DATE OF FILING: 03.10.2012.
DATE OF DISPOSAL: 17.12.2016
Dr. Alaka Mishra, Member (W)
The complainant has filed this consumer disputes under section 12 of Consumer Protection Act 1986 against the Opposite Parties (for short O.Ps) alleging deficiency in banking service and redressal of his grievance before this Forum.
2. The case of the complainant in brief is that the complainant is working as a teacher and the head office of the complainant being at Berhampur the complainant opened a S.B. account with State Bank of India, Main Branch, Berhampur for drawal of his monthly salary and for other transactions. The O.P.No.1 has allotted SB Account No. 1085932679 to the complainant for transacting the said account. The O.P.No.3 intimated and communicated the ATM card to the complainant bearing No.622080003300136904. On 29.7.2011 at about 4.00 P.M. the complainant withdrawn Rs.700/- from the account through ATM at Aska, where from it revealed that on 28.7.2011 an amount of Rs.90,000/- has been drawn unauthorizedly from the account of complainant as per details stated hereunder:
i) 28.7.2011 ATM 1524 SBI SSBC II Parliament New Delhi Rs.40,000/-
ii) 28.7.2011-622018000330125154000000
10859311084- Rs.35,000/-
Transferred to Nabin Kumar Pattnaik.
iii) 28.7.2011 -622018000 330032739 6000000
20040755738 Rs.15,000/- transferred to Pramod Kumar Pani.
As per the complaint, as on 28.7.2011 the complainant had the balance of Rs.94375.02 in his account and after alleged irregular withdrawn of Rs.90,000/- there appears to be balance of Rs.4275.02. The complainant immediately collected the mini statement and approached the O.P.No.1 and submitted a written complaint on 30.7.2011 with regard unauthorized withdrawn of Rs.40,000/- and transfer of Rs.50,000/- illegally without knowledge of complainant. The complainant thereafter filed an F.I.R. before the Police Authorities at Berhampur Town Police Station narrating the details and requested for immediate investigation. The complainant made written complaint to the O.P.No.2 on 18.7.2012 giving the details therein requesting to take up investigation and early refund of Rs.90,000/- to the account of complainant and submitted certificate of attendance in his duties at his School on 28.7.2011. Surprisingly the Assistant General Manager, SBI Main Branch, Berhampur intimated on 6.8.2011 with regard to the aforesaid illegal transaction stating their inability to refund the amount claimed. It is also contended that law is settled that rule prohibits withdrawal of more than Rs.15,000/- on any particular day from ATM and in this present case the limit has been exceeded which has been lost sight of the O.Ps. The O.Ps without any normal and usual verification/investigation in to the matter and on complete non-application of mind has communicated the letter dated 6.8.2011 for further harassment to the complainant. The O.Ps use C.C.T.V. camera at each ATM counter for locating misuse of ATM cards by unsocial creatures. Therefore O.Ps could have located the culprit with help of police authorities on proper verification, which has not been done in this instant case. Similarly there is mention of account number and name of persons to whom the amount of Rs.35,000/- and Rs.15,000/- has been transferred on 28.7.2011 and this could have been located on proper enquiry and investigation either at the level of Bank or with help of police which has not been done in the instant case. The O.Ps has not used the services of security personals resulting the mishap of the complainant as stated above. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps immediately credit of Rs.90,000/- to the S.B. Account of the complainant bearing No. 10859326759 , Compensation of Rs.50,000/- for harassment and mental agony, Rs.5000/- towards costs of litigation in the best interest of justice.
