Sri. Apurba Kr. Ghosh............President.
The Complainant has filed this case u/s 12 of the Consumer Protection Act 1986 against the OP’s and prays for the following orders/reliefs:-
- Direction against the OP’s to pay a sum of Rs. 10,000/- being the amount wrongly debited from the account of the Complainant.
- To pay litigation cost of Rs. 5000/-
- To pay a sum of Rs. 50,000/- as compensation for mental pain, harassment, suffered by the Complainant due to negligence and deficiency of service on the part of the OPs.
- To pay any other relief/ reliefs as this Commission may deem fit and proper.
BRIEF FACT OF THE COMPLAINT
1) The Complainant is a Retired Government Employee and residing within the jurisdiction of this Commission and he has Savings Bank A/C with the OP No. 1 being A/C No. 0830010128193 and has also availed a Debit Card from OP No. 1 Bank.
2) That, on 13.09.2017 the Complainant went to the ATM Counter of the OP No. 2 at Deshbandhu Para to withdraw cash for his personal purpose and the ATM Machine although was functioning, the Complainant used his ATM Card for two transaction for withdrawal of Rs 10,000/- but no such Cash was dispensed by the ATM Machine and the said machine also showed the message as the transaction failed and the Complainant kept waiting in the said ATM Counter of the OP No. 2 for a long time but without any result and ultimately pressing the clear button in the ATM Machine the Complainant left the ATM Counter.
3) That, for withdrawal of money the Complainant thereafter went to the ATM Counter of the OP No. 3 situated at NTS More, Deshbandhu Para Siliguri and made two successful transaction and withdrew cash amount of Rs. 10,000/- + Rs, 4000/- totaling of Rs. 14000/-.
4) That, after few minutes the Complainant received SMS in his Mobile No. 9832365810 showing that, Rs. 24,000/- was debited from his Saving Bank Account vide three transaction, although he had actually withdrawn a sum Rs. 14000/- on 13.09.2017 from the ATM Counter of OP No. 3 but no amount of money was dispensed from the ATM Machine kept in the ATM Counter of the OP No. 2.
5) That, the Complainant became shocked and surprised on receiving the SMS and he rushed to the OP No. 1 Bank at Mahabirsthan Branch and enquired into the matter/ the Bank Official of the said branch intimated him that, such mistakes are common and erroneous SMS are sent by mistake on few occasions and the mistake would be rectified and the Complainant shall receive the SMS to that effect / the official of the said branch advised to wait for some time.
6) That, in spite of such assurance, the Complainant did not receive any SMS thereafter and having no alternative the Complainant approached the OP No. 1 and lodged a complaint by narrating the entire fact and praised for necessary action in this regard.
7) That, on receipt of the complaint, the official of the OP No. 1 intimated the Complainant that, the disputes shall be resolved within a very short period and advised the Complainant to visit Mahabirsthan Branch of the OP no. 1 after few days.
8) That, the Complainant went to Mahabirsthan Branch on 11.10.2017 to enquire into the matter and there he was informed that, his complaint was rejected by stating that, the Complainant had actually made three successful transaction on 13.09.2017 and had withdrawn Rs. 24,000/- in those three transaction and copy of same report was provided to the Complainant.
9) That, the Complainant kept his hard earned money with the OP No. 1 Bank, being custodian of the same with immense faith on sincere service of the OP No. 1 but unfortunately both the OP No. 1and 2 took no initiative to resolve the dispute and have not discharged their duties towards the Complainant.
10) That, the Complainant also demanded and requested the Official of the OP No. 1 to contact with the OP No. 2 and 3 and obtain the CCTV Footage of the said ATM Counter on dated 13.09.2017 to verify whether the complainant was speaking the truth, on which the official of the OP No. 1 replied that they shall do what they are required to do and the complainant need not advise them regarding their duty.
11) That, the Complainant again went to the said branch but of no result and he was harassed/ insulted by the official of the OP No. 1.
12) That, the OP No. 2 and 3 are liable for deficiency of service as it would be either the ATM Counter of the OP No. 2 or 3 where the actual dispute occur and the amount of money of the complainant was falsely debited to the tune of Rs. 10,000/- whereas the Complainant had never withdrawn the said some of money.
13) That, the act and conduct of the OPs amounts to gross negligence, unfair trade practice and deficiency in service within the meaning of Consumer Protection Act 1986.
14) That, the Complainant had suffered financial loss as well as mental pain, agony, harassment, due to willful negligence of the OPs who refused to credit the amount of the complainant which has been wrongly debited.
15) That, the cause of action of this case arose on and from 13.09.2017 within the jurisdiction of this Commission which is still continuing.
In order to prove the case the Complainant has submitted the following documents:
- Photocopy of Bank passbook.
