Adv. For the Complainant: - Sri R.K.Mohakur, K.L Mishra
Adv. For O.P :- A.K.Sarangi
Date of filing of the Case :- 20.01.2020
Date of Order :- 08.04.2021
JUDGMENT
Smt S.Rath , President (I/c) ..
Brief Facts of the case ;-The case of the Complainant in brief is that she is a bonafide Consumer of the Opposite Parties having her Account in the Branch of the O.P.No-1 vide Account No-32520438853 and also was issued with an ATM card vide No-4592 0001 2224 4706 having being Connected with her Mobile No-943969552 with an assurance from the Opposite Parties to give Proper security to her Money in her said account .
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In course of her dealing with her said account she has deposited an amount of Rs.70,000/- on Dt7.03.2019 by her husband but no SMS was received by her to that effect So to verify their Balance in the Account the Complainant along with her husband visited the ATM counter situated at Malpara on Dt23.03 .2010 and took out a printed mini statement from which she could know that he amount of rs.700000/- was deposited but to her surprise she found that an amount of Rs.80.000/- has been withdrawn from her account in two occasion in different ATM i.e one at Bokaro steel city on Dt.08.03.2019 amounting to Rs.20,000/- and an amount of Rs.40,000/- and another at Hirapur Dhanbad ATM counter for an amount of Rs. 20,000/- so immediately she blocked her ATM card and thereafter she Lodged a Complain before the Police Station but the IIC Balangir denied to receive the Written Complain and advised her to report the same before the Bank but as Dt.24.03.2019 was a holiday she reported the same on Dt.25.03,2019 and again on their advice she went to the Police Station and Lodged the F.I.R.So that was registered on Dt26.03.2019 vide P.S case No-0145.u/s .420,and 66©/66(D)and on Dt27.03.2019 she submitted the Copy of the Police Paper to the O.P.no-1,
And her further Case is that she has visited the office of the O.P.No-for several time and also has made request to obtain a vedio footage of those ATM Counter and in each occasion she has been told that investigation is going on but in stead of any action the O.P.No 1 informed her on Dt.11.09.2019 that her claim has been rejected so seing no alternative she made a complain before the O.P.No.1 with a copy to the O.P.No2.about her claim for investigation and solution of the problem but instead of any solution she was informed by the opposite party no-1 that her complaint has been rejected so again on dt.23 .09.2019 she made another complain to the op no-1 with a copy to the op-no-2 regarding the same but in vain instead she got an information vie e-mail on dt26.09.2019 that one ombudsman of the bank has rejected the same without assigning any reason and has asked her to approach any other forum, which acts on the part of the opposite parties amounts to unfair trade practice coupled with deficiencies of service as they being the custodian of her money
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have neglected to give her proper security and as such are liable to make good of the loss of the money, mental and physical harrssment undergone by her ,hence the cause of action in filling the case before the commission to redress her grievances and prayed for justice and compensation of her aforesaid loss, and to substantiate her such case has relied on the following documents.
Having gone through the Complaint and it’s accompanied documents it seemed to be a genuine case hence admitted and notice was served on the opposite parties to appear before the commission and to file their version and documents if any.
In response the opposite parties appeared through their advocate and have filled their version with some documents as follows.
So far the rival contention of the opposite parties in their version is a simple denial to the case of the complainant while admitting the status of being an account holder of their organization and also to the extent of her transaction in their concern ,but have denied to have any knowledge with regard to the fraudulent withdrawal of her money and have averted in their version to have rightly rejected the claim of the complainant giving much emphasis on the order of their internal ombudsman ,ombudsman of the Bank and on their electronic management and statement of account ,also their strong plea of repudiation of the claim of the complainant is in the filling of the complain in a delay and also delay in blocking the debit card immediately after the said fraudulent withdrawal. Thereby the opposite parties have declined the claim of the complainant and asked her to approach any other forum ,And in substantiation of their such pleas have prayed before the commission to dismiss the case as devoid of merit in the same
Having gone through the complaint and it’s documents and the version of the Opps and their documents and on hearing their respective counsels the following points have arose for proper adjudication of the case.
