Karnataka

Bidar

CC/41/2014

NAGSHETTY S/O SHARANAPPA - Complainant(s)

Versus

CHIEF MANAGER OF SBH MAIN BRANCH BIDAR - Opp.Party(s)

P.M.DESHPANDE

31 Jul 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                            C.C.No. 41/2014

 

                                                                                                  Date of filing : 22.05.2014

 

                                                                                              Date of disposal : 31/07/2017

 

P R E S E N T:-                    (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                       (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

                                               

COMPLAINANT/S:      Nagshetty S/o Sharanappa,                        

                                    Age: Major,  Occ: Agriculture,

                                       R/o Yadlapur, Tq: & Dist: Bidar.

                         

              

 

 

                                    (By Shri. Deshpande P.M., Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-             Chief Manager ,

                                       State Bank of Hyderabad,

                                          (Now S.B.I.)Main Branch, Bidar.

 

 

                                      

 

 

 

                                    (By Shri. Vilas Rao.M.More,  Advocate )

                                                 

 

 

                                               

::   J UD G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

                    The complainant is before us filing a complaint U/S12 of C.P. Act, 1986 alleging as follows:

 

2.      That his late Father Sharnappa was maintaining S.B. Account No.62060083145 with the Opponent bank.  He was provided with ATM card for operation of the account.  The complaint states that as on 11-02-2013 there was account balance of Rs.2,72,961/- but it was observed on 17-02-2013 that an amount of Rs.2,70,000/- has been pilfered from the account illegally.   The complainant further submits his Late father had filed complaint with the jurisdictional Police Station on 22-02-2013 which came to be registered in Crime No.15/2013   U/s 66 (C) of I.T. Act.  The police in course of investigation has recorded the statement of his Late Father and further the ATM was blocked on 25-02-2013.

 

3.                The complainants father it is stated to have died due to mental shock and brain haemorrhage on 06-07-2013 and before that on 16-04-2013 and  03-06-2013 he had brought the incident to the notice of the bank.

 

 

 

 

4.             The complainant further avers that on 19-07-2013 the bank had sent a  letter with C.C.T.V. footage of the complainant claiming that, while he was supposed to be using the ATM Card some stranger was observing the same and noting down the A.T.M. and PIN numbers in mobile.  The said latter was sent to the diseased Account holder much after his death, therefore on 30-07-2013 the complainant had reported about the death.  The complainant claims that he is legal heir of the diseased account holder Sharnappa and he has filed this complaint and is prosecuting the case in the face of deficiency of service in the part of the opponent bank.

 

5.            Upon notice the opponent bank had put up appearance through a counsel of its’ choice and elaborate written Version has been filed by the bank, denying the deficiency of service in the part of the bank.  It is further stated that in Para-4 of the written version, the diseased account holder had permitted the present complainant to operate his ATM Card and it was found from the CC.T.V. photos that when Mr. Nagashetty was using the ATM Card a stranger standing behind him was filling the ATM No. and PIN in his mobile.  Therefore the bank claims that, there was negligence in the part of the complainant and washes off its hand from any culpa.

 

6.            In furtherance of the defence, the bank had submitted the copy of the C.D. dated: 06-01-2015 in the court.  In course of trial on 24-12-2016 owing to the submission of the bank regarding the scenerio at the ATM kiosk, we had called upon the Chief Manager of the bank to be present in the court with a C.D. of the CC.T.V. footage with apparatus to display the sequence of events claimed by the bank.  We had also further directed O.I.C of Market P.S. Bidar to remain present along with C.D. of crime No.15/2013 on 23-02-2013.  The complainant was also directed to remain present in the court to observe the CC.T.V. footage to throw light on the intruder.  We further directed the bank Manager to clarify as to why the security personnel detailed at the ATM had permitted an intruder to follow the ATM operator.  Further the O.P. bank was directed to disclose the Point of sales.

 

7.            It is unfortunate that till today the Branch Manager of the Opponent bank never appeared before us to clarify the points and also the Ld. Counsel appearing for the bank is found to be elusive. The Point of sales have never been disclosed. 

 

8.            On 25 -03- 2017  against show cause notice the OIC of Market Police Station,  Bidar reported that the entire case along with the C.D. and footage of CC.T.V. has been transferred to the Deputy Superintendent of Police Kalburgi (Cyber crime).  On that day the learned counsel of the bank under took to submit the C.D. of CC.T.V,. footage and arrange its projection and further to keep present the Bank Manager on the next date of hearing.  At the pleading of the counsel the case was adjourned to 15-04-2017.  On the said date a submission was made from both sides to thrive for  a negotiated settlement.  There after though the case was being adjourned from time to time there was continuous absence of both sides and ultimately on 05-06-2017 consequent upon the complainant filing written argument and reporting non settlement chances were given to the opponent to file their side of argument up to 20-06-2017.  No argument having been advanced from the opponent we were constrained to post the case for final order 03-03-2017.   On that day again a submission was made from complainants side regarding a further negotiated settlement and the order was deferred.  In the mean while, a C.D. was presented to the Court by the learned counsel of the O.P. on 25.03.2017, purported to be footage of the CC.T.V. while the complainant was engrossed is  using the A.T.M. consequent upon the non-appearance of the Bank officer and not providing any apparatus to project the footage, we observed the same through the office computer in the presence of the complainants Counsel, who confirmed that, the footage doesn’t contain the image of the complainant.

