West Bengal

Birbhum

CC/72/2017

Rasmoy Let, S/O Lt D.Let - Complainant(s)

Versus

Branch Manager, SBI, Nalhati Branch - Opp.Party(s)

Sanjit Kr Acharya

18 Aug 2023

ORDER

Shri Sudip Majumder. President in Charge.

            The complainant/petitioner files this case U/S 12 of Consumer Protection Act, 1986. The fact of the case in brief is that the petitioner, Rasamay Let S/O Late Dhanapati Let permanent resident of Vill.. & P.O. Kalitha, P.S. Nalhati, Dist. Birbhum is a bonafide customer of OP/State Bank of India, Nalhati Branch, Birbhum. The complainant has a salary account being No. 30972978809 lying under the OP/SBI and the said account is operated by the complainant himself.

            It is the case of the complainant that the complainant found after updating his aforesaid Pass Book on 29/06/2019 that on 04/05/2017 there has been an unauthorized withdrawal of Rs. 2,60,000/ from his account by issuing withdrawal slip. The Bank authority without comparing signature on withdrawal slip with the specimen signature of the complainant unauthorisedly debited Rs. 2,60,000/.

            It is the further case of the complainant that thereafter the complainant lodged complaint before the OP/SBI, Nalhati Brach on 04/07/2017 and before the Nalhati P.S. on 13/07/2017 stating the details of the incident.

            The bank authority without proper investigation replied by their letter dated 17/07/2017 and informed the complainant that he was the recipient of the amount at the counter on 04/05/2017.

            It is the next case of the complainant that the complainant had requested the Bank authority to refund the amount of

Rs. 2,60,000/ which was unauthorizedly debited from his account but the OP/SBI did not refund the same.

           

 

It is the specific case of the complainant that thereafter the complainant lodged a complaint being index No. CICC/RO/BTR/39/2017-18 before the Assistant Director, Consumer Affairs & Fair Business Practices, Birbhum RO at Suri  on 27/07/2017 the authority served a notice upon both the parties and fixed 23/08/2017 for hearing but on the date of hearing the OP/SBI did not take part in the hearing and the authority advised the complainant to file complaint before the DCDRC, Birbhum.

            Hence, after finding no other alternative the complainant is compelled to file this case before this Forum/Commission for proper relief and prays for:-

1. To pass an order directing the OP to restore the SB A/C. being No. 30972978809 after crediting Rs. 2,60,000/- in the A/C.
2. To pass an order directing the Op to pay interest @ 12% p.a. on Rs. 2,60,000/- since 04/05/2017 till realization of the claim.
3.  To pass an order directing the OP to pay Rs. 2,00,000/- as compensation for harassment and mental agony.
4.  To pass an order directing the Op to pay Rs. 10,000/- as litigation cost.
5.  Other relief/reliefs.

            The OP/SBI filed their written objection/version, and denied all the complaint against them. The OP/SBI also filed questionnaires and Evidence-in-chief on affidavit.  

Ultimately the OP prayed for dismissal of the case.

It appears from the case record that on the date of argument none appears and no step was taken by the OP side, though we have given attention to the view of the OP/SBI from their written version.

Complainant’s side submitted evidence-in-chief and written notes on argument. Some documents have also been filed by the complainant compared with the original ones. Thereafter, Ld. Advocate for the complainant made oral argument in support of his case.

            Heard Ld. Advocate for the complainant.

            Considered.

            Perused all the documents.

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, Nalhati Branch being Savings Account No. 30972978809. 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 this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 is Rs. 20,00,000/-. OP/Oriental Insurance Co. Ltd., Suri Branch is situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

In this case, the cause of action arose from 17/07/2017 and the case has been filed on 30/08/2017 and as such it can be said that the complainant has filed this case within the statutory period of the C.P. Act, 1986 and as such the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

            It appears from the documentary evidence in the case record that on 29/04/2017 the complainant himself withdrew by cheque being No. 000673215 amounting Rs. 20,000/- from his account and there after Rs. 4,05,041.00/- was lying as balance in his account.

            That on 02/05/2017 thereafter having no cheque leaf he withdrew Rs. 1,00,000.00/- for his urgent need by withdrawal slip after taking permission from the bank authority and then Rs. 3,05,954.75/- was laying as balance in his aforesaid account.

            That on 30/05/2017 the complainant again withdrew Rs. 60,000/- himself by cheque being no 946076. The complainant stated that on that date the complainant could not update his account due to the reason that the printing machine was out of order. He updated his aforesaid Pass Book on 29/06/2017 and after receiving the Pass Book he learnt that Rs. 2,60,000/- had been withdrawn from his account on 04/05/2017 unauthorized by issuing withdrawal slip. That the Bank authority without comparing signature of withdrawal lip with the specimen signature of the complainant debited Rs. 2,60,000/- unauthorizedly.

            The OP/SBI replied the complainant by their letter dated 17/07/2017 “……… the amount of Rs. 2,60,000/- were paid by the counterman/cashier by debit to your A/C NO. 3097297809 and you were personally recipient of the amount over the counter on 04/05/2017.

