Complaints filed on: 06-08-2011

Complaint Remanded On: 30.10.2019

                                                      Disposed on: 12-09-2022

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE 12^th DAY OF SEPTEMBER, 2022

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com, L.L.M, PRESIDENT

SRI.KUMARA.N, B.Sc., L.L.B, MEMBER

SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER

CC.No.96/2011

Sri. Muyeez Pasha

S/o Sri. K.Mohammed Shafiulla,

A/a 34 years, R/at Doha, Qatar,

By its GPA Holder Mansoor Pasha K.M.

S/o Mohammed Shafiulla,

R/o Arakere Village, Madhugiri Road,

Kasaba Hobli, Tumkur Taluk.

……….Complainant

(By Sri.Mazabiulla, Adv.,)

V/s

By its Manager,

Vakkaligara Sangha Complex,

M.G.Road, Tumkur Town.

By its Manager, Main Branch

Church Circle, Tumkur Town.

State Bank of Mysore,

Church Circle, Tumkur Town.

(OP No.1 by Sri. H.Rajanna, Adv.,)

(OP Nos. 2 & 3 .By Sri. Mohamed Afroze Ahamed– Adv.,)

                                                :O R D  E R :

SMT.NIVEDITA RAVISH -  LADY MEMBER

          The complaint came to be filed by the complainant against the OPs claiming certain relief’s by invoking Section 12 of the Consumer Protection Act.

2.       The Opposite Party No.1 is State Bank of India, Regional Manager, Tumkur (Herein after called as OP No.1).  The Opposite Party No.2 is the State Bank of Mysore, Regional Manager, Tumkur (Herein after called as OP No.2) and  the Opposite Party No.3 is the ATM Maintenance Officer, SBM, Tumkur (Herein after called as OP No.3).

3.       The case of the complainant is that:-

          Since complainant is residing at Doha Qatar executed General Power of Attorney in favour of his brother Mr.Mansoor Pasha K.M. to attend and prosecute the case on his behalf.  The complainant has an account No.30179095189 with OP No.1 along with ATM Card No.62018031720010885connected to the same account and that the complainant on coming to India on 26.03.2011 on 45 days vacation has attempted to withdraw a sum of Rs.3,000/- from ATM machine No.400092002 of OP No.2 at Tumkur on 27.03.2011 at about 1.56 p.m. but he could not withdraw the cash and hence, immediately he attempted to withdraw the same amount from adjacent ATM of OP No.2 and got entered his pass book on 25.04.2011 by producing it before OP-1 wherein it was entered a sum of Rs.3,000/- and Rs.34,000/- withdrawn through ATM machine through SIOF:400092002 though ATM machine allow to draw Rs.20,000/- only in a single transaction and that complainant has reported the same to OP No.1 on 04.05.2011 regarding the illegal deduction of Rs.34,000/- dated:23.07.2011 made in the account through transaction No.5806 and also lodged a complaint with Tumkur Police Station in Crime No.54/2011 who in turn sent a letter to OP2 to investigate by opening CC camera, but the OPs did not take any action in the matter which amounts to deficiency in service on the part of OPs and that the complainant since was compelled to extend leave for 15 days due to this disturbance and thereby he suffered loss of salary of Rs.15,000/- and hence the complainant has filed this complaint to direct the OPs to pay a sum of Rs.49,000/- with interest at 12% p.a. on the matured amount from 27.03.2011 till realization and for damages and such other reliefs as this Commission deems fit to grant in the interest of justice and equity.

4.       The OPs appeared through Advocate in response to the version notice duly served and filed objection by OP No.1 independently and OP Nos. 2 & 3 in common. 

5.       In the objection of OP No.1, it is admitted that the complainant is the account holder bearing No.3017909518 and ATM card, it is contended interalia that the allegation made in the complaint are false and that the transaction in question when successful as per entries therein and even as per the enquiry made based on the complaint filed by the complainant and that a sum of Rs.40,000/- can be withdrawn at a single shot through ATM and that the complainant himself being the holder of ATM card knowing the PIN number to operate the card, he can only drawn the amount from his account and even unauthorized withdrawal/transaction, the customer is responsible and that the averments under Para Nos. 6 & 7 of the complaint are also denied as baseless and hence among other grounds, it was requested to dismiss the complaint with exemplary cost in the interest of justice and equity.

