Sri. Apurba Kr. Ghosh ……...................President

The Complainant has filed this case u/s 11 and 12 of the Consumer Protection Act 1986 against the OP’s and praying for the following relief / orders:-

1. Direction against the O.Ps to return the amount of Rs. 10,000/- to the Complainant which was illegally deducted.
2. Direction against the O.P to pay compensation of Rs. 50,000/- to the Complainant for causing mental pain, agony and harassment caused to the Complainant by the OP.
3. Any other relief or reliefs to which the Complainant is entitled as per law.

BRIEF FACT OF THE COMPLAINT

1. The Complainant is a Consumer of the OP as he maintained his salary account being no. 380502011913685 with the OP Bank and he has ATM Facility having ATM Card No. 6521633805007122.
2. That, the Complainant on 16.12.2017, tried to withdraw an amount of Rs. 10,000/- from the Branch of the OP situated at Kaliaganj but the money was not handed over from the machine to him, which was fault of the said machine but the sum of Rs. 10000/- was deducted from the Bank Account of the Complainant (ATM Slip is annexed a Annexure A).
3. That, the said ATM transaction was taken place at 01:03 PM to 01:04 PM on 16.12.2017 and the fact was intimated by the Complainant to the OP over telephone on the same day and also intimate the same to the OP in writing on 10.01.2018 and at the same time he annexed the Xerox copy of Passbook, Xerox copy of ATM card along with ATM Slip (The received copy of the letter is annexed as Annexure B).
4. That, the Complainant made a complaint before the pre-litigation center at CAFBP, Siliguri / Notice was served on 16.03.2018 to the OP stating the date of their appearance on 05.04.2018 but they did not turned up. (Xerox copy of pre-litigation papers is annexed as Annexure C & D).
5. That, the Bank Statement of the Complainant clearly disclosed that, money was deducted from the account but the cash was not handover from the ATM Machine and thereby there was deficiency in service on the part of the OP.
6. That, the OP has not acted in fair way  by providing proper service for interest of the customer who can easily verify the excess amount of Rs. 10,000/- on the end of the day from the ATM Account of Kaliaganj but the OP did nothing.
7. That, the cause of action of this case arose on 16.12.2017 when the amount was deducted and thereafter on each and every date when the Complainant requested the OP to return back the said sum of money which was wrongly deducted.
8. That, the Banker is supposed to safeguard the interest of the depositors when his amount of money is entrusted in the custody of the Bank and the Bank is liable to return the amount with interest and no Banker can unilaterally and arbitrarily transfer money of a depositor from his account and deposit in the account of another customer and that, act is deficiency in service by the Bank [1991 (1) CPR 571 – SCDRC, New Bombay, Maharashtra].

In order to prove the case the complaint has filed the following documents:-

1.  ATM Slip is annexed as Annexure A,
2. The received copy of the letter is annexed as Annexure B
3. Xerox copy of pre-litigation papers is annexed as Annexure C & D.

Notice was issued from this Commission upon the O.P which was duly served. On receipt of notice the OP appears before this Commission through Vokalatnama, filed their W/V, denied all the material allegation of the Complainant. In the W/V the OP has stated That,, the Complainant has filed this case on some false allegation / the Complainant has no cause of action to file this case / the complaint is not maintainable either in law or on fact/ the complaint is misconceived, misdirected and vexatious / the case is bad for mis-joiner and non joinder of proper and necessary parties. In the written version the OP has also stated that, the statements made in Para no. 1,3,4 of the complaint are matter of record the Complainant is bound to prove the same strictly / regarding the statement made in Para no. 2 of the complaint the OP has stated that, the Complainant had received the cash from the ATM Machine and the OP denied the ATM Machine is/was suffering from fault / regarding Para no. 5 and 6 of the Complainant the OP has stated that, cash amount of Rs. 10,000/- was delivered from the ATM Machine to the Complainant on 16.12.2017 at 13:02 i.e 01:02 PM vide ATM Card No. 0521633805007122 and the amount was duly debited in his account no. 380502011913685 on the same day and after the said withdrawal of Rs. 10,000/- the ledger balance (available balance) of the Complainant’s account was of Rs. 2629.14/- and on the same day at 13:03 i.e on 01:03 PM the Complainant again attempted to withdraw cash from the ATM with the same ATM Card but the transaction was declined due to insufficient balance in his account. / in the W/V the OP has stated that, the Bank has no fault and there was no deficiency of service on the part of the Bank. In the written version, regarding statements made in Para no. 9 to 11 the OP has stated that,, the incident was took place on 16.12.2017 at Kaliaganj but written complaint was filed with Kaliaganj Branch after two days i.e on 18.12.2017 and thereafter with Siliguri Brach on 10.01.2018 and the OP Bank has taken all legal and procedural steps with regard to the complaint filed by the Complainant and from the record of the OP Bank it is clear that, the Complainant received money from ATM Withdrawal / with respect to statements made in para no. 7 of the complaint, the OP has stated that,, there was no cause of action in filing of this case in the year and date as stated in the complaint / the OP has also stated that, the Complainant does not disclose any cause of action and the case is meritless as well as vexatious, harassive and the Complainant has filed this case with an ulterior motive to extort compensation amount by suppressing the material fact before this Commission which the Complainant is not entitled. By filing the written version the OP prays for dismissal of this case.

