West Bengal

Birbhum

CC/60/2018

Ashima Dutta - Complainant(s)

Versus

Branch manager, SBI, Kotasur Branch - Opp.Party(s)

Sanjit Kr Acharya

29 Jun 2022

ORDER

Shri Sudip Majumder .  Member.

            The case of the complainant/petitioner in brief, is that one Ashima Dutta is a bonafide customer of OP/State Bank of India at Kotasur Branch at P.S.- Mayureswar, Dist.- Birbhum. The complainant has a savings account being No. 32901939846 lying under the OP and the said account is operated by the complainant herself.

            On 16/09/2016 at about 1:45 pm the complainant has processed to withdraw Rs. 20,000/- (Twenty thousand) from the said savings account by using ATM cum Debit Card being No. 4591510106282176 at Sainthia, Machine being No. IFBN002116007 as useable process, but no cash came out from that ATM machine in spite of that a massage for successful transaction of Rs. 20,000/ through ATM has been given in her mobile. The said amount of Rs. 20,000/- has not been withdrawn on that date in any point of time. The complainant saw two persons were inside the ATM shop and they were doing something with a needle in the ATM machine and she raised hue and cry and at this those persons fled away. The complainant believed that those persons may be the hackers. The complainant saw there was no security person at the ATM shop and the hackers are taking advantage in absence of security.

            Ld. Advocate on behalf of the complainant submitted by the oral argument that the complainant had complained before the higher authority of the OP/SBI over telephone in toll free number               1800-112-211 from his mobile No. and the OP acknowledged the same and issue complaint ticket being No. 429225962208, on 17/09/2016. OP rejected the claim of the complainant by SMS on 19/09/2016.

The complainant also had complained before higher authority of SBI through e-mail as well as Registered post on 23/09/2016 and 05/10/2016 copy forwarded to, RBI, Kolkata and chief Manager, SBI, Bolpur.

            On 18/11/2016 the complainant lodge a complaint before the Assistant Director, Consumer Affairs and Fair Business Practices, Birbhum Regional Office, at Suri.

           

A tripartite meeting was held on 20/12/2016 at 15-30 hours for resolving the instant dispute through the process of mediation at the said office. The Branch Manager, SBI, Kotasur Branch, Assistant Director, CA & FBP, Birbhum RO, and the complainant also present in person at the said meeting, and the SBI/OP has failed to provide CCTV footage on that date of ATM shop situated on that place. In this condition that office did not reach to a conclusion.

            After that finding no other alternative the complainant filed the instant case on 02/08/2018 U/S 12 of the Consumer Protection Act, 1986 and praying following relief/reliefs :

1. To pass an order directing the opposite party to pay sum of Rs. 20,000/plus interest @ 8% p.a. since 16/09/2016.
2. To pass an order directing the opposite party to pay Rs. 30,000/ as compensation for harassment for mental agony caused by the OP.
3. To pass an order directing the opposite party to pay a sum of Rs. 10,000/ as litigation cost.
4. Other relief or reliefs.

            It appears from case record that none appears from OP/SBI before this District Commission after receiving the notice. OP/SBI has not taken any steps. No written version has yet been filed by the OP/SBI. As a result of that by order No. 24 dated 20/12/2019 this Forum (Now Commission) stated for running of the instant case exparte against the OP.

Complainant side submitted evidence-in-chief. Some documents have also been filed by the complainant and compare with original documents. Ld. Advocate for complainant has submitted by a petition that their copy of the petition of complaint be treated as written notes on argument (W/N/A). Perused the petition, considered and allowed. Thereafter, Ld. Advocate for the complainant made oral argument in support of this case.

                                                         Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

            Evidently the complainant has an account in SBI, Bolpur Branch being Savings Account No. 32901939846. Hence, the complainant is a consumer as per Sec. 2(1)d(ii) of the Consumer Protection Act, 1986.

 

Point No. 2:

            Pecuniary jurisdiction of the Forum as per Sec. 11(1) of the Consumer Protection Act, 1986

i.e. Rs. 20,00,000/- (now as per C.P. Act 2019 i.e. Rs. 1 crore). OP/SBI Kotasur Branch situated in Birbhum District i.e. within the territorial jurisdiction of the Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

Point No. 3:

            In this case, the complainant demanded the CCTV footage from the OP/SBI as she saw to persons were inside the said ATM shop and they were doing something with a needle in the ATM machine and she raised hue and cry and at this those person fled away. That the complainant believed that those persons may be the hackers.

            It appears to us from the documentary evidence that it is a duty of OP/SBI to provide 24 hours security and CCTV in their ATM shop. But, there was no security person in said ATM shop. In absence of security person the hackers are taking advantage and taking away the money of the consumers.

            In this case the complainant demanded the CCTV footage of the said ATM shop on that time from the OP/SBI. But, the OP/SBI has failed to provide CCTV footage on that date on ATM shop situated on that place. Further, the OP/SBI rejected the claim of the complainant through SMS on 19/09/2016 at 4:56 PM without any investigation, it is vexatious one. OP/SBI did not taken any steps for recovering the said amount of Rs. 20,000/ (Twenty thousand) of the complainant. OP/SBI cannot avoid their liability for recovering the said amount.

