Ld. Advocate(s)
For Complainant: Milan Ghosh
For OP/OPs : Manas Kanjilal
Date of filing of the case :31.07.2019
Date of Disposal of the case :16.10.2023
Final Order / Judgment dtd.16.10.2023
The brief history of the case of the complainant is that the complainant Sudhir Debnath is a consumer under the Opposite Party /SBI having savings
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account 11858788935. The OP Bank suddenly called on the complainant and offered him one SBI Credit Card stating that the said card is monthly or yearly charge free. It was settled between them that if the complainant used the said card then the said amount will be deducted from his savings account. Before receiving the said Credit Card the complainant received an SMS from the SBI on 25.10.2018 and he came to know that Rs.2,237.82 was deducted from his account for SBI Credit Card P.A charge. After knowing that fact the complainant immediately informed the same to the OP with a request to stop the function of the said Credit Card. Thereafter, on 13.11.2018 the complainant received another SMS from the OP that Rs.19,999/- was deducted from his said bank account by the OP whimsically. Thereafter the complainant went to the office of the OP Bank and lodged one complaint on 26.11.2018. The OP stated that they would return the amount which was deducted from his savings account but the OP did not pay any heed to that. Subsequently, on 26.11.2018 the OP again deducted Rs.69,970/- from the complainant’s account arbitrarily. Thereafter, the complainant lodged a complaint to the I.C Haringhata P.S on 07.12.2018 along with G.D.E being No.338/2018 but the police did not take any step , so this case is filed. The arbitrary act of the OP caused deficiency in service for which the complainant suffered mental pain and agony. The complainant prayed for an award for Rs.92,206.82 towards actual sum deducted along with interest till the realisation of that money, Rs.50,000/- towards mental pain and agony and Rs.5,000/- as litigation cost.
The OP contested the case by filing W/V denying the major allegation. The positive defence case of OP No.1 State Bank of India Nagarukrah Branch in brief is that the complainant is a customer under the OP Bank having account no.11858788935 as stated in the complaint. Since the allegation of the complainant that the amounts deducted from his account for the SBI Credit Card three time, so it should be actually brought against the SBI Credit Card. The OP No.1 bank SBI and SBI Credit Card are completely separate entity. There is no latches or negligence on the part of the OP SBI Bank and the said amount was rightly deducted from his account. The SBI Credit Card is necessary party of this dispute. One SBI Credit Card Holder must have a registered mobile number and each and every time of its use the holder should get high security OTP through his registered mobile which is known to the Credit Card holder only but not other. The petitioner used his SBI Card and OTP number for three times. It is also known to the complainant about what he had done but suppressing that fact, the complainant illegally filed this case the OP No.1 has no liability to pay the alleged amount as claimed by the complainant. Every card holder is provided with user booklet with terms and conditions. So the complaint case is liable to be dismissed with cost.
OP No.2 also contested the case wherein they denied the major allegation on the ground of the case is not maintainable for incorrect version. The positive defence case of OP No.2 in brief is that the complainant was issued SBI Card bearing no.0004377487811290994 on September, 2018. As per auto debit payment processing payment instruction goes to the bank 2-3 days prior to the due date and the amount is debited within next three working days. All this
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authorisations are made while applying for the card. The card holder was advised , if he uses to make manual payment it should be done 5 days prior to the due date in order to option the auto debit for that month. The outstanding amount of Rs.2,238/- against the statement dated October 04, 2018 payable date October 24, 2018 schedule vide auto debit payment option chosen by card holder when submitted for deduction, the same was deducted on 24.10.2018 from savings account. Outstanding amount of Rs.69,970/- against statement dated 04.11.2018 payable due date November 24, 2018 schedule vide auto debit payment option chosen by card holder when submitted for deduction, the same was deducted on 24.11.2018 from savings account. From the scrutiny of card amount details, it is found that on 01.11.2018 transaction was done Rs.69,970/- and on 12.11.2018 also transaction was done for Rs.8210/-. With respect to the disputed transaction the OP had already sent mail on 20.04.2019 which was also informed to the complainant. The investigation in the said transaction and observation that the transaction was performed for a secured manner which was validated by CVV and Dynamic One Time Password (OTP) over the internet/IVR. One time password was successfully delivered. Transaction alert was also sent through SMS at the address of the complainant. So the liability of the transaction fully lies upon the card holder. Any card absent transaction cannot be done without confidential details of the card. It has a robust transaction monitoring system which raised a trigger on suspicious transaction which are not in sync with customer passed transaction pattern. The complaint duly gave his consent to auto debit while filing the application form. Due to auto debit amount was automatically deducted. The OP duly communicated to the complainant about all the procedure for using Credit Card. In case the payments are missed or outstanding or the card is received less than the total amount due then interest is chargeable on the balance amount. The finance charge is levied at 3.35% per month plus service tax. There is no deficiency in service. So the OP prayed for dismissal of the case with cost.
