DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __112_ _ OF ___2016
DATE OF FILING :_23.9.2016 DATE OF PASSING JUDGEMENT: _2.8.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Smt. Tulurani Maity, wife of Sri Sisir Maity of Vill. Nandabhanga, P.O Ganesnagar, P.S Kakdwip, Dist. South 24-Parganas, Pin-743357.
O.P/O.Ps : Branch Manager, State Bank of India, Namkhana Branch, Namkhana, South 24-Parganas, Pin-743357.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The facts leading to the filing of the instant case by the complainant may be epitomized as follows.
The complainant has maintained an SB Account no.33975144440 with the O.P Bank of Namkhana Branch. On 22.11.2016 she withdrew Rs.10,000/- from her account by using ATM Card. It is only at that time she came to know from ATM Slip that there is a balance amount of Rs.19,715/- in her account. Surprisingly enough, she went to the Manager of O.P Bank and told him that there should have been a balance amount of Rs.1,37,000/- in her account, but the balance amount was Rs.19,715/- . Her passbook was updated then and then and it was found from the pass book entry that someone hacked the money of Rs.1,17,385/- from her account between 20.1.2016 and 22.1.2016. The O.P bank did not lend any ear to the grievance of the complainant. She also lodged a complaint on 29.1.2016 before the O.P and thereby requested the O.P to refund the money taken away from that account. But the O.P bank turned a deaf ear to such request of the complainant. Now, the complainant prays for payment of Rs.1,17,385/- and compensation of Rs.5 lac for mental agony and harassment caused to her by the O.P Bank. Hence, arises the instant case.
The O.P is contesting the case by filing written statement ,wherein it is contended inter alia that a joint account is maintained in the name of complainant and one Biswajit Maity in the bank. ATM Card facility has been provided to Biswajit Maity in the aforesaid account and that the complainant is not the ATM Card Holder and she has unauthorisedly used the ATM Card of Biswajit Maity. The further submissions of the bank is that it is a prime responsibility of the ATM Card holder to ensure safe custody of ATM Card and Pin Number and also to ensure that these data should never pass on to anybody. The Card Holder has violated the security features and has paved the way for hacking the money by miscreants. Details of transaction generated through computer have been filed on behalf of the Bank and it is seen therefrom that the money has been withdrawn by someone on on-line purchase. On-line or internet purchase cannot take place without consent or knowledge of the Card Holder. The complainant might have been a victim of cybercrime and ,therefore, it is the exclusive domain of police to investigate the said crime. The consumer court cannot have any jurisdiction over the said matter. There is no deficiency in service on the part of the O.P Bank and, therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the O.P guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
Evidence on affidavit is filed by the complainant and the O.P both. Questionnaire, reply and BNA filed herein are kept in the record after consideration.
DECISION WITH REASONS
Point no.1, 2 :
Already heard the submissions of Ld. Lawyers ,appearing for the parties . Perused the petition of complaint, written version of the O.P and the materials on record. Considered all these.
It is the allegation of the complainant that a huge amount of money i.e Rs.1,17,385/- has been taken away from her account by some miscreants. On the other hand, the version of the Bank is that some on-line purchase have been made by the card holder and the money has been withdrawn from the account of the complainant due to some on-line purchase. It is the further case of the Bank that whenever any on-line withdrawal of money takes place from the account of any person, a self generated OTP massage is given to the account holder through his or her mobile ,registered with the Bank and such massage has also been given to the ATM Card Holder. Had the ATM Card Holder lodged any objection immediately after receipt of the said massage, the mischief would not have been committed to the complainant. So, according to the submission of the O.P Bank, the Bank is in no way deficient in service towards the complainant.
It is true that the account never stands exclusively in the name of the complainant. It is a joint account of the complainant and one Biswajit Maity. There is also nothing to disbelieve the evidence of the O.P Bank that Biswajit Maity is also an account holder of that account. It is averred by the complainant herself in her petition of complaint that she withdrew Rs.10,000/- by using her ATM Card which stands in the name of Biswajit Maity. From this version of the complainant, it stands proved that the complainant unauthorisedly used the ATM Card of Biswajit Maity for withdrawing the money from her account.
Next comes the question whether there is any scope for withdrawing the money unauthorisedly by any miscreants without the consent and knowledge of the card holder. ATM Card and its PIN are the property of the Card Holder and Card holder is required to keep all these in her /his safe custody. He should not share these things i.e the PIN number and ATM Card etc. to any other person. Without these data, no one will be able to withdraw money from the account of the ATM Card holder. Coming to the facts of the instant case ,it is found that the ATM Card Holder Biswajit Maity is not coming before the Court . Even the said Biswajit Maity is not lodging complaint of unauthorized withdrawal of money from his account. The ATM Card and its PIN are known to him. It cannot be said without any vestige of doubt that he did not enter into any kind of online shopping. If he had not entered into any kind of such shopping, he could have lodged a complaint before the Forum. But he has not preferred to do so. Regards being had to all these facts and circumstances ,we feel no difficulty to say that there is no deficiency in service on the part of the O.P Bank and it is none but the ATM Card Holder who is at fault in the matter of passing data of ATM to others. It is also he who has thus paved the way for withdrawing the money from the account.
Further, it is found that the complainant has not come before the Court with clean hands. Ghost of suppression seems to have entered into her soul. She has suppressed that the account is a joint account standing in the name of her and one Biswajit Maity. A specific question was put to her by the O.P Bank as question no.4 which runs thus,
“Question no.4:- Tulu Rani Maity, do you admit that in respect of the account in dispute, an ATM Card was issued in the name of Biswajit Maity?
Answer given by her, vide her reply dated 21.9.2017 , runs thus,
“Answer to Question no.4 ……… does not arise”.
Is the answer not evasive? The complainant has evaded to give the proper answer. Why has she kept herself aloof from saying that the account is a joint one? Is there any malafide intention on the part of the complainant? That apart, nowhere it is disclosed by the complainant in her petition of complaint that the ATM Card which she used belonged to Biswajit Maity. All these material facts are kept suppressed by the complainant and regards being had to all these facts and circumstances, we do never make any scruple to say that the complainant has not come before the Court with clean hand and, therefore, she is not entitled to have any relief from this Forum.
In the result, the case fails.
Hence,
ORDERED
That the complaint case be and the same is dismissed on contest against the O.P , but without any cost.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
.