• In HDFC Bank Ltd. Vs. Jesna Jose on 21/12/2020 NCDRC stated in para 11 as follows:

“11…..In Punjab National Bank and Anr. V Leader Valves II (2020) CPJ 92 (NC), this Commission while addressing the question of liability of a Bank in case of unauthorized and fraudulent electronic banking transactions, has observed as under:

"11. The first fundamental question that arises is whether the Bank is responsible for an unauthorized transfer occasioned by an act of malfeasance on the part of functionaries of the Bank or by an act of malfeasance by any other person (except the Complainant/account-holder). The answer, straightaway, is in the affirmative. If an account is maintained by the Bank, the Bank itself is responsible for its safety and security. Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the consumer/account-holder), is its responsibility, and not of the consumer."

Reference is also drawn to circular bearing No. DBR.No.Leg.BC.78/09.07.005/2017-18 dated 6th July 2017, issued by the Reserve Bank of India to all commercial banks, wherein it is stated as under: 

"6. A customer's entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events:

Contributory fraud/ negligence/ deficiency on the part of the bank (irrespective of whether or not the transaction is reported by the customer).

Third party breach where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system, and the customer notifies the bank within three working days of receiving the communication from the bank regarding the unauthorized transaction."

In this case the complainant informed the fact at once to the higher authority of the OP/SBI through their Toll free number, E-mail and as well as in writing. Hence, after informing the fact at once to the OP/SBI, the complainant has zero liability.

 

• In 2015(III) CPJ 135 (NC) …....where in a case of fraudulent withdrawal, the National Commission stated in para 6 as “………. The petitioner-bank, therefore, was deficient in rendering services to the complainant by not making available a copy of the aforesaid CCTV footage to him.”
• In 2013 (IV) CPJ 248 (NC) -..... where money was withdrawn through ATM machine, amount was not disbursed but debited from the account. Hon’ble National Commission Pleased to hold that it was deficiency.
• In 2015 (II) CPJ (CN) 17 (TN) …...where in a case of alleged fraudulent withdrawn of money through ATM money, Hon’ble State Commission pleased to held that the bank neither explained discrepancies in entries which are conflicting to each other nor proved that the complainant has actually withdrawn amounts, it amounts to deficiency in service and compensation was awarded to the complainant.

 

Even, if we go through the Manu Sanghita (Chapter-8, Shloka-191) stated as:

 

“ यो निक्षेपं नार्पयति यश्चानिक्षिप्य याचते ।
तावुभौ चौरवत्शास्यौ दाप्यौ वा तत्समं दमम् ”॥ १९१ ॥

 

yo nikṣepaṃ nārpayati yaścānikṣipya yācate |
tāvubhau cauravatśāsyau dāpyau vā tatsamaṃ damam || 191 ||

 “A depository who fails to return the article deposited with him, as also a person who  claims back a deposit which he never deposited, should be punished like a thief, or shall be fined an amount equal to the value of the claim.” …..Manu Sanghita (VIII-191).

 

 

 

Considering over all matter into consideration and materials on records and relying upon the ruling, cited above we are constrained to hold that the complainant has been able to prove his case of deficiency in service by the O.P as they not refunded amount of Rs. 20,000/- illegally deducted by them.

Point No. 4:

            As in this case, it is proved that there is deficiency in service on the part of the O.P. Hence, the complainant is entitled to get  relief or compensation as prayed for.

• In ICICI Bank Ltd. Rep. By Its. vs. Mr. Kateka Sudhakar,S/O K.J… on 5 March, 2018 the Hon’ble State Commission, Hyderabad stated in para 15 and 16 as follows:-

            “15. The Honble Supreme Court in State of Gujarath vs Shantilal Mangaldas AIR 1969 SC 634. Held the compensation to mean..  "In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression paid would have been more appropriate".

 16. The Supreme Court held that the compensation to be awarded is to be fair and reasonable.          In Charan Singh vs Healing Touch Hospital and others 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer  and the change it brings in the attitude of the service provider. The Court held While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge.”

            Keeping the view of the Hon’ble Apex Court in mind in respect of the manner of the compensation and quantum of compensation as per fact and circumstances of the present case this Commission is of opinion that in the instant case the loss of the complainant would be served in just way in terms of money and the quantum of compensation will be just and proper if the OP is directed to pay Rs. 15,000/ to the petitioner or complainant as compensation as against mental agony and harassment to the complainant.

           

 

 

 

Thus, all the points are decided in favour of the complainant.

            Complaint is sufficiently stamped and proved beyond all reasonable doubt.

•       In Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”

            In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 8% p.a. from the date of filing of this case.

 

                        Hence, it is,

                                    O R D E R E D,

                                                            that the instant C.F. Case No. 60/2018 be and same is allowed in part exparte against the OP/SBI.

            The OP is directed to pay Rs. 20,000/ (Twenty thousand) to the complainant along with interest thereon @ 8% per annum calculating on and from 02/08/2018 till realization. OP is also directed to pay Rs. 15,000/ (Fifteen thousand) to the complainant as compensation as against mental agony and harassment to the complainant and Rs. 5000/ (Five thousand) as cost of litigation to the complainant.

The entire decree will be complied by the OP within 30 (Thirty) days from this date of order, in default the complainant is at liberty to put this order in execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.