Date of filing :- 14/03/2013
Date of Order :- 21/01/2015
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM(COURT)
B A R G A R H.
Consumer Dispute Case No. 16 of 2013.
Pradip Kumar Sahu, S/o Late Suratsen Sahu, aged about 52(fifty two) years, village/Po. Kumbhari, Ps/Tah- Barpali, Dist. Bargarh, Occupation-Teachership. ..... ..... ..... Complainant.
- V e r s u s -
State Bank of India represented through, Chief General Manager, L.H.O., Pandit Jabaharlal Nerhu Marg (Infront of Rabindra Mandap), Bhubaneswar, Po/Ps. Bhubaneswar, Dist. Khurdha.
Branch Manager, State Bank of India (ADB) Bargarh, At/Po/Dist. Bargarh.
Branch Manager, State Bank of India, Barpali Branch, At/Po/Ps. Barpali, Dist. Bargarh.
... .... .... Opposite Parties.
Counsel for the Parties:-
For the Complainant:- Sri R.Panda, Advocate with others Advocates.
For the Opposite Party No.1(one) :- Ex-parte.
For the Opposite Party No.2(two):- Sri D.Mishra, Advocate with others Advocates.
and Opposite Party No.3(three)
-: P R E S E N T :-
Miss Rajlaxmi Pattnayak ..... ..... ..... ..... ..... ..... ..... P r e s i d e n t.
Mrs Anjali Behera ..... ..... ..... ..... ..... ..... ..... M e m b e r.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... ..... ..... M e m b e r.
Dt. 21/01/2015. -: J U D G E M E N T :-
Presented by Miss R. Pattnayak, President .
Deficiency in Banking Service in the sole allegation of the Complainant. The brief case of the Complainant is that he is a customer of the Opposite Parties, having a Saving Bank Account in State Bank of India, Main Branch, Bargarh bearing A/c No. 10455652841. He is also availing ATM facility and accordingly an ATM card provide by the Opposite Parties in his favour to make transaction from different ATM counters situated all over India. The Complainant alleges that on Dt.28/04/2012 at 06:29P.M., he withdrawn Rs.3,500/-(Rupees three thousand five hundred)only from his account through ATM installed at Opposite Party No.3(three) branch of State Bank of India. His balance after withdrawal was Rs. 31,652.43/-(Rupees thirty one thousand six hundred fifty two and forty three paise) only as per the ATM slip. On the same day at 06:49 P.M. again withdrawn Rs.1,000/-(Rupees one thousand)only by utilizing the same ATM and after withdrawal, the balance amount was Rs. 10,652.43/-(Rupees ten thousand six hundred fifty two rupees and forty three paise)only as per the copy of ATM slip. Being found an unusual difference of Rs.20,000/-(Rupees twenty thousand)only he operated the ATM machine for a statement slip and was astonished to find from the statement slip that in between his two withdrawals an extra withdrawal of Rs. 20,000/-(Rupees twenty thousand)only was made at 06:35 P.M.. Although he was not present in the said ATM counter at the relevant time of 06:35 P.M. and his ATM card was with him through out, the Complainant suspected that Rs. 20,000/-(Rupees twenty thousand)only was fraudulently withdrawn from his account. So immediately the Complainant reported the incident orally to Opposite Party No.3(three) who advised him to report it before Opposite Party No.2(two) where he is having the account and accordingly he made a written complaint on Dt.30/04/2012 before Opposite Party No. 2(two). On this the Opposite Party No. 2(two) called for a report from Opposite Party No.3(three) and Opposite Party No. 3(three) submitted it with supplying a copy of letter to the Complainant after his repeated persuasion mentioning therein that no excess cash was found on ATM. Feeling helpless the Complainant subsequently on Dt.08/05/2012 lodged an FIR before the Barpali Police Station which was registered vide Police Station Case No. 69 Dt.08/05/2012. The Complainant has submitted that although he ran repeatedly to Barpali Police Station, but ultimately the said case was closed with No clue vide No. 136 Dt. 28/09/2012. The Complainant has submitted that on Dt. 28/04/2012, he had never made any attempt for withdrawal of Rs. 20,000/-(Rupees twenty thousand) only from the aforesaid ATM counter situated at Barpali State Bank of India branch. On the other hand the said sum of Rs.20,000/-(Rupees twenty thousand)only dispensed through the ATM transaction creates a grave doubt and for the reason he apprehends some sort of foul play and cheating in the process causing a wrongful loss to the Complainant which the Opposite Parties are answerable, liable and duty bound to Compensate the Complainant.
Finding no other way out, the Complainant has filed this present Consumer Complaint with a prayer for the following reliefs :-
To direct the Opposite Parties to pay Rs.20,000/-(Rupees twenty thousand)only with interest from the date of it's loss till the date of payment.
To direct the Opposite Parties to pay Rs. 10,000/-(Rupees ten thousand)only towards compensation for mental agony.
To direct the Opposite Parties to pay Rs. 10,000/-(Rupees ten thousand)only towards compensation for physical harassment.
And
To direct the Opposite Parties to pay Rs. 10,000/-(Rupees ten thousand)only towards cost of litigation.