 ……. We welcome your patronage to recapitulate your money as the transaction taken place before two months which may be loss of money.”

            The OP/SBI stated in para 5 of their written objection/version that…. “The complainant was duly present before the bank on 04/05/2017 and properly withdrew disputed money on Rs. 2,60,000/- on 04/05/2017 from the bank which can well be established and confirmed and which is

(4)

also recorded in C.C system of the bank. that the moment after presentation of the withdrawal slip for the disputed sum of Rs. 2,60,000/- before the counter the system of the bank for fetching signature was badly hampered on that date due to technical problem/disturb the same could not be compared. But as the complainant was himself present and personally took the money as he was well recognized being known face to the bank there was no doubt or problem to make payment to him.”

            From the written version of the OP/SBI as stated above, this Commission is of the view that the OP/SBI admitted the fact that on 04/05/2017 the cashier did not compare the signature of withdrawal slip with the specimen signature of the complainant.

            Moreover, OP/SBI stated in their written version that the incident is also recorded in CCTV footage of the Bank. From the written version of the OP/SBI as stated above, this Commission is of the view that the case has been filed on 30/08/2017, almost 6 years running. Not a single day, the OP/SBI neither produced CCTV footage nor signature of the withdrawal slip and specimen signature of the complainant for comparing the same before this Commission.  As per Sec. 73 of the Indian Evidence Act, 1872 court is expert of  all experts. Even, the OP/SBI did not send the said withdrawal slip and specimen signature of the complainant to the handwriting expert authority for comparison of the same.

            OP/SBI filed their evidence-in-chief with affidavit. Ld. Advocate for the complainant filed questionnaires against the evidence-in-chief filed by the OP/SBI. But the OP/SBI did not reply a single question of the complainant’s side. Hence, the evidence-in-chief of the OP/SBI is treated as challenged evidence.

            Ld. Advocate for the complainant cited some ruling in support of his case as follows:

            In IV (2019) CPJ 172(NC) M. Sivanandam  & Anr vs State Bank of India & Anr ...It was held that “…Hence we are of the view that the Bank ought to have been more vigilant in verifying the signatures and adhering to SB Rules before realizing the amount to third parties merely based on the withdrawal slips . At the cost of repetition, the copy of subject withdrawal slips was not produced  before us .”

            In Chandrabhan Mishra & Anr vs Central Bank of India II (2016) CPJ 387 (NC)...It was held “11….In our view nothing really turns upon the deposition of hand writing expert. Since in our opinion a bank official comparing the disputed signature with the specimen signature of the complainant with naked eye could easily have detected the dissimilarity noticed to us . Though the bank official comparing the signatures on the checks presented to them with the specimen signature of the account holder are not hand writing expert , we may cannot be oblivious to the fact that having comparing a large number of signatures everyday they develop some kind of expertise in such comparison  which a rank layman would not possess.”

                                                     

 

• We find 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."

In the light of observation made by their Lordships in the above decisions we find us safe to follow them and apply the ratio in the present dispute.

            From the above discussion, this Commission is of the view that the cause shown by OP/SBI in their letter to the complainant dated 17/07/2017 as well as their written version is baseless and vexatious one.

It is proved beyond all reasonable doubts that the aforesaid act of the OP members are amounting to deficiency in service as per Sec. 2(1) (g) of C.P. Act, 1986 as well as unfair trade practice as per Sec. 2(1) (r) of the C.P. Act, 1986.

Hence, from the above discussion it is proved that the complainant could be able to prove his case beyond all reasonable doubts.

Point No. 4:

            The legal heirs of the complainant namely Gayanath Let, Kashinath Let and Bulu Let submit before this Commission the death certificate of the complainant, Rasamay Let. Accordingly, in this case, the decretal money if any should be awarded in favour of above three legal heirs of the complainant, A succession certificate in favour of above three legal heirs obtaining from municipality/Gram Panchayat has been submitted by the complainant’s side before this Commission.

As in this case, it is proved that there is deficiency in service on the part of the OP.

            Hence, the complainant is entitled to get relief or compensation as prayed for.

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

            Complaint is sufficiently stamped and proved beyond all reasonable doubts.

• 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 Krishna Bhagya Jala Nigam Ltd. Vs. G. Harishchandra Reddy & Anr. (2007) 2 SCC 720 it was held that “Only 9% interest be awarded on refund matter.”

            In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 9% 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. 72/2017 be and same is allowed on contest with cost.

            The OP/SBI is directed to return the said unauthorized withdrawal amounting of Rs. 2,60,000/ (Two lakh sixty thousand only) along with interest thereon @ 9% per annum calculating on and from 30/08/2017 (i.e. from the date of filing of this case) till realization. The OP/SBI is also directed to pay Rs. 15,000/(Fifteen thousand only) 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 OP/SBI is also directed to pay all the decretal amounts equally divided by 3 and issue 3 Account Payee Cheques/Demand Draft in favour of Gayanath Let, Kashinath Let and Bulu Let.

The entire decree will be complied by the OP within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to 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.