Hon’ble Mr. Haradhan Mukhopadhyay, President.
The Financial imbroglio in withdrawing money faced by the Complainant driven him to take recourse of this Commission for redressal of his grievances. The basic fact of the said grievance of the Complainant is reduced here in below in black and white to the extent that the Complainant Bidhan Ch. Roy is a customer of O.P. No.1 U.B.I. having account No.0240011483839. On 27th February,2017 he tried to withdraw money by using his ATM card but each time there was massage as “Sorry unable to process”. Lastly at about 8.30 P.M. in the night he could withdraw the money from the ATM counter of IDBI bank to the extent of Rs.20,000/- in two times @ Rs.10,000/- each. At that time the Complainant got an SMS through his Mobile phone that a sum of Rs.60,120/- debited @ Rs.10,020/- each time for 6 times which means that the sum of Rs.40,080/- was debited in excess from his account. It is pertinent to mention here that as per Banking Rules, not more than a sum of Rs.28,000/- could be withdrawn in a day from his account by using the ATM card. Then how he could draw the said sum of Rs.60,000/- in a day from his account. Further, he thought that it was a technical error on the part of the ATM and as such he waited for a few days. Thereafter on 3rd March, 2017 he lodged a complaint to the UBI, Cooch Behar Branch. After a few days without getting any response, he contacted with the said bank O.P. No.1 but each time he was asked to refile the complaint. Accordingly he lodged three complaints in all. Lastly in the month of June, he was told by the bank that the said O.P. No.1 bank could not solve the problem and he was advised to contact with the customer service centre of the bank. Finally having found no alternative the Complainant lodged the written complaint before this Commission with the prayer for refund of the said sum of Rs.40,080/- and Rs.45,000/- as compensation for mental pain and agony in the form of an award in his favour.
The O.P. No.1&2 both denied each and every allegation of the Complainant.
The positive defence case of the O.P. No.1 in brief is that the Complainant withdrawn money from the ATM machine of the O.P. No.2 and not from O.P. No.1. The Complainant or his representative did not contact with the Branch Manager of O.P. No.1 bank. The present complaint was filed after the lapse of couple of months against the OP bank and falsely implicated in this case. If there is any dispute arose in this case regarding the transaction of ATM, O.P. No.2 is liable for the same.
The O.P. No.2 therefore claimed that the complaint is liable to be dismissed with cost. The O.P. No.2 also denied each and every allegation of the written complaint. The positive case of the O.P. No.2 in brief is that the Complainant claimed that he punched the card of ATM machine 2 times and each time there was same result that “ sorry unable to process”. Then why did he punch the said card for another 2 times. As per banking rules if a card holder of one bank withdraws money from the ATM of another bank then the concerned bank should refer to the bank of which the ATM card was used and the trouble detected but in the instant case the O.P. No.1 UBI, Cooch Behar Branch did not follow this rules. Had the O.P. No.1 bank authority followed the said rules then the O.P. No.2 SBI, Cooch Behar Branch could have solved the trouble properly. Since proper steps were not taken by the O.P. No.1 bank, so the O.P. No.2 bank is not liable for any dispute. In case of any trouble, the head Office of the O.P. No.2 bank uses to take appropriate steps and by following the procedure properly. The disputed amount is usually credited to the account of the party concerned. The allegation of the O.P. No.2 bank is false and concocted without any basis, made just to, harass the O.P. No.2. The O.P. No.2 therefore prayed for that the complaint is liable to be dismissed with cost.
The respective case of the parties and the point in dispute involved and the instant case, demand for ascertainment of following points.
POINTS FOR DETERMINATION
- Whether the Complainant is consumer under the C.P. Act?
- Whether the Complainant used the ATM card to withdraw money on the available day?
- Whether despite using ATM card the Complainant did not receive the money as alleged?
- Whether the unsuccessful transaction vis-a vis the accounts of the O.P. No.1 & 2 tantamounts to deficiency in service?
- Whether the Complainant sustained mental pain and agony due to the Act of the O.P. No.1 & 2?
- Whether the Complainant is entitled to get an award as prayed for?
- To what other relief if any the Complainant is entitled?
DECISION WITH REASONS
Point No.1.
It is fact that the Complainant alleged that he is a customer under the O.P. No.1 bank and he had transaction on the fateful day on 27.12.17 through ATM machine by using his ATM card at the O.P. No.2 bank. The documents filed by him in the form of annexure discloses that he had a bank account under the UBI, Cooch Behar Branch having account No.0240011483839. The annexure as well as the W/V of the O.P. No.1 & 2 discloses the varacity of the Complainant regarding his status as a consumer under the O.P. No.1 & 2. In addition to that the O.P. No.1 did not deny that the Complainant is not a customer under the O.P. No.1 bank.