In support of his case the Complainant has filed the following documents which are placed on record.
Xerox copy of ATM slips and ATM statement Dt.28/04/2012.
Xerox copy of receipt copy of report by SBI (ADB), Bargarh Dt. 30/04/2012.
Xerox copy of free copy of FIR bearing P.S. Case No.69/Dt. 08/05/2012.
Xerox copy of letter by SBI, Barpali to SBI (ADB) Bargarh Dt. 07/05/2012.
Xerox copy of Notice of No clue bearing No. 136 Dt. 28/09/2012 by Barpali Police Station to P.K. Sahu.
Xerox copies of News Published in Prameya and Khabara on Dt. 18/06/2012.
Original photographs of ATM, Barpali.
Recommendation of Damodar Committee on customer service as to fraud on the account.
Pass book (Xerox) copy of Pradeep Ku. Sahu bearing A/c No. 10455652841.
Xerox copy of order in CC No. 86/2013 of D.C.D.R.F., Nabarangapur.
The Opposite Party No.2(two) and No.3(three) entered its appearance through learned counsels and filed written version on Dt. 23/07/2013 resisting the claim of the Complainant as misconceived, baseless, untenable in law and facts and liable to be dismissed in limine. The Opposite Party No.1(one) despite receipt of notice of the Forum did not appear and was set ex-parte on Dt. 23/07/2013.
In their version Opposite Party No.2(two) and No.3(three) while admitted the withdrawal of Rs.20,000/-(Rupees twenty thousand)only at 6.35 P.M. on Dt.28/04/2012 from the account of Complainant through the ATM of Opposite Party No.3(three) but they have not admitted that the said withdrawal has not made by the Complainant. They submitted that the Complainant has not placed any material before the Forum to hold that he had not withdrawn Rs.20,000/-(Rupees twenty thousand)only from the ATM at 06:35 P.M. on Dt.28/04/2012.The Opposite Party No.2(two) and No.3(three) further submitted that, the Complainant has himself written in his complaint to the Opposite Party No.2(two) on Dt. 30/04/2012 that he suspects the person standing behind him to have played foul relating to the withdrawal of Rs. 20,000/-(Rupees twenty thousand)only which the Complainant claims to have not withdrawn and that on his complaint a police case was registered and investigated and the police found the case of foul play by a third party to be true and where the Complainant has not averred to have challenged the same, the Complainant's claim allegations that he sustained loss and suffered from agony and harassment due to alleged improper service of Opposite Parties is not believable. However the case is also bad for non-joinder of necessary party as he has not made party to Barpali Police.Besides they also raised in their written version that the ATM card is issued to the account holder subject to acceptance of terms and conditions. The account holder should take adequate precaution to protect his own interest and money while operating their ATM cards with the existing facilities.The Complainant and Opposite Party bank are bound by the terms and Conditions as laid down 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 Complainant has deviated the terms and conditions and it is also stated that it is impossible to withdraw the amount without connivance of ATM card holder. It is contended that there is no negligence on its part and the claim of the Complainant has not to be accepted and liable to be dismissed.
In support of his case the Opposite Party No.2(two) and 3(three) filed the following documents :-
Xerox copy of letter issued by Branch Manager, State Bank of India, Barpali on Dt. 17/01/2014 to Sri D. Mishra, Advocate, Bargarh.
C.C. of ATM log Report of ATM-1(one) Dt. 28/04/2012 of Barpali Branch.
C.C. of ATM log Report of ATM-2(two) Barpali Branch Dt. 28/04/2012.
We have gone through the case in detail and perused the documents filed on record. Heard the learned counsels appearing for both the parties and gone through the written notes of arguments and decision filed by the Complainant and take of the following issues for adjudication.
1) Whether the disputed withdrawal of Rs 20,000/- at 6.35 P.M is a fraudulent one or the complainant himself has withdrawn the same?
2)Whether the Opposite Parties have done deficiency in rendering proper service.
What reliefs the complainant is entailed to ?
