Hon'ble Mrs. Rumpa Mandal, Member.
The concise fact of the Complainant’s case is that the Complainant Smt. Protima Sarkar is a customer/ consumer of O.P. No.1 of Punjab National Bank of Bhetaguri Branch, Bhetaguri-II G.P. Office, P.O. Bhetaguri, Cooch Behar, having S/B Account No.1685010101400. On 02.02.2021 she used ATM card due to urgent money in the counter of O.P. No.2. The communication payment solutions Ltd., Indicahse ATM videsh Sanchar Bhavan, situated at 1/18 CIT scheme UIM, Ultadanga in Kolkata-700054. Accordingly, he pushed the ATM for withdrawing Rs.5,000/- first time and second time Rs.5000/-. But no money/ cash came out form ATM machine. So the Complainant did not receive any cash but the Complainant received SMS through his mobile that a sum of Rs.5,000/- was debited was debited from his account. Subsequently, Rs.5,000/- was credited in the account of Complainant. But he pushed ATM in second time only that time Complainant did not receive any cash. But the said money was also deducted from the account of the Complainant. Subsequently, Complainant informed to the O.Ps but despite giving false assurance the OP bank did not credit the said sum of Rs.5,000/- to the Complainant. Thereafter Complainant lodge a written complaint on 02.08.2021 to the O.P. No.1 and also sent to the registered post and the OP false assured him to show CC TV and JP log but did not do so. Accordingly, Complainant filed written complaint to O.P. No.1 on 02.08.20222 and raise complaint before the O.P. No.2. Despite receiving the said complaint the O.Ps did not do anything. The misdeeds of the O.Ps amount to deficiency in service. The Complainant therefore prayed for directing the O.Ps to credit Rs.5,000/- to the account of the Complainant and Rs. 30,000/- for deficiency in service and mental pain and agony with further cost of Rs.10,000/- as litigation cost.
O.Ps contested the case by filing written version denying each and every allegation of the Complainant. The positive case of the O.P. No.1 in brief is that O.P. No.1 maintained only the savings bank account nor the Complainant withdrawn the amount from the ATM of the O.P. No.1. On 02.02.21 Complainant withdrawn money from the ATM machine of the O.P. No.2. If there was any withdrawal of money from the Tata Communication payment Solutions Ltd only O.P. No.2 is liable. O.P. No.1 is not liable in this case. O.P. No.1 is prayed for dismissal of the case. The O.P. No.2 also contested the case by filing written version denying the major averments of the Complainant.
The positive case of O.P. No.2 in a few words is that there is no cause of action and the case is not maintainable so it is liable to be dismissed. The Complainant has suppressed major facts. There is discrepancy in ATM transaction and mismatch in the amount available in the said ATM. The O.P. No.2 categorically submitted that the Complainant has received the sum of Rs.5,000/- from the said ATM machine which is evident from the switch data electronic journal log of the said ATM, where all the record of the transactions are recorded. So the complaint needs to be dismissed. The O.P. No.2 therefore prayed for dismissal of the complaint with cost.
The respective cases of the parties driven this Commission to ascertain the following points.
Points for consideration
- Whether Complainant is a consumer?
- Whether there was any deficiency in service to the Complainant by the O.Ps?
- Whether the Complainant is entitled to get relief as prayed for?
- To what other relief in any, the Complainant is entitled?
Decision with reasons
Point No.1.
The O.P. No.1 did not challenge that the Complainant is not a consumer. However in order to safeguard the analysis from any point, the essential aspect under the CP Act is taken for consideration and disposal.
The Complainant claimed himself as a consumer. Defence case projects that the O.Ps admitted that the Complainant withdrawn the money from ATM machine from O.P. No.2 Tata Communication Payments Solutions Ltd on 02.02.21. But O.P. No.2 challenged that Complainant is not a consumer because there is no deficiency in service on behalf of the O.P. No.2 against the Complainant.
