IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
HON’BLE Dr. JUSTICE. S. TAMILVANAN, :: PRESIDENT
THIRU.K. BASKARAN, :: JUDICIAL MEMBER
TMT.Dr.S.M.LATHA MEHESWARI, :: MEMBER
F.A.No.120/2017
[Against the order passed in C.C.No.19/2015, dated 16.11.2016 on the file of the District Forum, Coimbatore]
WEDNESDAY, THE 10th DAY OF APRIL, 2019.
The Chief Manager,
Central Bank of India, PSG Campus,
Avinashi Road, Coimbatore. :: Appellant / Opposite party.
Vs.
Mrs.Logeswari,
W/o.S.Veerasigamani,
No.2/29A, VVC Nagar, Nehru Nagar,
Housing Unit Road,
Aerodrome Post, Coimbatore. :: Respondent/ Complainant.
For Appellant / opposite party : M/s.T.M.Hariharan.
For Respondent/ complainant : M/s.S.Rajalakshmi.
This appeal coming before us for final hearing on 28.03.2019 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following:-
ORDER
THIRU.K. BASKARAN, JUDICIAL MEMBER
1. This appeal has been preferred by the appellant /opposite party under section 15 read with section 17 (1) (a) (ii) of the Consumer Protection Act 1986, against the order dated 16.11.20116 passed by the learned District Consumer Disputes Redresssal Forum, Coimbatore C.C.No.19/2015.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed before the District Forum.
3. The factual matrix giving rise to this appeal is as follows;-
That the complainant had filed this complaint against the opposite party for claiming refund of Rs.2,96,700/- and compensation of Rs.1,50,000/- towards mental agony, physical stress and inconvenience alleging deficiency in service on the part part of the opposite party for the reason that the some third parties had fraudulently withdrawn a total sum of Rs.2,96,700/- on various dated on 12 occasions spread over from 26.01.2013 to 16.11.2013; that than the sum was brought to the notice of the opposite party they did not initiated an enquiry or investigation and hence the complainant had to lodge a complaint with the CCV Coimbatore and then the opposite party did not co-operated in the investigation by the police and hence the complaint.
That the complaint was resisted by the opposite party by setting up a simple defence that the complainant’s allegations are follows; that the amount could not be un-authorizedly withdrawn from her account through ATM without knowing a pin number; the police had registered a case based on the complainant’s complaint and the investigation was pending and without waiting for the result of the investigation the complainant had rushed to the Consumer Forum with this complaint; hence there was no deficiency in service on the part of the opposite party’s Bank and the complaint deserves dismissal.
Based on the pleadings of the respective parties the learned District Forum had framed two points for consideration and by way of those points as held that there was deficiency in service on the part of the opposite parties and that the complainant was entitled to get refund of a sum of Rs.2,96,700/- besides Rs.10,000/- as compensation for mental agony and Rs.5,000/- as costs.
The aggrieved opposite party now as before us in this appeal.
4. Points for consideration in this Appeal is as follows:-
1) Whether there was any deficiency in service on the part of the opposite party?
2) Whether the complainant was entitled to the relief granted?
5. Before the learned District Forum, the complainant had filed the proof affidavit and exhibits Ex.A1 to Ex.A9 were marked. On the side of the opposite parties, the proof affidavit of opposite parties was filed and Ex.B1 to Ex.B4 were marked.
6. Point No.1:- It is not in dispute that the complainant was holding that savings bank account bearing No.1481342857 with the bank and was also provided with an ATM card and that on 18.11.2013 the complainant had gone that opposite party office in Coimbatore and furnished all the particulars regarding her account and as advised by the Branch Manager of the opposite party she had lodged a complaint with a police in Madurai.
7. But the complainant would contend that from 26.01.2013 to 16.11.2013 some 12 transactions were reflected in her savings bank account to the tune of Rs.3,68,700/- whereas she had done only 8 transactions during that period and had withdrawn only Rs.72,000/- through ATM by using her ATM card whereas a total sum of Rs.3,68,700/- was debited in her account i.e., a sum of Rs.2,96,700 was debited in her account and despite her complaint to the opposite party they had done nothing to credit the above amount to her account which amounted to deficiency in service.
8. Per contra, the simple defence of the opposite party is that she was issued a ATM card and also 4 digit secret pin number and without inserting the ATM card in the ATM machine and without punching 4 digit pin number it would not be possible to withdraw the money from her account through ATM and hence all these 12 transactions were effected by her only or by her relative or friend on her instructions and on sharing secret pin number.
