DISTRICT CONSUMER DISPUTES  REDRESSAL  FORUM

NORTH 24 PARGANAS AT BARASAT

CONSUMER  COMPLAINT NO:-558/2015

       Date of Filing                               Date of Admission                    Date of Disposal

         21.09.2015                                       05.10.2015                                  23.02.2018

                                                                                      Complainant :

                                                                                SK. ABU  REJA,

                                                                                S/O Late Sk. Abul Basar

                                                                             Residing at West Baro Gobra,

                                                                    Paschim Para,Begampur,

                                                                    Bibipur, Basirhat,

                                                                    Dist. North 24 Parganas,

                                                                 Pin – 743293.

                                                                                Versus    

                                                                        Opposite Party :

                                                                 The Branch Manager,

Kachua Swarupnagar,

Canara Bank,

Swarupnagar, Bazar,

P.O. – Kachua,

Block – Basirhat-2

District. North 24 Parganas,

Pin 743424.

Present:Sri. Bankim Chandra Chattopadhyay............. .President

             Sri. Siddhartha Ganguli..................................... Member

Ld Advocate for the Complainant:-    Sri. Bhaskar Roy & Ors.

Ld. Advocate for the Opposite Party:-Sri. Manish Deb & Ors.

                                                 Final Order and Judgement

An application has been filed by the complainant U/S  12 of the C. P. Act, 1986 alleging deficiency in service against the O.P. Bank and prays for refund of Rs.25,000/- with 18% interest and for compensation of Rs.2,00,000/- and litigation cost of Rs.50,000/- as stated in the petition.

Typed & Corrected by me.

Member                                                                                        Cont......P/2

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The facts of the case are that the complainant opened a Savings Bank Account lying with the Opposite Party  Bank vide Account No. 3616101000217.  It is the allegation of the Complainant that when he lastly updated his pass book he perplexingly observed that some grave irregularities along with illegally withdrawal of some amount from his Bank Account which he promptly informed to the Opposite Party and being instructed by the Opposite Party he served a letter to the Opposite Party on 23^rd June 2015.

That unfortunately in spite of receiving of the said letter from the Complainant the Opposite Party was reluctant to give any sort of response to the Complainant rather the Opposite Party evaded to give any explanation for such deficiency of service, when each act from the part of the Opposite Party as complained of is amounts to an unfair trade practice.

The Complainant on repeated occasions requested the Opposite Party for explanation to recover the amount which was illegality withdrawn from his account, but the Opposite Party not only refused to give any sort of explanation, but also misbehaved with him.

The Complainant being frustrated sent a letter dated 8^th July 2015 through his Advocate Bhaskar Ray and thereby especially noticed the following facts:-

1. On 5^th May 2015 the said account showed that the amount so lying with the said account was Rs.88/-

2. On 6^th May 2015 the said account showed that an amount of Rs.15, 000/- was withdrawn from the said account through ATM and so the balance was lying as Rs. (-) 14,912/-, which is completely impossible in accordance with the nature of the said account and there was no such rule or regulation to allow the OP for permitting to withdraw such huge amount when there is no such sufficient amount was lying with the said Bank Account.

3. On 6^th May 2015 the complainant deposited an amount of Rs.30, 000/- but the account showed that the standing balance was Rs.15,088/- on that date.

4. On 27^th May 2015 the said account showed that an amount of Rs.10,000/- was withdrawn from the said account through ATM and so the balance was lying as  Rs. (-) 9,442/- which is completely impossible in accordance with the nature of the said account and there was no such rule or regulation to allow the OP for permitting to withdraw such huge amount when there is no such sufficient amount was lying with the said Bank Account.

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It is stated by the  complainant that Opposite Party permitted to withdraw such huge amount as aforesaid when no such sufficient amount was lying with the said Account, moreover the Opposite Party have to enquire how such amount in two occasions were withdrawn from such account through ATM, when the Complainant did not entered into any ATM for withdrawing such amount and in this context the Opposite Party have to examine the CCTV footage for diminishing the allegations of the Complainant but the Opposite Party did not take any sort of step to satisfy the Complainant.  The Complainant also believes that such illegal act was done in collusion with the Opposite Party and his staffs to defraud and cheat him.  For sudden shortage of fund in his account the  complainant severally harassed, which is still continuing and due to his harassment his other family members are also affected.

