FINAL ORDER/JUDGMENT
Sudeb Mitra, President:-
The complt’s case in short is that she is having saving A/C no 31979174247 with the O.P. no 1 of the complaint case with A.T.M/Debit card facility, maintained by her with the O.P. no 1 of this complaint case.
It is the specific contention of the complainant that on 28.02.2019 there was fraudulent, illegal withdrawal of Rs- 5,500/- from her said A/C with the O.P. no 1, by illegal use of her debit card, at Rupnarayanpur A.T.M. counter of S.B.I. and on quick succession on 02.03.2019, again a sum of Rs- 20,000/-and a sum of Rs-2,000/- were fraudulently with drawn by miscreant(s), by using the complt’s A.T.M. card at Niyamatpur(Upper Bazar Sit) of S.B. I. A.T.M. counter and unfortunately on all occasions, no SMS message, in respect of such withdrawals was given to the complt. at all.
It is asserted by the complt., by filing written complaint, that she could come to know of the facts when she went to update her passbook on 05.03.2019. On 06.03.2019, for her service preoccupation, complt’s lodged a complaint with the O.P. no 1 and lodged G.D. entry with the I.C. Kotwali, P.S. Midnapore vide G.D.E. no 300 dtd. 06.03.2019. Later on 07.03.2019, the complt. had lodged complaint with the O.P. no 1 with detailed data of unauthorized A.T.M. transactions dtd. 28.02.2019, 02.03.2019, and 02.03.2019, for the amounts as described above in this judgment and prayed for getting back her said fraudulently withdrawn sum of Rs- 27,500/- in total lost on 3 illegal use of her Debit card with A.T.M. facility.
It is revealed from the complt’s complaint that on 07.03.2019, the complainant had filed filled up prescribed ‘Card Holder Declaration Cum Complaint Form’ with relevant date with the O.P. seeking redressal. Later on 12.10.2019 and 14.12.2019 the complt. had made detailed complaints to the O.P. seeking refunding of her money unauthorisedly withdrawn from the custody of the O.P. and thereafter, she had received a letter from the O.P. dtd. 17.12.2019 with an intimation that the appropriate authority of the O.P. side had arranged for partial restoration of Rs- 5,500/- to her saving A/C, as referred in this judgment.
This appears from the complt’s submission that her letter addressed to the O.P. no 1 of this complaint, for entertaining her letter dtd. 12.10.2019 in positive note was responded by
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the O.P. no 1 vide letter dtd. 27.12.2019 from which the complainant could know that her demand of restoration of the residual illegally withdrawn amount of the complt. will be dealt with by the O.Ps higher authority in consonance with the internal guidelines of S.B.I., R.B.I. guidelines, Governmental directions etc. Her subsequent petitions as to her same prayer given to the O.P. side dtd. 06.01.2020 didn’t meet with desired result, so far as the complt’s case is concerned.
It appears that in subsequent stage, the complt’s Ld. Advocate ‘s letter dtd. 27.02.2020 addressed to the O.Ps of this case seeking redressal of the grievance of the complt. was responded by the O.P’s letter of Advocate dtd. 02.03.2020 from where the complt. could ascertain that it was the standpoint of the O.P. side that as she (complt.) had not blocked the card or the A/C inspite of receiving S.M.S. in respect of first fraudulent withdrawal of Rs- 5,500/- from her A/C on 28.02.2019, so she was negligent when the subsequent fraudulent withdrawal of Rs- 20,000/- and 2,000/- were effectuated from her A/C on 02.03.2019. By that Advocate’s letter dtd. 02.03.2020, the O.P. assigned reasons, as reflected above, to refuse to shoulder the responsibility to refund illegal/fraudulent withdrawal of Rs- 20,000/- + Rs- 2,000/- from the complt.
Finding no other alternative the complt. had filed this compliant on 16.03.2020.
It appears from the case record that due to Covid- 19 pandemic, the admission of this complaint could be made on 06.08.2020.
This appears from the available materials on record that though both the O.Ps of this complaint case were duly summoned to contest in this case by giving the O.Ps due and timely notice, the O.P. side didn’t contest in this complaint case and vide order no 10 dtd. 21.12.2020, this complaint case was taken up for exparte hearing against the O.Ps both.
The complt. filed ex-in-chief on affidavit in support of the complaint case, submitted all the documents as referred in this judgment i.e. her several petitions before the O.P. side, filled up prescribed proforma in the form of ‘Card Holder Declaration Cum Complaint Form’ dtd. 07.03.2019, A/C book e.t.c. to substantiate her claim .
