DATE OF FILING                    :      20-01-2013.

DATE OF S/R                            :      25-02-2013.

DATE OF FINAL ORDER      :     06-06-2013.

Sri Kaushik Mukherjee,

son of Sonar Chand Mukherjee,

residing at 34/1/1, Joynarayan Babu Chanda Dutta Lane,

P.S. Bantra, District –Howrah,

PIN – 711101.------------------------------------------------------------------  COMPLAINANT.

-          Versus   -

1.         The Branch Manager,

Indian Overseas Bank,

123/2, Netaji Subhas Road,

Howrah – 711 101.

2.         The Manager SA,

            NFS Team, ATM, Transaction Banking Dept.

            Indian Overseas Bank,

            at 763, Anna Salai,

            Chennai – 600002.

3.         The Chief  Manager,

Axis Bank, VAshi, Mumbai,

Vardhamamn, Chamber Co-operative, Society,

Plot No. 84, Sector – 17,

Navi Mumbai – 400705.

4.         The Manager,

Axis Bank,

4, Clive Row, Dalhousie, Square, ground floor,

Mukti  Chamber,

Kolkata – 700001. -------------------------------------------------OPPOSITE PARTIES.

                                                P   R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

      Member       :     Smt. Jhumki Saha.     

                                                 F  I   N   A    L       O   R   D    E     R

1.      Shortly stated, the facts leading to the filing of the present complaint are, that

on the dated 12-08-2012 at about 8.00 p.m. the complainant went to an ATM Counter of the O.P. no. 1 for withdrawal money amounting to Rs. 5,000/- from his salary account by  using his debit card bearing no. 5267010720034566 and it noticed by the complainant that no successful transaction was made for which no money was released from such ATM. But on the contrary Rs. 5,000/- was deducted from his salary account bearing no. 072010100125932 which was come to his notice on the dated 21-08-2012 during scrutinizing the corresponding bank account ( so called salary account ). The complainant hurriedly lodged the complaint to the O.P. no. 4 ( herein Axis Bank ) including lodging F.I.R. to the local police station for such false transaction from his account by the O.P. no. 4 who subsequently did not take any

positive action to mitigate the grievance followed by another complaint on the dated 17-10-2012 to the Banking Ombudsman, R.B.I. and the said complaint dated 17-10-2012 have been disposed of by the Ombudsman with the remarks that “Under requiring consideration of elaborate documentary and oral evidence the complaints are not appropriate for adjudication”. 

2.         Getting no other way the complainant has filed the present case as he suffered harassment, mental agony and also deprived to get the money refund. Complainant prayed relief and compensation from the Forum in connection with his complainant petition.

3.      The o.ps. in their separate written version are contesting the case contending

interalia that the case is not maintainable in as well as the facts. The allegation as made by the petitioner are false, frivolous and motivated with the intention to harass the O.Ps.

4.      The O.P. nos. 1 & 2 admitted the fact that there was successful transaction at

11-36 a.m. on the dated 12-08-2012 from the ATM Counter of the same amount of Rs. 5,000/- as per bank record, but no such transaction took place on the dated 12-08-2012 at 8.00 p.m. for which Rs. 5,000/- was debited from the salary account of the complainant from the Axis Bank ( O.P. no 3) as per demand.   

5.      This answering O.Ps. further opined that the amount so debited by the O.P.

no. 4 from the complainant’s salary account raised claim amount against the transaction according to Banking Laws for which the question of production of C.C. T.V. footage does not arise as per demand of the complainant. Under such circumstances the prayer of the petitioner in the manner of relief is not entitled to such extent and same may be dismissed with costs.

6.       On the other hand O.P. no. 3 & 4 stated in their written version that the

transaction as made by the complainant on the dated 12-08-2012 was a successful one and these answering O.P. nos. 3 & 4 was falsely implicated in the current complaint with an ulterior motive. Moreover, the complainant / or his legal representative could not produce any proof or evidence or any nature  supporting his allegations, have tarnished the image of the O.P. nos. 3 & 4 for which the complaint has established the facts that the complainant wants to extort money by whatever means by claiming compensation and litigation costs for which the complaint as made by the complainant is liable to be dismissed / rejected with exemplary cost.

7.         Upon pleadings of both parties two points arose for determination :

i)                    Whether the O.Ps. have negligence in activities and also deficiency

 in service by not refunded the demanded amount in due time    ?

ii)                  Whether the complainant is  entitled to get any relief and compensation as prayed for ? 

