West Bengal

Nadia

CC/253/2019

SUDHIR DEBNATH - Complainant(s)

Versus

BRANCH MANAGER SBI, NAGARUKRA BRANCH - Opp.Party(s)

MILAN GHOSH

16 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
NADIA
170,DON BOSCO ROAD, AUSTIN MEMORIAL BUILDING.
NADIA, KRISHNAGAR
 
Complaint Case No. CC/253/2019
( Date of Filing : 31 Jul 2019 )
 
1. SUDHIR DEBNATH
C/O- LATE SURENDRA DEBNATH VILL.- BARASAT P.O.- HARIPUKURIA P.S.- HARINGHATA PIN-741257
NADIA
WEST BENGAL
...........Complainant(s)
Versus
1. BRANCH MANAGER SBI, NAGARUKRA BRANCH
VILL & P.O.- NAGARUKRA, P.S.- HARINGHATA, PIN- 741257
NADIA
WEST BENGAL
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. HARADHAN MUKHOPADHYAY PRESIDENT
 HON'BLE MR. NIROD BARAN ROY CHOWDHURY MEMBER
 
PRESENT:MILAN GHOSH, Advocate for the Complainant 1
 MAKBUL RAHAMAN, Advocate for the Opp. Party 1
Dated : 16 Oct 2023
Final Order / Judgement

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

 

 ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)        ................ ..........................................

                                                                                                  PRESIDENT

                                                                         (Shri   HARADHAN MUKHOPADHYAY,)

 

I  concur,

  ........................................                                              

          MEMBER                                                                   

(NIROD  BARAN   ROY  CHOWDHURY)               

 
 
[HON'BLE MR. HARADHAN MUKHOPADHYAY]
PRESIDENT
 
 
[HON'BLE MR. NIROD BARAN ROY CHOWDHURY]
MEMBER
 

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