West Bengal

Birbhum

CC/74/2019

Dr. Sanjib Kumar Simlandi - Complainant(s)

Versus

Branch Manager, SBI, Nischintapur ADB Bank, - Opp.Party(s)

Koushik Acherjo

20 Oct 2022

ORDER

Shri Sudip Majumder .  Member.

            The case of the complainant/petitioner in brief, is that on Dr. Sanjib Kumar Simlandi is a bonafide customer of OP/SBI at Nischintapur Branch at P.O. and P.S. Rampurhat, Dist. Birbhum. The complainant has a savings account being No. 31867678683 lying under the OP/SBI and the said account is operated by the complainant himself.

            On 29/05/2018 at about 11:03 AM the complainant went to an ATM near Bharsalapara, Rampurhat for the purpose to withdraw his money amounting Rs. 20000/ from his savings account being no 31867678683 of SBI, Nischintapur Branch, Rampurhat by using ATM cum Debit Card being No. 5103720182058378 but he did not get any money from the ATM after proper scratching of the Debit Card given by the Bank for this purpose. The instant petitioner also not gets any massage in his mobile No. 9474710564 registered with the Bank for the said transaction.

            It is further stated that the petitioner again try to withdraw money amounting Rs. 20000/ from his savings account through this ATM but failed again.

            It is alleged by the complainant that thereafter he went to his Bank for withdrawing the said amount of money and he came to know that Rs. 40000/ has been withdrawn from his saving account through ATM transaction. Thereafter this petitioner updated his account book and observed that two transaction mounting Rs. 20000/ each through ATM has been debited from his saving account.

            That the instant petitioner though has not get any amount of money from his account being No. 31867678683 of SBI, Nischintapur Bracnh, Rampurhat, Birbhum through any ATM transaction but illegally Bank authority debited money amounting Rs. 40000/ from the said account of the petitioner.                                                                         

            That thereafter this petitioner on the same date met with the branch manager, SBI Nischintapur Branch and informed the matter and on 01/06/2018 raised a complaint in writing . The Manager assured this petitioner the said amount will be credited again to then petitioner’s account within 48 hours.

            That thereafter this petitioner repeatedly visited to the office of the OP for proper adjudication of the mater and/or to return back the money but all in vein and lastly vide  letter dated nil OP rejected the claim of the petitioner with  note “this transaction is successful”.

            It is further stated that the petitioner has made an FIR before the Rampurhat Police Station vide FIR No. 266/18 dated 13/06/2018 in connection of the said transaction.

            That this petitioner has also lodge complaint before the Reserve Bank of India and higher authority of State Bank of India in respect of the said fraudulent transaction and in a letter dated 14/05/2019., Chief Manager (OS&CM) State Bank of India advised this petitioner to contact the Branch Manager, Nischintapur Branch to resolve the matter.

            Thereafter this petitioner having no other alternative filed this case and prays for the following reliefs as :

1. An order/direction against the OP Bank to pay the amount of Rs. 40,000/ in favour of the petitioner.
2. An order/direction for correction of statement of account of the petitioner.
3. Litigation cost of Rs. 25,000/.
4. Cost for mental agony and harassment of Rs. 60,000/.
5. Any other relief/reliefs as this petitioner is entitled to get.

This District Commission came to know from para 7 of the written version on behalf of the OP/SBI that the answering OP after enquiry and log book it is found that the operation of ATM A/C of the complainant is successful one and on the face of such circumstances the answering OP has got no other alternative but to reply the log report which is noted as “successful operation” and thus the OP Bank is not guilty for any offence more over OP Bank got no negligence in rendering proper service to the complainant. Thus the allegation of the complainant is nothing but a false and concocted one and there is not entitle to get any relief as prayed for and the instant petition of the complaint is liable to be dismissed.

            Complainant’s side submitted evidence in chief. Some documents have also been filed by the complainant and compare with original document. Written notes on argument (W/N/A) is also filed by both the parties and thereafter, Ld. Advocates on behalf of both the parties made oral argument in support of their 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. 31867678683. 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 Nischintapur 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.