By the said letter dated 8^th July 2015 the Complainant also informed that whatever the faults from the part of the Opposite Party, he has to disclose it to the Complainant and correct the said account of the Complainant by refunding the amount of Rs.25,000/- in his Bank Account under reference within 5 (five) days from the date of receiving of the said letter.

It was also requested to the Opposite Party by the said letter dated 8^th July 2015 that apart from refunding such amount the Opposite Party have to pay Rs.2,00,000/- to the Complainant for his harassment within 7 (seven) days from the date of receiving of the said letter.

Even after  receiving the said letter dated 8^th July 2015 the Opposite Party did not bother to give any response and thereby not only caused severe harassment to the Complainant but also caused severe deficiency of service.

It is further stated that the Opposite Party with some mala fide intention and ulterior motive cunningly and deliberately causing a grave harassment to the Complainant.

From the acts and conducts of the Opposite Party it is evident that the activities of the Opposite Party is negligent and deficient from the part of its service and also guilty within the meaning of unfair trade practice under the said Act.  The Complainant thus has suffered loss and injury and service so far rendered by the Opposite Party and finding no alternative he has filed this instant case for proper redresses.

The Complainant, therefore prays that -

1. That the Opposite Party be directed to return / refund the amount of Rs.25, 000/- with 18% interest as accrued thereon or with such rate of interest as this Learned Forum may deem fit and proper.

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2. A Judgement and Order directing the Opposite Party to pay a penalty to the tune of Rs.2,00,000/- (Rupees Two Lac) only to the Complainant for mental trauma and harassment caused for the deficiency and negligent service by the Opposite Party.

3. A Judgement and Order directing the Opposite Party to pay an amount of Rs.50,000/- as litigation cost.

The OP Bank appeared before the Forum in connection with the case and filed written version.

 It is stated by the Bank that the Complainant is a savings bank account holder as per rules and regulations of the Bank and as per Provision of Reserve Bank of India, and the Opposite Party Bank has been providing and tendering Banking service towards the account holder. 

It is stated that the statements made in the application which are not specifically dealt with by the Opposite Party are not admitted by the Opposite Party Canara Bank.The OP further stated that saves and except what are matter of record and save and except what is expressly admitted by the Opposite Party, the O.P denied and dispute the entire allegation made in the said plaint as if the same are set out herein and denied seriatim.

It is further stated that statements made in Paragraph no. 3 to 4 are matter of record that if any complaint is lodged by the complainant before the Bank on 23.06.2015 then it has been redressed and explained the situation and position of the Bank, there is no question of unfair trade practice and deficiency of service on the part of the Opposite Party Bank and Opposite Party denied all the allegations labelled against the Opposite PartyBank.

It is furhter stated in W/V by the OP Bank that the Opposite Party, the Canara Bank for the purpose of recording transactions concerning the aforesaid accounts the Opposite Party Bank in its usual and ordinary course of business record the transaction and all the process of transaction of the accounts done and maintained through computer operated data process system as per normal procedure like as all other nationalized Bank, where the Opposite Party maintained an account with Opposite Party there is no question of separate process or rule of dealing the account and transaction.  The account has not been maintaining manually, if there is any default it with the machine and computer data processing system of the Bank of Computer and DATA Processing system of automated  teller machine (ATM), that it may be a matter of difference timing of operation of two servers (main server of the Bank and ATM server).

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           Member                                                                              Cont....P/5

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It is further stated in W/V that there is no intentional negligence or deficiency of service on the part of the Bank authority / officials, hence there is no question of conduct of guilty on the part of the Opposite Party and there is no question of unfair trade practice on the part of Opposite Party.