After going through the pleadings of both the parties. The following points are set forth for adjudication of this case.
Points for determination
Point No.1
Whether the case is maintainable in its present form and prayer.
Point No.2
Whether the complainant is entitled to get the relief prayed for.
Point No.3
To what other relief if any the complainant is entitled to get.
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Decision with Reasons
Point No.1
Both the opposite parties initially contested the case. Subsequently due to not filing W/V within time the case was decided to be heard ex-parte against the OP NO.2 vide order no.24 dated 27.03.2023. OP No.1 raised the
question as to non-maintainability of case on the ground that case is bad for defect of parties. Thereafter the OP No.2 was added in this case but subsequently due not filing W/V within time it was decided to be heard ex-parte against OP NO.2. Other than that particular point the OP No.2 could not establish any point as to non-maintainability of the case.
However, having perused the pleadings of the parties and the evident of record it appears that there is a not major defect in the instant case. The case is filed within the limitation period. The relief claimed is well within the pecuniary jurisdiction of this Commission. Both the party reside within the territorial jurisdiction of this Commission, so the case is legally maintainable.
Accordingly point no.1 is answered in favour of the complainant.
Point No.2 &3
Both the points are very closely interlinked with each other, so these are taken up together for brevity and convenience of discussion.
The complainant categorically stated that the OP Bank SBI Nagarukhra Branch called on him in supplying Credit Card but before issuance of this said card or receiving the same, he received an SMS that sum of Rs.2,237.82 was deducted from his account for SBI Credit Card P.A charge. Immediately the complainant informed the matter and requested to the OP Bank to stop the functioning of this said Credit Card but the OP did not stop it. Subsequently on 13.11.2018 again and sum of Rs.19,999/- was deducted from his account bearing no.11858788935 and by the OP whimsically. The OP No.1 filed W/V. Except an evasive denial they could not make out any positive defence case. On the contrary the defence plea is that the SBI and SBI Credit Card Division are two separate entity. Since the amount deducted by the SBI Credit Card it should be brought against the SBI Credit Card Authority and OP No.1 is not responsible.
It is the settled position of law of evidence that principal onus lies upon the complainant to establish the case but the burden of proof shifts from time to time , so it is the onus of OP NO.1 to establish that SBI Credit Card and SBI are two separate entity. But the OP could not discharge their onus to establish the defence case.
That apart , it is found from the case record that the amount was deducted from the account of the complainant which is maintained by the OP No.1 Bank SBI.
It is also the settled position of law that a principal is liable for the act of the agent.
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Ld. Advocate for the complainant argued that the SBI Credit Card Authority used to run the business of issuing Credit Card and the transactions by using good will of the OP No.1 SBI. So the OP NO.1 bank has both direct and indirect approval and control over the activities of the SBI Credit Card Division.
It is the further defence plea of the OP Bank that unless the complainant shared the OTP sent by the SBI Credit Card the money could not have been withdrawn or deducted, so the complainant has responsibility. But the OP could not lead any evidence to establish that the complainant shared his OTP with the third party .
In fact the allegation against OP No.2 Credit Card Division stands unchallenged since the OP NO.2 did not contest the case and it runs ex-parte against them.
Ld. Advocate for the complainant further alleged that the staff of the Bank is involved in the said fraud otherwise no money of the complainant could have been withdrawn. The OP Bank also could not lead any evidence that the said Credit Card was supplied to the complainant.
It is fact that the OP could not lead any evidence to establish that the card was supplied to the complainant.
A close scrutiny of the documentary evidence of the complainant projects that as per Annexure-1 Credit Card monthly statement money was deducted at different times.
