Hon'ble Mr. Haradhan Mukhopadhyay, President.
The basic fact of the case of the Complainants in brief is that, the Complainants Dipak Sarkar and Basanti Sarkar have joint account with the OP-1 Central Bank of India, Pundibari Branch bearing SB Account No. 2250739722 and ATM Card bearing No. 4622441091700647647. Due to urgent need of money the Complainant-1 used his ATM Card in the ATM Machine of OP-2 Axis Bank, Sunity Road, Cooch Behar on 20.03.2020 and pushed his ATM card to withdraw Rs. 10,000/-. Just after pushing the card, the electricity turned off and the Complainant waited for 10 minutes but the money did not come out. The Complainant again pushed his ATM card to withdraw Rs. 10,000/- and obtained that money of Rs. 10,000/-. The Complainant again pushed his ATM Card and withdrawn Rs. 10,000/-. Subsequently, the Complainant got a mobile alert message of deduction of total Rs. 30,000/- out of which he received Rs. 20,000/- only. Thereafter, when he updated his passbook, he saw that a sum of Rs. 30,000/- was deducted from his account. The Complainant-1 Dipak Sarkar informed the matter to the OP-1 who assured that Rs. 10,000/- would be credited to his account automatically. On 12.11.2020, the OP-1 supplied status details but it was found that, the said sum of Rs. 10,000/- was not credited to their Account. Hence, this complaint is filed. The cause of action arose on 20.03.2020 and is still continuing. The Complainants therefore prayed for Rs. 10,000/- to be credited to their account, Rs. 10,000/- towards deficiency in service and Rs. 5,000/- towards litigation cost.
The OP-1 contested the case by filing written version denying each and every allegation. The positive case of the OP-1 in brief is that, the OP-1 Central Bank of India, Pundibari Branch maintains only the savings bank account of the Complainants. The facts stated by the Complainants in Para-4 are admitted. The Complainant withdrawn money on 20.03.2020 from the ATM machine of OP-2 three times @ Rs. 10,000/- each time. After updating the passbook, the Complainant found that Rs. 30,000/- has been deducted from their account. Neither the Complainants nor their agent contacted with the Branch or the Branch Manager and after a lapse of couple of months, the Complainants lodged the Complaint to the OP-1. ATM Card of the complainants having secret password is kept with the Complainants. If there was any withdrawal of money from the ATM of Axis Bank, then the OP-2 will be liable to produce the photograph and JP Log of the said transaction. The OP-1 is not liable in this case. It is liable to be dismissed with cost.
The OP-2 Axis Bank seems to have preferred not to contest the case. Despite receipt of Notice dated 17.12.2020 as per Order No. 4 dated 11.02.2021. So the case is heard ex-parte against the OP-2.
After perusing the pleadings of the parties, the following points in dispute are required to be decided for proper adjudication of the case.
POINTS FOR DETERMINATION
- Whether the present case is maintainable in its present form and prayer?
- Whether the Complainants are entitled to get any relief as prayed for?
- To what other relief if any the Complainants are entitled to get?
DECISION WITH REASONS
Point No. 1:-
After perusing the case record, it is crystal clear that the Complainants have account with OP-1 bearing SB Account No. 2250739722 and ATM Card bearing No. 4622441091700647647. Although the OP-1 Central Bank of India has challenged the maintainability of the case, yet the said point did not surpass the stage of a mere pleading. The OPs could not lead any evidence or any specific point of argument as to why the case is not maintainable. So far as the nature of the dispute is concerned and the pleadings of OP-1 is raised vis-à-vis the case being proceeded ex-parte against the OP-2, this Commission comes to the finding that the present case is legally maintainable.
Accordingly, Point No.1 is decided in favour of the Complainant.
Point No. 2 & 3:-
Both the points are closely interlinked with each other and as such these are taken up together for convenience and brevity of discussion.
After going through the written version of the OP-1 it is found that, the OP-1 has categorically admitted in Para-15 & 16 of the written version the facts and allegations disclosed by the Complainant against the OP-1 & 2. The only defence the OP-2 made out in this case is that, despite having account of the Complainants with the OP-1, the ATM card was used withOP-2 Bank ATM machine. So, OP-2 is bound to produce the JP Log and photograph to establish the actual picture and the facts of the situation.
Ld. Advocate for the Complainants argued that, OP-2 neither contested the case nor did produce the JP Log or the CCTV footage of the unfateful transaction.
Ld. Defence Counsel for the OP-1 argued that, had the CCTV footage and the JP Log were produced, the actual state of affairs of the defective transaction would have been cleared before this Commission.
After perusing the case record, it is evident from the documents like passbook that on the unfateful day, a sum of Rs. 30,000/- was deducted three times @Rs.10,000/- each from the use of the said ATM card out of which only Rs. 20,000/- admitted to have been received by the Complainant.
Neither OP-1 nor OP-2 denied the said fact that Rs. 10,000/- was not received by the Complainant due to wrong use of the ATM card and the unsuccessful transaction thereon.
It is also more important to consider that the OP-2 did not refute any of the allegations and assertions of the Complainants against the opposite parties.
It is the settled position of the Evidence Act that a document which is supposed to be in the custody of a person, if he fails to produce that document, it would go against him.
In the instant case, the OP-2 Axis Bank failed to produce the JP Log and the CCTV footage regarding the said unsuccessful transaction dated 20.03.2020 wherein the Complainant despite pushing the ATM Card in the ATM machine of the OP-2 Bank, did not receive the said money due to failure of the machine.
Thus having assessed the entire evidence in the case record vis-à-vis the observations made therein, this Commission comes to the finding that the Complainant successfully proved the case. The OP-2 is held liable to compensate the Complainant since the misdeeds on the part of the OP-2 Bank tantamounts to deficiency in service and suffering of mental agony by the Complainants.
Consequently, the Complaint Case succeeds on contest with cost.
Hence, it is
Ordered
That the Complaint Case No. CC/41/2020 be and the same is allowed on contest with cost Rs.5,000/- against the OP-2 ex-parte and dismissed on contest against the OP-1. The OP-2 Axis Bank, Sunity Road, Cooch Behar is directed to pay a sum of Rs.10,000/- towards refund of actual undisbursed money from ATM, Rs.10,000/- towards deficiency in service and Rs.5,000/- towards litigation cost, total Rs.25,000/- to the Complainants within 30 days (thirty days) from the date of passing the Final Order failing which the OP-2 shall pay an interest @ 6% p.a. from the date of passing the Final Order till the date of realization thereof.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.