6.       In the objection of OP Nos. 2 & 3 it is contended inter-alia that the complainant since not a consumer of this OPs, he has not locus-standi to file this complaint against these OPs and that the complaint is prima-facie not maintainable/sustainable either in law or on facts.  The averments under Para Nos. 2 to 5 are not within the knowledge of these OPs and that the attempt to withdraw Rs.3,000/- from ATM machine of these OPs by the complainant on 27.03.2011 at about 1.56 p.m., but he could not withdraw, he attempted to withdraw it from other ATM machine which shown withdrawal of Rs.34,000/- from his account are false, as both the transaction were complete and successful and that the only Rs.20,000/- can be withdrawn from ATM machine at a single transaction is not correct, hence among other grounds, it was requested to dismiss the complaint with heavy cost in the interest of justice and equity.

7.       The complainant and one K.N.Vadiraja, Assistant Manager, Advance, representing the OP No.1 and one S.B.Shivashankar, Chief Manager, representing the OP Nos. 2 & 3 on the other, have filed their affidavit towards evidence in consonance with their respective stand.  The complainant marked the documents at Ex.C1 to C6.  The OPs marked the documents at Ex.R1 to R3(a) & (b). 

8.       After hearing the arguments of both side, this Commission has dismissed the complaint on 18.01.2012 and being aggrieved by the said order, the complainant filed an appeal before the Hon’ble State Commission and the Hon’ble State Commission has allowed the appeal and remanded the complaint to reconsider the matter afresh by giving an opportunity to both parties.

9.       After issuing the remanding notice, the complainant and OPs, have appeared before this Commission.  The complainant has amended the complaint with the permission of the Commission and OPs have not filed any fresh version.  The complainant has filed his fresh additional affidavit with 06 additional documents, which are not marked.  One Shri.Mahadev Kamble, Chief Manager of OP No.1 has filed his affidavit on behalf of all OPs. 

10.     We have heard the arguments of both sides.

11.     The points that would arise for our determination as under:-

1. Whether the complainant proves deficiency in service of the OPs Society

2. Is complainant is entitled to the relief sought for?

12.      Our findings on the aforesaid points are as under:

Point No.1: In the affirmative

Point No.2: As per final order for the below

:R E A S O N S:

13.     The counsel for the complainant has argued that the complainant attempted to withdraw a sum of Rs.3000/- from ATM machine No.400092002 of OP No.2 at Tumkur on 27.03.2011 at about 1.56 PM, but complainant could not withdraw the cash and hence, immediately he attempted to withdraw the same amount from adjacent ATM machine of OP No.2 and withdraw the same.  The complainant has shocked when he got entered his pass book on 25.04.2011 by producing it before OP No.1 wherein it was entered a sum of Rs.3,000/- and Rs.34,000/-.  There is not dispute about the withdrawal of Rs.3,000/-.  The complainant has admitted that he has withdraw the amount of Rs.3,000/-.  There the dispute is that, without withdrawal of Rs.34,000/- by the complainant it was entered in the pass book as Rs.34,000/-withdrawal on 27.032011.  The complainant has produced Ex.C5 statement of account and passbook of the complainant, which are clearly reflecting the withdrawal of Rs.3,000/- and Rs.34,000/- on 27.03.2011.

14.     The OP Nos. 1 to 3 have submitted that neither the complainant nor the complainant’s brother are consumers under these Ops.  But OP No.1 has admitted that the complainant is the customer of the OP No.1.  The Ex.R1 and Ex.R2 reveals the same.  And section 2(d) of Consumer Protection Act 1986 explained about “Consumers” as:

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ¹² [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person ¹³ [but does not include a person who avails of such services for any commercial purpose];

And section 2(o) of C.P.Act 1986 explains about “service” as:

 “service” means service of any description which is made available to potential ¹⁹ [users and includes, but not limited to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, ²⁰ [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; 

Accordingly complainant in the present case has considered as a consumer vis-vis the OP No.1 and OP Nos. 2 & 3 are making business/financial transaction with OP No.1 by taking commission.  Hence, the OP Nos. 2 & 3 are also considered as service providers to the complainant. 