3. Upon notice the O.P.No.1 filed written version through his learned counsel Sri Y. Sriram Murty and Associates and also filed version on 5.2.2013. But on 19.08.2013 the O.P.No.1 filed Vakalatnam and contested the case through his learned counsel Sri A. Umamaheswar Rao, Advocate, Berhampur. In the written version it is stated that the facts stated in the complaint clearly shows the alleged occurrence happened is beyond the control of the O.P. to render service, hence it could not be constituted as deficiency in service as defined under the provision of the Consumer Protection Act. The complainant and Opposite Party are bound by the terms and conditions as laid down in the user’s manual of State Bank Cash Plus ATM cum-Debt Card and any deviation of procedure, terms and conditions committed by the ATM card holder and loss occurred to him due to such action Bank is not liable to pay the loss, compensation or damages, in the instant case the facts stated in the complaint clearly shows there is a deviation of terms and conditions committed by the complainant such as changing of personal identification number (PIN) every quarter is not followed by the complainant, hence the O.P. is not liable to pay any of the amounts claimed by the complainant. This Forum has got no jurisdiction to entertain and adjudicate upon the alleged disputes involved in the complaint in as much as it is not a consumer dispute and does not fall within the provisions of Consumer Protection Act. The annual maintenance fees and regeneration fee of PIN cannot be considered as rendering service for consideration and as such the controversy involved in the complaint is not a consumer dispute and the complainant is not a consumer and not hired the services of this O.P. for consideration. The complainant cannot for his negligence and indifference by not following the instructions specified in User’s Manual attribute negligence and deficiency of service on this O.P. and demand redress, hence the complaint is to be dismissed with costs. The Bank is not charging any transaction commission or charge for the operations made by complainant. Hence the complaint is not maintainable and the provisions of the Consumer Protection Act are not applicable to instant case. The procedure to be followed by the ATM card holder for operating his account though ATM shows clearly it is impossible to withdraw the amount without connivance of ATM card holder, because without having access to Personal Identification Number, it is impossible to withdraw money from ATM, hence the burden of proof is on the complainant to prove his allegations beyond doubt to claim the reliefs against the O.P. The Hon’ble National Commission in Revision Petition No. 3182 of 2008 in State Bank of India versus K.K.Bholla held as: “In view of the elaborate procedure evolved by petition/Bank to ensure that without the ATM CARD and knowledge of the PIN it is not possible for money to be withdrawn by an unauthorized person from the ATM”. The complainant is to put strict proof of all the allegations that are not specifically admitted herein and are deemed to have been denied specifically by the O.Ps. This Forum has no jurisdiction to grant any of the reliefs claimed by the complainant and the complainant is not a consumer to claim any of the reliefs under the provisions of the Consumer Protection Act 1986. The complaint is concocted, frivolous and vexatious and liable to be dismissed as per the provisions of Section 26 of the Consumer Protection Act. The complaint is premature as it is evident from facts of complaint the police investigation is still pending. The allegations made in the complaint shows the alleged ATM transactions are successful which are not possible without inserting a valid ATM card and entering the correct PIN, hence the burden of proof is shifted to complainant to explain how this happened and why he has not followed the safety measures stated in the User’s Manual. The O.P in the above explained circumstances are not liable to credit Rs.90,000/-, or liable to pay Rs.50,000/- as exemplary compensation for harassment and mental agony, or liable to pay Rs.5000/- towards costs of litigation as claimed by the complainant. Hence the O.Ps prayed to dismiss the complaint with costs.
The O.P. No.2 & 3 received the notice from this Forum but did not prefer to file written version and not contested the case as a result the O.P.No.2 & 3 were declared ex-parte on 9.4.2013.
4. On the date of hearing of the consumer dispute both the learned counsel for the complainant as well as for O.Ps are present. We heard argument from both sides at length and perused the complaint, written version, written argument and documents placed on record. The learned counsel for the complainant in his argument contended that the complainant is a customer of O.P.No.1 vide his S.B. Account bearing No.10859326759 at S.B.I. Main Branch, Berhampur with ATM card bearing No.622180003300136904. On the date of incident i.e. on 29.7.2011 at about 4.00 P.M. the complainant withdrawn Rs.700/- from his account through ATM at Aska where it revealed that on 28.7.2011 an amount of Rs.90,000/- was withdrawn unauthorizedly from his account and the details of withdrawal were Rs.40,000/- done though ATM No.1524 SBI SSBC II Parliament area, New Delhi. Similarly, a sum of Rs.35,000/- transferred to one Sri Nabin Kumar Pattnaik, vide transaction No.6220180003300125154000000 10859311084 dated on the same date. Further, it also shows that an amount of Rs.15,000/- was transferred to the account of one Sri Pramod Kumar Pani vide No.62201800033003273 600000020040755738 on 28.7.2011. The complainant intimated the matter to the O.P.No.1 but he did not give any heed to his grievances despite repeated requests. Hence, the complainant filed this complaint with a prayer to credit Rs.90,000/- to his account and to pay a sum of Rs.50,000/- towards harassment and mental agony and for payment of Rs.5,000/- towards cost of litigation in the interest of justice.
