Hon'ble Mr. Haradhan Mukhopadhyay, President.
The grievance of the Complainant summarised before this Commission in a few words of the extent that the Complainant Smt. Ratna Sarkar had SB Account with the O.P. No.1 bank being Account No.3943078554. Due to urgent need of money the Complainant used his ATM card in the ATM of O.P. No.2 being Branch Manager ICICI bank, Dinhata Branch on 25.08.19 and pushed his ATM card for Rs.10,000/- in two times for withdrawing money. Thereafter Rs.10,000 X 2=20,000/- was delivered and a massage was also delivered but out of the same Rs.10,000/- was shortage. Again on 26.08.19 the Complainant withdrawn Rs.10,000/- but unfortunately at the time of updating the pass book it was shown that the Complainant withdrawn money for four times at the rate of Rs.10,000/- but actually the Complainant withdrawn only for Rs.30,000/-. So the noting in the pass book for Rs.40,000/- as withdrawal on 26.08.19 is totally incorrect and false which is evident from Annexure-A. The matter was informed to the OP and the latter informed that the said amount of Rs.10,000/- will be credited to her Account. Having not being so done the Complainant lodged a written complaint to the O.P. No.1 on 03.09.19 trough Annexure-C. On 04.09.19 O.P. No.1 supplied status priority details being Annexure-D. Subsequently on 12.09.19 OP credited Rs.10,000/- to the Account of the Complainant but OP again debited Rs.10,000/- in the Account of the Complainant on 17.09.19 which is purely deficiency in service. Thereafter the Complainant lodged a written complaint to the O.P. No.2 on 17.10.19, 31.10.19 and 06.12.19 but both the O.Ps did not credit Rs.10,000/- in the Account of the Complainant. The OP also did not display the ATM footage before the Complainant. The cause of action for the present case arose on 26.08.19 and thereafter, which is continuing one. The Complainant therefore prayed for an award for Rs.10,000/- to be credited, Rs.10,000/- for deficiency in service and Rs.5,000/- for litigation cost.
The O.P. No.1 contested the case and O.P. No.2 preferred not to contest the case and as such it is heard ex-parte against him.
The O.P. No.1 denied each and every allegation of the complaint. The defence case of the OP in brief is that the Complainant swiped her ATM card to ATM machine ICICI bank the ATM machine read the account details of the Complainant and generated of massage and sent the same through a central server system “ Single Switch” of the banks to the Central server machine of the Central Bank Of India wherein the said massage was verified. Accordingly the Central server after verifying sent a permission massage to the said ATM of the ICICI bank. After getting permission the ATM of ICICI instantaneously delivered the amount from the personal account of the ICICI bank to the Complainant. Thereafter according to the said transaction detail the Central bank of India ought to have indemnified the said amount to the ICICI bank. The Central Bank Of India after getting the transaction details from the ICICI bank authority(Annexure-1) already credited the said amount to the accounts of the Complainant. As per transaction details the said transaction is a successful one. If any malfunctions and anomaly occurred in the operation of the ATM, that can be verifying that the ICICI bank only. As per details of the transaction furnished by ICICI bank successful. Therefore the O.P. No.1 debited the amount from the Account of the Complainant and credited to the ICICI bank. Only the O.P. No.2 bank can reverse the amount in question to the Complainants Account. The ICICI bank authority can verify the same as to whether the ATM machine worked properly or not at the relevant time.
The O.P. No.2 preferred not to contest the case and as such no written version is forthcoming on behalf of the O.P. No.2.
Thus having taken into consideration the respective case of Complainant and the O.P. No.1 the following points are required to be decided in this case.
POINTS FOR DETERMINATION
- Whether the Complainant is a consumer under the C.P. Act?
- Whether the transaction in question against any deficiency in service by the O.Ps to the Complainant?
- Whether due to the impugned transaction the Complainant sustain mental pain and agony which deserved to be compensated by the O.Ps?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled?
DECISION WITH REASONS
Point No.1.
The pleadings of the parties make out a specific case that the Complainant had a savings Account with the O.P. No.1 bank and on the faithful day he conducted some transaction trough ATM of O.P. No.2 Company as a customer of O.P. No.1 Company. All though there in no specific denial that either of the O.Ps that the OP is not a consumer, yet having perused the dealings and the evidence on record alongwith the documents available in the case record the Commission is of the view that the Complainant Smt. Ratna Sarkar is a consumer under the C.P. Act.
Thus point No.1 is decided infavour of the Complainant.
Points No.2, 3, 4 & 5.
All these issues have closed nexus with each other and as such these points are taken up together for consideration and discussion.
All the allegations against the O.P. No.2 ICICI bank stand unchallenged and un-discarded and as such these are decided against the O.P. No.2 in as much as the matter has been heard ex-parte against O.P. No.2.
However since the O.P. No.1 contested the case so these points demand for a thorough analysis to ascertain the veracity or falsity of the allegation made out in the complaint.