15.     The counsel for the complainant has submitted that the complainant has raised the complaint with OP No.1 and also with jurisdictional police when he got knowledge about entries of withdrawal of Rs.34,000/- on 27.03.2011 in the passbook which was not done by him.  Ex.C3 copy of the FIR produced by the complainant and Ex.R2/complaints details produced by the OP No.1are proves the same.  On careful perusal of passbook of the complainant, it is found that there is transaction entries are found up-to 22.01.2010 and after that there is no entry till 25.04.2011, it is clearly mentioned as “ (control:3153355 3917 30179095189, 25/04/2011)”.  Hence, we have concluded that the complainant has not saying false and got knowledge about wrong entry in the passbook on 25.04.2011 and immediately he got registered the complaint with jurisdictional police and with OP No.1, which is proved by Ex.C3 and Ex.R2.

16.     The counsel for the complainant argued that the OP Nos. 1 to 3 were not at all co-operate and investigate the matter since 3 ½ months and every time the Opposite Parties shifted the liability from one shoulders to another.  The loss caused to the complainant only due to negligent act and deficiency of service of OP Nos. 1 to 3.  Further, the counsel for the complainant argued that the OP Nos. 1 to 3 has not gave the CC TV footage in the time.  Due to negligence of act, the jurisdictional police have not able to investigate the matter properly and finally police were filed “C” report in CC No.54/2011 which is related to said unauthorized transaction.  We have carefully observed the Ex.R1/letter issued by the OP Nos.1 to OP No.2 dated:04.05.2011, Ex.C4/complaint to S.P.Tumakuru, dated:26.04.2011, Ex.R2/complaint details issued by OP No.1, passbook, final report of police in charge sheet No.18/2012, and CD of CC TV footage dated;23.08.2022.  Accordingly the complainant got knowledge about wrong entry in the pass book on 25.04.2011 and immediately wrote the complaint to S.P., Tumkur on 26.04.2011 (Ex.C4 which is acknowledged by the District Police Office dated:26.04.2011).  Ex.C3 FIR is showing dated: 27.04.2011 and also reason for the late complaint.  Ex.R2 reflecting that the complainant has lodged the complaint on 27/04/2011 and Ex.R1 showing OP No.1 has wrote letter to OP No.2 on 04.05.2011 with request to arrange for watching the camera of OP No.2 ATM for the particulars transaction of complainant’s account dted:27.03.2011.  The complainant produced the CC TV footage dated:23.08.2012 which was given by the jurisdictional police to the complainant and same was not denied/objected by the OP Nos. 1 to 3.  As per final report by the police, police requested for CC TV footage to 28.04.2011, OP No.1 has wrote letter on 04.05.2011 and CC TV footage showing date as 23.08.2022.  Hence, we have concluded that OP No.2 has made delay of 10 months (from 04.05.2011to 23.08.2012) for giving CC TV footage to the police.  This act of OP No.2 is clearly showing their negligence in their service.

17.     As observing the Final report by the police in crime No.54/2011, the police have not mentioned as the complainant and his relatives or brothers has withdraw the disputed amount on 27.03.2011 at 1.56 PM.  Accordingly we have come to the conclusion that the complainant or representative of the complainant has not withdraw Rs.34,000/- on 27.03.2011 at 1.56 PM.  When the complainant has not withdrawn the cash then, that transaction will be considered as unauthorized withdrawal/transaction.  The complainant has lodged the complaint with OP No.1 and with the jurisdictional police immediately and OP Nos. 1 to 3 have not made arrangement of CC TV footage immediately. 

18.     The OP Nos. 1 to 3 have not submitted anywhere about the particular date when they have given the CC TV footage to the police.  In contrary the complainant has produced the CC TV footage dated:28.03.2012 and submitted that, the Town Police called the complainant and shown the video clip where the face suspicious of the person is not clear and even number of video clip is also different.  Accordingly, we believe on the submission of the complainant, because the date is mentioned as 28.03.2012 on the CC TV footage produced by the complainant and OP Nos. 1 to 3 have not objected/denied the same document. 

