Complainant’s case in short is that he is holder of Account no. 419010110000532 of SBI, Tribeni Branch. On 6.4.2018 he went to collect Rs. 10,000/- from A.T.M., place Tribeni (Basudevpur), but after processing no cash came out from concerned A.T.M. machine (A.T.M. I.D.S. 10A000225005, dt. 6.04.2018, time 13:35 hours P.M.T.XN no. 1651 ref. no. 809613027237, respond code. 063, message- Sorry unable to display) and when he made his passbook up-to-date, then he found that from hi said Account Rs. 10,000/- has been deducted. Then and there he informed the matter to the concerned branch Manager and said branch Manager took steps, but no positive result came out.
Complainant states that he is attached with a hotel and thus, he meets up his family expenditure.
Complainant filed the complaint petition praying direction upon the opposite parties to pay sum of Rs.5000/- for mental agony and pain and to pay a sum of Rs. 2000/- for litigation cost and to pay a sum of Rs. 10,000/- (which has been deducted from the said Account of complainant after A.T.M. operation).
The opposite party No. 1 has contested the case by filing written version denying inter-alia all the material allegations as levelled against him. This opposite party submits that the complainant or his agent or any one else withdrew a sum of Rs. 10,000/- from A.T.M. and this opposite party bank transferred a sum of Rs. 10,000/- from the Account of the complainant to the bank from where he withdrew the amount through A.T.M. facility. So, there was no latches on the part of the bank and the complainant might have not pushed the cancelled buttom in the said A.T.M. on mistake and for that reason his secret password and pin number had remained open to other persons and in that circumstances any persons can withdrew any amount from A.T.M. counter from his Account and the bank transferred said sum to the S.B.I. bank from the complainant’s Account and it was successfully withdrew by any one who knew or came to knew his password and pin number from A.T.M. counter and the password and pin number for operating the A.T.M. card only known by the A.T.M. card holder and it is the system and bank officers are not aware at all regarding password and pin number of their customers and no bank authority is liable for the same.
The opposite party No. 2 also has contested the case by filing written version denying inter-alia all the material allegations as levelled against him. This opposite party submits that the complainant was trying to withdraw Rs. 10,000/- from his Account standing at Bank of India through his A.T.M. card and the complainant alleged that he was failed to withdraw his required amount Rs. 10,000/- when he operated the A.T.M. machine and finally said transaction was ended without disbursement of any amount and generated any receipt from said A.T.M. and thereafter by an act of his mistake he did not push the cancelled buttom in the said A.T.M. and as a result, his secret password and Pin number had remained open to other persons and in the circumstances any person or miscreants can fraudulently withdraw any amount from A.T.M. counter from his Account and the password or Pin number for operating A.T.M. card is only known by A.T.M. card holder and that is the conclusive system of bank and therefore, no person including bank manager or any bank officer of present opposite party bank has no opportunity to get any knowledge about said password or Pin number of A.T.M. card holder and the said system is applicable and without any negligence or latches on the part of the complainant to operate said A.T.M. card for alleged withdrawal can not be made from his bank Account and there is no liability or responsibility on the part of present opposite party no. 2 regarding said fraudulent withdrawal of alleged amount of Rs. 10,000/- from A.T.M. counter by the complainant and without knowledge of password and PIN number of complainant there is no opportunity to withdraw any amount by any person from A.T.M. counter.
Complainant filed a petition on 31.1.2019 praying to accept the complaint petition as his evidence in chief.
The two answering opposite parties filed separate evidence on affidavit and those transpire the averments of the respective written version of opposite parties. So, it is needless to discuss.
Complainant and opposite parties filed their respective written notes of argument.
The evidence of complainant and the evidence of opposite parties and their respective written notes of argument are taken into consideration for passing final order.
Arguments as advanced on behalf of the complainant and the arguments advanced on behalf of the respective opposite parties were heard in full.
From the discussion herein above, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief or not?
DECISIONS WITH REASONS
All the points are taken up together for easiness of the discussions of this case.
- In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant here in is a consumer of the opposite parties.
- Both the complainant and the opposite parties are resident/having their office addresses within the district of Hooghly and the amount of prayer of reliefs of the complainant is within Rs. 2,00,000/- i.e. limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
- Point nos. 3 and 4 are taken up together for brevity of discussion. It may be noted that complainant by a petition on 31.1.2019 praying to accept the complaint petition as his evidence in chief. And in support of his case he filed a copy of application for refund of failed transaction during withdrawal from ATM addressing to the Branch Manager, Bank of India, Tribeni Branch, Hooghly. He also filed a copy of request for reversal of failed ATM transaction in format addressing to Branch Manager, Bank of India, Tribeni Branch, Hooghly. He also filed one copy of one document on behalf of SBI, Tribeni Branch. He also filed front page of his passbook in respect of his Account no. 419010110000532 stands in Bank of India, Tribeni Branch, Hooghly. He also filed a copy of DTDC (franchisee delivery run sheet). He also filed the copy of JP Log showing complaint has been rejected by Acquirer Bank in DISPUTE Management System of NPCI relating to subject Issuer complaint ID: CRM1104180204304730. He also filed a copy of acknowledgement relating to the filing of this case before this Forum.