Perused all the documents this Commission is in view that the defence case appears to have not disclosed anything to come do any different finding than to hold that the Complainant is a consumer under the O.Ps.
Point No.1 is thus decided in favour of the Complainant.
Point No.2.
Previously, we have already held that the Complainant is a consumer under the O.P. bank. The O.P. No.1 admitted in his written version that the savings bank of the Complainant is maintained by O.P. No.1. It is also the admitted position that the Complainant withdrawn the money on 02.02.21 on the ATM machine of O.P. No.2 Tata Communication Payments Solutions Ltd.
The written version of O.P. No.2 also discloses inter alia that the Complainant went to the ATM counter and operated the ATM card. The minor inconsistency regarding the pleading of the Complainant and the averment in para-7 & 8 in the written version does not reduce the weight of the evidence led by the Complainant.
So far as the Annexure-A is concerned the report reveals that transaction of withdrawal took place on 02.02.21 for Rs.10,000/-. On the same day reverse withdrawal of Rs.5,000/- took place in favour of Complainant. But another transaction was not withdrawal in favour of the Complainant. The EJ log of the O.P. No.2 comment is that cash not taken. It is the final remark of the request detail under the O.P. No.2 bearing No.6521931985002776 that cash is not received.
Annexure-B disclosed that the Complainant raised by the Complainant to the OP bank, Branch Manager dated 02.02.21.
Ld. Defence Counsel argued that a complaint should be lodged within the statutory period of 30 days as per the RBI guidelines. It may be that there is statutory limit for lodging the complaint as per the RBI guidelines but there is nothing to show that the said guidelines of RBI was within the knowledge of the Complainant or it was informed to him at any point of time.
That apart the OP Company also did not reply to the Complainant against her letter dated 02.08.21.
The Ld. Lawyer for the Complainant argued that there was no delay in lodging the complaint in as much as the transaction took place on 02.02.21 and after frequent request to contact the O.P. No.1 but till today O.Ps did not send back the said amount and the Complaint was lodged on 02.08.21.
After perusing the Annexure-A from the summary of account statement it transpires that on 02.02.21 there is remark “ATM WDR” and another “ATM Reverse”. Thus after assessing the entire oral and documentary evidence it is crystal clear that the Complainant inserted the ATM card at the ATM Kiosk for withdrawing money of Rs.5,000/- and Rs.5,000/- on the inauspicious day of 02.02.21 at the counter of O.P. No.2 Tata Communication Payments Solutions Ltd with the ATM card of O.P. No.1 bank but in the first transaction Rs.5,000/- did not come before the ATM. But subsequently, after some time the said amount further credited in the account of the Complainant. In the second transaction no money came out from the concerned machine.
Having perused the entire evidence of the respective parties, it stands well proved that there was no latches on the part of the Complainant for the loss sustained by her due to the said transaction. Due to the said unsuccessful transaction the Complainant sustained a loss of Rs.5,000/- which tantamounts to deficiency in service on the part of the both O.P. No.1 & 2, which demands for compensation for suffering mental pain and agony.
Thus after assessing the entire oral and documentary evidence and the O.Ps this Commission is of the view that the Complainant successfully proved the other point No. 2,3 &4.
Accordingly, point No.2,3 & 4 are answered in positive on behalf of the Complainant.
Consequently, the complaint case succeeds on contest.
Hence, it is
Ordered
That the complaint case be and the same is allowed on contest with cost. The Complainant do get an award of Rs.5,000/- for refund of the cash not withdrawn through ATM, Rs.10,000/- for deficiency in service and mental pain and agony and Rs.5,000/- as litigation cost against the O.P. No.1 & 2. Both the O.Ps are jointly and severally liable. The O.Ps are directed to pay a total sum of Rs.20,000/- as above within one month from the date of passing the Final Order failing which an interest @ 6% per annum on the awarded sum of money be paid from the date of passing order till the order of realization thereof.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