It is further stated in W/V that the amount was drawn is correct and true because in the JPT the transaction was shown as successful transaction.  That means the customer has used his ATM Card for withdrawal at the ATM as per JPT (Journal printout).

It is further stated in W/V that on verification of the account statement, it is observed that, ATM transactions for Rs.15, 000/- and Rs.10,000/- were allowed on 06.05.2015 & 27.05.2015 through the Branch ATM (ID 3616) when the available balance in the account was Rs.88.00 and Rs.558.00 on the respective dates.  This has resulted in debit balance in the account temporarily. The customer had made deposit in the accounts same day, on both the dates, which is updated in the ledger subsequently. The discrepancies were found in relation to sequence and time of transaction to the Ledger where the time of deposit is shown later than the time of withdrawals causing temporary debit balance in the account for that day where the EOD balance is proper. The matter was lodged in tech support and it was replied (case ID 361600001) as per records in system there was balance available in the account at the time of ATM Transaction.  On analyzing the issue reported by the Complainant it is found that the reason for cash withdrawal appearing before cash deposit is on account of different time stamps in the two servers handling the transactions.

The OP therefore, prays for dismissal of the case.

The complainant files the following documents in order to prove his case.

1. Copy of Advocate letter dated 9^th July, 2015.
2. Copy of Savings Bank Account of the Complainant as stated above.
3. Copy of letter addressed to Bank by the complainant dated 23.06.2015

On the other hand the O.P Bank files the following Documents:

1. A letter from T.M Section Kolkata to O.P Bank in respect of C.C.T.V footage of transaction on 06.05.2015 & 27.05.2015 in respect of the account of the Complainant, dated 18.05.2016
2.  Copy of A.T.M withdrawal details.
3. Copy of A.T.M slips.

The Complainant and the O.P filed their respective Evidence-in Chief and Cross Examination was done of the Complainant and witness of the O.P, who happens to be the employee of the Bank namely Sukanta Bhattacharya.

Both parties filed their respective B.N.A.

From the complaint petition, Written version, Evidences of Both sides, and other materials on record the following points have been framed:

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Member                                                                                        Cont......P/6

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1. Is the complainant a consumer?
2. Is/was the O.P Bank deficient in providing service to the Complainant?
3. Is the complainant entitled to get any relief/s as prayed for?

Decision with Reasons

All the points have been taken together for the sake of brevity and for avoidance of repetition of facts.

It is admitted position that the complainant is a savings bank account holder of the O.P Bank and his account number is 3616101000217. The transactions were made in the said account from time to time and hence he is a consumer of the O.P as defined under the C.P Act, 1986 and the O.P bank is the service provider as per the said Act.

The main point of determination in this case whether the O.P Bank is deficient of service or not and the Complainant is entitled to get relief or reliefs as prayed for.

It is evident from the materials on record that on 05.05.2015 the amount lying in the bank account of the complainant was Rs.88.00. It is reflected from the copy of pass book of the complainant that an amount of Rs.15, 000/ was withdrawn on 06.05.2015 through the ATM of the Bank and the pass book reflects negative balance of Rs.14912/.

Further on the same day the complainant deposited Rs.30, 000/ in his bank account and the pass book reflects balance of Rs.15, 912/.

Again, on 27.05.2015 the amount lying in the bank account of the complainant was Rs.558.00. It is reflected from the copy of pass book of the complainant that an amount of Rs.10, 000/ was withdrawn on 27.05.2015 through the ATM of the Bank and the pass book reflects negative balance of Rs. 9442/.

 Further on the same day the complainant deposited Rs.40, 000/ in his bank account and the pass book reflects balance of Rs.30, 558/.

It is the allegation of the complainant that when he lastly updated his pass book he came to know that the amount of Rs.15000, and Rs.10, 000/ were fraudulently withdrawn from his bank account and the same reflects negative balance as reflected in his pass book. Immediately thereafter the complainant informed the O.P Bank by a letter on 23.06.2015 but his problem was not sorted out. The complainant stated in his complaint petition and the evidence that the said amount was withdrawn from the A.T.M without his knowledge. The complainant thereafter sent legal notice to the Bank; even then the O.P Bank did not credit the disputed amount in his Bank account.