- Photocopy of Online Grievance application
- Photocopy of Application to The Branch Manager, Mahabirstan Branch, United Bank of India, Siliguri.
Notice was issued from this Commission and on receipt on notice the OP’s appears, filed written version separately.
The OP No. 1 in its written version has stated that, the instant complaint case is not maintainable against the OP No. 1 both in law as well as in facts / the Complainant is not at all Consumer as defined under the Consumer Protection Act/ the instant complaint is not at all tenable as the complaint is false, fabricated, manufactured and baseless/ there was no absolute lapses or negligence or deficiency of service on the part of the OP No. 1 in discharging any of its service to the Complainant and there was no fraudulent or mala fide intention or willful act or default on the part of the OP No. 1. In the written version the OP No. 1 further stated that there was no absolute deficiency in service on the part of the OP No. 1 within the meaning of deficiency of service as defined under the Consumer Protection Act.
The OP No. 1 in its W/V has further stated regarding the statements made in Paragraph No 1 that , the Complainant has Savings Account being No. 0830010128193 with Mahabirsthan Branch Siliguri with the OP No. 1 Bank. It is also stated that, the statements made in paragraph no. 2,3,4 of the complaint are absolutely false, fabricated, manufactured, concocted, imaginary, motivated and baseless which are not based on documentary evidence , for which the OP No. 1 has objected. The OP No. 1 has also stated in the W/V that, on 13.09.2017 the ATM Machine situated at Deshbandhu Para, Siliguri of OP No. 2 did not function on two transaction attempted by the Complainant for withdrawal of Rs. 10,000/- from the said account of the Complainant is absolutely false statement of the complainant and the OP No. 1 submits that, the Complainant withdrew and collected Rs. 10,000/- through the ATM Counter of OP No. 2 from the account no. 0830010128193 with the OP No. 1 and transaction was successful and as such the system of ATM itself was debited the sum of Rs 10,000/- though the Complainant falsely stated that, the said ATM Machine also showed the message as transaction failed. The OP No. 1 in its W/V has further stated that., the Complainant drew on two occasions of Rs/10000/- and Rs. 4000/- from the ATM counter situated a NTS More Deshbandhu para siliguri of the OP No. 3 by the Complainant which are also been debited by the system itself and a message was received by the Complainant though SMS in his mobile showing that altogether Rs. 24000/- was debited from the account of the Complainant vide three transaction which were perfect SMS as the Complainant withdrew the sum of Rs. 24000/- in three transaction by using his ATM card by himself.
The OP No. 1 in its W.V regarding statements made in Para no. 5,6,7,8,9,10,11 of the complaint submits that those statements are absolutely false, fabricated, manufactured concocted imaginary motivated and baseless and the OP No. 1 denies the same. The OP No. 1 has also submits that, they have ascertained from the OP No. 2 that, from CCTV Camera footage installed in the ATM Counter of the OP No. 1 that the complainant himself withdrew of Rs. 10,000/- from the ATM Counter of the OP No. 2 on 13.09.2017 by using his ATM Card of his Account lying with Mahabir sthan Branch, Siliguri of OP No. 1 Bank and the allegation of the complainant is nothing but false, manufacture and baseless. With regard to paragraph no. 12,13,14,15,16,17 of the complaint the OP No. 1 submits that, those statements are false, fabricated, manufactured, concocted, imaginary, motivated and baseless and the complainant has filed this case on some false allegation. By filing the instant written version the OP No. 1 praying for dismissal of this case.
The OP No. 2 on receipt of notice appears before this Commission through Vokalatnama, filed written version and denied the allegation of the complainant. In the written version the OP No. 2 has stated that, the complaint has no cause of action to file the instant case against them/ the case is barred by principles of waiver , estoppels acquiescence / the complaint is bad for mis-joinder and non joinder for proper and necessary parties/ the complaint is frivolous, vexatious and liable to be dismissed under section 26 of the Consumer Protection Act/ The complainant has not served any notice to the OP No. 2 before filing of the complaint which violated the principles of natural justice and there was no negligence and deficiency of service on the part of the OP No. 2. The OP No. 2 in the written version as stated that, the statements made in the Para no. 1 of the complaint is matter of record/ the statements made in Para no. 2 of the complaint is absolutely false, fabricated, manufacture, concocted, imaginary motivated and baseless and it is false to say that on 13.09.2017 ATM Machine situated at Deshbandhu Para, Siliguri of OP No. 2 did not function on two transaction attempted by the complainant for withdrawal of Rs. 10,000/- each from his account lying with the OP No. 1 and the OP No. 2 submits that, the complainant withdrew Rs. 10000/- through his ATM Card and the transaction was successful and as such the ATM Machine debited the sum of Rs. 10,000/- . The OP No. 2 has also stated in his W/V that, the complainant has falsely alleged that the ATM Machine was not functioning and the complainant left the ATM Counter without successful transaction but the complainant has withdrawn of Rs. 10,000/- which is established by the J.P. Log of the said transaction and CCTV Footage of the same and thereby the allegation of the complainant are totally false. Regarding statements made in Para no. 3 of the complaint the OP No. 2 submits that, the statements are partly false and partly personal matter between the complainant and the OP no. 1 and thereby the OP No. 2 has nothing to say about the statement of the complainant. In respect of Para no. 4 of the complaint the OP No. 2 submits that, the message which the complainant received through SMS on his mobile no. 9832365810 showing that, altogether Rs. 24,000/- were debited from his account vide three transactions was correct SMS as the Complainant himself has withdrawn Rs. 10,000/- on 13.09.2017 from the ATM Machine of the OP No. 2. The OP No. 2 in its written version regarding the statements made in Para no. 5,6,7,8,9,10,11 of the complaint submits that, the same were the personal matter between the complaint and the OP No. 1 and therefore the OP No. 2 has nothing to say/ the statements made in Para no. 12 of the complaint is false and with regard to the statements made in Para no. 13,14,15,16,17 of the complaint the OP No. 2 submits that, those statements are false, fabricated and not admitted by the OP No. 2. By filing the OP No/. 2 submits that there was no deficiency of service on the part of the OP No. 2 and the thereby the complaint is liable to be dismissed.
