Ld Advocate for the parties. Judgement is delivered in open Commission in 4 pages 2 sheets of paper. It is ordered that CC/34/2019 be and the same is allowed on contest against OP1 and dismissed exparte against OP2. Let the judgement  be kept with record. 

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s case is that the complainant is a permanent inhabitant of above mentioned address within this jurisdiction. That O.P. NO.-1 is the banker of the Complainant and O.P. No.2 is involving/necessary party in c/w the subject matter of this case and having same liabilities with O.P. No.-1. The Complainant  opened a bank account at O.P. No.1 branch at Mahisadal which is treated as a Savings A/C, bearing Account No.-32761869375 and said banker i.e. O.P. No.-01 issued an ATM card in favour of the complainant bearing card No. 5596010089425472. Owing to necessity to withdraw money, the complainant used the said ATM card for withdrawal of money from said savings account.  The O.P. No.2 PNB Chaitanyapur Branch installed their ATM Machine near Cinemamore, Mahisadal. On 08.09.2018 balance amount of Rs. 18,102.50/- was laying in said account of the complainant. For an urgent requirement of money on 08.09.2018 the Complainant went to ATM counter of O.P. No.2 to withdraw of money. He inserted his debit card in to ATM and entered PIN code for proceeding to withdraw money of Rs. 10,000/- but no money come out from ATM  of O.P. No.-2 and the complainant did not receive or collect any money from OPs except a transaction slip/ withdrawal slip, but O.Ps illegally debited Rs. 10,000/- from savings account of the complainant. Then and then the complainant calling over mobile phone to O.P. No.2 from lodging complain regarding non withdrawal of money and illegal reflection in transaction slip as withdrawal Rs. 10000/- but after several attempt the complainant could not connect their phone number. On the same day 08.09.2018 the complainant could not able to meet with the O.P. no -01 due to bank closure but informed him regarding said matter and registered complaint lodge bearing complain No. 4738181878 over telephone. For necessity of money the complainant had withdrawn  Rs. 8,000/- from ATM Counter of O.P. NO.-01. On 10.09.2018 the complainant submitted a written complaint before O.P. No.01 regarding false debit of Rs. 10,000/- from his account without any cash withdrawal and requested to refund 10,000/- in the account of the complainant. On the same day O.P No.1 assured the complainant to solve the problems very shortly but in vain till today Ops did not take any proper steps to solve the problem. The complainant met with the O.P. No.1 regarding said matter, on that day O.P. No.-01 disclosed that “ATM Bank has confirmed this transaction successful, relevant documents sent to the Branch” and said sentence was written on application copy of the complainant. On the same time the complainant protested against such types of false, illegal and baseless comment and again requested O.P. No.-01 to investigate the matter properly and to solve the problem. After several reminder and request to O.P. members to solve the matter but in vain, OPs intentionally, deliberately, grossly neglected to save/protect their consumer and for that they are fully liable and responsible. It is great regretting that, OPs intentionally, deliberately, afterthought by ill intention and ill motive they passed comment as “transaction successful” to the complainant. Such types of comment by the Ops are totally false, baseless, illegal, unlawful and bad in law. The complainant send a notice/letter to the OPs on 02.11.2018 through registered post and same was received by O.P. members but no steps has been taken by them till today and the complainant was compelled to take shelter of law before Ld. Commission. The complainant on several occasions requested to the Ops for solve the matter but no fruitful result came out from Ops side. That Ops deliberately, willfully, intentionally did not solve the problems as such complainant suffered mental pain and agony.  The complainant submits that, the Ops are not interested to solve the problem, which has caused grave mental pain and untold hardship to the complainant for which Ops are responsible and liable jointly and severally. The cause of action arose of this case on and from 08.09.2018. The other submissions will be submitted at the time of hearing of the instant complaint. In the aforesaid circumstances the complainant/petitioner has been constrained to take the shelter of law. Under such circumstances the complainant/petitioner humbly prays for passing necessary order/orders for crediting/refunding Rs. 10,000/- in the complainant’s account and for compensation of harassment, mental pain and agony etc. of Rs. 5,000/- For litigation cost of Rs. 2,000/- For other relives as the complainant is entitled to get as per law and equity.

        Notices of the case were duly served upon the ops, however the O.P-2. preferred to see that the case be decided ex-parte against it. The op-1has contested the case by filing written version against the complaint. The summery of the written version is that the allegations made against the O.P. No.1 by the complainant are all false. The prayers of the complainant are baseless vague, incorrect, unjustified, without jurisdiction and illegal. The petition of the complaint is not maintainable in its present form, prayer and in law. The petition is barred by law of limitation. The petition is barred under section 12 of Consumer Protection Act, 1986. The Complainant has no locus standi to file this complaint. The statements which are not specifically denied by the O.P. No. 1 those statements are not admitted by this O.P.  OP-1 has prayed that the Commission would be graciously pleased to dismiss the case.