Therefore the Commission is of the view that the Complainant is a consumer under the O.P. No.1 bank and his transaction with O.P. No.2 on the fateful day also justifies his complaint against both the O.P. No.1 & 2.
Accordingly the point No.1 is answered infavour of the Complainant.
Points No. 2,3,4,5,6 & 7.
All the points are closely interlinked to each other and accordingly the Commission finds it reasonable and proper to decide all the points together.
The Complainant in order to establish his claim and the allegation against both the O.Ps adduced both documentary evidence as well as evidence on affidavit. In order to ascertain the varacity of the complaint of the Complainant and the justification of his claim let us look into the evidence on record of both the parties.
If we appreciate the evidence it would be found that the annexure like the pass book of the Complainant revealed that he is a customer under the O.P. No.1 bank. The transaction dated 27.02.17 as per the savings pass book further reveals that cash was debited to the extent of Rs.10,020/- each time for 6 times. If we compare the said entries of the pass book of the Complainant with the massage came out, it would be revealed that the bank account of the OP ending with 4 digits NO.3893 was debited by Rs.10,020/- on 20.02.17.
The voucher in the form of mini statement against the account number of the Complainant came out through the ATM Kiosk also reveals that a sum of Rs.60,0120/- was debited against his account at the rate of Rs.10,020/- for 6 times. But the JP Log submitted by the OP which was called for at the instance of the Commission depicts that a sum of Rs.20,000/- was withdrawn from the account of the Complainant.
Another document placed before the Commission is also taken into the scanner wherefrom it can be had that during mediation on dated 29.06.17 the O.P. No.1 bank authority had contacted with the O.P. No.2 SBI at Cooch Behar over telephone wherein the bank authority told that 4 transactions were successful. Therefore the mediation failed.
Ld. Defence counsel argued that the Complainant could not disclose the ATM card number.
The JP log is the important document wherefrom the actual transaction of a customer through ATM counter can be ascertained.
After scrutiny of the said JP Log it can be found that save and except the two transactions dated 27.02.17 there was no transaction. But the JP Log discloses different card number whereas the mini statement of SBI discloses that a single card was used ending with 4 digits number 5255.
The Complainant filed original ATM card having the No.4213190240055255. Thus although the actual fact could not be ascertained through the JP Log yet the mini statement of the O.P. No.1 bank in respect of the ATM card of the Complainant clearly reveals that 6 times transaction took place for a sum of Rs.10,020/- each time. That being the state of affairs, so the benefit of doubt should be given to the Complainant in as much as the OP bank failed to produce the necessary document despite having custody of the document with them. In other words the O.Ps failed to comply with the provisions of the Evidence Act wherein it is unequivocally laid down that if a party fails to produce the documents in their custody then adverse presumption against them could be drawn.
This anomaly between the mini statement of the ATM Kiosk and the JP Log leads the Commission to hold that there was some technical defect in the machine of the OP for which the allegation of the Complainant has been fortified.
In the back drop of the aforesaid discussion and analysis of both the oral and documentary evidence the Commission is of the view that the Complainant successfully proved that on the fateful day he could withdraw Rs.20,000/- and did not get the said sum of Rs.40,000/- which has been debited from his account and so far as the squabbling between the O.P. No.1 & 2 is concerned regarding who will pay the said money, the Commission is of the view that the accountability of both the parties do runs jointly and severally. It has already been proved that the Complainant used the ATM card of O.P. No.1 bank and the transaction took place through the ATM Kiosk of O.P. No.2 bank SBI Cooch Behar. Therefore both the O.P. No.1 & 2 are jointly and severally liable to repay the disputed amount.
In view of the aforesaid observation the Commission comes to the findings that the case of the Complainant stands proved against both the O.P. No.1 & 2.
Accordingly issue No.2 to 7 are decided positively infavour of the Complainant. The aforesaid misdeeds on the part of the O.Ps tantamount to deficiency in service.
Consequently, the Complainant's case succeeds on contest with cost.
Hence,
it is ordered
That the complaint case be and the same is allowed on contest with cost of Rs.1,000/-. The Complainant do get an award of Rs.40,080/- against the O.P. No.1 & 2, Rs.5,000/- towards deficiency in service and mental pain and agony and Rs.1,000/- towards litigation cost.
The O.P. No.1 is directed to pay the said sum of Rs.46,080/- to the Complainant within 30days from the date of passing the Final Order failing which the Complainant shall be entitled to recover alongwith interest @ 6% per annum from the date of passing order till the date of realization. The O.P. No.1 shall be entitled to recover the said amount from O.P. No.2 as per the banking regulation.
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.
Dictated and corrected by me.