9. The learned District Forum heard by relying on the decision of the Hon’ble National Commission in RP.No.4868/2012 in Vidyawanti Vs. State Bank of India and others held that there was a deficiency in service on the part of the opposite party and partly allowed the complaint directing payment as stated supra. But the learned District Forum has not stated in its order what was expected of from the opposite party in such a contingency and where and how the act are omission on the part of the opposite party amounted to negligence. The learned District Forum has not taken into account the majority of the decision rendered by the Hon’ble National Commission on the point as to whether deficiency in service can be fastened with a banker in a case whereas the account holder alleged un-authorized / fraudulently withdrawal transactions from her account using an ATM card through ATM. The Hon’ble National Commission as consistently held that
“no withdrawal from an ATM can be made unless the ATM card/debit card issued to the account holder is inserted in the ATM machine followed by use of the ATM Pin provided to the customer. The ATM pin number is known only to the customer and therefore, it is not possible for a third person to withdraw any cash through the ATM even if he is able to clone the ATM/debit card issued to the customer. In fact the case before us, this is not the case of the complainant that he had lost the ATM card issued to him by the bank. The said card was duly used at the ATM machine for making the transaction in question. The ATM pin obviously, must have been used since no transaction at ATM machine is possible without use of the PIN. Therefore, we cannot accept the contention of the complainant that the amount of Rs.5,000/- from his account was withdrawn by a third person and not by him. Even if the said amount was withdrawn by a third person, he would have done it using the ATM card provided to him by the complainant and the ATM pin disclosed by him.”
10. Some of the case laws are 1) 2014 SCC OnLine NCDRC 928 in Raghabendra Nath Sen and anr. Vs.Punjab National Bank. 2) 2015 SCC OnLine NCDRC 1387 in State Bank of India Vs.Subhasis Chowdhury 3) 2011 SCC OnLine NCDRC 157 in State Bank of India Vs.K.K. Bhalla.
The learned District Forum as already stated simply because his findings on the case law in Vidyawanti Vs. State Bank of India in RP.No.4858/2012 but the facts invalid in this case law are different from the facts of our case and the facts of the case law stated supra. In the case law relied upon the District Forum the transactions were not done at any ATM but they were done at some merchant establishment through POS, of course using the ATM card this distinction has been clearly drawn by the Hon’ble National Commission itself in the case law State Bank of India Vs. Dr.J.C.S. Kataky in RP.No.3073/2016. Hence it has been consistently held by the Hon’ble National Commission that once ATM card was issued to the customer and also secret 4 digit pin issued for the customer/account holder to ensure that the ATM card does not fall into the hands of the wrongdoer and that anybody can be access to the pin. If any card holder is strictly adhering to this safety measures then there would not be possibility for misusing the ATM card and fraudulently withdrawing the amounts from once account. Further is neither pleaded nor established by the complainant that even without using original ATM card and without knowing the pin money can be withdrawn from anybody’s account using cyber technology. Further it is neither pleaded nor established that if the bank had done certain things there would not have been any possibility such fraudulent transactions and the transactions through ATM could be foolproof. In the absence of such pleadings of such proof we cannot fascine any liability and responsibility and any banker by the opposite party. Another greedy the card holder can either himself withdraw the money or through his friend or relative after pertaining with ATM card and sharing secret pin and can complaint to the banker that he has not at all withdrawn such amount and some third person might have fraudulently withdrawn the money from his account through ATM. Such complaint can be lodged with an ulterior motive of unjust enrichment. If it is to be held that in such cases the banker is liable to make would the alleged loss suffered by the card holder then no bank can function.
11. Further in our case it is not a single transaction of fraudulent nature but our complaint deals with 12 transactions spread over a period of nearly 11 months i.e. from 26.01.2013 to 16.11.2013 and it is improbable and unbelievable to accept the story that the complainant admittedly a retired Professor had kept mum for 11 months without knowing that the amount in her account had been siphoned off by the third party by way of fraudulent withdrawals.
12. Further the complainant has not been consistent as to the total amount she had lost in the above stated fraudulent transactions in Ex.A2 letter dated 26.02.2013 the complainant had mentioned that Rs.2,14,700/- was fraudulently withdrawn from her account. But the very same the complainant in her complaint under Ex.A6 given to the Inspector of Police, Cybercrime cell, Madurai city dated 22.05.2014 had stated that only Rs.50,000/- where fraudulently withdrawn from her account on two occasions one on night of 15.11.2013 and other on the morning of 16.11.2013. In this Ex.A6 complaint to the police she was given in May 2014. There is no whisper whatsoever as to the other alleged fraudulently withdrawals prior to 15.11.2013.
13. In the light of the facts and circumstances as stated above and the discussions held above we are of the considered view that there was no deficiency in service on the part of the opposite party bank in this case and this point is answered accordingly.
14. Point No.2:- While answering point No.1 we have held that there was no deficiency in service on the part of the opposite party and hence it follows that there was no question of any directions to the opposite party to pay any amount, repaying amount fraudulently withdrawn from her account or any compensation for mental agony arising out of any deficiency in service. Hence it follows the complainant is not entitled to any relief granted by the learned District Forum and this point is answered accordingly.
In the result, this appeal is allowed and the order of the learned District Consumer Disputes Redressal Forum, Coimbatore made in C.C.No.19/2015 dated 06.11.2016 is set aside and the complaint is dismissed and No order as to costs.
S.M.LATHA MAHESWARI K. BASKARAN, S. TAMILVANAN,
MEMBER JUDICIAL MEMBER PRESIDENT
INDEX; - YES/No
Bsd/e/JM/Orders