Points for determination are:

1.  Is the case maintainable in its present form and in law?

2.  Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused the affidavit of the complainant and evidence produced by Complainant ie examination in- chief on affidavit filed by complainant, Questionnaire filed by op-1 and reply there to by the complainant. On appraisal of the materials on records along with bundle of facts it appears that the complainant is a Consumer in respect of the use of the Debit Card made by him with the O.Ps. The case is maintainable in its present form and in law.

Now, it appears that the complainant has stated on oath that O.P. No.-01 issued an ATM card in favour of the complainant bearing card No. 5596010089425472. Owing to necessity for withdrawal of money, the complainant used the said ATM card for withdrawal of money from said savings account.  The O.P. No.2 PNB Chaitanyapur Branch installed their ATM Machine near Cinemamore, Mahisadal. On dated 08.09.2018 balance amount of Rs. 18,102.50/- was laying in Account No.-32761869375 of the complainant. For an urgent requirement of money on 08.09.2018 the Complainant went to ATM counter of O.P. No.2 to withdraw money. He inserted his debit card in to ATM and entered PIN code for proceeding to withdraw money of Rs. 10,000/- but no money come out from ATM  of O.P. No.-2 and the complainant did not receive or collect any money from OPs except a transaction slip/ withdrawal slip, but O.Ps illegally debited Rs. 10,000/- from savings account of the complainant. Then and then the complainant called over mobile phone to O.P. No.2 for lodging complain regarding non withdrawal of money and illegal reflection in transaction slip as withdrawal Rs. 10000/- but after several attempt the complainant could not connect their phone number. On the same day 08.09.2018 the complainant could not be able to meet with the O.P. no -01 due to bank closure but informed him regarding said matter and registered complaint lodge bearing complain No. 4738181878 over telephone. For the necessity  of money the complainant had withdrawn  Rs. 8,000/- from ATM Counter of O.P. NO.-01. On 10.09.2018 the complainant submitted a written complaint before O.P. No.01 regarding false debit of Rs. 10,000/- from his account without any cash withdrawal and request to refund 10,000/- in the account of the complainant. On the same day O.P No.1 assured the complainant to solve the problems very shortly but all effort went in vain . Ops did not take any proper steps to solve the problem.

Now, with a view to challenging  the said version of complainant,op-1 has not adduced any evidence on its behalf. The op-1 has not submitted any specific denial against the specific allegations made by the complainant. It is very much clear that the complainant took every possible steps on his behalf to place his grievances immediately after the occurrence. The complainant was continuously harping on the fact that he used the debit card after following all the commands reflected on the screen of the ATM but no money was disbursed or  tendered by the machine. As and when the said amount of Rs.10,000/-was not reversed to the complainant’s account ,it was the duty of op-1 to ask the op-2 to preserve its CCTV  footage of the ATM of op-2 .Here ,the op-1/ the banker did not conduct any material investigation to redress the grievances of its customer. The best evidence was lying with the op-1 to show that complainant got the  money from the teller machine but it could not produce the same; it was with held, the presumption should go against op-1, We find that there is substance in the allegations made by the complainant to the effect that the complainant on several occasions requested to the Ops for solving the matter but no fruitful results came out from Op-1 side. The Op-1 deliberately, willfully, intentionally did not solve the problems as such complainant suffered harassment, mental pain and agony.  The Ops were not interested to solve the problem, which has caused grave mental pain and hardship to the complainant. The op-1, being a banker of complainant , has set an instance of grave deficiency of service as banker of the complainant. Here, the op-2 is not liable or answerable to the complainant.

So, the complainant is entitled for getting refund of Rs. 10,000/- along with simple interest @ 6 % per annum from the date of filing of this case till realization in the complainant’s account and for compensation of Rs.5000/-for harassment, mental pain and agony etc. of Rs. 2,000/- as towards litigation cost.

Thus , both the points are decided in favour of the complainant.

The complaint case succeeds.

Hence, it is

O R D E R E D

That CC/34 of 2019 be and the same is allowed on contest against OP-1 and dismissed ex-parte against OP-2.

The Opposite Party-1 is hereby directed to refund of Rs. 10,000/- along with simple interest @ 6 % per annum from the date of filing of this case till realization  and to pay compensation of Rs.5000/-for harassment, mental pain and agony etc. and of Rs. 2,000/- as towards litigation cost to the complainant within 45 days from the date of this order, failing which the complainant will be at liberty to put this order into execution.

Let copy of the judgment be supplied to the complainant and op-1 free of cost.