West Bengal

Birbhum

CC/93/2015

Himajoddin SK - Complainant(s)

Versus

Branch Mananger, State Bank of India - Opp.Party(s)

Sanjit Kr Acharya

08 Feb 2019

ORDER

The case of the Complainant Himajoddin SK is that he is Consumer under the OP as he has an SB A/C being A/C No. 304617274 under the OP/Bank and he maintains the A/C and as such the complainant is a consumer under the OP and the OP is service pro-vider.

            It is the further case of the Complainant that he had been to the OP/Bank for updating his SB A/C and at that time he found that Rs. 2,00,000/- has been unauthorizedly withdrawn from his SB A/C on 06/03/2015. That the Complainant immediately informed the matter to Branch Manager of OP/Bank and he was informed that the amount has been withdrawn from his A/C through ATM in green channel process. That as the complainant did not withdraw that amount inserting his ATM card on that day.

            It is the further case of the Complainant he informed the matter in writing before the Murarai police vide Murarai R.S.G.D.E No. 448 dated 11/04/2015. That the officer-in-charge Murarai P.S on 08/05/2015 sent a letter addressing the branch Manager, Murarai State Bank of India Murirai, Birbhum for requisition for supplying CC T.V footage W.E.F 03/03/2015 to 11/03/2015 as the CC T.V footage is very urgent for the interest of investigation of the fact, but, till date they did not supply CC T.V footage neither to the police nor to the Complainant.

            It is the next case of the Complainant that the Complainant and/or his wife did not withdraw the aforesaid amount inserting his ATM and as such for the aforesaid withdrawal, the OP/Bank is liable to compensate the entire amount of Rs. 2,00,000/- plus interest to the Complainant which he is entitled to get. That the Complainant requested the Branch Manager to refund back Rs. 2,00,000/- plus interest, but the OP/Bank refused to refund the same.

            Hence this case for directing the OP to pay sum to Rs. 2,00,000/- with 18% interest since 06/03/2015 till realization with compensation of Rs. 1,00,000/- for harassment and mental agony with other relief.

The OP/SBI Murarai has contested the case by filing written version denying all material allegation of the complaint contending inter alia the complainant has no cause of action to bring the case and the case is not maintainable.

It is the specific case of that OP that the Complainant is the account holder and ATM card holder having green channel facility and as per his statement it is found on record that without inserting the ATM card and using password money cannot be withdrawn.

Besides the above such larger amount of money have consecutively withdrawn on the same date and the said transaction were made by the complainant himself through G.C.C counter, which is duly reflected in the scientific manner of the complainant and as such it is not fact that the complainant was not aware of such transactions.

 

It is the further case of the OP that it is found on record that the complainant lodged complainant to the local P.S of Murarai on 11/04/2015 and thereafter with reference to that context police asked for supply of CC camera footage from 03/03/2015 to 11/03/2015 but as a complainant lodged complaint at a delayed stage it is was not possible for the bank authority to supply the same and the complainant did not ask for further investigation of the matter and as such it is cryistah clear that the complainant has made mischief by withdrawing such amount on 06/03/2015 through G.C.C counter vide by using his password of ATM and the complaint also failed to prove by any cogent and reliable evidence on record regarding not withdrawal of the amount on 06/03/2015 and thus the complainant is not entitled to get any relief as prayed.

It is the last contention of the OP that the OP/Bank has got no negligence and or latches and there is no deficiency in rendering proper services to the complainant and as such the complaint of the complainant is liable to be rejected.

Point for determination.

1.  Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.Ps?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Himajoddin SK has been examined as PW1 and also filed some documents. He was also cross examined by the O.P.

OP/Bank has not adduced oral evidence but filed same documents.

 Heard argument both sides.

Point No.1:: Evidently the complainant has an SB A/C being A/C No. 304617274 under the OP/Bank and he maintains the A/C and as such the complainant is a consumer under the OP and the OP is service pro-vider.

            So, the Complainant is a consumer U/S 2(1) (d) (ii) of CP Act.

Point No.2:: The OP/Bank has branch at Murarai with jurisdiction of the Forum. Total valuation of the case is Rs. 3,15,000/- which is much less than pecuniary limit of this forum.

            So, this forum has territorial and pecuniary jurisdiction to try the case.

Point No. 3 and 4:: Both points are taken up for consideration for convenience of discussion as they are   related to each other.

            The Complainant Himajoddin SK in his complaint and evidence stated that he has an SB A/C being A/C No. 304617274 under the OP/Bank and he maintains the A/C and as such the complainant is a consumer under the OP and the OP is service pro-vider.

            Copy of the Pass Book and copy of ATM slip show that the Complainant has a S/B Account No. 304617274 under the OP/Bank.

