Hon'ble Mrs. Rumpa Mandal, Member.
The financial imbroglio in withdrawing money faced by the Complainant Prakash Sutradhar driven him to take recourse of this Commission for redressal of his grievance. The basic fact of the said grievance of the Complainant is reduced here in below in black and white to the extent that the Complainant named Sri Prakash Sutradhar is a Consumer of OP Central Bank of India being Account No. 3327182738. On 05.04.2018 at about 7 to 8 p.m. he tried to withdraw money by using his ATM card being No. 6521601006574885. He pushed the ATM Card for withdrawing the money of Rs. 5,000/-. But at the time of withdrawing money machine was stopped and Rs. 5,000/- was not received by the Complainant from the ATM. At that time the Complainant got a SMS through his mobile phone that a sum of Rs. 5,000/- was debited from his account. Further he thought that it was a technical error on the part of the ATM and as such he waited for a few days. Subsequently, the Complainant informed the total matter to the Central Bank of India, Deocharai Branch, Cooch Behar. OP issued token two times for the complaint. But the OP Bank could not solve the problem. On 09.04.2018 and 10.07.2018 the Complainant lodged written complaints to the OP. Finally the Complainant lodged the written complaint before the Consumer Affairs and Fair Business Practices, Cooch Behar. On the scheduled date, OP the Branch Manager of Central Bank of India appeared for mediation. OP showed the status of request detail obtained from their website which declared the said transaction as Successful Transaction. After that the OP could not produce the J.P. Log and ATM Reconciliation Report of the date of incident. Finally having found no alternative, the Complainant lodged the written complaint before this Commission with the prayer for refund of the said sum of Rs. 5,000/- and Rs. 15,000/- as deficiency in service and mental pain and agony in the form of an award in his favour.
The OP denied each and every allegation of the Complainant.
The positive defence case of the OP in brief is that the Complainant withdrawn money from the ATM machine of the OP. After putting his secret PIN Number and entered the amount to withdraw the said money amount of Rs. 5,000/- . Naturally, the said amount of Rs. 5,000/- was debited from the Savings Bank Account being No. 3327182738. Without PIN number of the Complainant no one can withdraw money from the Complainant’s account vide Transaction No. 9895 and the response Code is 0051 i.e. Successful transaction. As per the ATM J.P. Log/ Customer transaction and no excess cash reported. After receiving the letter from the Complainant, the OP also informed the matter to the help desk of the Central Bank of India and thereafter they have informed that the said transaction was successful. After receiving the said information the Bank is sure about the said transaction. So they did not refund the said amount to the Complainant. The Complainant or his representative did not contact with branch or Branch Manager. After lapse of a few months the Complainant lodged the complaint falsely. ATM Card has a secret password which is in his own possession. The Complainant suppressed the original facts. The OP therefore claimed that the case is liable to be dismissed with cost.
The rival facts of the two parties led this Commission to ascertain the following:
Points for determination
- Whether the Complainant is a Consumer?
- Whether the disputed transaction of the Complainant through ATM Card was successful?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1:-
It is an admitted fact that the Complainant has a Bank Account with the OP Bank Central Bank of India and he used to maintain/ operate the said bank Account with the OP Bank personally through manually and ATM Card. The OP evasively denied that the case does not fall within the per-view of C.P. Act but did not deny that the Complainant is not a Consumer of the OP Bank. Although the OP denied that there was no gross negligence and deficiency in service, yet after perusing the pleadings of the parties and the evidence on record it can reasonably be held that the Complainant is a Consumer under the C.P. Act.
Accordingly Point No.1 is decided in favour of the Complainant.
Point No.2:-
The present disputed point relates to question as to whether the disputed transaction was successful or not.
The Complainant alleged that on 05.04.2018 at about 7 to 8 p.m. the petitioner pushed his ATM Card into the ATM counter of OP Bank for withdrawing of Rs. 5,000/- but the cash did not come out and the Complainant could not receive that money.
The OP Central Bank of India admitted about the said transaction in their pleading but denied about the claim that the Complainant did not receive the said money. Instead the OP asserted that the Complainant collected the said money and left the ATM Counter and then naturally, the said amount was debited from the Savings Bank Account of the Complainant.
The Complainant in order to establish his claim adduced evidence by filing evidence on affidavit. In addition to his evidence on affidavit, the Complainant filed the original passbook of OP Bank in the name of the Complainant having Savings Account No. 3327182738 in the name of Prakash Sutradhar. From the said passbook it is revealed that on 05.04.2018 a sum of Rs. 5,000/- was debited from his Account on the basis of use of ATM Card No. 6521601006574885.