Issues No.1(one), No.2(two)and No.3(three):-
It is not disputed that the Complainant is a customer of Opposite Party bank having Saving Bank Account No. 10455652841 and he was availing the facility of ATM to make transaction through his ATM card issued to him by Opposite Party. But regarding the above issues we found the fact that, the money of the Complainant of Rs. 20,000/-(Rupees twenty thousand)only withdrawn on Dt. 28/04/2012 and the Complainant has denied to have drawn it. It is also to be noted that the Complainant was quite vigilant bringing the whole matter to the Notice of the Bank immediately and lodging an F.I.R. in this regard. It also appears that, the Bank was apparently convinced about the bonafides of the Complainant of the Complaint. But when the Complainant filed a petition before the Forum for direction to Opposite Parties to produce the CCTV footage installed at ATM of Opposite Party No.3(three)branch the Opposite Party No.1(one) after the direction of the forum has not produced the CCTV footage of that period to clarify the matter better and only issued a letter to his Advocate that the video footage is not available in their ATM, since the time gap is more than 3(three) months. It was the obligation of the Opposite Party bank to investigate in to the matter through CCTV footage to reach at the conclusion as to whether the Complainant was actually drawn the amount or the amount was drawn in fraudulent manner by any stranger Regarding, if the damaging of the footage is in automatic process of C.C. T.V. Camera then what for the same has not been preserved when the matter was complained to the contesting Opposite Parties and Police station within three month. They have not produced any record of their bank showing the total days of availability of the video footage. They have not produced any circular order of their branch for periodical destruction of old C.C.T.V footage. So this drawns an adverse inference against the Opposite Parties that either they are with holding the production of the footage purposefully or they have damaged it intentionally for concealment of truth. More over, it is seen that, such type of fraudulent withdrawal are happening now-a-days and there are a number of cases in this regard we have already dealt with. It appears that the concerned counter was not having security infrastructure to resist such type of fraudulent withdrawal of innocent customers. In support of the pleadings and case of the Complainant, we rely upon the decisions of the Hon'ble National Commission, New Delhi reported in the Case of Bhadra N. Dalal Vrs Bank of India (2012) CJ 177 (NC) and Hon'ble State Commission, West Bengal in the case of State Bank of India Vrs Hariom Tiwari and another, reported in 2011 CJ 189 (W.B), where in it is held that in case of ATM withdrawal of a customer in fraudulent manner and if it is informed to the bank, it is the obligation of the concerned bank to go through the CCTV footage, enquire in to it and the genuine complaint must be considered by reimbursing the amount withdrawn fraudulently. As per the norms and conditions, the Opposite Parties are the sole authorities of the ATM cards, it is exclusively under their control and for which they are taking service charges annually from each card holder. They are also leaving extra charges in the event of theft of card or during exchange of the cards after due period of expiry. But in return they are not giving any security to their customer and also proper guide to the users. In the present case, after receiving the complaint from the Complaint, the primary duty of the Opposite Parties is to look into the matter seriously and if required they have to take necessary steps for searching the defects and problems and tracking the person involved in this transaction. Being the custodian of the hard earned savings of people and being the reputed bank, they should have an in house investigating agency to tackle and tracking the person involved in theft, illegal transaction, illegal money transfers and cyber crimes occurred now-a-days. But the Opposite Parties have not taken any steps in this matter. They have not handed over the photgraphs of the person recorded by the CCTV camera installed in the ATM counter to sort out who is involved in the crime but they have taken the plea that the CCTV footage donot available as the transaction exceeds 90(ninety) days/3(three) months. So the act and conduct of bank authority towards the Complainant in this context is quite negligent and deficiency in rendering service. Despite installations of camera in each of the ATM counter through the country the Opposite Parties are failed to take any footage from the concerned counters. The Opposite Parties neither step up to the grievances of the Complainant nor taken any coercive action to redress over the matter and do not think proper to do an investigation through the police to find out the culprits. We also perused Sec 43(A) of I.T Act ''where a body corporate possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns controls or operates, is negligent in implementing and maintain reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected and the report of Damodar committee to which the Opposite Parties bank has not followed in this case.
Under the above circumstances, we have observed that, the Opposite Parties have made serious deficiency in extending proper service to the Complainant. through investigation on the allegation to obtain the truth. The Opposite Parties also not taken any steps for up gradation of the software installed in the ATM introducing latest securities measure. They have violated the Reserve Bank of India guidelines earmarked for the ATMs. They have not taken any steps for payment of amount of Rs. 20,000/-(Rupees twenty thousand)only to the Complainant which has been unauthorizedly debited from the account of the Complainant. We have also noticed that even on receiving several correspondence from the Complainant the Opposite Party did not bother to make any inquiry and to report about the fate of transaction as alleged by the Complainant. The Opposite Parties being a largest Nationalised bank and a larger part of economy of the country, is being regulated by them, so they should show leniency to their customer by rendering services.
Taking into account the socio economic back ground as well as keeping in view the spirit of the legislation and having regard to the verdict of the Hon'ble National Commission, New Delhi as cited above, we are of the opinion that, the Complainant is entitled for relief.
Hence Order :
In view of the above and considered to the facts of the case from all its ramifications, we allow the case against Opposite Party No.2(two) and 3(three) on contest and ex-parte against Opposite Party No.1(one). We accordingly direct, the Opposite Parties to be liable jointly and severally to reimburse the sum of Rs. 20,000/-(Rupees twenty thousand)only in favour of the Complainant with interest @ 6% per annum from the date of the illegal withdrawn i.e. 28/04/2012 till the date of order i.e. 21/01/2015 along with compensation of Rs. 2,000/-(Rupees two thousand)only towards mental agony, harassment and litigation expenses within one month from the date of order, failing which the total awarded amount shall carry 12% per annum till the date of actual payment.
The case is disposed off accordingly.
Copy of order be furnished to the parties free of cost.
Typed to my dictation
and corrected by me.
(Miss Rajlaxmi Pattnayak)
P r e s i d e n t.
I agree, I agree,
(Sri Pradeep Kumar Dash) ( Smt. Anjali Behera)
M e m b e r. M e m b e r.