The O.P filed W/V and adduced evidence in order to counter the allegations of the complainant. The O.P Bank stated in his evidence that on verification of the account statement, it is observed that, ATM transactions for Rs.15, 000/- and Rs.10, 000/- were allowed on 06.05.2015 & 27.05.2015 through the Branch ATM (ID 3616) when the available balance in the account was Rs.88.00 and Rs.558.00 on the respective dates. This has resulted in debit balance in the account temporarily.

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Member                                                                                       Cont......P/7

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The customer had made deposit in the accounts same day, on both the dates, which is updated in the ledger subsequently. The discrepancies were found in relation to sequence and time of transaction to the Ledger where the time of deposit is shown later than the time of withdrawals causing temporary debit balance in the account for that day where the EOD balance is proper. The matter was lodged in tech support and it was replied (case ID 361600001) as per records in system there was balance available in the account at the time of ATM Transaction.  On analyzing the issue reported by the Complainant it is found that the reason for cash withdrawal appearing before cash deposit is on account of different time stamps in the two servers handling the transactions.

Again as per documents filed by the O.P Bank dated 18.05.2016 it is evident that as per records in system there was balance available in the account at the time of ATM transaction. The discrepancies were found in relation to sequence and time of transaction in the ledger where the time of deposit is shown later than the time of withdrawals causing temporary debit balance in the account for that day where the EOD balance is proper.

From the evidences and the documents it is clear that some amount of money were deposited in the bank account of the complainant on the respective dates as stated above and Rs.15,000/ and Rs.10,000/ were withdrawn from the bank account of the complainant through ATM on 06.05.2015 & 27.05.2015 respectively prior to such deposits. But the complainant stated that such amounts were not withdrawn by him through the ATM. Therefore, it is the incumbent duty of the Bank to show from cogent evidence who withdrew the aforesaid money and the burden lies upon the O.P Bank to show that. But the O.P Bank failed to produce any CCTV footage wherefrom we can draw any conclusion. One employee of the Bank stood as expert and adduced evidence in connection with the case. He stated that he has filed one report and it was submitted as per direction of the higher authority of the bank and he signed in the report as per direction of his higher authority. From the evidence of the O.P it is seen that the CCTV was installed in the ATM counter in question prior to alleged incident/ occurrence and in case of disputed transaction bank compulsorily store CCTV footage. The said person stated that he did not consult the CCTV footage for preparation of his report. Therefore question of doubt remains existing that who had used the ATM and withdrew the money. It is the duty of the bank to prove the same as the CCTV is lying with the Bank Authority but the Bank did not produce it. Further, the O.P Bank adduced corroborative evidence through the employee of the Bank but the O.P Bank never sought for any expert opinion in order to clear the doubt in the matter. Had the O.P Bank responded quickly to the complainant when he informed the O.P Bank about the alleged transactions and the O.P Bank stored the CCTV footage and answered the complainant, it would have been crystal clear who operated the transaction from the bank account of the complainant. It is also a great doubt that despite not having sufficient balance, the money was withdrawn from the bank account of the complainant leaving negative balance.

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Member                                                                                      Cont......P/8

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If we accept the logic of the O.P Bank which has stated in the w/v and evidence that due to the discrepancies were found in relation to sequence and time of transaction in the ledger where the time of deposit is shown later than the time of withdrawals causing temporary debit balance in the account for that day where the EOD balance was proper and further stated that the ATM transactions were successful, then the question arises what was the problem of the Bank for not providing CCTV footage to the complainant where it is found from the evidence that the questioned ATM was equipped with CCTV camera. In our view the Bank should have acted promptly when it received allegation from its customer. Every customer of the Bank is important to it and should be given equal treatment/importance.

Further the O.P Bank must be more careful, cautious, vigilant against the unscrupulous person, who uses other’s ATM fraudulently.