            In this case, the cause of action arose on and from 15/06/2019 and the case has been filed on 13/08/2019 and as such it can be said that the complainant has been filed within the statutory period of the C.P. Act and as such the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

            On 29/05/2018 at about 11:03 AM the complainant went to an ATM near Bharsalapara, Rampurhat for the purpose to withdraw his money amounting Rs. 20000/ from his savings account being no 31867678683 of SBI, Nischintapur Branch, Rampurhat by using ATM cum Debit Card being No. 5103720182058378 but he did not get any money from the ATM after proper scratching of the Debit Card given by the Bank for this purpose. The instant petitioner also not get any massage in his mobile No. registered with the Bank for the said transaction.

            That the petitioner again try to withdraw money amounting Rs. 20000/ from his savings account through this ATM but failed again.

            That thereafter complainant went to his Bank for withdrawing the said amount of money and came to know that Rs. 40000/ has been withdrawn from his savings account through ATM in single transaction. His total balance was Rs. 40,746.35 on 29/05/2018. After transaction, the balance became Rs. 746.35/.   

                                                                                  

On 01/06/2018 the complainant informed the matter and submitted a written complaint to the Branch Manager, SBI, Nischintapur.

            The complainant also made an FIR, before Rampurhat Police Station vide FIR No. 266/18 dated 13/06/2018.

            OP/SBI rejected the claim through a letter without any date with a note “this transaction is successful”.

            Whereas, Ld. Advocate for the OP/SBI did not submitted any evidence regarding the rejection of the claim before this Commission.

            The complainant also stated in para 15 of his written notes on argument that the bank also failed to supply the reconcillation statement of date 29/05/2018 in spite of his demand vide letter dated 16/07/2019.

• 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 Branch Manager SBI, Nischintapur Branch in writing and on 14/05/2019 also inform the matter Chief Manager (OS&CM) State Bank of India.

 

 

Hence, the citation above from the Hon’ble NCDRC we think that after informing the fact at once  to the OP/SBI, the complainant has zero liability.

 

• 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, Honourable 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.

It is the dictum of the Shastra’s of Ancient India like Manu Sanghita that a wrong doer shall be fined an amount equal to the value of the claim.

In this case, the complainant sometime deposited the amount in his Savings Bank Account and on 29/05/2018 the Complainant tried for withdrawal the amount twice amounting to Rs. 20,000/- in each time but unfortunately he did not get the amount and the OP/SBI, Nischintapur Branch illegally debited Rs. 40,000/ in total from his savings Bank Account. The complainant informed this matter to the Higher Authority of OP/SBI at once.  It is the duty and responsibility of OP/SBI to serve the customer cum complainant. But, OP/SBI, Nischintapur Branch fails to discharge their duties. Hence, OP/SBI Nischantapur Branch is solely responsible and liable to pay the amount of Rs. 40,000/ to the complainant/customer for account holder. In our view, the complainant is able to get back the amount of Rs. 40,000/ from the OP/SBI, Nischantapur Branch.

It is the dictum of the Shastra’s of Ancient India like Manu Sanghita that a wrong doer shall be fined an amount equal to the value of the claim.

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 did not refund amount of Rs. 40,000/ 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 Honourable 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. 25,000/ to the petitioner or complainant as compensation as against mental agony and harassment to the complainant.

• 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.

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

            The Complaint is sufficiently stamped and proved beyond all reasonable doubt.

 

 

 

 Hence, it is,

            O R D E R E D,

                                    that the instant C.F. Case No. 74/2019 be and same is allowed on contest with cost.

            The OP is directed to pay Rs. 40,000/ (Forty thousand only) to the complainant along with interest thereon @ 9% per annum calculating on and from 13/08/2019 (i.e. from the date of filing of this case) to till realization. OP is also directed to pay Rs. 25,000/ (Twenty five thousand only) to the complainant as compensation as against mental agony and harassment to the complainant and Rs. 5000/ (Five thousand only) as cost of litigation to the complainant.

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 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.