Hon'ble Mr. Haradhan Mukhopadhyay, President.
The basic fact of the case in dispute is described to the extent in brief that, the Complainant Basana Basak is a Consumer under OP-1 Central Bank Of India who maintains the Savings Account bearing No. 3172122329 against which the OP-1 issued an ATM Card bearing No. 6521600131717245. On 24.08.2018 at about 3-4 P.M. due to illness of the Complainant but having urgent need of Rs. 5,000/- the Complainant handed over her ATM Card to her husband for withdrawing Rs. 5,000/- through ATM. Accordingly, the husband of the Complainant went to the SBI ATM Counter situated at OP-2 State Bank of India, NNM High School, Tufanganj and pushed the said ATM Card to withdraw Rs. 5,000/-. When the money was coming, the entire machine stopped functioning and as such the said sum of Rs. 5,000/- did not come out from the machine. Thereafter on the same date the Complainant withdrew a sum of Rs. 5,000/- from another ATM. At the time of updating the passbook, the Complainant found that Rs. 5,000/- was already deducted from her Account on 24.08.2018. Thereafter the Complainant informed the matter to the OP-1 who assured that the disputed amount would be refunded shortly. Thereafter on 27.08.2018 the Complainant lodged a complaint against the said matter. The Complainant subsequently raised her grievance to both OP-1 & OP-2 having went to their offices. Thereafter on 10.10.2018 the Complainant lodged a written complaint to the OP-1. But they did not reply to the same. The Complainant also informed the matter to the OP-2 but they did not receive any complaint against which she sent the complaint through registered post. The Complainant also requested the OPs to show the CCTV footage for the disputed transaction on 24.08.2019, but the OP did not show any such footage. The aforesaid activities of the OPs are illegal and amounts to deficiency in service. The cause of action for the present case arose on 24.08.2018, 10.10.2018 and 02.11.2018. The Complainant therefore prayed for an award for Rs. 5,000/- as refund, Rs. 4,000/- towards deficiency in service and Rs. 2,000/- towards litigation cost and also directing the OP to produce the CCTV footage before the Commission.
Both the OPs contested the case by denying all the allegations against them. The positive defence case of the OP-1 in brief is that, the Complainant withdrawn the money from the ATM Machine of the OP-2 SBI and not the OP-1 Central Bank of India. OP-1 only maintains the Savings Bank Account of the Complainant. Withdrawing money through ATM Card by her husband is illegal. The OP-1 having known the same informed the matter to the help desk of Central Bank of India on 27.08.2018 and thereafter OP-2 informed that the said transaction was successful. The Complainant or any of her representatives did not contact with the OP-1 Branch. The Complainant illegally handed over the ATM card to her husband for withdrawing money as the Complainant is not supposed to tell the secret password to any other person. The OP-1 claimed that the case is liable to be dismissed with cost.
The positive defence case of the OP-2 in brief is that the Complainant is not a Consumer under the CP Act. The OP-2 is in no way connected with the said matter. The Complainant cannot have any locus standi to file the present case as all the factual aspects in question has not been caused with her but with a person who was not the said ATM Card holder. The Complainant violated the rules regarding using of the ATM Card having been so negligent.
OP-2 claimed that the case is liable to be dismissed with cost.
The respective pleadings of the parties and the points involved therein led this Commission to ascertain the following points in dispute.
POINTS FOR DETERMINATION
- Whether the Complainant is a Consumer under the C.P. Act?
- Whether the Complainant is entitled to get any relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
DECISION WITH REASONS
Point No. 1:-
The question as to whether the Complainant a Consumer or not is the subject matter to be decided here. It is claimed that the Complainant is having an Savings Account bearing No. 3172122329 with the OP-1 Central Bank of India, Tufanganj branch with ATM Card No. 6521600131717245. The Complainant admitted that she handed over her ATM Card to her husband to withdraw a sum of Rs. 5,000/- on 24.08.2018. After pushing the said card, money did not come from the ATM machine. Thus the transaction actually was conducted by her husband and anything untoward if happened on that unfateful day, it was with her husband and not with the Complainant. Despite she having been an Account holder with the OP-1 Bank, for the peculiar transaction and nature of the incident, the Complainant cannot be considered as a Consumer in the instant case.
OP-2 is the Bank wherein the said alleged transaction took place. But the husband of the Complainant is not a party to this case and as such the actual person has been kept outside the perview of this case. Therefore without any evidence having come from the husband of the Complainant it is difficult to ascertain as to whether the Complainant is a Consumer for the purpose of this case.
Accordingly, Point No.1 is decided against the Complainant in negative and goes against her.
Point No. 2 & 3:-
Both the points have close nexus with each other and as such these are taken up together for convenience and brevity of discussion.
It is the admitted fact that the Complainant Basana Basak maintains a SB Account with Account No. 3172122329 with OP-1 Bank and the OP-2 under whom the ATM transaction took place. Both the OPs took the defence plea that the disputed transaction was conducted by the husband of the Complainant. The Complainant acted illegally by handing over the ATM Card to her husband because the ATM transaction should be operated by the card holder only and the secret password cannot be disclosed to any third person.
Ld. Defence Counsel for both the OP Banks argued on that point.
After perusing the pleadings of the parties and the evidence on record, it is crystal clear that the disputed transaction through ATM Card was operated by the husband of the Complainant Sudhan Basak. So the best evidence which ought to have been placed by the Complainant before this Commission is the evidence on affidavit of the husband of the Complainant. In the instant case, the Complainant did not produce or file the evidence of the most competent witness namely Sudhan Basak being the husband of the Complainant.
That apart, the Complainant also did not make her husband Sudhan Basak as party to this case, It is the settled position of law that a case does not fail for defect of parties, but the nature of the transaction took place vis-à-vis the relief claimed in the instant case or any evidence being not adduced on his behalf, the present case cannot succeed.
It is fact that the password of ATM or in other words, the PIN is a secret password which should not be shared with any third person despite he being the husband. It is also the fact that, in some civil suits husband and wife are considered as one person but in view of the peculiar nature of this case the sharing of the password or the ATM card raises a big question as to the maintainability of this case.
Regard being also had to the argument of the Ld. Advocate for the Complainant that the OP has not produced the actual rules or by-laws of the OP Bank towards operation and handling of the ATM Card. However, since the actual witness of the transaction is neither a party nor a deponent in this case, so the Complainant is not entitled to get the relief prayed for.
After assessing the evidence on record, vis-à-vis the question of law and rules involved in this case coupled with the observation made therein, the Commission is of the considered view that the present case is not maintainable in its present form and prayer.
Consequently, the Complaint case fails. However, liberty is given to the Complainant to file the case afresh by the appropriate person and adducing evidence by the concerned person as well.
Hence, it is
Ordered
That the Complaint Case No. CC/94/2018 be and the same is dismissed on contest without cost.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