It is the admitted position that the Complainant made transaction at the ATM counter for withdrawal of money under the O.P. No.2 bank. Since there was prima facie veracity of the complaint accordingly the O.P. No.1 led the claim sheets to the ICICI bank credited the said disputed amount to the Complainants account. The specific positive averment of the Complainant to the O.P. No.1 in para-7 of W/V justifies the claim of the Complainant.
It is also pertinent to mention that although there is further averment in para-7 of the W/V of O.P. No.1 that meanwhile the ICICI bank repudiated the claim by stating “transaction successful and genuine” and after receiving the same the O.P. No.1 reveres the amount in question from the Account of the Complainant to reconcile them.
The said averment does not reduce the weight of the Complaint in as much as the O.P. No.2 bank could not establish by cogent and succinct evidence due to the case being heard ex-parte.
The O.P. No.1 bank also pleaded that they communicated the O.P. No.2 ICICI bank regarding the settlement of claim but the O.P. No.2 repudiated the same. Since the O.P. No.2 preferred not to make out any defence case, so the said defence plea of the O.P. No.1 does not dilute the Complainant’s claim.
After going through the evidence on record of the Complainant and the document filed by him vis-à-vis the evidence of the O.P. No.1 it transpire that the complaint of the Complainant dated 31.10.19 had got some prima facie merit in the initial stage, which the O.P. No.1 enquired and proceeded against the O.P. No.2.
The further document of the complaint dated 06.12.19 by the Complainant to the O.P. No.2 bank also stands unchallenged by the O.P. No.2.
The request detail dated 04.09.19 depicts that the Complainant used the ATM card on the inauspicious day wherein the transaction is shown as successful with specific remark that “cash not received” fortified the Complainant’s case and allegation against both the O.P. No.1 & 2 bank. The said Annexure (request detail) further shows that the said amount of Rs.10,000/- has been debited from the Account again on 17.09.19 by Central Office with a remark “ please rectify the error at the earliest as customer is furious this time for this activity”.
This type of comment by the superior Branch of Kolkata, Putimari Branch reveals a strong impression of the genuinity in the Complainants case.
The said request details also projects different remarks which supports the Complainants case.
The complaint was lodged within 7 days of the disputed transaction.
The documents also reveals that the O.Ps after going through the material in the complaint credited Rs.10,000/- to the account of the Complainant but there is no sufficient evidence to establish as to why the said amount of Rs.10,000/- again debited from the account of the Complainant.
The Ld. Defence counsel argued that the transaction took place through a single switch system through the Central Server. So if there was any defect in the transaction, the same cannot be attributed to the Complainant in as much as the Complainant had nothing to do with technical problem of the machine operated by the OP bank.
The Ld. Defence counsel also argued that there was no deficiency in the service because from the portal it would be found that the transaction took place automatically through Central switch operating system. He also argued that there was no negligence on the part of O.P. No.1 bank. So the onus lies upon the ICICI bank.
The argument does not dilute the evidentiary value of the different documents in as much as the Complainant is a customer under the O.P. No.1 bank. The O.P. No.1 bank charges from the Complainant for use of ATM card. The amount was debited from the Account of the Complainant which is maintained by the O.P. No.1 bank.
None of the O.Ps produced the JP Log wherefrom it could to ascertained, as to whether the Complainant actually received the said money or not or the details of the transaction by the Complainant on the fateful date.
So also neither of the OP banks filed the CC T.V. footage from which the Commission could have taken the opinion of an expert to ascertain as to whether the said disputed sum of Rs.10,000/- was actually received by the Complainant or not.
In fact the disputed sum of Rs.10,000/- has been debited from the Account of the Complainant. Had the O.P. No.1 bank shown the ledger of the bank or the balance sheet it would have been ascertained as to whether the said sum of Rs.10,000/- has been actually paid to the Complainant at any point of time since the date of raising the dispute.
Thus, the entire transaction held in the episode discussed herein above and the demeanour of the O.Ps led to hold this Commission to hold that there was negligence on the part of the OP and deficiency in service regarding the impugned transaction.
The discussion made herein above vis-a vis the observation made herein above this Commission is of the view that the Complainant successfully proved the allegation made in the complaint. Consequently issue No.2,3,4, & 5 are answered in the affirmative on behalf of the Complainant.
In the result the complaint case succeeds on contest.
Hence, it is
Ordered
That the complaint case be and the same is allowed on contest with cost of Rs.5,000/-. The Complainant do get an award of Rs.10,000/- towards the actual money debited from his Account, Rs.10,000/- as deficiency in service and Rs.5,000/- as litigation cost.
The O.P. No.1 is directed to pay Rs.25,000/- to the Complainant within one month from the date of passing the order failing which the Complainant shall be entitled to get an interest of 6% per annum on the awarded sum from the date of passing order till the date of realisation.
The O.P. No.1 shall recover Rs.10,000/- from the O.P. No.2 bank for deficiency in service.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
