Presented by Miss R. Pattnayak, President:-
The brief fact of the case is that, the Complainant is a consumer of the Opposite Party bank. He has opened an account in the OP's bank vide account No.492010200001151 on Dt.08/05/07 for transaction of his shop named and styled as “Sibani Technologies”, dealing with computer and accessories business which has been running for maintenances of his livelihood. The Complainant was never provided with the ATM Card and the concerned pass word, for ATM service. As the card was not provided to him the Complainant was doing all his transactions through cheque and/or cash from the date of opening of the account. On Dt.21/12/2008, at 9.16 a.m., the Complainant received a message in his mobile that Rs. 25,000/-(Rupees twenty five thousand)only has been debited from his account through ATM. The Complainant rushed to the bank and on inquiring, he was informed that, a sum of Rs.37,000/-(Rupees thirty seven thousand)only has been withdrawn from his account through ATM counter situated at Gopban Niwas , Ainthapali, Sambalpur in five transaction within twenty minutes. As the Complainant has never been supplied with ATM Card and he has never done any transaction through ATM, he requested the bank authority for verification of the photographs captured by C.C. Tv camera installed in the ATM counter to resolve the matter soon. But the bank authority told that as the photograph of the Complainant is available in the bank they will revert back, the aforesaid amount to his account after investigation. The Complainant thereafter approached the Opposite Party several time personally but the Opposite Party did not take any steps to solve the said problem and refunded the amount which has been plucked away from his account stealthily as he has not been provided with ATM Card and pass word by the Opposite Party. Thereafter, finding no other alternative, the Complainant filed the present complaint case U/S 12 of Consumer Protection Act-1986 before this Forum with a prayer to direct the Opposite Party to make payment of the amount of loss of Rs.37,000/-(Rupees thirty seven thousand)only along with interest from the date of the illegal withdraw and he may be further directed to pay compensation of Rs.25,000/-(Rupees twenty five thousand)only towards mental agony, shock and harassment, besides an amount of Rs.10,000/-(Rupees ten thousand)only towards litigation expenses.
In support of his case, the Complainant has filed the following documents.
Copy of charge statement for current account of Axis Bank.
Copy of statement of account/transaction inquiry.
Upon Notice being served, the Opposite Party has appeared on Dt.18/02/2010 and filed his version denying all the allegations raised by the Complainant. In the said version, the Opposite Party has submitted that the case of the Complainant is not maintainable as the Complaint is not coming under the purview of Consumer Protection Act-1986. While admitting the fact that the Complainant has opened an account with the Opposite Party has specifically pleaded that he has sent welcome kits to the Complainant which contain cheque book and the Debit/ATM card. The pass word is despatched to the customer by separate post. The Complainant was sent the cheque book along with Debit card vide consignment No. 3301080507. As the customer has received the said consignment, it is clearly established that he has also received the debit card along with the cheque book and also the pass word. So he prayed before this Forum for dismissal of the case as there is no deficiency of service on the part of the Opposite Party.
Relying on the pleading of the Parties, we take up the following issues for adjudication.
Whether the Complainant is a consumer of the OP ?
Whether the Complainant has been issued with the ATM Card and Pass word by the OP ?
Whether the Complainant has used the ATM Card and done the alleged transaction ?
Whether the Opposite Party has done negligence, deficiency in rendering service and done unfair trade practice towards the Complainant ?
To what reliefs the Complainant is entitled to ?
(1) Whether the Complainant is a consumer of the OP ?
The Opposite Party bank in his version has submitted that, the Complainant is running his business for commercial purpose, hence he is not a consumer. As such the complainant is not maintainable.
Admittedly the Opposite Party is a bank and the bank is to provide necessary service to its consumers as the consumers are paying necessary service charges. The Complainant has opened an account in the Opposite Party bank. He has filled up the necessary forms for the same and has deposited money there in. The Complainant has also been paying service charges to the Opposite Party for his transactions with the bank. As such the account holders of the bank are consumer of the bank. The Complainant is admittedly an account holder of the bank. The Complainant is not doing any business with his account of the Opposite Party rather transactions with the bank is a part and parcels associated with his livelihood. The Opposite Party has never disputed the account transaction and also not disputed any act of the Complainant not be a consumer of the bank. In the instant case also the Opposite Party though has averred in version that the Complainant is not a consumer but has not placed any material before the Forum in support of their claim. So, the Opposite Party's contention in this regard is not sustainable.
(2) Whether the Complainant has been issued with the ATM Card and Pass word by the OP ?
The Complainant has categorically alleged that he has not been issued with the ATM Card and pass word to use the same. The Opposite Party has denied the said allegation and has pleaded in his version at para-2(two) that, the bank has a practice of sending a welcome kit to the customer, which contain a letter to the customer, the cheque book and the Debit/ATM card. The pass word is despatched to the customer by separate post. In this case, the customer was sent the cheque book of 25(twenty five) leaves along with Debit card vide consignment No. 3301080507. As the customer has received the said consignment, it is clearly established that he has also received the debit card along with the cheque book and also the pass word.
