Order No. 36 Dt. 11.06.2014
This is an application u/s. 12 of the Consumer Protection Act filed by the petitioner Rita Prasad Gupta against Branch Manager S.B.I. Jamtala Br. & Others praying for a direction on the O.P. S.B.I. to return her Rs.500, 500, 5100 and Rs.15,000/- totaling Rs. 21,100/- along with interest and an order for issuance of ATM Card with PIN Number and allow her to operate the account and also order of compensation for harassment and mental agony amounting to Rs.60,000/- and cost of proceeding.
The case of the petitioner is that she opened an account in the SBI, Jamtala Branch, Pakuahat in the month of December, 2008 and in the month of May, 2009 she applied for ATM facility but neither get the ATM Card or PIN Number even though she visited the bank officials for the same. On 13th May, 2011 she visited Jamtala Branch of SBI to withdraw money and came to know that hefty amount had been withdrawn from her account through ATM even though she neither received the ATM Card nor knowing the operation of ATM. She also came to know that ATM PIN numbers were issued by the bank officials to her after proper verification. She then tried to file a complaint before the Branch Manager regarding the deficiency in service on the part of the Bank but the Manager refused to accept the same. As per record of the bank money withdrawals were shown from Harishchandrapur, Barhowrah, New Farakka and NTPC Farakka amounting to Rs.500, 500, 5100 and Rs.15,000/- respectively and when she objected requesting the Manager to show the video clippings of the withdrawals i.e. the CCTV footage then the Branch Manager threatened her with dire consequences. Finding no other alternative she approached local police and also asked his brother Uday Kumar to deal with the Branch Manager but all in vain. She sent a letter to the banking ombudsmen for redressal of her grievance on 14.06.2011 and received a letter from him on 15.09.2011 and using her false signature fraudulently money was withdrawn which is deficiency in service on the part of bank and so she filed this case.
The O.P. Bank contested the case by filing a written objection wherein they denied the material allegations made in the claim petition and submitted that the case is not maintainable and also is barred by law of limitation. The case of the O.Ps on the other hand is that the petitioner is not entitled to get any order for return of money as prayed for with interest as in the instant matter investigation by police is not completed and also no order for issuance of ATM and PIN number can be issued as police investigation not completed and she is not entitled to any compensation for harassment and mental agony. The further case of O.P. is that the petitioner applied for ATM Card and the card was sent to her through registered post and the same was duly received by her and she received the PIN Number and her signature was verified by the officer of Jamtala Branch and she falsely lodged complaint before police as well as banking ombudsmen, Reserve Bank of India who rejected the case stating that the matter require consideration of elaborate oral and documenterial evidence and this case being a complex and complicated one be dealt with by a Civil Court and the Consumer Forum is not the appropriate Forum for adjudication of such disputes and the case is liable to be dismissed with cost.
On the above cases of the parties the following issues are framed:-
- Is the case 61/2011 is maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case?
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the petitioner is entitled to get any relief as prayed for?
::DECISION WITH REASONS::
Issue Nos. 1,2,3 and 4
All the issues are taken up together for the sake of convenience and brevity of discussion and to skip of reiteration.
The petitioner deposed before the Forum as P.W.-1 and submitted that she opened an account in the SBI, Jamtala Branch, Pakuahat in the month of December, 2008 and in the month of May, 2009 she applied for ATM facility but neither got the ATM Card nor PIN Number even though she visited the bank officials for the same. On 13th May, 2011 she visited Jamtala Branch of SBI to withdraw money and came to know that hefty amount had been withdrawn from her account through ATM even though she neither received the ATM Card nor knowing the operation of ATM. She also came to know that ATM PIN numbers were issued by the bank officials to her after proper verification. She then tried to file a complaint before the Branch Manager regarding the deficiency in service on the part of the Bank but the Manager refused to accept the same. As per record of the bank money withdrawals were shown from Harishchandrapur, Barhowrah, New Farakka and NTPC, Farakka amounting to Rs.500,500,5100 and Rs.15000/- respectively and when she objected requesting the Manager to show the video clippings of the withdrawals then the Branch Manager threatened her with dire consequences. Finding no other alternative she approached local police and also asked his brother Uday Kumar to deal with the Branch Manager but all in vain. She sent a letter to the banking ombudsmen for redressal of her grievance on 14.06.2011 and received a letter from him on15.09.2011 and using her false signature fraudulently money was withdrawn which is deficiency in service on the part of bank and so she filed this case. Besides the oral evidence of P.W.-1, Rita Prasad Gupta one Uday Kumar also deposed before this Forum as P.W.-2 and she submitted that the petitioner is her sister and he visited the Bank for a number of times on the above matter but could not succeed as the Bank Manager misbehaved with him and it was clear case of deficiency in service and unfair trade practice and he also submitted that the fraud was committed while withdrawing the money from the ATM account in the name of her sister. P.W.-1 categorically submitted that she never got any ATM Card from the bank and asked her brother for looking after her ATM matter and in her cross-examination she also submitted that she never received any ATM Card from the Bank nor any PIN number. For the O.P. Bank one Samijit Kumar Das, Bank Officer, SBI, deposed as O.P.W-1and he supported the case of the O.P. stating that the petitioner had withdrawn money through ATM by using ATM card and the case be dismissed with cost. Though in his cross-examination he submitted that at the relevant time of occurrence he was not posted in the branch but in the regional business office at Malda and she did not know the petitioner Rita Prasad Gupta who did not sign in his presence. O.P.W.-1 also submitted that at the time of receiving the ATM password he was not present but Rita Prasad Gupta signed as he came to know after comparing the recorded specimen signature of the petitioner with that of the signature procured during receiving the pin. He also submitted that the Branch Manager who procured signature of the petitioner has already expired. The report of the director QDEB, CID, W.B. made Ext.-L and the O.P. Bank did not examine him in spite of the Director, Tapan Kumar Roy remained present before the Forum though the Bank paid his expenses.