Having heard the Ld. Advocate of both the parties and on perusal of the Complaint, Written version, as well as documents filed by both the parties the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1. Whether the Complainant is a Consumer?
2. Whether the case is maintainable under the C.P. Act ?
3. Whether there is any deficiency in service on the part of the O.P’s. as alleged by the Complainant?
4. Whether the Complainant is entitled to get any award and relief as prayed for as per the prayer of his Complaint?

                   DECISION WITH REASONS

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

In order to prove the case the Complainant has filed Written Deposition in Chief in the form an Affidavit wherein the Complainant has categorically stated and corroborated the contents of the Complaint. In the written deposition the Complainant has stated on which day he tried to withdraw a sum of Rs. 10,000/- by using his ATM Card from the Kaliaganj ATM Counter. The Complainant has further stated in his evidence though the sum of Rs. 10,000/- was deducted from his Bank Account but he did not get the said sum of money from the ATM Machine when he used his ATM Card. The Complainant has further stated in his evidence which is supported by an affidavit that, immediately after the incident, he informed the matter to the OP Bank verbally and also intimate the fact in writing on 10.01.2018 but the OP took no initiative to give proper service to him by handing over the sum of Rs. 10,000/- though the OP Bank was duty bound to refund the same.

At the time of hearing of argument, Ld. Advocate of the Complainant submits that, the Complainant has already filed written notes of argument and stated everything. He further argued that, the Complainant has been able to prove this case against the OP not only by adducing written evidence but also by producing relevant documents in this regard. It is further argument of the Ld. Advocate of the Complainant that, despite receiving the written complaint from the Complainant the OP did nothing to settle the matter so that, the Complainant could get the sum of Rs. 10,000/- which was wrongly deducted from his account. It is further argument of the Complainant that, there was clear deficiency of service on the part of the OP and the Complainant is entitled to get the relief as prayed for.

To falsify the case of the Complainant the OP Bank was given opportunity to adduce evidence and the OP adduced evidence before this Commission, denied all the allegation of the complainant. In the written evidence the OP has corroborated the content of the W/V  and has also stated there was no deficiency of service on the part of the OPs and by suppressing the actual fact the complainant has filed the frivolous application against the OP.

At the time of hearing of argument, Ld. Advocate of the OP submits that, they have also filed written notes of argument, where they specifically stated that, by suppressing the material fact the Complainant has filed this case with an intention to extort compensation amount. It is further argument of the OP that, the money was duly handed over to the Complainant from the ATM Machine on the date of the alleged incident which the Complainant has suppressed in his complaint. It is also argument of the OP that, the Bank account of the Complainant clearly shows that, the sum of Rs. 10,000/- was deducted and the Complainant has failed to prove its case against the OP though on the self same day i.e 16.12.2017 for the second time the Complainant used his ATM Card for withdrawal of Rs. 10,000/- which was declined due to insufficient fund in the Account.