On receipt of notice the OP No. 3 appears before this commission through Vokalatnama and also files evidence to falsify the case of the Complainant.
Having heard the Ld. Advocate of both the side and on perusal of the complaint, written version of the OPs as well as documents of the parties the following points are taken to be considered by the Commission.
POINTS FOR CONSIDERATION
- Whether the Complainant is a consumer as per the provision of C.P. Act. ?
- Whether the case is maintainable in its present form and prayer under the provision of the C.P. Act. ?
- Whether there is any cause of action to file this case by the Complainant?
- Whether there was deficiency in service on the part of the OP as alleged by the Complainant?
- Is the Complainant has able to prove this case and entitled to get any relief as prayed for?
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.
To prove the case the Complainant has filed written deposition in the form of an affidavit and also filed some documents by a firisty.
In the written deposition the Complainant has corroborated the contents of the complaint and specifically stated on which day he used his ATM Card, and on which day a sum of Rs. 10,000/- was not dispensed from the ATM Counter though he tried to withdraw a sum of Rs. 10,000/- from the ATM Counter of the OP no. 2. In the written deposition the complainant has also stated on which day he lodged a complaint verbally as well as in writing to the OP No. 1.
At the time of argument Ld. Advocate of the Complainant has stated that the Complainant has been able to prove the case against the OP’s through the evidence of the Complainant. Ld. Advocate of the complainant during the argument has also argued that, the complainant has also filed written notes of argument disclosing everything and also produced some documents to substantiate the case of the complaint. It is also argument of the Complainant that the evidence of the Complainant has not been challenged on the side of the OPs and on the other hand, after receiving the complaint from the Complainant the OP No. 1 collected the CCTV Footage of the ATM Counter of the OP No. 2 and served the copy of the CCTV Footage to the Complainant which specifically corroborated the case of the complaint to the effect that no such amount of Rs. 10,000/- was received by the complainant from the ATM Counter of the OP No. 2 on 13.09.2017. It is further argument of the Complainant that, another person had received the sum of money which is reflected from the CCTV Footage which has been handed over to the complainant by the OP no. 1 but the OP No. 1 as well as OP No. 2 neither took an initiative for providing the sum of money to the Complainant after realizing the same from the said third party nor they lodged any FIR against any person. It is further argument of the Complainant that, the documents submitted by the complainant were not questioned or denied or in any way disputed by the OPs and that shall be deemed to be admitted by the OPs. By filing written notes of argument, the complainant has argued that, he has proved the case through the CCTV Footage provided by the OP No. 1 that he has not withdrawn the sum of Rs. 10,000/- from the ATM Counter of the OP No. 2 and the complainant has also proved that, he lodged a complaint with the OP No. 1 but the OP No. 1 has not taken appropriate action.
Ld. Advocate of the OPs during their argument submits that, the Complainant has filed this case on some false allegation by suppressing the actual fact and they praying for dismissal of this case. Ld. Advocate of the OP No. 1 during argument submits that, they have already filed written notes of argument and stated everything to the effect that, the sum of Rs. 10,000/- was received by the complainant on 13.09.2017 from the ATM Counter of the OP No. 2 . It is further argument of the OPs that, the OP No. 1 has collected the CCTV Footage of the ATM Counter of the OP No. 2 which clearly proves that, the complainant himself had received the sum of Rs. 10,000/- from the ATM Counter of the OP No. 2 by using his ATM card and he also withdrew a sum of Rs. 10,000/ + Rs. 4,000/- from the ATM Counter of the OP No. 3 by using ATM Card. It is also argument of the OPs that, despite receiving Rs. 10,000/- + Rs. 10,000/-+ Rs. 4000/- the complainant has filed this case by suppressing the fact that he had received / collected Rs. 10,000/- from the ATM Counter of the OP No. 2. It is further argument of the OP No. 1 that, they have already ascertained from the CCTV Footage of the ATM Counter of OP No. 2 that the complainant himself withdrew / received the sum of Rs. 10,000/- only from that ATM Counter on 13.09.2017 and the allegation of the complainant is absolutely false and the complainant has not been able to prove the case against the OPs.