5. On the contrary, the learned counsel for the O.Ps contended that in the instant case the complainant alleged that cash has been transferred and withdrawn from ATM and ATM holder is the complainant. Further submitted that cash can be withdrawal from ATM only when ATM card along with four digit personal number inputs to the ATM machine by the complainant only. For internet security, the customer has been advised to retain this PIN in his memory secretly so that no one else gets access to this personal formation. The ATM has a magnetic strip and white strip for signature of the card holder and there is no possibility some can transfer or deduct amount from ATM without providing four digit PIN number. The learned counsel for the O.P. further stated that PIN and ATM is with the complainant and there is no report of misplaced any time. So there is no possibility by any banking staff to withdraw or transfer without the knowledge of the complainant. With respect to information regarding CC TV footage and security guard in the ATM counter, it is submitted that in absence of non availability of CCTV footage and security guard with O.P.No.1, no amount can be withdrawn from the ATM. The allegation made in the complaint shows that the complainant keeps his ATM card with PIN code in his safe custody and card holder can only accessing to it. Hence, there is no possibility of unauthorized withdrawn or transfer from the account of the complainant. Therefore, the O.P. prayed that no liability can be fixed against O.P.No.1, hence the case may be dismissed in the ends of justice.
6. We perused the pleadings of both parties and verified the documents placed on case record. It is not disputed that the complainant is a bonafide customer of O.P.No.1 and O.P.No.1 has provided ATM facilities to the complainant. It is also a fact on record that the complainant is a school teacher who has opened a bank account with O.P.No.1 to receive his monthly salary through bank at SBI, Main Branch, Berhampur. It reveals from the photocopies of Bank Passbook that on 28th July 2011 there were three transactions made. On the first transaction through ATM vide No.1524SBI SSBC 11 done at Parliament Street, New Delhi, where a sum of Rs.40,000/- was withdrawn from his account in a single transaction which is far away from his residential place. In this case we would like to point out that as per the ATM operational guidelines, an ATM card holder at a time can’t withdraw Rs.40,000/- in single withdrawal which is not allowed. But in the instant case a sum of Rs.40,000/- has been unauthorizedly withdrawn from his account which speaks deficiency in service on part of O.P.No.1 since the O.P.No.1 is the custodian of complainant’s money and where the ATM operational rule does not allow Rs.40,000/- to disburse from an account at a time, the same has been done by an unauthorized person. In our considered view how it was withdrawn unauthorizedly from the account of the complainant? How the ATM operational rule permitted to do so by an unauthorized person and in this regard there was no satisfactory reply from the O.P.No.1. The O.P.No.1 can’t escape from his liability by taking the plea that ATM Card and PIN is with complainant and no one can access his account unauthorizedly. It is a proved case beyond doubt that even without ATM Card and PIN, an unauthorized person can hack the account of any person like the present complainant at any place and can take away the money from the account. But the O.Ps should not forget that they are the custodian of complainant’s money. The teachers attendance register of the complainant for the Month of July 2011 proves that he was very much present on his duty as teacher in the school and he had not gone to New Delhi on the date of withdrawn of the disputed amount. This amply proves that the O.Ps are deficient in service since the O.Ps are also not able to produce any CCTV footage to prove that the complainant has withdrawn the disputed amount and more so the O.Ps have admitted that there is no availability of CCTV footage and guard in the ATM counter where the unauthorized withdrawn of money was done. The Annexure-4 evident that the complainant has informed the matter to O.P.No.1 but the O.P.No.1 did not give any heed to his grievances. Similarly, in the second transaction on the same day a sum of Rs.35,000/- was transferred to one Nabin Kumar Pattnayak and through third transaction a sum of Rs.15,000 was transferred to the account of one Pramod Kumar Pani. In our view, the O.P. Bank though has knowledge about unauthorized withdrawn of amounts from the account of the complainant but did not take any steps to enquiry about the matter even after complain made