Having heard the Ld. Advocate of both the sides and on perusal of the evidence of the Complainant and on perusal of the documents filed by the parties, it is admitted fact that, the Complainant was an account holder of the OP Bank having his Account No. 380502011913685 with the facility of ATM Card being no. 0521633805007122. It is also admitted fact by both the parties that, the Complainant used his ATM Card on 16.12.2017 for withdrawal of Rs. 10,000/- from the OP’s Kaliaganj ATM Counter.

Only dispute between the parties is that, the Complainant is claiming that, no such amount of Rs. 10,000/- was given to him from the ATM Counter but the OP is claiming that, the said sum of money was duly received by the Complainant from the said ATM Machine when the Complainant used the ATM Card.

Now let us see, how far the Complainant has been able to prove the case against the OP and how far the OP has been able to falsify the case of the Complainant?

From the evidence of the Complainant it is proved that, on 16.12.2017 the Complainant himself informed the OP Bank that, he did not get a sum of Rs. 10,000/- when he used his ATM Card in the Kaliganj ATM Counter. The Complainant in his evidence has also stated that thereafter as per instruction of the OP he lodged a written complaint on 10.01.2018 but the OP took no initiative for redressal his grievance. That evidence of the Complainant has not been challenged by the OP through Cross examination or by producing valid evidence on their behalf. On the other hand, in the written notes of argument, the OP has claimed that, the sum of Rs. 10,000/- was duly received by the complainant which shows from his Bank Statement. In this regard, apart from the bare claim the OP did not produce any documents to substantiate about the receipt of money by the complainant. In this case, we can safely say that, the OP had the opportunity to prove the grievance of the complainant by producing CCTV Footage of that ATM Counter. But the OP Bank neither preserved the CCTV Footage of that ATM Counter to show that, the sum of Rs. 10,000/- was duly received by the complainant nor the OP Bank produced the CCTV footage of that ATM Counter before this Commission so that, we can verify the same as to whether the complainant himself had received the sum of money or not. That, non-preserve of CCTV Footage of the ATM Counter and non-production of the same before this  Commission is nothing but the deficiency in service on the part of the OP Bank and it will go agents the OP u/s 114(G) of the Indian evidence act. as they had the duty to preserve the money of the Account Holder in their bank and to pay the same to the customer with interest. The duty which is cast upon the OP Bank had not been performed properly by giving proper service to its esteemed account holder.

It is also claim of the OP Bank who disclosed that, the complainant on the self same day had tried to withdraw a sum of Rs. 10,000/- for the second time which was declined due to insufficient of fund. That, defense case of the OP has fairly corroborated the case of the Complainant as it is quite natural that the Complainant for his urgent need used the ATM Card for the first time which was declined by not making payment to him from the ATM Counter and that’s why he again tried to use his ATM Card for withdrawal of money.

The OP Bank in his written version, as well as in written notes of argument, has specifically admits that, the complainant made a complaint on 10.01.2018 but the OP Bank has failed to prove / explain before this Commission as to what steps had been taken by them for redressal of the  grievance of the complainant. 

Considering all, we are of the view that, there was clear deficiency of service on the part of the OP bank who deliberately did not give proper service by taking steps to collect and preserve the CCTV Footage of the ATM Counter knowing fully well aware that, being a Bank he had the duty to give proper service to its esteemed customer which they fails.

Hence,

      It is therefore,

                                      O R D E R E D

That, the instant Consumer case being no. 89/2018 is hereby allowed on contest but in part. The OP is directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only to the complainant which was debited from his bank account and which was not received by him at the time of using ATM Card. The OP is further directed to pay a sum of Rs. 30,000/- (Rupees Thirty Thousand) only to the complainant towards compensation as well as for causing mental agony and harassment and the OP is also directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only to the complainant towards cost of legal proceedings. The OP is further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only in the Consumer Legal Aid Account of this Commission.

The OP is directed to pay interest @4% per annum to the complainant on the awarded amount w.e.f. the date of filing of this Case till making payment of the entire amount. The OP is further directed to pay the awarded amount within 45 days from this day failing which the complainant will have liberty to take proper steps against the OP as per law.

Let the copy of this order be given to the parties free of cost.

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