Since, the OP did not deny about the use of ATM Card, so we have to march forward towards the next stage as to whether the said transaction was successful or not.
The best document in this regard is the J.P. Log where from it can be ascertained as to whether the Complainant actually received the amount or the said money at all came out from the ATM machine on the unfateful date and time.
In order to partly discharge their obligation the OP filed a Xerox copy of request detail from the Service Desk Manager. In the said request detail it is mentioned inter-alia that Mr. Prakash Sutradhar, Account No. 3327182738 ATM Card No. 6521601006574885 tried to withdraw Rs. 5,000/- from Central Bank of India Deocharai ATM. His account was debited but he could not receive money from ATM. As per the said document status shown “this is successful transaction”.
Ld. Advocate for the Complainant argued that this is not the original J.P. Log where from it could be ascertained the actual fate of the said transaction. Instead it is a manual document prepared by one staff of the bank Aniruddha Sarkar.
The argument has reasonable force in as much as J.P. Log is an auto generated document, wherein the actual picture in the ATM kiosk can be obtained.
On the contrary, the Service Desk Manager-request detail was prepared on the basis of the request of the Branch Manager of OP Bank. Thus, in this imbroglio situation, the recourse should be taken to the provisions of the Evidence Act. As per the Evidence Act if a document is in the custody of a person and he refuses to produce it, then adverse presumption should be drawn that if that document is produced it would go against him.
By following that provision of Evidence Act, reasonable inference is drawn that the OP Bank did not produce the said document like J.P. Log because it would go against them.
The Complainant therefore successfully proved that despite inserting the ATM Card, money did not come out from the ATM to the tune of Rs. 5,000/-.
Accordingly, Point No. 2 is decided on behalf of the Complainant.
Point No. 3 & 4 :-
The main relief relates to ascertainment as to the Point No.2 herein above wherein we have found that a sum of Rs. 5,000/- was wrongly debited from the account of the Complainant. While deciding the points as to the entitlement of the relief by the Complainant, regard being had to the additional evidence adduced by the Complainant. Annexure-A is the Complaint filed by the Complainant dated 09.04.2018 and dated 10.04.2018. It is an admitted fact that the OP received the said complaint but they took help of the help desk manager of the OP Bank through which they informed that the said transaction was successful. But we have seen that the J.P. Log was not produced by the OP before this Commission. Therefore the claim in the complaint by the Complainant could not be refuted by the OP properly.
Ultimately, the Complainant took recourse of the Consumer Affairs and Fair Business Practices Department for redressal of his grievance. Mediation took place therein through different proceeding. Both the parties appeared in the mediation proceeding. After perusing the documents of the mediation proceedings it is crystal clear that the OP Bank did not admit the claim of the Complainant but they also failed to produce the J.P. Log during the said mediation. So also they could not produce either the J.P. Log despite giving the specific direction by the mediator of the Consumer Affairs and Fair Business Practices Department during the mediation by the mediator on 07.09.2018.
Accordingly, the said mediation was dropped.
This demeanour of the OP clearly proves the fact that the OP was reluctant to produce the best document which is supposed to be in the custody of the OP.
Regard being also had to the fate of the aforesaid two Points No. 1 & 2 which were decided in favour of the Complainant.
Thus the demeanour of the OP clearly reveals that there was deficiency in service on the part of the OP as a bank towards providing service to the Complainant.
In the backdrop of the aforesaid discussions vis-à-vis the observation made herein above, I am of the view that the Complainant is entitled to get the relief as prayed for.
Point No. 3 & 4 are therefore decided on behalf of the Complainant.
In the result, the Complaint Case succeeds on contest with cost.
Hence, it is
Ordered
That the Complaint Case No. CC/105/2018 be and the same is allowed on contest with cost of Rs.1,000/-. The Complainant do get an award for Rs.5,000/- together with interest @ 6% p.a. from 05.04.2018 till the date of payment, Rs.15,000/- for deficiency in service and mental pain and agony and Rs.1,000/- towards the cost of proceedings. OP Central Bank of India is directed to pay a sum of Rs.5,000/- plus interest @ 6% p.a. from 05.04.2018 till the date of payment and Rs.16,000/- to the Complainant within 30 days from passing order failing which the Complainant shall be entitled to get @ 6% p.a. from the date of passing order.
Let 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.