by the complainant since the bank has got the information to whom the amount was transferred. In this connection, we would also like to point out that where the complainant alleged unauthorized withdrawn of money from his account, what prevent the O.P. No.1 not to give any heed to his grievances. This is certainly a case of deficiency in service on part of O.P.No.1 bank. Further, in the third transaction vide No. 622201800033003273960 a sum of Rs. 15,000/- was transferred to one Pramod Kumar Pani. In this regard we would like to say that the O.P. No.1 has got the information about Pramod Kumar Pani since the amount was transferred to his account since no satisfactory reply has been receive even during the course of hearing of the dispute. The O.P.No.1 though received complaint from the complainant but did not make any enquiry and did not trace out the amount how it was transferred. That being the case, it is clear that some third person by foul play has manipulated the ATM machine and unauthorizedly withdrawn the amount from the account of the complainant. As the disputed amounts have been wrongly withdrawn from the account of the complainant by hacking the ATM by some unauthorized person, the O.Ps who are custodian of funds of complainant and in banking business are liable to make good his loss. Our finding is fortified by the decisions of the Hon’ble National Commission in the case of Vidyawanti Vs. State Bank of India & Others reported in 2015 CJ 838 (NC) and in the case of Bhadra N. Dalal Vs. Bank of India reported in 2012 CJ 177(NC). The O.P. No.1 has cited a decision of Hon’ble National Commission in support of his case in the case of State Bank of India Vs. K.K. Bhalla which is not at all applicable to the instant case in view of the factual difference of the case that of the present case hence we are not inclined to accept the same and rejected the citation filed by O.P.No.1.
7. It is also a fact that the O.Ps did not give any heed to the grievance of the complainant even after written complaint filed before them and FIR lodged in the police Station. In this regard, we would like to say that the O.Ps are deficient in service and liable to pay compensation for the loss incurred by the complainant and mental agony and harassment sustained by him due to the carelessness of the O.Ps. The O.Ps are liable to pay cost of litigation since the complainant was forced to file a consumer complaint in this Forum and due to the negligence of the O.Ps the complainant has been suffered and harassed for the last five years. Therefore, we are not hesitated to award cost and compensation in this case which are to be compensated by the O.Ps.
8. In the sequel of aforesaid discussion and in the light of decisions cited above and considering the peculiar fact and circumstances of the case, we are of the considered view that the O.Ps are liable to make good the loss of complainant due to unauthorized withdrawn of Rs.90,000/- from the account of the complainant. In view of the discussion and decision of law, we allowed the case of the complainant against all O.Ps for deficiency in service. But we are unable to accept prayer of the complainant and not inclined to award Rs.50,000/- towards exemplary compensation for harassment and mental agony since there is no evidence on record that the complainant has incurred a loss of Rs.50,000/- due to the unauthorized withdrawn of the amount from his savings bank account. However, we are convinced that the complainant has faced financial inconveniences due to the unauthorized withdrawn of Rs.90,000/- from his account hence we are allowed a sum of Rs.5,000/- towards compensation and cost of litigation which is to be paid by the O.Ps jointly.
9. In the result, we allowed the case against the all O.Ps who are jointly and severally liable to refund sum of Rs.90,000/- (Rupees Ninety Thousand) only with savings bank interest from the date of unauthorized withdrawn from the account of the complainant i.e. from 28.7.2011 to till its actual refund failing which the O.Ps are liable to pay interest @6% per annum from the said date till actual realization of the disputed amount. The O.Ps also directed to pay a sum of Rs.5,000/- (Rupees Five Thousand) only to the complainant towards compensation for mental agony, harassment and cost of litigation. The aforesaid amount shall be paid by the O.Ps to the complainant within 60 days from the date of receipt of this order failing which the complainant is at liberty to recover the same under Section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
10. The order is pronounced on this day of 17th December 2016 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and be sent to the server
