State Consumer Disputes Redressal Commission
State Bank Of India vs Asraf Sk. on 29 October, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11-A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO. : FA/976/2012 (Arisen out of Judgement dt. 29.11.12 of DCDRF, South 24 Parganas in C.C.Case No. 122 of 2012) DATE OF FILING : 19.12.2012 DATE OF FINAL ORDER: 29.10.2013 APPELLANT State Bank of India Amtala Branch West Bengal Pin-743 503. RESPONDENT Asraf Sk Villege Chak bagi P.O. & P.S. Bishnupur Dist. South 24 Parganas. BEFORE : MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY FOR THE APPELLANT : Mr. Surajit Auddy, Ld. Advocate FOR THE RESPONDENT : Mr. Joy Karmakar, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present Appeal has been directed against the judgement and order dt. 29.11.12 passed by Ld. District Consumer Disputes Redressal Forum, South 24 Parganas in C.C.Case No. 122 of 2012 wherein the Ld. District Forum allowed the petition of complaint on contest with cost of Rs. 1,000/- thereby directing the OP to deposit a sum of Rs. 38,000/- in the bank account of the complainant with usual rate of interest as per banking rule within 15 days from the date of the order, failing which the OP shall pay penalty @ 100/- per diem from the date of default till payment, out of which 50% shall be paid to the complainant and 50% to be deposited with the Consumer Welfare Fund.
The case of the complainant/Respondent, in brief, was that the complainant entered into an ATM booth consisting of two ATM machines and when the complainant attempted to withdraw Rs. 2,000/- from one machine it got hanged and thereafter by using the second machine he was successful in withdrawing Rs. 2,000/-. But the transaction slip revealed that the complainant had withdrawn Rs. 38,000/- and Rs. 2,000/- respectively. The complainant informed the matter to the bank and also to the police. As no fruitful result was yielded, the consumer complaint was filed for proper redressal.
The OP/Bank contested the case by filing a written version thereby denying and disputing all the material averments made in the petition of complaint contending, inter alia, that since without the ATM card and the Pin Number no effective transaction can be made in the matter of withdrawal of money from ATM machine, there was no deficiency at the instance of the OP/Bank, as claimed by the complainant and the petition of complaint was liable to be dismissed.
Ld. District Forum while disposing of the petition of complaint has observed that there was no deficiency in service and the instance of the OP/Bank and without any rhyme and reason Rs. 38,000/- has been shown to be withdrawn by the complainant though actually the complainant never got Rs. 38,000/-, as claimed by the Bank and accordingly, disposed of the petition of complaint in favour of the complainant as mentioned above.
The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified enough in disposing of the petition of complaint in the manner as mentioned above.
Case laws referred to on behalf of the Appellant :
1. 2011
(2) CPR 26 (NC) State Bank of India Vs. K.K.Bhalla
2. Revision Petition No. 2382 of 2012 (National Commission) State Bank of India Vs. Om Prakash Saini
3. State Commission, West Bengal, S.C.Case No. FA/170/2012 The Branch Manager, State Bank of India Vs. Raunaque Hussain
4. State Commission, West Bengal, S.C.Case No. FA/38/2012 The Chief Manager, State Bank of India Vs. Smt. Rma Paul
5. State Commission, West Bengal, S.C.Case No. FA/431/2011 The Manager, State Bank of India Vs. Prabhat Biswas DECISION WITH REASONS At the time of hearing the Ld. Advocate for the complainant/Respondent has submitted before us that in this case the Ld. District Forum has really appreciated the pros and cons of the case of respective party and has passed the impugned judgement, which is very much sustainable under the law. According to the Ld. Advocate, when from the materials on record it has become evident that the Bank could not produce any tangible and reliable documentary evidence in support of the Banks case that there was actually the transactions amounting to Rs. 38,000/- and Rs. 2,000/-, alleged to have been done by the complainant, the Ld. District Forum was justified in upholding the case of the complainant. The Ld. Advocate has also drawn our attention that the CCTV footage in respect of the said transaction has also not been produced by the Bank for reasons best known to the Bank and this non-production of the CCTV footage hit at the very root of the Appellant/Banks case. The Ld. District Forum having passed a very-well written judgement there is no scope to interfere with the same, which should be confirmed.
We have duly considered the submission so put forward on behalf of the complainant/Respondent and have also gone through the materials on record including the impugned judgement and find that in this case the Complainant/Respondent has put forward a case to the effect that though the complainant was successful in withdrawing Rs. 2,000/- from the ATM counter and in the process, he was unsuccessful, at the same time, while withdrawing from another machine in the said ATM counter, question of showing the complainant had withdrawn Rs. 38,000/- and Rs. 2,000/- is absurd and without any basis and the Bank was definitely deficient in service in not depositing the amount of Rs. 38,000/- in the bank account of the complainant and hence, the petition of complaint. The Bank, on the other hand, has come forward with a case to the effect that since without the ATM card and the respective Pin Number the money could not have been withdrawn and since there is no denial that the complainant has not utilized the ATM card, there should not be any doubt that the complainant actually had withdrawn Rs. 2,000/- and Rs. 38,000/- respectively, as claimed by the Bank.
We have carefully gone through the impugned judgement and find that the Ld. District Forum has not given a serious thought to the standpoint taken by the Bank to the effect that without utilizing and/or applying the ATM card and the Pin Number no one can withdraw money from the ATM counter. In this regard, the decision reported in 2011 (2) CPR 26 (NC) is very much relevant, wherein the Honble National Commission has held, In view of elaborate procedure evolved by Bank it is not possible for money to be withdrawn by an unauthorized person from ATM without ATM card and knowledge of Pin number. Much has been agitated before us on behalf of the Complainant/Respondent to the effect that for non-production of relevant CCTV footage adverse inference should be drawn against the Bank. But this proposition is not acceptable in view of the decision of the Honble National Commission passed in Revision Petition No. 2382 of 2012 [State Bank of India Vs. Om Prakash Saini] wherein the Honble National Commission has held, Learned District Forum allowed the complaint mainly on the ground that video footage were not furnished to the complainant by the opposite party and the learned State Commission also observed that the same fact in the impugned order. In this case, video footage had no relevance at all because this is not the case of the complainant that he did not go to operate ATM machine of opposite party.
The different decisions relied upon on behalf of the Appellant/bank, which were passed by this Commission, also enunciate this proposition. If that be the position, we find no deficiency at the instance of the Bank and accordingly, in our opinion, there is merit in the present Appeal, which should be allowed. Ld. District Forum having ignored this aspect of the case has committed error and miscarriage of justice and the impugned judgement is liable to be set aside. In the result, the Appeal succeeds.
Hence, it is ORDERED that the Appeal stands allowed on contest but without any order as to costs. The impugned jugement stands set aside. Consequently, the petition of complaint stands dismissed.
MEMBER MEMBER