Madhya Pradesh

StateCommission

A/22/892

STATE BANK OF INDIA - Complainant(s)

Versus

ASHOK KUMAR PATEL - Opp.Party(s)

SH.AVNISH BARYA

20 Mar 2024

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

PLOT NO.76, ARERA HILLS, BHOPAL

 

FIRST APPEAL NO. 892 OF 2022

(Arising out of order dated 29.04.2022 passed in C.C.No.539/2020 by District Commission, Dewas)

 

BRANCH MANAGER,

STATE BANK OF INDIA,

BRANCH-MOTI BANGLA, DEWAS (M.P.)                                                    … APPELLANT.

 

                  Versus

 

ASHOK KUMAR PATEL,

S/O SHRI SAWANT RAM PATEL,

DISTRICT EDUCATION & TRAINING INSTITUTION (DIET)

RASOOLPUR, A. B. ROAD, DEWAS (M.P.)                                                 …. RESPONDENT.

 

BEFORE :

            HON’BLE SHRI A. K. TIWARI                : ACTING PRESIDENT

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER

                                   

COUNSEL FOR PARTIES :

                Shri Avnish Barya, learned counsel for the appellant.

           Shri Vishnu Tiwari, learned counsel for the respondent.

          

 

O R D E R

(Passed On 20.03.2024)

         The following order of the Commission was delivered by A. K. Tiwari, Acting President:

                         The opposite party/appellant being dissatisfied by the order dated 29.04.2022 passed by the District Consumer Disputes Redressal Commission, Dewas (for short ‘District Commission’) in C.C.No.539/2020, whereby the complaint filed by the complainant/respondent has been allowed, has filed this appeal.

2.                Facts of the case in brief are that the complainant was having bank account no.53013031464 with the opposite party -bank with ATM

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facility. It is submitted that some unknown person with the help of fake ATM Card on 20.10.2009 withdrawn Rs.35,000/-, on 21.10.2009 withdrawn Rs.20,000/-, on 22.10.2009 withdrawn Rs.20,000/- and on 23.10.2009 withdrawn Rs.20,000/- totaling Rs.95,000/-. When the complainant came to know about it he lodged complaint with the police and the opposite party bank on 24.10.2009. Again on 25.10.2019 & 27.01.2020 complaints were made to the bank but when the bank did not take any action, the complainant approached the Banking Lokpal. It is submitted by the complainant that the Banking Lokpal directed the bank to pay compensation of Rs.15,000/- only and not Rs.95,000/-. The complainant therefore approached the District Commission seeking relief of Rs.95,000/- with compensation of Rs.1,00,000/-.  

3.                The opposite party/appellant-bank in its reply before the District Commission has submitted that the Banking Lokpal has awarded compensation of Rs.15,000/- to the complainant and the said amount of Rs.15,000/- has already been credited in his account. Appeal against the Banking Lokpal cannot be filed before the District Commission. At the time of withdrawals, the person concerned is informed through SMS wherein it is specifically mentioned that If no withdrawal is made by you then forward this message to given number or call on given toll free number to block the card. It is because of complainant’s own negligence, the amount was

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withdrawn from his account. There has been no deficiency in service on part of the bank. The complainant has filed a false complaint and therefore, it be dismissed.

4.                The District Commission allowed the complaint directing the opposite party-bank to pay Rs.95,000/- to the complainant with interest @ 6% p.a. from the date of filing of complaint i.e. 04.11.2020 till payment. Compensation of Rs.10,000/- with costs of Rs.2,000/- is also awarded.

5.                Heard learned counsel for the parties. Perused the record.

6.                Learned counsel for the opposite party/appellant-bank argued that the District Commission has committed grave error in holding that because lack of security in the banking system, the amount was withdrawn through fake ATM card. If any such fake ATM is prepared it is because of the carelessness and negligence of the complainant only as the bank never prepared such type of fake ATM card. He argued that at the time of giving ATM Card, PIN number is used to given to the customer in sealed envelope and without PIN no other person can use ATM and withdraw the amount. This information is not known to any of the bank officer and is only known to the person to whom ATM card was given. If any person has committed fraud with the complainant by preparing a fake ATM card, the bank cannot be held liable for the same. He prayed for setting aside the impugned order.

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7.                Learned counsel for the complainant/respondent argued that the District Commission has rightly found that it is only because of lack of security in banking system, an unknown person by way of fake ATM card withdrawn the amount from the complainant’s account. The District Commission holding the bank deficient in service has rightly allowed the complaint directing the bank to pay Rs.95,000/- with interest, compensation and costs.

8.                Having heard learned counsel for the parties and on careful perusal of the record as also the impugned order we find from the record that the complainant has alleged that between 20.10.2019 to 23.10.2019 some unknown person with the help of fake ATM card withdrawn Rs.95,000/- from his account. He repeatedly in his complaint and the documents has stated that there was embezzlement of Rs.95,000/-. He also lodged a police complaint in this regard. On complaint being made to the bank, the bank has sent the matter to their head office, who in turn informed through mail that SMS were sent to the complainant but the complainant himself acted negligently and took steps to block the card on 24.10.2019.

9.                It is pertinent to mention here that money cannot be withdrawn from any ATM without supplying it the correct PIN and the PIN is only known to the complainant. The complainant has submitted that the amount

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was not withdrawn by him. We fail to understand how it is possible that without ATM Card and without PIN how another person can withdraw the amount from ATM.

10.              The complainant has stated in his complaint suspecting that some unknown person with the help of fake ATM card has withdrawn amount through ATM and for which he lodged police complaint also. He alleged fraud and embezzlement in his complaint. If some another person by committing cheating and fraud withdrawn the amount from the account of the complainant that is too from ATM, how can the bank can be held liable for deficiency in service.

11.              It is pertinent to mention here that the complaint alleging cheating, fraud and embezzlement are not maintainable before the Consumer Commissions constituted under the Consumer Protection Act. Thus we find that the complainant is not entitled to get any relief. Even if it is presumed, that someone prepared fake ATM card, it also shows carelessness and negligence on part of the complainant himself. Even otherwise on the report of the complainant, the police have lodged criminal offence against the unknown miscreant. Until and unless the outcome of the criminal case, it cannot be said that the bank has committed deficiency in service.

 

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12.              For the foregoing discussion, we find that the District Commission has committed grave error in entertaining such type of complaint as the District Commission has no jurisdiction to entertain such type of complaints where criminal proceedings are going one. In these circumstances, the impugned order cannot be sustained. Accordingly, it is hereby set-aside.  Consequently, the complaint is dismissed.

13.              In the result, this appeal succeeds and is hereby allowed.  No order as to costs.

                     (A. K. Tiwari)                  (Dr. Srikant Pandey)  

                   Acting President                          Member