motive with a view to achieve illegal gain. He has prayed for dismissal of the complaint with compensatory cost as the complaint is frivolous and vexatious.
We have gone through the written complaint, W/V, evidence, documents and written argument submitted by both sides. The Complainant had answered the question No.3 of the OP (How many transactions you (the Complainant) have made on 12.09.15 through said ATM?) by stating that “the Complainant made no transaction on 12.09.15 through ATM but on 16.01.16, the officials of the OP Bank asked him to write down the date of transaction as 12.09.15 as the date was working day previous to the complaint date i.e. 13.09.15 and it will make the complaint traceable as well as it will be easy for them to make refund’’.
It appeared from Annexure – A submitted by the Complainant that the Complainant lodged the complaint on 16.01.16 requesting the OP to refund of Rs.20,000/- for his transaction through ATM on 12.09.15 at 07:04:09 and 07:05:10. The OP filed certified true copy of the Account Ledger Enquiry dated 12.09.15 at 07:04:.09 and 12.09.15 at 07:05:10 (Annexure 2 and 4) from which it appeared that the Complainant made two transactions on 12.09.15 and the transactions were successful for which the amount of Rs.20,000/- was debited. This Forum finds no valid reason to believe that the Complainant lodged the complaint with the OP on 16.01.16 by changing the date of transaction at the instance of the OP. Moreover, the Complainant had banked upon the said complaint dated 16.01.16 (Annex.1) through which he requested for refund of Rs.20,000/- for his transaction dated 12.09.15 but the Complainant in his complaint stated that he made 3 transactions on 13.09.15. We find from the statement of Accounts (Annexure –D) and Annexure-1 that Rs.25,000/- was debited from the Account of the Complainant and Rs.5,000/- was credited on 14.09.15. It was argued by the OP that 12.09.15 and 13.09.105 were 2nd Saturday and Sunday respectively, for which the statement of account showed the transactions on 14.09.15 which was a working day. He filed certified true copy of attendance of one Timir Baran Majumder of the OP Bank to show that 12th and 13th September, 2015 were holidays, being 2nd Saturday and Sunday.
On a careful consideration, we find valid substance in the submission of the Ld. Agent for the OP. It is clear from the documents filed by the OP that Complainant made 2 successful transactions of Rs.10,000/- each on 12.09.15 which were duly reflected in the Statement of Account on the next working day i.e. 14.09.15. It appears from the Annexure B-1 and B-2 that he made two transactions on 13.09.15 but the transactions were declined and there is no reflection that any amount was debited from the Current Account of the Complainant for the said 2 transactions on 13.09.15. The third transaction of the Complainant on 13.09.15 amounting to Rs.5,000/- was debited from his Account but it had duly been credited to his Account as the transaction was unsuccessful.
We find that the Complainant has failed to establish any deficiency in service against the OP. We also find that the present complaint is vexatious and frivolous, for which the OP is entitled to get compensatory cost. In our considered opinion, the OP is entitled to get compensatory cost of Rs.2,000/- from the Complainant.
In the result, the complaint case fails.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby dismissed on contest against the OP with cost of Rs.2,000/- payable by the Complainant to the OP. The Complainant is directed to pay Rs.2,000/- to the OP by 30 days from the date of this order.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
