IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 92/S/2010. DATED : 30.03.2011.
BEFORE PRESIDENT : SMT. ANITA DEBNATH,
Ex-Member of W.B. Higher Judicial Services and
Addl. Dist. & Session Judge,
President, D.C.D.R.F., Siliguri.
MEMBERS : SMT. PRATITI BHATTACHARJEE
&
SRI ASIT RANJAN DAS.
COMPLAINANT : SRI PARITOSH DAS,
S/O Sri Prafulla Ranjan Das,
Resident of Rabindra Nagar Colony,
Upper Bagdogra, P.O. & P.S.- Bagdogra,
Dist.- Darjeeling.
O.Ps. 1. : THE REGIONAL MANAGER,
State Bank of India, Mangaldeep Branch,
Hill Cart Road, P.O. & P.S.- Siliguri,
Dist.- Darjeeling.
2. : THE BRANCH MANAGER,
ATM, State Bank of India,
Station Feeder Road,
P.O. & P.S.- Siliguri, Dist.- Darjeeling.
FOR THE COMPLAINANT : Sri Arun Mishra, Advocate.
FOR THE OPs : Sri Ajay Chaudhuri, Advocate.
J U D G E M E N T
The complainant has a Savings Bank Account being No.2018122250 with the OPs/State Bank of India having facility of ATM Card bearing No.622018. On 03.04.10 the complainant deposited a cheque bearing No.065682 drawn with Central Bank of India, Bagdogra Branch for a sum of Rs.18,092/- in his Savings Bank Account. On 10.04.10 with the consent and knowledge the father of the complainant, Sri Prafullya Ranjan Das had been to the ATM counter, Bihar More, Bagdogra for making enquiry about the encashment of the said cheque. Thereafter, the father of the complainant after adopting all precautionary measures to operate the ATM Card pushed the ATM card in the ATM
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counter of Bihar More, Bagdogra. But surprisingly, he came to know that the closing balance of the said account was Rs.402/-. So, the complainant made enquiry through the said ATM counter at Bihar More, Bagdogra and collected statement of Account where from he came to know that a sum of Rs.19,000/- had already been withdrawn on 10.04.2010 and closing balance has Rs.402/- only. Thereafter, the complainant narrated the entire fact to the Branch Manager who assured to make enquiry and/or look after the case. But in spite of repeated request the OP did not take any proper steps as a result of which it caused mental pain, agony and harassment to the complainant. Due to deficiency of service on the part of the OP the complainant sustained loss. Hence, this case supported by affidavit.
The OP contested the case by putting Written Version supported by affidavit denying each and every allegation as made there in with a specific defence that the case is not maintainable under the provisions of Consumer Protection Act, 1986. Their further defence is that ATM card holder can not hand over his ATM card to any one to operate for which it was illegal. On enquiry with regard to allegation as made by the complainant through the appropriate authority it was found that the transaction dated 10.04.10 was successful and as such there is no deficiency of service on the part of the OPs and the case is liable to be dismissed with cost.
Upon consideration of pleadings of the respective parties the following issues are framed for adjudication :-
1) Is the case maintainable ?
2) Has the Forum got jurisdiction to entertain and try the instant case ?
3) Is there any deficiency of service and/or Unfair Trade Practice on the part of the OPs ?
4) Is the complainant entitled to get award as prayed for ?
5) To what other relief/reliefs as prayed for?
Point No.1 & 2.
In order to attract the provisions under the Consumer Protection Act, 1986 the complainant is to first prove that he is a consumer as defined under Section 2(1)(d) of the C.P. Act, 1986 and service was not rendered properly and this Forum has got territorial jurisdiction to entertain and try the case.
Admittedly, the complainant holds a Savings Bank Account having facility of ATM card with the OP/Bank. So, it is evident that State Bank of India rendered service
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on consideration in terms of the business transaction with the OP. Thereby, the complainant is a consumer as provided under Section 2(1)(d)(ii) of the C.P. Act, 1986.
‘Service’ as defined under Section 2(1)(o) means service of any description which is made available to potential users including facility of banking service. Whether service was not properly rendered or not it relates with merits of the case. But when there is specific allegation about non-rendering of proper service it comes within the purview of consumer disputes as defined under Section 2(1)(e) of the C.P. Act, 1986.