 

9.            However, we observed the presence of a security personnel inside the A.T.M. Kiosk inter acting with few entrants and guiding serve.  The footage produced though not relevant to the issue, ipso facto proves, all along a security personnel is effectively deputed at the A.T.M. Kiosk of the bank.

 

9.            Considering the rival contentions and documents in support of case together with the deliberations and demeanours of the parties, the following points arise for our considerations:-

 

 

1. Does the complainant prove that, there has been a deficiency of service in the part of the Opponents?

 

2. What order ?

 

 

7.           Our answers to the points stated above are as follows:-

 

               1.  In the affirmative.

                2. As per final orders due to the following:-

 

 

:: REASONS ::

 

8. Point No.1:-   Everything said and done, we find there exists a small fly in the ointment in the episode in entirety, we had assiduously hammered as to why the present complainant was handling the A.T.M. card during the life time of the real card holder late Sharanappa? The complainants’ counsel vehemently argued before us that, late Sharnappa was bed redden, his mobility was mighty restricted and the complainant being the only son was running all errands for him.  This aspect of canvassment was never controverted by the opponents at any point of time. So, the same has to be taken at its’ face value.  Further, we refer to section 95 of the I.P.C., which defines, any action of a person not in derogation of any others’ interest and done is good faith and causing slight harm cannot be construed as an offence at all.  Therefore, we put that aspect to rest at this juncture.

 

9.          Delving into the factum of considering the O.P. banks demeanour participating in the case, we are aghast by the disparaging conduct of the bank all along.  Firstly, the official of the Bank never attends the court inspite of notice, secondly the learned counsel remaining elusive all along.  Thirdly not cooperating in any manner to ascertain the truth and Fourthly not disclosing the point (s) of Sale by misusing the A.T.M. card till the end never can be accepted favouratively to sing paens about the Banks’ misdemeanour.  Certainly the demeanour is a strong pointer towards the apathy, complacency or hand-in-glove endeavour in a massive malfeasance.  We fail to understand, s to why the omniscient security personnel detailed at th A.T.M. Kiosk did not take any step to prevent an intruder from copying the A.T.M. and PIN number, when the complainant was in the process of withdrawal of the amount? Why at all he did not inform the law enforcing authorities?  Why at all he did not bring such gory incident to the notice of the powers that to be of the Bank Concerned? The security personnel is an employee of the O.P. bank.  For any of his malfeasance/misfeasance/non- feasance,  the bank remains vicariously liable to the core.  The O.P. bank being a Trustee of the public/individuals’ fiduciary interests and funds has failed to rise to the occasion and thereby we hold it responsible being a passive or with doubt an active participant in pilferage of constituents’ wealth and answer the point accordingly.

 

10.   Point No.2:-   Owing to the synthesis stated supra, we conclude tht, the O.P.  bank be squarely held responsible to compensate the loss, and hence proceed to pass the following:-

 

 

 

 

   

:: ORDER ::

 

   

1. The complaint is allowed in part.
2. The O.P. bank is hereby directed to reimburse a sum of rs.2,70,000/- to the complainant, being the L.R. of the late a/c holder Sharanappa being pilfered from the laters’ a/c due to the apathy of the former;
3. Taking into consideration the partial misfeasance though innocently done by the complainant, we refrain from awarding any interest, compensation a cost to the complainant;
4. Four weeks time granted to comply this order.
5.  

5. A copy of the order be transmitted to the Asst. Director, Publicity and information, Govt. of Karnataka, near Railway Station Bidar for vide publicity in print and electronic media to ensuring consumer awareness, and any failure would be seriously viewed. 

 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 31^st day of  July-2017 )

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                            

 

 

 

Documents produced by the complainant

1. Ex.P.1- Copy complaint of a/c holder date: 19.02.2013.
2. Ex.P.2- Copy of police complaint and F.I.R.
3. Ex.P.3- A/C/ statement (copy).
4. Ex.P.4- Copy of acknowledged complaint of late a/c holder.
5. Ex.P.5- Copy of Police endorsement.
6. Ex.P.6- Further acknowledged copy of complaint date: 03.06.2013.
7. Ex.P.7-Further acknowledged copy of complaint
                date: 29/30-07-2013.
8. Ex.P.8- Copy of death certificate of original a/c holder.
9. Ex.P.9- copy of rejection letter of the O.P. bank date: 19.07.2013   

              with enclosures.

10. Ex.P.10-Copy of intra office correspondence of the 

              O.P. Banker date: 17.05.2013.

      11. Ex.P.11-Copy of the letter of Banking ombudsman
                         date: 26.06.2013.

     12. Ex.P.12- Copy of another letter from the O.P. date: 18.06.2013.

     13.Ex.P.13-Copy of the letter of R.B.I. date:02.09.2013 to the       
                           complainant.

      14. Ex.P.14- Office copy of legal notice date: 05.04.2014 with courier        

                           receipt.

 

 Document produced by the Opponent.

 

1. Ex.R.1-  Copy of letter date: 28.03.2013 of the bank to Police.
2. Ex.R.2- Copy of a/c details by the bank date: 01.04.2013 to the 

              Police.

3. Ex.R.3- Copy of further letter of O.P. Bank date:08.05.2013 to the  

              Police.

4. Ex.R.4- Copy of letter of O.P. Bank to ombudsman date:  
                  18.06.2013.
5. Ex.R.5- Copy of letter of O.P. Bank to the late a/c holder date: 

              19.07.2013,  with closures.

6. Ex.R.6- C.D. of C.C.T.V footage (not relevant to the issue).

 

 

 

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.