DECISION  WITH   REASONS      :

8.      Perused the evidence adduced by both the parties. Perused also the evidence

in chief filed by the complainant. Considered.

9.      Undisputedly complainant made an attempt to withdraw of Rs. 5,000/-

through his debit card from the salary account under the controlled AT M of O.P. no. 1 on the dated d12-08-2012 and the same transaction was not successful one and no money as per demand was coming out.

10.    The point of dispute is that the complainant entering his debit card to the

ATM of O.P. no. 1 and the corresponding transaction was not a successful one for which the complainant was not getting any amount from the said ATM as per his demand. Moreover, no transaction slip regarding balance enquiry was not available for which the complainant suffered huge family problem and tension of financial crisis.

11.     We have gone through the records carefully and also heard  the

complainant and the ld. Counsel of O.P. no. 1.

12.      It is evidently proved that the complainant tried to withdraw his hard-

earned money through ATM Counter of O.P. no. 1 on 12-08-2012 had failed to receive the required money, subsequently lodged the F .I.R. including further lodging complaint to the O.Ps. including Ombudsman Banking Service, R.B.I. which yields no fruitful result.

13.      O.Ps specially O.P. no. 1 by filing written version and pleading argument

stated that non-availability of CCTV footage at the time of occurring the incidence.

Moreover, the O.Ps. have taken plea that the complainant has mislead the facts the time to use the ATM of O.P. no. 1 on the dated 12-08-2012.

14.       We have also considered block sheet of the ATM Machine controlled by

O.P. nos. 1 & 2 supplied / enclosed by the O.P. nos. 3 & 4 in their evidence in chief which seems to be confussive in nature as per Annexure 1 and / is scuripsly made / oriented in collaboration with a fraudulently prepared and is not tenable to the appropriate court of law and there is no cogent reason to be evidence to prove against their negligence activities having no signature and seal of the designatory authority to be authenticated. The ATM log sheet so released / enclosed is a composite manner collaborated with other factors for which we are not in a position to rely upon that  having no authentication by any once.

15.     In this case the O.Ps. harassed the complainant by doing an act of negligent

and irresponsibility which is not expected by the common people. It is also not share that one consumer will be harassed or deprived klkby the negligent act of the

authority concerned. The O.P. no. 1 failed to prove any cogent evidence that the complainant withdrawn cash from the ATM controlled by O.P. nos. 1 & 2.

16.     It is evidentially proved that the complainant tried to use the ATM

machine of O.P. nos. 1 & 2 but could not receive the desired amount of Rs. 5,000/- inclu9idng balance statement as per general practice tantamount gross negligent of O.P. no. 1 in a totality.

17.  Therefore, we hold our considered opinion that O.P. no. 1 has deficiency in

service by not taking due care for refund of the desired amount which was debited by the O.P. no. 3 from the salary account of the complainant.

In view of the above discussion we hold our concluded opinion that O.P. no. 1

has deficiency in service by not refunding the claim amount in time. As it is already proved that O.P. no. 1 has deficiency in service, the complainant is entitled to get relief as prayed for.      

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No.  17 of 2013 ( HDF 17 of 2013 )  be  allowed on contest against o.p. no. 1  and dismissed without cost against rest of the o.ps.

      The O.P. no. 1  be directed to refund the deducted amount of Rs. 5,000/- to the complainant  in consultation with O.P. no. 3 where the salary account is being controlled by him ( O.P. no. 3 ).

      The O.P. no. 3 is also directed to account for Rs. 5,000/- against account no. 072010100125132 of the complainant as a salary account within  30 days from the date of this order.

      The O.P. no. 1 do pay a sum of Rs. 5,000/- as compensation for the mental pain and agony including Rs. 1,000/- as litigation costs to the complainant.

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.    

      Supply the copies of the order to the parties, as per rule.      

DICTATED  &    CORRECTED

BY   ME.  

  (   P. K. Chatterjee )                                                          (    P. K. Chatterjee)

  Member,  C.D.R.F.,Howrah.                                       Member,  C.D.R.F.,Howrah.

     (  Jhumki Saha  )                                                                (  T.K. Bhattacharya  )

 Member, C.D.R.F.,Howrah.                                            President,  C.D.R.F.,Howrah.