This Forum heard the Ld. Counsels of both sides. The Counsel for the petitioner submitted that there was clear deficiency of service on the part of the Bank as they did not issue the ATM Card or the PIN Number yet alleging that the petitioner had withdrawn the money through the ATM and it has been proved from the report of the Handwriting Expert that the person signed the admitted signatures did not sign the questioned signature. The Counsel for the O.P. Bank submitted that the opinion of expert is not a substantive piece of evidence and it cannot be conclusive and it is not binding on the Court and this petitioner had withdrawn the amount and falsely filed this case.
This Forum kept in mind the submissions of the Ld. Counsels of both sides and also the respective cases of the parties and the oral as well as documentary evidences adduced and produced by them and finds in the instant case that the petitioner filed this case praying for a direction on the O.P. bank to return her money deposited in her account while the O.P. bank submitting before Forum that the petitioner had withdrawn the amount and falsely filed the case. In the instant case the O.P. bank produced before this Forum the copy of the Register showing the signature of Rita Prasad Gupta that she received the ATM Card No. 6220180892600003776 and her A/c. No. was 30621391369 but the petitioner denied stating that it was not her signature and she never received the ATM Card and thus before this Forum admitted signature of the petitioner was procured on the prayer of the O.P. Bank and was sent to the Handwriting Expert QDEB, CID Govt. of W.B. who compared the standard admitted signature marked as S1 to S17 and these were found consistent amongst themselves and executed by one and the same person. The expert further opined that the person who signed the admitted signatures marked as S1 to S17 did not sign the questioned signature which was marked Ext.Q1. The expert also opined that he arrived at such an opinion on the basis of the diverging skill, slant, alignment, movement, size and proportion of the letters in the admitted signature and the questioned signature. It is true that the opinion of handwriting expert is not a substantive piece of evidence but such evidence while coming after comparison of the admitted handwriting and disputed handwriting then obviously it is a piece of evidence. Further, Tapan Kumar Roy, Director, QDEB, CID, W.B. appeared before this Forum on the basis of the summons of the O.P. Bank but the O.P. Bank though paid his expenses amounting to Rs.3000/- yet did not examine him even though the report of the expert went against the O.P. Bank. In the instant case the main point to be decided is whether there was a deficiency in service on the part of the O.P. Bank as alleged by the petitioner. If the service given by the bank is substandard or there are deficiencies in their service as defined u/s. 2 (1) (g) of the C.P. Act for any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be maintained by the bank under the law then the O.P. Bank is answerable for deficiency in service under this act. Banking is the business of the banks. Under the Banking Regulation Act banking means accepting money for the purpose of lending i.e. the investment of the deposit of money from the public and repayable on demand when the bank renders service by way of advancing loan or accepting deposit or providing facility of locker or withdrawing money from the bank then they undoubtedly render service as also happens in the case of ‘automated teller machine’ which is a facility provided by banks to the customer. In the instant case, though the bank submitted before the Forum that they delivered the ATM Card as well as four digit secret PIN Number to the petitioner yet the petitioner submitting before the Forum that he has neither received the ATM Card nor the secret PIN Number. It is the admitted case of the parties that the petitioner is a consumer being a customer of the bank but the document produced by the O.P. Bank that the petitioner signed in the register (Ext-E) and received the ATM Card is negated by the opinion of the handwriting expert Ext.-K that the admitted signatures of the petitioner do not tally with disputed signature of the petitioner as in Ext.-E and the person who signed the admitted signature also did not sign the questioned signature. Ld. Counsel on behalf of the bank pointed out discrepancies in the evidence of the petitioner as P.W.-1 but the same could not prove the fact that the petitioner received the ATM Card as well as the secret PIN number for operating the ATM and withdrawing the money. Thus no cogent document has been produced by the O.P. Bank to prove the case that they handed over the ATM Card to the petitioner Rita Prasad Gupta. As per banking norms ATM Card is provided to a customer by sending such ATM Card to the customer by registered post when the customer signing in the document of the postman receives the ATM Card. The O.P. bank here failed to produce the document from the postal department proving the fact that the petitioner received the ATM Card and even did not call for the document alleged to have been seized by police during investigation in criminal case. Thus when the two vital documents being the postal document being not produced by the bank and also the signature of the petitioner in the PIN register being negated by the opinion of the Handwriting Expert that the questioned signature did not come from the pen of the petitioner Rita Prasad Gupta then the Forum has no other alternative but to opine that the O.P. Bank did not hand over the ATM Card to the petitioner and fraud was practiced while withdrawing the sum of Rs.500,500, ,5100 and Rs.15,000/- from the account of the petitioner and the O.P. Bank being the custodian of the deposited sum of the petitioner is held liable for the loss as the acts of the bank amounts to clear deficiency of service on the part of the bank there is clear deficiency of service on the part of the bank.