Opposite party no. 1 also filed affidavit-in-chief highlighting mainly that complainant or his agent or anyone else withdrew a sum of Rs. 10,000/- from ATM. The complainant might have failed to withdraw the same amount from ATM of SBI, but said amount might have succeeded for withdrawal for the second time. It is clearly mentioned that their Bank transferred a sum of Rs. 10,000/- from the Account of complainant to the SBI, in alternative when the complainant failed to withdraw the amount through ATM facility, complainant must have not pushed the cancelled buttom in the concerned ATM and for that reason the secret password of complainant and his PIN number had remain open to other person and in that case anyone can withdraw any amount from ATM counter from the complainant’s Account. It is also specifically stated that complainant was not cautious regarding using ATM card and Bank of India has/ had no latches and Bank of India transferred a sum of Rs. 10,000/- to SBI and it was successfully withdrew either by complainant or by anyone who knew his password and PIN number from ATM counter. Bank of India has/ had no negligence.
Opposite party no. 2 in his affidavit in chief has categorically stated that he knows that the complainant tried to withdraw Rs. 10,000/- from his Account standing at Bank of India, Tribeni Branch, Hooghly through his ATM card from SBI ATM Counter at Tribeni. It is specifically stated by opposite party no. 2 that regarding allegation of complainant that when he failed to withdraw his required amount of Rs. 10,000/- by operating the ATM machine and finally said transaction was ended without disbursement of any amount and generated any receipt from said ATM, in this regard opposite party no. 2 has specifically stated that complainant by an act of his mistake did not push the cancelled buttom in the said ATM counter resulting which his secret password and PIN number had remained open to any other person. And in the circumstances any person or miscreants can fraudulently withdraw any amount (here is Rs. 10,000/-) from said ATM counter. Opposite party no. 2 specifically stated that he knows that it is a serious fault on the part of the complainant when he was trying to withdraw the said alleged amount from ATM counter maintained by SBI. It is specifically added by opposite party no. 2 that the password and PIN number for operating ATM Card are only known by the ATM card holder i.e. complainant herein and that is the conclusive system of bank. According to him no person including bank manager or any bank officer has no opportunity to get any knowledge about password or PIN number of ATM card holder. He completely asserted that here the said system is applicable and because of any negligence or latches on the part of complainant who operated his ATM card and thus, the alleged withdrawal can only be made from his bank Account. He also stated that some miscreants and fraudulent person may withdraw the amount of Rs. 10,000/- as alleged from the bank Account of complainant at Bank of India, Tribeni Branch through said ATM Counter of SBI and it is almost negligence and latches on the part of complainant. He also pointed out that in this regard complainant should have filed a written complaint against unknown miscreants at local police station for withdrawal of alleged amount of Rs. 10,000/- from the Account of complainant so that police might have investigated the said matter but, complainant has failed to do so. He further asserted that he knows that there is no negligence and latches on the part of SBI for fraudulent withdrawal from ATM counter and at the same time there is no deficiency of service on the part of SBI.
Be it mentioned that in BNA complainant has filed photocopy of JP Log (annexure I), photocopy of request for reversal of failed ATM transaction (annexure I(a)), photocopy of application for refund of failed transaction during withdrawal from ATM given by complainant to branch manager, Tribeni Branch (annexure II), photocopy of ATM counter slip (annexure A) and photocopy of ATM counter customer advice on behalf of SBI (annexure B).
First of all, it may be noted that regarding annexure B i.e. photocopy of ATM counter customer advice on behalf of SBI ld. Counsel appearing for the complainant has pointedly argued that in annexure B wherein there is clearly mention “unable to process” and both the opposite parties did not whisper any single word over this issue. He also highlighted that under what circumstances such advice came out from the ATM counter of SBI. Certainly it is the document on the part of SBI and both the concerned bank branchs cannot deny and dispute the authenticity of such document. He also added that “unable to process may arise on the following circumstances: 1. If any card error, 2. If any dust space on card wipe, 3. Issue with machine and it will need maintenance by vendor to repair, 4. Issue with network- very rear (most banks have backup measures), but possible. He also argued that from the above facts and circumstances of the case it can safely be said that there is absolutely latches and negligence on the part of both banks and on that score both the banks neither mentioned nor submitted any scrape of document before this Forum, but they are harping on the points of general perceptions and those perceptions do not bear any merit in this context.
To counter the same in fact, opposite party nos. 1 and 2 have failed to make any convincing argument.
It will not be out of place to mention that nowadays the customers of banks are facing a lot of difficulties in handling their Accounts with their banks. In ATM counter most of the time we are noticing that no security personnel is posted on behalf of the concerned bank causing a great danger threat is facing by the customers. Obviously, banks cannot bypass their negligence latches and complainant being an ordinary person without his fault why he would loss his hard earned money of Rs. 10,000/-.
In view of the above discussion and considering the attending facts and circumstances of the case it can safely be said that the documents placed on behalf of the complainant will speak a volume in support of his case and thus, this Forum is of the view that complainant has succeeded in proving his case. Accordingly this Forum is of the view that in facts and circumstances of the case complainant should be awarded Rs. 5,000/- for his mental agony, and pain including unnecessary harassment. This Forum is also of the further view that complainant should be awarded with Rs. 2,000/- towards litigation cost apart from his original claim of Rs. 10,000/- which had been deducted from his Account of concerned bank.
it is
ordered
that the complaint case being no. 82 of 2018 be and the same is allowed on contest against opposite party nos. 1 and 2.
Opposite party no. 1, Manager, Bank of India, Tribeni Branch is hereby directed to pay the compliant a sum of Rs. 10,000/- being the original/ principal claim of the complainant which had been deducted from his Account.
Opposite party nos. 1 and 2 are directed to pay jointly Rs. 5,000/- to the complainant being Rs. 2,500/- each on behalf of both the opposite parties to the complainant towards his mental agony, and pain including unnecessary harassment of the complainant.
Opposite party nos. 1 and 2 are further directed to pay Rs. 1,000/- each towards litigation cost to the complainant.
All the directions to be complied with by the opposite party nos. 1 and 2 within 45 days from the date of this order.
Let a copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
