Haryana

StateCommission

A/209/2019

ORIENTAL BANK OF COMMERCE - Complainant(s)

Versus

MADHU SMITA SWAIN - Opp.Party(s)

RAVI KUMAR

28 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                Date of Institution:27.02.2019

                                                          Date of final hearing: 19.01.2024

                                                     Date of pronouncement: 28.02.2024

 

First Appeal No.209 of 2019

 

Punjab National Bank, (E-Oriental Bank of Commerce), constituted under the banking Companies (Acquisition and Transfer of Undertakings) Act of 1970, having its Head Office at Plot No.5, Sector-32, Institutional Area, Gurgaon and one of its Branch Offices, amongst other places, at Dharuhera Distt. Rewari through its Chief Manager Ms.Karuna Goyal.....Appellant

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Madhu Smita Swain W/o Sh.Tusar Swain R/o Flat No.605, Tower 3, Vipul Garden Dharuhera Tehsil and District Rewari.…..Respondent

• :Above title of this appeal, is as per amended memo of parties dated 26.08.2022 filed by appellant.

CORAM:             Sh. Naresh Katyal, Judicial Member

 

Argued by:-       Mr.Ravi Kumar, Advocate for appellant.

Mr.J.P.Sharma, Advocate for respondent.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

          Challenge in this Appeal No.209 of 2019 of appellant/OPhave been invited to legality of order dated 23.01.2019 passed by District Consumer Disputes Redressal Forum, Rewari, District Rewari (In short “District Consumer Commission”) in Consumer Complaint No.154 of 2018, vide which her complaint has been allowed.

2.      Factual matrix: complainant has bank account with appellant (erstwhile Oriental Bank of Commerce)  bearing No.17542191017899 with ATM facility.  On 19.02.2018, her husband made successful transaction of Rs.4000/- and SMS message regarding this withdrawal was received by her on mobile. Her husband again made transaction withdrawal of Rs.10,000/- from his account on 19.02.2018. Thereafter, ATM was not used by her.   She received three messages on 21.02.2018 regarding debit of Rs.10,020/-, Rs.10,020/- and Rs.5020/- from her account. She checked ATM card,  shewas surprised that ATM card which was in the pocket of her husband was not of her, rather it belongs to someone else. Then her husband remembered that when he was busy in making transanction of Rs.10,000/- on 19.02.2018 from his account at same ATM, then he felt that someone was taking something from his pant’s pocket, but he was busy in handling the ATM, so he overlooked.  It is pleaded that: it is understood that someone took her ATM card, from pocket of her husband’s pant and kept  some other ATM card in his pocket, which he (her husband) could not detect at that time. It is pleaded that Rs.96160/- has been withdrawn from her account through ATM by some unknown person and no message was send to her in this regard  (i.e. of transanctions which took place after withdrawal of Rs.4,000/-) by OP, which deprived her of the opportunity of blocking ATM card.  It is pleaded that OP/Bank has provided SMS services to her mobile and used to send messages, as and when there is any transanction in her account, for which OP/Bank/appellant is charging her. By pleading deficiency  in service of OP-appellant, complaint  has been filed for directing OP to credit Rs.96,196/- with interest @ 24% and  further to compensate her Rs.1,00,000/- for causing her financial loss, mental pain & agony and harassment.

3.      Appellant resisted the complaint.  In defence, it is pleaded that due to negligence of complainant’s husband; ATM password was disclosed by him and ATM card was exchanged by some unknown person for which no deficiency lie with opposite party-bank. It is pleaded that every time SMS was sent to complainant on her registered mobile, but her mobile was switch off/out of coverage area/not reachable and thus bank cannot be held liable for herhusband’snegligence.

4.      Parties led evidence.  On subjectively analysing the evidence; learned District Consumer Commission vide order dated 23.01.2019 has allowed the complaint and directed appellant bank to refund/credit Rs.96,196/- in the account of complainant within one month from the date of receipt of order, failing which amount shall fetch interest @ 9% p.a. from 23.01.2019, till payment.

5.      Feeling aggrieved; OP-bankhas filed this appeal.

6.      Learned counsel for appellant-bank has urged that no negligence can be attributed to appellant bank for fault of complainant’s husband, in not ensuring safety of complainant’s ATM card, which was taken out from his pant’spocket, mischievously, by some bad element/unknown person on 19.02.2018, when her husband was conducting transanction of withdrawal Rs.10,000/- through same ATM, from his account.It is urged complainant’s husband despite noticing that mischief, did not took any step to get that unscrupulous person, nabbed.  It is urged that complainant shared and disclosed her confidential PIN to her husband, who further shared the same with some stranger, and thus there is gross negligence on the part of complainant’s husband. It is urged that FIR No.0085 dated 10.03.2018 under sections 379/420 IPC was lodged at Police Station: Dharuhera. Police conducted investigation, but nothing incriminating had been found against appellant/bank.  It is urged that SMS message of transanction was flashed at complainant’s mobile on 19.02.2018 itself, and learned District Consumer Commission has not adjudicated upon this aspect at all. It is urged that Annexure A-1 appended alongwith appeal is the details of SMS messages, which proved the case of bank/OP-appellant and further establish that there was no negligence on bank’s part.

7.      Refuting these contentions; learned counsel for complainant-respondent, has supported the impugned order dated 23.01.2019 by urging that all relevant aspects have been appreciated within parameters of law, and said order does not warrant any interference.