Again, the disputed money in two occasions was withdrawn through the ATM of the Bank. In our view no cash from the account of the complainant could have been withdrawn without inserting of the ATM card and using the proper Pin, which has been provided to the complainant by the O.P Bank. If the complainant claims that he has not entered the ATM for withdrawal of the money or he himself did not withdraw the disputed money, then presumption is strong that either the ATM card of the complainant was stolen or the Pin number attached to the ATM card has been leaked out in any way by the complainant, who in turn fraudulently had withdrawn the money. The ATM card was all along with the complainant; therefore he cannot blame the Bank for that.

Ld Advocate for the complainant referred one case ruling reported in 2003(1) CPJ 178(N.C). The Hon’ble National Commission after discussing the case was pleased to hold that “ We have heard Mr. Vijay Gupta, Ld. Counsel for the petitioner. We have also gone through the detailed order of the District Forum which was subsequently upheld by the State Commission. From a bare perusal of the Order of the District Forum it is clear that the complainant had been subjected to a lot of inconvenience due to the fraudulent and negligent acts of the staff of the Bank. The Bank should have acted with care when the complainant had brought to the notice of the officials of the Bank that amount that was lying to his credit was less than what it ought to have been. The District Forum after having thoroughly gone into the evidence led by the parties and after hearing the arguments and came to the right conclusion, as stated above. The State Commission committed no error in concurring with the decision of the District Forum. Therefore, keeping in view the concurrent findings reached by both the Fora as below, we do not find it a fit case for us to interfere in exercise of our revisional jurisdiction under section 21(b) of the C.P.Act, 1986 and dismiss the same”.

Ld Advocate for the complainant referred another ruling reported in 2015(1) C.P.R 797(N.C). The Hon’ble National Commission has been pleased to hold that “No cash from the account of the complainant could have been withdrawn without use of the ATM card which the petitioner bank had issued to him along with use of the Pin which the Bank had provided to him. If the complainant himself did not withdraw cash from the Bank on 10.11.2011,as is claimed by him, his ATM card

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Member                                                                                        Cont......P/9

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must have been stolen or otherwise obtained by some unscrupulous person. Not only that, the ATM Pin must have been either disclosed by the complainant to the person who withdrew cash from the Bank or he would not have kept it in safe custody as a result of which the person who withdrew the money through the use of the ATM could lay his hand on the said Pin and later feed the Pin in the ATM machine while using the ATM card issued to the complainant. Therefore, no deficiency in services is made out on account of the alleged fraudulent withdrawn of Rs.10, 000/ from the Bank account of the complainant. The Petitioner Bank was deficient in rendering services to the complainant by not making available a copy of the C.C.T.V footage to him. Impugned order upheld. Revision disposed of”.

The above two case rulings supports the complainant’s case to some extent and therefore we can accept the principles of the above two case decisions of the Hon’ble National Commission.

Considering the above discussions and having regard to the decisions of the Hon’ble National Commission we are of the view that the O.P Bank is deficient in service by not providing the CCTV footage to the complainant despite receiving application from the Complainant. However, we find no deficiency of the O.P Bank on account of the alleged fraudulent withdrawal of Rs.15, 000 & Rs.10, 000/ respectively. Bank has to show utmost sincerity while providing service to its customers.

Again, considering the nature and gravity of the case and the mental agony, sufferings sustained by the complainant, we think that a compensation to the tune of Rs.50, 000/ and litigation cost of Rs.10, 000/ is just and proper in order to redress the complainant.

Therefore, all the points have been discussed and disposed of.

Hence

It is ordered that the Consumer Complaint No: CC-558 of 2015 is allowed on contest against the O.P Bank.

 The O.P Bank is directed to pay compensation of Rs.50, 000/ and litigation cost of Rs.10, 000/ to the complainant within two months from the date of this order, in default the complainant is at liberty to put the entire order under execution for recovery of the same as per the provisions of the C.P.Act, 1986 and Rules made there under.

Let a free copy be given to the parties concerned as per C.P.Rules.

          Member                                                                President

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Member.