The Bank situates at Hill Cart Road, Siliguri which is within the jurisdiction of this Forum and as such this Forum has territorial jurisdiction to entertain and try the instant case.
Point No.3 – 5.
The sole contention of the complainant is that despite having sufficient funds in his Bank Account no money was withdrawn from the ATM counter on 10.04.10. Mini statement as taken goes to show that an amount of Rs.402/- stood in his account. The complainant has furnished Xerox copy of mini statement and deposit of cheque dated 03.04.10. The complainant also lodged complaint with regard to missing amount of Rs.19,000/- from his account before the Manager, Mangal Deep Branch on 16.04.10 and the same was duly received by the OP/Bank on the self same date i.e. 16.04.10. The complainant also submitted copy of the legal notice dated 02.06.10 through his authorized lawyer Agent.
The complainant led evidence as PW No.1 in terms of the case under the complainant. In support of his contention he has filed original Bank receipt dated 03.04.10; Mini statement; original letter dated 16.04.10 and copy of the legal notice.
The PW No.1 was thoroughly cross-examined by way of interrogatories and reply thereof.
In reply it has come out that the ATM card was punched three times on 10.04.10 at ATM machine. At the time of punching at about 19.54 hours the transaction to know the balance was successfully completed by delivering the balance receipt amounting to Rs.19,402/-. But thereafter at about 20.06 hours when the ATM card was punched for withdrawing a money of Rs.18,000/- but no money was received from the ATM machine and only delivered a balance amount of Rs.402/- in his account. In reply it has further been come out that whenever he would be out of station for his business purposes he used to handover the ATM card to his father to overcome any emergency or unwanted matters. So, he came to know from his father that no money was withdrawn from the ATM card counter by punching the ATM card.
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The complainant also led evidence through his father as PW No.2. He also led evidence that despite punching the machine after adopting all precautionary measures no amount of Rs.18,000/- was received by operation of ATM card. He was also cross-examined by way of questionnaire and reply thereon. In reply it has come out that he used the ATM card of his son uncountable times. He used the said ATM cad with the knowledge and consent of his son. The OP on the other hand led evidence through one Nabajyoti Borah, Chief Manager, Accounts & Administration, State Bank of India, Siliguri who denied the case of the complainant about non-functioning of ATM card and/or non-withdrawal of the said amount and categorically stated that the transaction dated 10.04.10 was successful.
In support of the defence the OP has filed original letter dated 21.10.10 wherein it has been categorically stated on inspection through ATM Joint Custodian with regard to ATM of 09.04.10 & 10.04.10 no excess cash was found by them as per record. They also furnished statement of account with regard to ATM card in question vide Annexure – A & B respectively.
The Ld. Advocate on behalf of the complainant urged before the Forum that the State Bank of India is to maintain VDO clippings with regard to their ATM counter but no such document has been placed for proper appreciation that the transaction in question was successful and such money was received by the father of the complainant despite holding the best document under their possession and if it be not placed to controvert the case of the complainant adverse inference can be drawn against the OP. It reveals that the OPW No.1 has not been dis-lodged by way of cross-examination.
On careful consideration of the evidence as well as document as led by the complainant and the OP it reveals that the complainant has no direct knowledge about the operation of ATM card on the date of occurrence i.e. 10.04.10 and his knowledge came from his father. Pertinent to mention here that alleged incident took place on 10.04.10 and complaint was lodged before the OP only on 16.04.10 after a lapse of 6 days. According to the complainant he made complaint orally to the competent authority. As no action was taken he compelled to lodge written complaint against the non-withdrawal of the money in question but no document in this regard is forthcoming for appraisal.
On careful consideration of the case of the respective parties this Forum is of the view that the complainant’s knowledge came from his father only and it is hearsay evidence. After knowledge of alleged incident of non-withdrawal of money of Rs.18,000/- on the date of occurrence and such incident was complained of only after
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lapse of six days. It creates a doubt and considering all the facts and circumstances, this Forum is of the view that the case of the complainant has not been proved by cogent, oral and documentary evidence and thereby there is no deficiency of service on the part of the OPs. Rather the complainant is a negligent and failed to maintain the secrecy of the ATM card.
Therefore, the case does not stand.
In the result, the case fails.
Hence, it is,
O R D E R E D
that the Consumer Case No.92/S/2010 is dismissed on contest against the OPs but without cost.
Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.
-Member- -President-