8.      Admittedly, complainant is a consumer of appellant bank as she holds an account with it alongwith ATM facility. As per complainant’s case, Rs.4000/- was withdrawn on 19.02.2018 by her husband from ATM and she received successful message on her mobile phone regarding this withdrawal. In this regard, her husband used her ATM card.  As per complainant’s plea; after conducting transanction of withdrawal of Rs.4000/-, her husband put her ATM card on back side pocket of his pent and thereafter,on same day i.e. 19.02.2018, her husband conducted another transanction of withdrawing Rs.10,000/- from his account through same ATM.   It was also a specific case set up that after withdrawal of Rs.4000/- complainant did not use her ATM and on 21.02.2018 she received three messages of debiting Rs.10,020/-, Rs.10,020/- and Rs.5020/- from her account. On 19.02.2018, as per complainant’s case; there was unauthorized withdrawal of Rs.10,000/- from her account, through usage of her ATM at 16:43:42 and she got no message from OP/Bank on her mobile phone on 19.02.2018 qua that withdrawal, which prevented her from adopting some steps.

9.      Question arises: How for complainant’s case carry truth and what  extent her claim raised in complaint is legally justified? To unveil this poser; document Annexure A-1 appended alongwith this appeal clinches the controversy.  As per this document;transanction of Rs.4000/- was effected on 19.02.2018 and message in this regard had been flashed at 15:56:15, which was admittedly delivered to complainant. Another message of 19.02.2018 was flashed to her at 18:31:54 and same too was successfully delivered. Sole reason adopted by learned District Consumer Commission  to allow complaint is that  had  message of first transanction  of withdrawal of Rs.10,000/- on 19.02.2018 at 16:43:42, been received by complainant on time, she could have taken steps to save remaining trasanctions by getting her  ATM block. This reason of learned District Consumer Commission, in view of this commission does not hold any credence at legal pedestal.  Document Annexure A-1 clearly reflects that second message was successful delivered to complainant at 18:31:54 on 19.02.2018 itself, for transanction of Rs.25,000/-.  As per complaint (para 6 thereof), it is regarding purchases from PadmanabhaVastrala, Gurgaon made at 18:29. This message of time 18:31:54 dated 19.02.2018, successfully delivered to her, would have put her on caution and alerted her about alleged unauthorized  trasanction  conducted earlier. In wake of this fact which proved from document Annexure-1, the stance of complainant that bank did not inform her of transanctionof withdrawal of amount of Rs.10,000/- conducted on 19.02.2018 from her ATM, (after withdrawal of Rs.4000/- by her husband on 19.02.2018 itself at 16:43:42), stood falsified and belied and her case deserves to be thrown over-board for the reason that as per document Annexure A-1; OP/appellant has tried twice at time 16:45:52 and at time 16:48:05 to flash the message of withdrawal, but message could not be delivered. Annexure A-1 recites: dnretry F:c-nv. Consequently, there cannot be any negligence of OP/appellant in light of above scenario.In firm opinion of this Commission; document Annexure A-1 has formed a formidable and acceptable base to non-suit complainant and accordingly she is non suited.  Learned District Consumer Commission has not discussed this aspect of the controversy at all and hence impugned order dated 23.01.2019 does not satisfy the test of credence, in legal parlance. 

10.    Matter does not end here.As per specific case of the complainant; her husband, after conducting withdrawal of Rs.4000/- from her account through ATM card  had put complainant’s ATM card in back pocket on his pant and thereafter conducted transaction of withdrawing Rs.10,000/- from his account, from same ATM.  As per complainant’s case, she was told by her husband that: he felt some person taking something out from his pent on19.02.2018,but he overlooked, as he was busy in handling ATM for withdrawing Rs.10,000/- from his account. Once, complainant’s husband had noticed that: some miscreant person is doing mischief with him, by putting his hand in back pocket of his (complainant’s husband pent) and taking out something, then her husband should have caught hold that bad element, then and there, and taken him to task with help of same bank official(s), who was/were deputed at ATM booth.  It is the holder of ATM card himself/herself, who has to ensure about its safety, which is, his/her property/ valuable security.  Bonafides on behalf of complainant’s husband in this regard, are severely lacking and his conduct at relevant time (19.02.2018) was dubious.  It is beyond the realm of acceptability of common man that he (complainant’s husband) overlooked the happening on him on 19.02.2018.  No fault can be attributed to bank/OP, even remotely.

11.    Beneficial provisions of Consumer Protection Act cannot be used as ‘halter’ around neck of Bank officials on baseless and misconceived grounds. Complainant has concealed a fact in body of her complaint that she did not receive message on 19.02.2018 at 18:31:54.  She has made a wrong averment.  No equitable relief can be granted to her.  Impugned order dated 23.01.2019 passed by District Consumer Commission, Rewari in complaint No.154 of 2018 suffers from perversity and illegality, both at legal and factual front. It is accordingly set aside.  Complainant’s complaint is dismissed  bynon suiting her.  As a corollary so flowing, present appeal is allowed.

12.    This Commission, as per order dated 10.04.2019, has directed appellant-Bank to deposit awarded amount with District Consumer Forum, after deducting Rs.25,000/-which was deposited by appellant, while filing appeal. Said amount be released in favour of complainant on furnishing adequate security to the satisfaction of learned District Consumer Commission.  Now, since this appeal has been allowed; therefore, appellant bank can pursue its legal recourse before District Commission to recover amount released in favour of complainant.

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15.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

16.    File be consigned to record room.

Date of pronouncement: 28^th February, 2024.

 

                                                                             Naresh Katyal                                                                                          Judicial Member

Addl. Bench-III