The complainant cited reference of the case B. K. Biswas Vs State Bank of India, Northern Avenue Branch, Kolkata pronounced by the D.C.D.R.C. on 22.04.2019, and another reference of Puneet Mittal Vs S.B.I., passed by the Ld. Civil Judge 1(south) Delhi on
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31.01.2015 and judgment pronounced by the Hon’ble N.C.D.R.C. on 07.04.2011 in S.B.I. Vs K.K. Bhalla to vindicate the complt’s case. However, the Ld. Counsel for the complt. by filing petition on the date of argument hearing of this complaint case on 23.06.2022, had taken back last cited reference as mentioned here filed from the complt’s end, though the cited reference is open for discussion and realisation for guidance. Besides the complt’s Ld. Counsel has filed R.B.I. guidelines dtd. 06.07.2017 served upon all the banks to resist fraudulent transactions, secretly committed with the clients of the Banks.
In this backdrop, we shall now scan the materials on record available to ascertain whether the complt. could make out, substantiate her own complaint against the O.Ps, to establish that the reliefs sought for in this complaint case against the O.Ps are legally entertainable.
We frame the following issues for determination of crux of the issues involved in this complaint case.
ISSUES / POINTS FOR DETERMINATION
- Is this case maintainable in its present form and has this Commission/Forum jurisdiction to deal with this complaint?
- Is the complainant consumer as per scopes of the C.P. Act of 1986 since this complaint was filed before the coming into existence of the C.P. Act of 2019?
- Has the complainant sustained any deficiency rendered towards her by the O.P. and are the O.Ps liable for that deficiency in service, as alleged by the complt.?
- Is the complt. entitled to get the relief(s) as prayed for?
DECISION WITH REASONS
Issues No. 1 & 2:-
At first we take up both these two issues for discussion, since the merits and results of these two issues practically determine whether other remaining issues framed to reach the decision of this complaint case, need discussion or not.
The materials on record, nature of the complaint, the addresses of the complainant and the O.Ps, the spot of happening of the grievances, referred in this complaint, by the complainant and the arisal of the cause of action in this complaint lend grounds to hold that this Commission/Forum has jurisdiction to deal with this case and this compliant case which is appearing to be neither hit by limitation Act of 1963, Sec 24a of the C.P. Act of 1986 nor by the principle of Resjudicata, nor barred by pecuniary jurisdiction, is maintainable in its present form and before this Commission/Forum properly.
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Besides having regard to the definition of consumer and service contained in the relevant provisions of the C.P. Act 1986, we find that the complainant in this case is consumer, in consonance with the relevant provisions of the C.P. Act, of the O.Ps service. So both these issues for the reasons as reflected above, in the absence of any argument of the O.P. to the contrary, are decided in favour of the complt. and are accordingly disposed of.
Issues No. 3 & 4:-
We now take up both these remaining two issues of this complaint for discussion for the sake of convenience, brevity and to avoid unnecessary repetition to make this discussion suffer from prolixity.
This is the specific complaint of the complainant, being the S.B A/C holder of the O.P. no 1 of this complaint case, that she has a debit card with A.T.M. facility provided to her by the O.P. no 1 which is the branch of the O.P. no 2 which has administrative control over the O.P. no 1.
The complt’s case is that from her S.B. A/C, maintained by the O.P. no 1, by fraudulent use of her Debit card from A.T.M. counter of the O.P. bank there were fraudulent, surreptitious withdrawal of Rs- 5,500/- on 28.02.2019 and then again there were fraudulent and illegal withdrawals Rs- 20,000/- and Rs- 2,000/- on two occasions on 02.03.2019 in the same way and manner from Rupnarayanpur(salanpur) and Neyamatpur(Upper Bazar Sit), Chittaranjan respectively and it is the specific assertion of the complt. that on all those 03 occasions of illegal, fraudulent, unauthorised withdrawal of the sum of money, as reflected above, she(complt.) had not received any SMS message of the said fraudulent withdrawals, made without her knowledge and permission.