19.     Further the counsel for the complainant has argued that the ATM machine will deliver only Rs.20,000/- per shot and how it was possible to withdraw the Rs.34,000/- per shot and to prove the same, the complainant has produced the photos of the two adjacent ATM machines of OP No.2.  The same photos are not objected/denied by the OP Nos. 1 to 3.  In the photos board on one ATM machine showing as “15,000/- one time only SBM Card” and another ATM machine showing “All SBM CARD 20,000/- withdraw at one time”.  In contrary OP Nos. 1to 3 have submitted that, at a time any card holders can draw the amount to an extent of Rs.40,000/- through any ATM machine.  But OP Nos. 1 to 3 have not produced any documents to establish the same.  Generally every banks are having their rules and regulations, terms and conditions regarding their financial transactions.  The OP Nos. 1 to 3 have failed to provide the documents to establish their argument that anyone can withdraw the Rs.40,000/- through any ATM machine.  Hence, we have not any other option than believing the words/submission of the complainant.  Though being the responsible authority, the OP Nos. 1 to 3 have not produced any documents to show that or submitted that, which type of the card opted by the complainant and how much was the limit to withdrawal the money in one shot by the particular type of card obtained by the complainant.  This act of the OP Nos. 1 to 3 is reflecting their negligence. 

20.     It is the duty of the bank to protect the public money and hard earned money of its customers.  When any customers of the bank raised the complaint regarding any unauthorized/fraudulent transaction, then it is the duty of the bank to investigate about disputed transactions.  In so many unauthorized transactions it has showing that the transaction is successful.  But it is the responsible duty of the bank to investigate with cross check the transaction by CC TV footage or calculating physical cash in the ATM machine when the complainant made the complaint about unauthorized transaction.   The Hon’ble National Commission in State Bank of India V/s Dr.JCS Kataky Dated:03.05.2017, it is held that,

“that once the complaint was made citing specific incidents of unauthorized withdrawal, it was the duty of the Bank to have carried out the necessary verification in the matter, rather than washing their hands off from the whole episode.  Evidently, there has been deficiency in service on the part of bank, vis-vis, the consumer/complainant”.

And the Hon’ble National Commission in Vidyawathi V/s State Bank of India dated: Feb18, 2015, it is held that:

“It is clear that some third person by foul play has manipulated the ATM machine and unauthorizedly withdrawn the amount from the account of the complainant.  As the money has been wrongly withdrawn from the account of the petitioners/complainant, the OP bank who are in the banking business and earning profit out of it are liable to make good her loss”

and also held that

“A bank cannot escape its liability by claiming its security systems are foul proof.  If there is a flaw or a loophole in the system, the bank would be liable to make good the loss caused ot its customers.”  Hence, it is the deficiency of service against complainant in not co-operate in investigation and not providing proper CC TV footage in time”.

These citations also applicable to the present case.  The OP Nos. 1 to 3 were failed to prove the limit of withdrawal of Rs.40,000/- in the ATM at one shot and made delay to provide proper CC TV footage to investigate the matter, which caused deficiency in service.

21.     The complainant has claimed 12% interest.  But he is not entitled for the same, as because now the bank rate of interest is reduced.  Hence, the complainant is entitled to the interest @ 8% P.A.  The complainant in his complaint has stated that the complainant supposed to leave India on 10.05.2011, but due to the negligence of OPs, he could not attend to his service on 10.05.2011 and extended his leave up-to 26.05.2011, for that he sustained Rs.15,000/- by way of 15 days salary.  But in this regard, he has not produced any document related to his leave and salary.  Hence, he is not entitled to the said amount.

22.     The OP Nos. 2 & 3 are merged with OP No.1, hence OP Nos. 1 to 3 are jointly and severally liable to pay Rs.34,000/- with interest @ 8% PA from 27.03.2011 i.e. unauthorized withdrawal of amount of Rs.34,000/- till realization.  The OPs have compelled the complainant to approach this Commission and to the Hon’ble State Commission, the complainant has suffering mental agony from 2011 to till the date, hence OP Nos. 1 to 3 are liable to pay compensation of Rs.15,000/- and litigation cost of Rs.20,000/-  to the complainant.  Accordingly, we pass the following:-

:O R D E R:

The complaint is allowed in part with cost.

The OP Nos. 1 to 3 are directed to pay jointly and severally a sum of Rs.34,000/- to the complainant with interest @ 8% PA from 27.03.2011 till realization.

The OP Nos. 1 to 3 are further directed jointly and severally to pay Rs.15,000/- towards compensation and Rs.20,000/- towards litigation expenses.

The OP Nos. 1 to 3 are further directed jointly and severally to comply the above order within 45 days from the date of receipt/knowledge of this order, failing which, the said amount carries interest @ 9% P.A. from 27.03.2011 till realization. 

Furnish copy of this order to both parties free of costs immediately.