            The Complainant in his evidence further stated that he had been to the OP/Bank for updating his SB A/C and at that time he found that Rs. 2,00,000/- has been unauthorizedly withdrawn from his SB A/C on 06/03/2015. That the Complainant immediately informed the matter to Branch Manager of OP/Bank and he was informed that the amount has been withdrawn from his A/C through ATM in green channel process. That as the complainant did not withdraw that amount inserting his ATM card on that day.

            Copy of ATM slip issued by ATM counter shows that on 06/03/2015 Rs. 2,00,000/- has been withdrawn from the said ATM Counter by withdrawing Rs. 40,000/- by using ATM Card 5 times.

 

            The Complainant in his evidence further stated that he informed the matter in writing before the Murarai police vide Murarai R.S.G.D.E No. 448 dated 11/04/2015. That the officer-in-charge Murarai P.S on 08/05/2015 sent a letter addressing the branch Manager, Murarai State Bank of India Murirai, Birbhum for requisition for supplying CC T.V footage W.E.F 03/03/2015 to 11/03/2015 as the CC T.V footage is very urgent for the interest of investigation, but, till date they did not supply CC T.V footage neither to the police nor to the Complainant.

            Copy of the Murarai PS GDE No. 448 dated 11/04/2015 shows, that the complainant lodged such GD alleging that on 06/03/2015 Rs. 2,00,000/- has been withdrawn from his Bank Account without knowledge of him and his wife.

            Copy of requisition dated 08/05/2015 sent by the O/C Murarai to the Branch Manager SBI, Murarai shows that CC TV footage for the period of 03/03/2018 to 14/03/2018 of the ATM in Green Channel process was called for from the said Bank.

            It is the case of the Complainant that the OP/Bank did not supply said footage neither to police nor the Complainant.

            At the time of are Ld. Advocate/Agent of the OP/ Bank submitted that as per the customary rules for preservation of CCTV footage is for 90 days if not challenged by any one in that event CCTV footage cannot be preserved for indefinite period but in the instant case either police officer or complainant did not insist to preserve the CCTV Footage.

            During hearing of argument Ld. Advocate/Agent of the Complainant submitted that the case of the OP/Bank is that the amount has been withdrawn successfully through the ATM of the complainant and they submitted some papers showing that the amount has been withdrawn. That those documents do not bear the certificate in compliance of the Information Technology Act 2000 and also the Indian Evidence Act and every electronic record shall not be admitted in evidence unless the requirement U/S- 65 (B) are satisfied. In this case the OP submitted some electronic record showing that the amount has been withdrawn but did not comply section 65 (B) of the Indian Evidence Act. 1872 as such those documents cannot be taken as authentic documents.

            In support of his contention he cited a ruling reported in 2015 (1) Ice 402 (Supreme Court) where Hon’ble Apex Court has been pleased to hold that evidence Act does not contemplated or permit the proof of an electronic record by and evidence if requirements U/S 65 B of the evidence Act are not Complied with.

            But this is a Consumer Forum and in proceeding U/S 12 CP Act summary procedure is to be followed and evidence Act is not applicable before the Forum in so many words.

            More so to substantiate his allegation regarding withdrawal of Rs. 2,00,000/- from his Account  the complaint himself has filed copy of ATM slip issued by the OP/Bank.

            During hearing of argument Ld. Advocate/Agent of the OP submitted that without ATM card and pin none can withdraw the money from the A/C wherein it is clearly found that from log report A/C that Himajuddin himself on 06/03/2015 has withdrawn in 5 times amounting Rs. 40,000/- in each.

            In support of his contention he cited a ruling reported in 2011 (2) CPC 293 (NC).

            In the said case allegation of the Complainant was that the money was withdrawn from his account fraudulently and ATM card as well as pass word PIN number is Complainant’s. Personal custody. TV footage was not available. The Complaint filed by the Complainant was allowed by the District Forum.

Appeal preferred of against such order was dismissed by Hon’ble State Commission.

 

            On Revision Hon’ble National Commission pleased to hold that in view of the fact that merely because the CCTV was not working on those dates and its footage was thus not available does not mean that the money could be withdrawn fraudulently without using the ATM card and PIN number- It is not possible for money to be withdrawn by an authorized persons from an ATM. Equipment does not accept anything except ATM and PIN and the PIN is like a password and only in the knowledge of the ATM Card holder.

            Considering overall matter into consideration and materials on record and relying upon the ruling cited above we are constrained to hold that the Complaint has failed to prove his case and the case is liable to be dismissed.

            Thus both points are decided against the Complainant and the case fails.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 93/2015 be and the same is dismissed on contest without any cost.

             Copy of this order be supplied to the parties each free of cost.