Having heard the Ld. Advocate of both the side and on perusal of the complaint, Written versions of the OPs, evidence of the parties as well as documents filed by them, it is admitted fact that, the Complainant has maintained a Saving Bank Account being no. 0830010128193 with the OP No. 1. It is also admitted fact by the parties that the Complainant has also availed a debit card from the OP No. 1. It is also admitted fact that, on 13.09.2017 the complainant used his ATM Card in the ATM Counter of the OP No. 2 for withdrawal of Rs. 10,000/- there from. But in this regard dispute cropped up when the Complainant is claiming that no such sum of Rs. 10,000/- was dispense by the ATM Machine of the OP No. 2 which all the OPs have denied the allegation of the complainant.
Now let us see whether the claim of the complainant is genuine who claim that a sum of Rs. 10,000/- was not dispensed from the ATM Machine of the OP No. 2 when he used his ATM Card for withdrawal of the same AND whether the claim of the Ops are genuine to the effect that, the sum of Rs. 10,000/- was duly received by the complainant on 13.09.2017 which was dispensed from the ATM Machine of the OP No. 2 or not?
From the record, it is needless to mentioned here that, the complainant has lodged not only verbal complaint but also a written complaint with the OP No. 1 disclosing the fact mentioned in the complaint. From the record it is also admitted fact that, the OP No. 1 collected the CCTV Footage from the OP No. 2 in respect of transaction made on 13.09.2017. By producing the CCTV Footage, the OP No. 1 and 2 are claiming that, the Complainant himself is that person who received the sum of Rs. 10,000/- on 13.09.2017 from the ATM Counter of OP No. 2 but the Complainant raised strong objection against the claim of the OPs and it is the case of the complainant that no such sum of Rs. 10,000/- was received by him.
To ascertain the actual fact, this Commission has carefully observed/ watched the CCTV Footage which is lying with this case record and compare the same from the physical appearance of the Complainant wherefrom we came to the conclusion that, the person who collected money from the ATM Counter of the OP No. 2 is not the complainant. From the said CCTV Footage which the OP No. 1 has supplied to the complainant and which is lying with the case record clearly proves the case of the complainant that, the complainant has not withdrawn the sum of Rs. 10,000/- from the ATM Counter of the OP No. 2. The OP No. 1 has also failed to prove its case as to what steps he had taken to settle the dispute of the complainant though he submitted a written complaint in this regard.
Considering all, we are of the view that, the complainant has been able to prove the case against the OP No. 1 and 2 who deliberately submitted misleading statements before this Commission knowing fully well aware that, the CCTV Footage does not disclose the fact of receiving sum of Rs. 10,000/- by the Complainant on that very day. From the evidence of the complainant it is also proved that, the complainant has suffered mental pain, agony due to deficiency of service as well as negligent act on the part of the OP No. 1 and 2 who actually suppressed the true facts before this commission without providing proper service to the complainant though they have duties to serve its esteemed account holder who deposited their hard earned money in the bank account. We are also of the view that, both the OP No. 1 and 2 are jointly and severally are liable to pay the awarded amount to the complainant. .
Hence, it is therefore,
O R D E R E D
That, the instant Consumer Case being in No. 86/2017 is hereby allowed on contest against the OP No. 1 and 2 but in part and dismissed against the OP No. 3.
The OP No. 1 and 2 are directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only to the Complainant which was debited from his account.
The OP No. 1 and 2 are also directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only to the Complainant for mental pain, agony, harassment as well as for deficiency in service on the part of the OP No. 1 and 2.
The OP No. 1 and 2 are further directed to pay a sum of Rs. 5,000/- (Rupees Five thousand) only to the Complainant as litigation cost and OP No. 1 and 2 are also directed to pay interest @4 % per annum to the complainant with effect from 13.09.2017 till making payment of the entire amount.
OP No. 1 and 2 are further directed to pay a sum of Rs. 10,000/- (Rupees ten thousand) only to the Consumer Legal Aid Account of this Commission.
The OP No. 1 and 2 are directed to pay the entire amount within 45 days from this day failing which the complainant is at liberty to take proper steps against them as per law.
Let a copy of this order be given to the parties free of cost.