From this pleading of the Opposite Party, it is clear that the pass word alleged to have sent through separate post. But the Opposite Party has not filed any document, postal receipt or A.D. Card, ATM card issuing Register before the Forum showing despatch or receipt of the pass word and ATM Card. The Opposite Party has also not uttered a single syllable, when, how and in which manner, the password was sent to the customer. The Branch Manager of the Opposite Party has been examined and cross-examined in this case. During his cross-examination he has deposed that he has not produce any despatch register at the Forum showing despatch of card along with ATM card and cheque book. He has also not produced the consignment receipt. He has not produced the consignment receipt. He has no personal knowledge about the despatch of ATM card along with the cheque book. He was not present at that time. He has no personal knowledge about consignment number. He has not produced any circular order of his branch for periodical destruction of old documents. He has not produced any register or list for destruction of the documents related to this case. He has no personal knowledge relating to destruction of consignment receipt. He can not specifically say when the relevant consignment receipt was destroyed. He has not produced the office copy of the consignment at the post office for an inquiry. The letter is issued by the Bargarh Office of the postal department where as the relevant consignment was dispatched from the “Mumbai” Head Office. The letter which he has produced available from the post office did not have any consignment numbers or the name of the consignee. He has not produced any record of his bank showing failure of C.C.Tv Camera at the relevant counter of the ATM. No ATM debit card worth without a password. He has no where mentioned in his affidavit relating to the despatch of password of ATM debit card.
So, from the entire evidence deposed by the Opposite Party it self, it is clear that they have not sent the ATM card and password to the Complainant at any point of time to use the same. The Opposite Party thus has failed to prove their claim as have been averred specifically in para-2 (two) of their version.
(3) Whether the Complainant has used the ATM Card and done the alleged transaction ?
AND
(4) Whether the Opposite Party has done negligence, deficiency in rendering service and done unfair trade practice towards the Complainant ?
The Complainant is a resident of Bargarh town. ATM counters are available at Bargarh. Five transactions have been done through the Ainthapali ATM counter of the bank to a tune of Rs.37,000/-(Rupees thirty seven thousand)only in total i.e. Rs.3,000/-(Rupees three thousand)only, Rs.3,000/-(Rupees three thousand)only, Rs.25,000/-(Rupees twenty five thousand)only, Rs.3,000/-(Rupees three thousand)only, Rs.3,000/-(Rupees three thousand)only on Dt.21/12/08 from 9.13 A.M. to9.33 A.M., within a time span of 20(twenty) minutes Ainthapali, Sambalpur is about 50(fifty) kilometers away from Bargarh. The transaction is of early hours of the day. The manner of transaction and the circumstances of plucking money from the Ainthapali ATM counter by the Complainant himself is suspicion and not convincing. It is also clear from the statement of account of the Complainant that he has done all his transactions through cash and cheque prior to Dt. 21/12/2008 and after ward also as he has been issued with cheque book only without any ATM or password. ATM is a convenient way to withdraw money. If the Complainant has received the ATM card, why he has not used the transaction through ATM card and was waiting till Dt.21/12/2008 to make the alleged transaction and continuing his transaction in the form of cash and cheque in a traditional manner. On getting massage through his mobile, the Complainant has rushed to the bank at Bargarh and has raised his grievance for the same. He has also requested the bank authority to get the C.C. Tv footage of the alleged transactions to unfold the truth about the same. The bank authority did not take any steps though have assured to do. In the present case, after receiving the complaint from the Complainant, the primary duty of the Opposite Parties is to look in to the matter seriously and if required they have to take necessary steps for searching the defects and problems and tracking the person involved in this transaction. Being the custodians of the hard earned savings of the people and being the reputed bank, they should have an in house investigating agency to tackle and tracking the person involved in theft, illegal transaction illegal money transfers and cyber crimes occurred, now-a-days. But the Opposite Parties have not taken any steps in this matter. They have neither handed over the C.C. Tv particulars to unfold the truth relating to the same nor taken the help of the police. The Opposite Party has deposed that the C.C. Tv footage and the relevant documents showing despatch of cards and password have been destructed. He has not produce any circular or any register of the same. The act and conduct of bank authority towards the Complainant in this context is quite negligent and deficient in rendering service and amounts to unfair trade practice.
(5) To what reliefs the Complainant is entitled to ?
It has been clearly established from the above circumstances that, the Complainant has not been issued with the ATM Card and the relevant password. The Complainant has never used the ATM card to make the alleged transaction in question. As such the bank is liable for the amount plucked away from the account of the Complainant. Besides we also observed that, the Opposite Party has made deficiency in extending proper and timely service to the Complainant. They have not taken any steps for payment of amount of Rs.37,000/-(Rupees thirty seven thousand)only to the Complainant which has been unauthorizedly debited from the account of the Complainant. The bank thus is also liable to compensate the Complainant for their negligence and deficiency in rendering service to the consumer.
Hence ordered.
The Opposite Party is directed to pay Rs.37,000/-(Rupees thirty thousand)only to the Complainant with interest @ 9%(nine percent) per annum from the date of the illegal withdrawn i.e. on Dt.21/12/2008 till the date of Order i.e Dt.28/10/2013 along with compensation of Rs.2,000/-(Rupees two thousand)only towards mental agony, harassment and litigation expenses, within one month from the date Order, failing which the total awarded amount shall carry 12%(twelve percent) interest per annum till the date of actual payment.
The case is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree,
(Miss Rajlaxmi Pattnayak) (Smt. Anjali Behera) (Sri Pradeep Kumar Dash)
P r e s i d e n t M e m b e r. M e m b e r.