It is the admitted case of the parties that the petitioner Rita Prasad Gupta applied for ATM Card. While the bank stated that she received her card as well as the four digit secret PIN numbers then the petitioner Rita Prasad Gupta submitted that she never received the ATM Card nor the four digit secret pin numbers and also she denied her alleged signature categorically before the Forum as appeared in Ext.-E and the same oral evidence of P.W.-1 being corroborated and confirmed by the opinion of the handwriting expert and on the other hand the O.P. Bank did not produce the Bank Manager who procured the signature of the petitioner and also this Forum while comparing the admitted signature and the disputed signature finds on the face of such signatures that these signatures do not come from the pen of the same person though looking alike as the letter ‘Pra’ in Prasad in the disputed signature clearly defers from the letter ‘Pra’ in Prasad of the admitted signature. Thus in the absence of the postal document that the petitioner receives the ATM Card and also in the absence of any evidence that she received the four digit secret PIN Number and also the bank did not call for said postal document or the record of the criminal case and also no evidence produced by bank in the form of death certificate that the manager who procured the signature of the petitioner that he already expired and further the bank keeping themselves away from cross-examining the expert rather admitted the opinion of the expert and the above acts and conducts on the part of the O.P. Bank amounted to unfair trade practice and deficiency in service. In the instant case there is no evidence coming from the bank that the ATM Card was in exclusive possession of the petitioner Rita Prasad Gupta and she was with exclusive knowledge of the four digit personal secret identification number of the ATM Card and so no question of operating the card by her arises here. In the instant case the petitioner deposed as P.W.-1 and submitted that she had been to the Manager of the Bank and requested him to handover the ATM Card but all her efforts were in vain and there is no contra evidence coming from the bank that she received the ATM Card and also she was in possession of the same and knowledge of the Four Digit Pin Code in the absence of which the ATM Card cannot be used and operated. The petitioner further submitted before the Forum that she asked the Manger to provide her and show her the video clippings of the withdrawals i.e. the CCTV footage but the opposite party bank categorically told him that she would not be provided with the CCTV footage and also the O.P. Bank did not produce such CCTV footage before the Forum to prove the fact of her using the ATM Card and so on and thus the O.P. Bank is found responsible in the instant case as there is clear deficiency in service as well as unfair trade practice on the part of the O.P. Bank who would compensate the money withdrawn from the account of the petitioner. Thus in the instant case there was fraudulent cash withdrawal on four occasions and it is proved that the petitioner Rita Prasad Gupta was not in exclusive possession of the ATM Card as well as the four digit secret pin numbers and thus the Bank failing to produce any document that they handed over the ATM card to her as well as the PIN numbers and also not producing the postal document as well as not examining the handwriting expert rather proved the fact that the petitioner never received the ATM Card and was not in possession of the ATM Card at the relevant times of withdrawal and with knowledge of the four digit secret number and such fraudulent act of withdrawal of money took place due to the negligent act and conduct of the Banking Officials and the same amounted to deficiency in service on the part of the O.P., Bank who are liable to compensate the petitioner.
In view of above discussions and findings this Forum concludes that the petitioner succeeded in proving her case that due to deficiency in service on the part of the Bank she suffered as money was withdrawn from her account and thus she is entitled to be compensated by the Bank.
All the issues are thus decided in favour of the petitioner as against the O.Ps.
In the result, the consumer case succeeds.
Court fee, paid on the petition, is correct.
Hence, ordered
that the D.F.C. Case No. 61/2011 be and the same is hereby allowed on contest against the O.Ps with cost. The petitioner is entitled to get her account compensated with a sum of Rs.21100/- with interest @ 9% p.a. since the date of filing of this case and also to pay a sum of Rs. 5000/- as compensation for her mental agony and harassment and another Rs.5000/- as cost of proceeding and also the Bank would issue fresh ATM Card with PIN number in her favour following the norms of the Bank and the O.P. Bank is to comply the above directions within 60 days from the date of this order failing the petitioner would be at liberty to put the order in execution. The O.P. Bank is further directed to pay a sum of Rs. 20000/- in favour of the State Consumer Welfare Fund within the above mentioned stipulated date.
