The instant case was instituted on the basis of a petition under Section 12 filed by one Nimai Chandra Saha, S/o.- Late Jatindra Mohon Saha, Aged about 68 years, resident of village Chirailpara (K.S.Company Goli), P.O+ P.S.- Kaliyaganj, dist. Uttar Dinajpur which was registered as Consumer Case No. 25/18 in this Forum.

The fact of the case as revealed from the petition of complaint as well as from the evidence is that the complainant is a customer of the O.P United Bank of India of Kaliaganj Branch having a saving bank account bearing no. 43420101587940z.

In the petition of complaint it has been stated that the complainant used to make transactions through the saving bank account and the complainant used to operate the bank account by withdrawl of money through ATM card and the card no has been mentioned in the petition of complaint.

On 07/10/2016 the complainant went to the ATM of the O.P United Bank of India for with drawl of Rs.5000/- from that machine. For the purpose of with drawl of Rs.5000/- the complainant inserted the ATM Card in to the ATM Machine and pushed the buttons but ultimately the amount of Rs.5000/- as demanded was not dispensed from the ATM Machine.

Thereafter, the complainant informed the matter to the Security Guard of the ATM Machine and the Security Guard also tried to dispense the money but the attempt of the Security Guard was also in vain.

Thereafter, the Security Guard make a telephone to the bank from his mobile phone and as per directions of the bank authority the Security Guard of the ATM Machine closed the shutter of the ATM Machine and came to the bank with complainant and the complainant lodged a written complaint. At that time the bank authority assured that the amount will be adjusted but ultimately there was no fruitful result.

Thereafter, on 18/10/2016, 08/11/2016 the complainant lodged a written complaint and on 27/12/2016 the complainant lodged written complaint for refunding the amount of Rs.5000/- after perusing the CCTV Footage but ultimately there was no fruitful result.

On 11/12/2017 the complainant filed a petition before the Asst. Director Consumer Affairs and Fair Business Practice, Uttar Dinajpur Regional office. But inspite of receiving the notice the O.P did not give any response for which the complainant was forced to file the petition before this Forum.

As such the complainant has filed the case for claiming of Rs.5000/- as regard to the amount which was not with drawl from the ATM Machine, Rs.15000/- for mental pain and agony and Rs.5000/- for litigation cost.

The petition has been contested by the O.P United Bank of India by filling W.V. denying all the material allegations as labeled against the O.P contending inter alia that the instant case is not maintainable.

The definite defence case is that on 07/10/2016 the complainant himself withdrew of Rs.5000/- at about 11.13 a.m from the ATM of OP Vide Transaction No. AKL1142U, withdrew Rs.5000/-. In that transaction respond code is 0, it denotes successful transaction. Moreover, in that particular case O.P provided switch report which also clearly fixed that on 07/10/2016 the complainant made a transaction on the aforesaid date and time.

The further case of the O.Ps is that the transaction was successful and the money was dispensed by the ATM Machine and the ATM Card of the complainant was used by the complainant himself. In this regard the O.P has no liability to make any payment to the petitioner/ complainant.

The definite defence case is that the Pin no. was only known to the complainant. No other person had any knowledge about the pin no, so the complainant used the ATM card along with secret pin no and the card was never lost. So, considering such facts and circumstances the instant case is liable to be dismissed with heavy cost.

In this case the complainant Nimai Ch. Saha was himself examined as PW1 and he was cross examined. On the other hand Sri. Kedarlal Meena was examined as OPW1 and he was cross examined.

Now the point for determination whether the complainant is entitled to get any compensation or not get the refund of amount of Rs.5000/- which was not dispensed from the ATM Machine.

               D E C I S I O N   W I T H   R E A S O N S:

 In this case the complainant has made the complaint that after inserting the ATM Card and the amount which was demanded was not dispensed from the ATM Machine. On the other hand the O.P has claimed that the amount has been dispensed from the ATM Machine and the transaction was successful. So, there is no question of non dispensing money from the ATM machine. One party is claimed that money is not dispensed and another party is claimed that money has been dispensed. In this case the CCTV Footage is the best evidence to prove such fact. But no CCTV Footage has been filed by the O.P. The Ld. Lawyer of the O.P. submitted that CCTV Footage can be preserved for six months from the date of occurrence but six months already lapsed. So, no CCTV Footage is preserved. But the reply given by the O.P. is not at all believable as because the complainant has made a written complaint on 29-12-2016 to the Branch Manager, Kaliyaganj of United bank of India and requested the Bank Manager to see the CCTV Footage.  The Bank Manager had the knowledge that a complaint has been lodged regarding non dispensing of money from the ATM Machine. But no satisfactory reply has been given by the Bank authority why the CCTV Footage has not been preserved. Though the complainant lodged a complaint within the period of six months and specifically mentioned to take decisions on seeing the CCTV Footage. So, it arises strong suspensions on the part of the O.P why the CCTV Footage has not been preserved. Though the written complaint has been made by the complainant within the short time form the date of occurrence. In this case CCTV Footage is the best evidence to prove the fact that the money was with drawl form the ATM Machine and the complainant received the amount or not. But nothing has been done. It may be the fact that due to the technical defect of the machine the amount has not been dispensed from the ATM Machine. Though it shows the transactions was successful. In such cases CCTV footage is very vital. In this regard the Ld lawyer of the complainant referred the case Law reported in State Bank Of India Vs. K.K.Bhalla. On perusal of the case law it is found that the District Forum directed to examine the CCTV footage of relevant time. But after enquiries the District Forum was informed by the bank that CCTV Footage from the ATM Machine was not available. For this reason the District Forum accepted the complaint and directed the Bank authority to credit in the saving bank account of the complainant. But the Honable NCDRC did not accept the view of the District Forum. But this case law is not applicable for the instant case as because within 90 days of the incident, the complainant informed the bank authority to take decision on perusal of the CCTV Footage. But nothing has been done.  In the reported case law the complainant did not inform the bank for preservation of the CCTV Footage within the 90 days. It is not understood why the bank authority did not preserve the CCTV Footage and why the bank authority had received the complaint that the money has not been dispensed form the ATM Machine. It is nor the case of the complainant that the pin no was known to another person to with drawl the money from the ATM Machine as because it is the case of the complainant that he himself went to the ATM and used to his ATM Card along with pin no. So, in this regard this reported case law is not maintainable for the instant case. The main fact is that after inserting the ATM card and by putting the pin no the amount has not been dispensed from the ATM Machine. So, considering such facts and circumstances the bank authority should preserved the CCTV Footage as the complaint lodged a written complaint on 29/12/2016 and the incident took place on 07/10/2016. So, considering such facts and circumstances the complainant is entitled to get relief as follows.

C.F. paid is correct.

Hence, it is, 

                                 O R D E R E D:

That the instant case being No. CC 25/18 be and the same is allowed on contest against the OPs. but with cost.

The complainant is entitled to get Rs.5000/- as regard to the amount which was not dispensed from the ATM machine on 07/10/2016. Besides that the complainant is entitled to get Rs.2500/- as litigation cost and Rs.5000/- for mental pain and agony and the total amount comes to Rs.12500/-.

The O.Ps are directed to pay the amount within 45 days from the date of order failing which it will carry interest at the rate of 5 % per annum from the date of order.

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