Contd…....P/2

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CC- 84/2017

The Complainant also submitted an application on 22.11.2016 to the O/C Barasat P.S. stating all facts and sent a copy of the petition to the S.D. North 24 Parganas for taking necessary steps for displaying CC TV footage but they did not pay heed to it till today.

          As a result having been constraint the Complainant took legal recourse by filing this case and prayed for -

1. Direction upon the OPs to credit Rs.4000/- to the SB A/c no.1171104000022367 of the Complainant and also to display CC TV footage of the concerned ATM booth at materials time along with compensation Rs.10,000/- for harassment and mental agony of the Complainant.
2. Litigation cost of Rs.5,000/- inter alia.

The OP No.1 filed W/V on 12.06.2017. In the W/V the OPs made categorical denials and stated that the complaint is manufactured, false, fabricated and harassive and it is not maintainable as it is not a consumer disputed case. The OP No.1 stated that the Complainant has withdrawn through Axis Bank ATM and not of IDBI Bank ATM, so dispute has arisen regarding withdraw of excess payment which was depends upon Axis Bank and not to IDBI Bank. The OP No.1 also stated that he has no liability, regarding alleged claim of the Complainant and the IDBI Bank on several times sent mails to the Axis Bank to appear in this case and to reply details that no excess cash or shortage of cash found in the machine in the same date and asked them to send CC TV footage that the Complainant on the same date has twice withdrawn twice the amount from the Axis Bank ATM. The Complainant did not withdraw the alleged amount from the IDBI Bank’s own ATM Machine, so there is no liability of IDBI Bank. They prayed dismissal of this case with heavy cost.

The OP No.2 Axis Bank received the notice but they did not turn up, so the case do proceeded exparte against OP No.2 from 12.06.2017 vide order no.4.

Considering the above pleadings as well as the nature and character of this case following points are necessarily come out to reach the just decision of this case.

1. Is the complainant consumer under Section 2 (1)(d) (ii) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to try this case?
3. Is there any deficiency in service on part of the OPs?
4. To what other relief or reliefs the complainant is entitled?

Decision with Reasons

          Considering the nature and character of the suit all the points are inter-linked to each other and as such all the points are taken up together for consideration for the sake and brevity and convenience.

Contd…....P/3

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CC- 84/2017

Point No.1

With the strength of admission on part of the OP No.1 in respect of A/C No. 1171104000022367 and ATM Card of the Complainant, the Complainant acquired status of consumer under Section 2(1)(d)(ii) C.P. Act, 1986 under the OP Nos.1 and under OP No.2 as no denial received from their end.

Point No.2

          The Complainant resides under P.S.- Barasat within the District of North 24 Parganas and the OP No.1 situated at Rajarhat Gopalpur Branch, Kolkata-700157 and OP No.2 situated at Barasat Nabapally Branch  as such both are under same district North 24 Parganas within the territorial jurisdiction of this Fora. The claim amount does not exceed the pecuniary limit of this Fora. As such this Fora has ample power to try this case.

Point No.3

          On perusal of the materials available in the case record and supporting affidavit relating to the documents as well as hearing of argument made by the Ld.Advocates appearing on behalf of the Complainant and OP No.1 it is revealed that the Complainant has used his ATM Card Twice with its secret pin number on the same date on 01.10.2016 at about 7.15 p.m. and Rs.2,000/- + Rs.2,000/- was withdrawn through his ATM Card from the ATM (Automated Teller Machine) of OP N0.2 (Axis Bank) (as per W/V submitted by OP No.1).

As per statement of the Complainant he used twice the ATM Card and received Rs.2000/- each attempt and got total Rs.4000/-. But payment slip did not come out. The ATM Machine is same which is owned by OP No.2 (Axis Bank).

SMS received at 11:10 p.m. on 01.10.2016 on the Complainant’s mobile phone no.9038792109 showing the amount withdrawn twice Rs.4,000/- + Rs.4,000/- i.e. Rs.8,000/-.

The OP No.1 side did not give satisfactory explanation as to why CC TV footage from OP No.2 on the material time has not been produced. The OP No.1 did not produce any document to show that they asked the OP No.2 to produce CC TV footage and the OP No.1 did not produce any document to show that they asked the OP No.2 in respect of any fault of the ATM Machine of the OP No.2.  OP No.2 is also responsible to provide safety and security of the Complainant's Monetary interest as the ATM Machine belongs to him from where excessive monetary withdrawal has shown and deducted. Therefore, equal liability is lying against both the OPs. Mere evasive denials are not adequate reasons to disprove the allegations against the OPs. From the above discussed facts no lack of probity from the Complainant came to us. The Bank can not ignore it’s liability to monetary safety and security of the customer(s). Therefore we have no alternative but to hold that there is deficiency in service on part of the OPs.

          Considering the positive results of the discussed points, point No.4 also bears positive answer and that should be reflected in the ordering portion.

Contd…....P/4

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CC- 84/2017

Thus, all the points are disposed of accordingly.

Fees paid are correct.

Hence, for ends of Justice;

it is

Ordered

that the instant case being C.C. No. 84/2017 be and the same is hereby allowed on contest against the OP No.1 and exparte against OP No.2 with costs.

The Complainant do get a decree of his lost amount of Rs.4,000/- against the OP Nos.1,& 2.

The Complainant also do get a further decree of Rs.2,000./- as compensation for his mental agony and sufferings plus Rs. 2,000/- as litigation cost.

The OPs are directed to pay the aforesaid decretal amount i.e. Rs.8,000/-  to the complainant within 35 days from this date in equal share, failing which the complainant will be at liberty to put this decree into execution according to law.

In case of realization of the decretal amount through execution, the complainant will be entitled to 8% interest p.a. on the total decretal dues i.e. on Rs. 8,000/- from the date of filing of this case from 17.02.2017. till liquidation of the entire decretal dues.

Let the plain copy of this order be supplied to the parties free of cost as per the provision of the CPR, 2005.

Dictated & Corrected by                                                                  President   

   Member

   Member