Hon'ble Mr. Haradhan Mukhopadhyay, President.
The financial dispute in relation to unsuccessful ATM transaction resulting in alleged financial loss brought the Complainant to this Commission for the present case which is described in a few words as under: the Complainant Nuruddin Mandal has a Savings Account with OP-1 State Bank of India, Cooch Behar having SA Account No. 36472690590 and an ATM Card bearing No. 5596010056915653. On 25.05.2021 due to urgent need of money the Complainant used his ATM Card to withdraw money of Rs. 9,000/- through the ATM counter of OP-2 IDBI Bank Ltd., N.N. Road, Cooch Behar. After pushing the card, no money came out and as such the Complainant did not receive Rs. 9,000/- at that time. The Complainant again pushed his ATM card to withdraw Rs. 9,000/- but no money came out. The Complainant again pushed his ATM Card and withdrawn Rs. 10,000/-. On the contrary, the Complainant found that a sum of total Rs. 18,000/- had been deducted from the account of the Complainant. So, the Complainant thereafter informed the matter to the opposite parties who assured that the said money would be credited to his account within short period. Subsequently, on 29.05.2021, the OP credited Rs. 9,000/- but did not credit the balance Rs. 9,000/-. The Complainant requested the OP to show the CCTV footage and JP Log but they did not fulfill his request. The Complainant therefore filed a written complaint through email to the OP-2 on 28.09.2021 against which the OP-2 responded but the Complainant did not receive the disputed money. So the aforesaid activities of the OPs amount to deficiency in service for which the Complainant suffered mental pain and agony. The cause of action arose on 24.05.2021 and on subsequent dates, which is still continuing. The Complainant therefore prayed for Rs. 9,000/- to be credited to his account, Rs. 40,000/- towards deficiency in service and Rs. 10,000/- towards litigation cost and other reliefs as per the complaints.
Both the OPs contested the case denying all the major allegations with the usual defence that the case is not maintainable. The positive case of the OP-1 in brief is that, the OP-1 State Bank of India, Cooch Behar maintains only the savings bank account of the Complainant. The Complainant withdrew money from the ATM machine of OP-2. The Complainant did not contact with the Branch or the Branch Manager of the OP-1 Bank. After lapse of a couple of months, the Complainant lodged the Complaint against the OP. If there is any dispute in this case, then OP-2 is responsible for the said dispute. The OP-1 claimed that the case is liable to be dismissed with cost.
The defence case of OP-2 IDBI Bank Ltd. as per their written version discloses absolute denial of the case of the Complainant. The positive defence case of OP-2 in a nutshell is that, the OP-2 IDBI Bank Ltd. ATM Machine is situated at N.N. Road, Cooch Behar but the ATM card was issued by the OP-1 State Bank of India. In such a scenario, the card holder i.e. the Complainant needs to contact card issuer bank i.e. OP-1 for resolution of his dispute. As per RBI norms, the card holder needs to contact with his own bank and the card issuer bank is responsible for making any compensation for delay in reversal of amount. The Complainant was advised by the OP-2 through email for contacting his own bank branch for resolution of the dispute. The demand of the Complainant to show the CCTV footage, JP Log is not justified because it is the card issuing bank where he has account is to take up and follow up the matter. As there is no direct relationship of Customer and Banker between the Complainant and the OP-2, so the Complainant has no cause of action.
The dispute between the parties led this Court to ascertain the following points.
POINTS FOR DETERMINATION
- Whether the present case is maintainable in its present form and prayer?
- Whether the Complainants are entitled to get any relief as prayed for?
- To what other relief if any the Complainants are entitled to get?
DECISION WITH REASONS
Point No.1.
It is the admitted fact that the Complainant is a customer under OP-1 and he had access to use his ATM Card with OP-2. The nature of the dispute discloses that despite pushing the ATM card, a sum of Rs. 18,000/- @ Rs. 9,000/- each time did not come out from the ATM machine of OP-2. The alleged incident took place on 24.05.2021 and the present case was filed on 08.02.2022. The Complainant filed some documents where from it is revealed that there is cause of action and the case is not otherwise barred by any provision of law and as such the case is legally maintainable.
Accordingly, Point No.1 is decided in favour of the Complainant.
Point No.2 & 3.
Both the points are closely interlinked with each other and as such these are taken up together for convenience and brevity of discussion.
The Complainant in order to establish the case adduced both oral evidence in affidavit and documentary evidence before this Commission. Annexure-A is the copy of the passbook showing that the Complainant has a SB Account with the OP-1 Bank having Account No. 36472690590. Although it is an admitted fact by the OP-1, yet the Complainant proved some more documents. The annexure-B discloses that the Complainant had the SBI Global Debit Card. Annexure-C is the letter through email dated 28.09.2021 regarding the dispute sent to the OP for refund of debited amount against which the OP IDBI Bank Ltd. responded informing their inability. Similarly, the Complainant contacted with the OPs through different correspondences raising his grievance. Having been unsuccessful, the Complainant submitted another letter being Annexure-D to the OP-1 to resolve the dispute. The Complainant also submitted a handwritten letter to the OP-1 being Annexure-E wherein he requested to resolve his dispute.
Thus the Complainant seems to have left no stone unturned for redressal of his grievance.
It is the bounden duty of the OP-2 to produce before this court all the relevant documents like CCTV footage or the JP Log to discharge their onus. It is the settled position of the Evidence Act that a document which is supposed to be in the custody of a person, if he fails to produce that document, it would go against him.
Ld. Defence Counsel for the OP-1 argued that, it is the OP-2 Bank who is responsible in the event the Complainant is entitled to get any favourable order.
Ld. Advocate for the OP-2 also argued that any dispute should be registered within 7 days but in the instant case, there is huge delay.
It is fact that there is delay of about 4 months but it is not barred by limitation. The OPs also could not give reasonable explanation against the claim of the Complainant. The Complainant proved all the necessary documents which are supposed to be within their custody.
In the light of the aforesaid discussion and the observations made therein, this Commission comes to the finding that the OPs acted with the Complainant in a manner which tantamounts to deficiency in service. In the result, the Complainant should get compensated by money.
Consequently, the Complaint Case succeeds on contest with cost.
Points No.2 & 3 are thus decided in favour of the Complainant.
Hence, it is
Ordered
That the Complaint Case No. CC/13/2022 be and the same is allowed on contest with cost Rs.5,000/- against the OP-1 & 2. The OP-1 State Bank of India, Cooch Behar and OP-2 IDBI Bank, N.N. Road, Cooch Behar are jointly and/or severally liable to pay the amount. The opposite parties are directed to pay a sum of Rs.9,000/- towards refund of actual undisbursed money from ATM, Rs.10,000/- towards deficiency in service and Rs.5,000/- towards litigation cost, total Rs.24,000/- to the Complainant within 30 days (thirty days) from the date of passing the Final Order failing which the opposite parties shall pay an interest @ 6% p.a. from the date of passing the Final Order till the date of realization thereof.
Let a 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.