1st. whether there is any deficiencies and unfair trade practice on
the part of the opposite parties
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2ndly.whether the complainant is entitled to any relieve as has
claimed for.
While adjudicating the issue no-1 ,having gone through the entire materials available in the record and on hearing the respective counsels of the parties it came to our notice that it is not disputed that the complainant is a bonafide consumer of the opposite parties also it has never been denied by the opposite parties in any of their documents and in their version or while hearing of the case was in the process that the incidents of disputed withdrawal have not taken place from the account of the complainant but have claimed in their version that those three disputed withdrawal have been made successfully and the same has been sent through messages to the complainant which is also established by their EJ log and other documents and also have claimed that had it been a fraudulent withdrawal then the complainant could have complained about the same immediately and also could have blocked the debit card immediately ,in this context it came to our close observation that from the very beginning, the complainant has been complaining about the irregularities in the SMS system of the opposite parties and have stated in her complain that since the required SMS did not come to her in time with regard to one of her deposit of Rs.70,000/- on dt.7.03.2019 she had been to a nearby ATM counter with her husband to verify their balance by obtaining a mini statement dt.23.03.2019 and there from they could know the unauthorized withdrawal have been made and since it was a holiday as such on the next day itself they have complained before the opposite parties and the police so the pleas taken by the opposite parties is not acceptable by us, furthermore the plea of EJ log is also cannot rule over the claim of the complainant and also not sufficient to prove that here was no such incident ,Further it is also observed that the opposite parties have investigated the matter and have rejected the case of the complainant as devoid of merit only on the basis of their official electronic record and on order of the ombudsman but in our view such an unilateral decision cannot be sustainable in the eye of law since it is the duty of the opposite parties being a custodian of the hard earned money of the complainant and also the people at
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large, to take such matter very seriously and should have produced the footage of cc TV camera at their own and should have assecertained the facts in a serious manner taking the complainant into their confidence ,but is observed that the opposite parties have decided the matter at their own and informed the complainant that her case is rejected so in our view it cannot be accepted ,in this regard we want to refer the doctrine of the .MDamodaran committee who has categorically emphasized the duty of the financial institution to safeguard the money of the public at their custody in the year 2011 being fortified by the R.B.I ,in this case none of the principle to ensure the safety of the complainant’s money have been followed by the opposite parties ,rather seems to have shifted their responsibility towards the complainant with a note that investigation is going and further they have taken shelter of the ombudsman of their concern which is not acceptable by us because had it been decided in a fair manner it could have done on hearing of both the parties which is not found here as such is out rightly rejected being fortified by the highest Authorities of the country who have opined that while any matter is subjudiced before any ombudsman proper opportunity must be given to both the parties to the case ,but in this case it is observed that no opportunity has been given to the complainant and have passed an unilateral order in rejecting her claim which is a violation of natural justice ,so simply by saying that there is no deficiencies of service on their part cannot sustain ,rather the action taken if any must seems to be acted upon in a transparent manner, which is not found here in this case which amounts to a serious case of deficiencies of service on the part of the Opposite Parties.
In view of above facts and circumstances of the case our unanimous view is expressed against the Opposite Parties whereby both the Opposite Parties are jointly and severally liable.
Secondly while considering the issue no-2 as to whether the complainant is entitled to her claim ,as we have already discussed very vividly the case of the parties and have opined against the opposite parties and beside that also it is found that since even after the complain by the complainant has
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been made before the Opposite Parties no-2 it is found to have no effect from their end hence in this critical juncture we don’t have any other option but to express our view in favor of the Complainant ,as such our order follows.
Order
Hence the Opposite Parties are directed to pay an amount of Rs.80,000/- with an interest@ 6% p.a. from the date of filling of the case to the complainant and also further directed to pay an amount of Rs.10,000/- and Rs.2000/-towards compensation for the mental financial and physical harassment undergone by her and towards litigation expenses respectively within thirty days of receipt of the order in default of which the total amount would carry an interest @ 9% P.A. till realization of the actual amount .
In the result the complaint is allowed against the Opposite Parties and the order is pronounced in the open Commission and is disposed off to-day i.e. on dt 08.04.2021.
(H.Padhan) (S.Rath)
MEMBER. PRESIDENT(I/c)