Annexure-2 also discloses that the said Credit Card was subsequently blocked.
Annexure-3 is some messages as to the Rules for using the Credit Card.
Annexure-4 is an important document which shows that the complainant lodged written complaint to the Haringhata P.S. about the deduction of moneys on different dates and lastly on 26.11.2018 Rs. 69,970/- the said complaint was registered as G.D.E. No.338/2018.
Annexure-5 is the statement of account where from it transpires that moneys were deducted three times on 25.10.2018, 13.11.2018 and 26.11.2018. The original documents are also filed to support the claim of the complainant. The entire allegation against the OP NO.2 stands unchallenged and undiscarded since the averment of OP NO.2 in defence through W/V was not accepted because it was filed after the statutory period of limitation. It is further evident from the oral testimony of the complainant through reply of questionnaires filed by OP No.1 with an affidavit which discloses that the complainant had a savings account with the OP No.1. As per question No.3 by OP No.1 to PW-1 whether the SBI Branch and SBI Credit Card are completely separate entity or not.
PW-1 answered negatively, stating ‘no’, in the same roof they run their business.
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Answered in cross examination has a special force. Since the PW-1 denied in cross that OP No.1 and OP No.2 are separate entity so the defence case is rightly discarded.
The PW-1 further answered against question as to whether each and every time use of SBI Card an OTP is sent through mobile number, . The PW-1 answered that his money is started deducting before he received the Credit Card.
The complainant further answer that before receiving the Credit Card on 25.10.2018 one SMS was received from SBI and he came to know that Rs.2,237.82 was deducted from his account for SBI Credit Card PA charge.
Thus during cross examination the complainant answered clearly against each question which suggest that the complainant had no fault or direct involvement for the deduction of money from his account on the alleged three dates as claimed.
Ld. Advocate for the complainant in order to strengthen the claim of the complainant relied upon a decision reported in Punjab National Bank and another Vs. Leader Valves II (2020 volume-III CPJ-92 (NC)) Hon’ble N.C.D.R.C. Where held that the first fundamental question is whether the bank is responsible for an unauthorised transfer on the part of the functionaries of the bank or by an act of malfeasance by another person (except of the complainant/account holder) if an account is maintained by the bank, the bank itself is responsible for its safety and security. Any systematic failure whether the malfeasance of the bank or by any other person it is the responsibility of the bank and not that of the consumer.
Ld. Advocate for the complainant also relied upon the case law reported in DBR. No. Leg. BC. 78/09.07. 005/2017-18.
Wherein it was held that a customer entitlement to zero liability shall allies the unauthorised transaction occurs in the following events. Contributory fraud on the part of the bank (irrespective of whether or not the transaction is reported by the customer). Third party breach where deficiency lies neither with the bank nor with the customer but lies else where in the system and the customer notifies the bank within three working days of receiving the communication from the bank regarding unauthorised transaction.
In the instant case the complainant complied with those guidelines or the statutory obligation. So both the OP No.1 and OP No.2 cannot escape from their liability for the unauthorised deduction of money from the account of the complainant.
Thus having assessed the entire evidence in the case record and in the backdrop of the aforesaid observation the Commission comes to the findings that the opposite parties acted in and manner with the complainant which tantamount to deficiency in service and harassment.
Consequently, point no.2 & 3 are decided positively in favour of the complainant.
In the result the complaint case succeeds on contest with cost.
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Hence,
It is
Ordered
that the complaint Case No. CC/253/2019 be and the same is allowed on contest with cost of Rs.5,000/- (Rupees five thousand) against the Opposite Parties. The complainant do get an award for a sum of Rs.92,206/- (Rupees ninety two thousand two hundred six) together with interest at the rate of 6% per annum, Rs.10,000/- (Rupees ten thousand) for deficiency in service and mental pain and agony and harassment. Both the OP No.1 & 2 are jointly and severally responsible for the payment of the said money. OP No.1 & 2 are directed to pay Rs.1,07,206.82 (Rupees One lakh seven thousand two hundred six and eight two paisa) to the complainant within 30 days from the date of passing the final order failing which the entire award money shall carry an interest of 8% per annum from the date of passing the final order till the date of its realisation.
Dealing Assistant to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)