The complt. contends that she could come to know of those facts for the first time, when she had attended O.P. bank for updating her passbook on 05.03.2019. Thereafter, the complt. had taken required measures to seek redressal of her financial loss, as discussed in this judgment. It is further claimed by her that though she had specific claims of retrieval of Rs- 5,500/- + 20,000/- + 2,000/- = 27,500/- in total, that were fraudulently withdrawn from her S.B. A/C, maintained by her with the O.P. no 1, she could not get Rs- 22,000/- as yet out of the total amount of Rs- 27,500/- but she had been restored Rs- 5,500/- on 17.12.2019 and she had been informed by the O.Ps that the decision of the higher management of the O.Ps will determine whether she would be compensated with that amount of Rs- 22,000/- illegally withdrawn by the use of A.T.M./debit card of the complainant. It is her specific assertion that all her appeals made on that issue from her end to the O.P. side was not entertained by the O.Ps and that caused deficiency in service perpetrated by the O.Ps towards the complt.
The Ld. Counsel for the O.P. cited two references from Calcutta D.C.D.R.C. dtd. 22.04.2019 and Delhi District court dtd. 31.05.2015 in support of the complt’s case for reliefs sought for from the end of the complainant. Besides complainant has filed reference of guidelines of R.B.I. in cases of frauds committed upon the subscribers/depositors of the commercial banks to vindicate that the reliefs sought for by the complainant from against the O.Ps are justified.
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It appears that though the O.Ps did not contest in this complaint case, even being duly summoned to contest, in this case but their Ld. Lawyer’s dtd. 17.12.2019 reflected there standpoints that the complt. had proper message alerts against the transactions from her A/C, maintained by the O.Ps for her and by another letter dtd. 02.03.2020, given by the Ld. Counsel for the O.P., in response to the complt’s Ld. Lawyer’s letter dtd. 27.02.2020, the O.P. asserted that after fraudulent withdrawal of Rs- 5,500/- on 28.02.2019, the complt. had received SMS about the said transaction but even after such fraudulent transaction as alleged by the complt., the complt. had not blocked the A.T.M./ Debit card of the complt. or her S.B. A/C inspite of her receiving knowledge of such fraudulent transaction with her A/C on 28.02.2019.
By asserting this, the O.P. side categorised the complainant as negligent to pave the way for the Commission of the 2nd and 3rd alleged fraudulent withdrawals of Rs- 20,000/- and Rs- 2,000/- both on 02.03.2019 from her A/C with the O.Ps.
The complt. alternatively contended that she had not received any SMS alert in respect of all the three fraudulent transaction claimed by her but the complt. could not show that she had no such SMS alert facility system in respect of A.T.M./Debit card connected with her S.B. A/C maintained by the O.P. no 1 of this complaint, for her.
The complt. couldn’t produce her mobile or any other gadget to vindicate that though she had such facility of SMS alert system but that didn’t function when the first withdrawal of Rs- 5,500/- was made from her A/C.
It is needless to reiterate that an A.T.M./Debit card can only be used if the customer inputs his/her personal four digits identification number which is selected/chosen out/fancied by the customers of the said A.T.M./Debit card and not by the bank. It is the customer who should keep in memory the said PIN of the said card belonging to him or her to the exclusion of others. The magnetic strip placed on the reverse of the A.T.M. contains the details of the customer/card holder and the white strip of the said A.T.M. card contains the signature of the card holder. Unless a person is in possession of the relevant A.T.M. card or knows the four digit PIN, the A.T.M. card can not be used.
Even if it is taken into consideration for argument sake that the A.T.M. / Debit card had been kept in the safe custody of the complainant and only the complainant was aware of the special four digit PIN number which is a must to operate the A.T.M. card, it is found, in this case, that on three occasions fraudulently money could be withdrawn from the complt’s A/C by use of Debit card in particular. It is not possible to withdraw the said amount of the complt’s A/C without using the complt’s particular A.T.M./Debit card and the PIN number. In the premises, it can legitimately be inferred that those withdrawals occurred because the debit card/ A.T.M. card or the PIN number of the Complt’s said card fell in the wrong hand for surreptitious withdrawal of the complt’s money.
This is needless to mention that it has been the cardinal responsibility of the customer/here in this case, the complt. to keep her Debit card/A.T.M. card in her safe custody and not to allow it fell in the wrong hand for the misuse of the same. It also has been her duty to keep in her memory exclusively the four digits PIN number of her Debit/A.T.M. card but
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there appeared failure of the complainant on that score, as revealed from the consequent effects in the concerned A/C of the complt. No convincing reason is forthcoming from the available materials on record to hold that there was existence of either any laches or negligence or fraudulent intention on the part of the O.Ps of this case to facilitate the fraudulent withdrawal of the complt’s money from her particular A/C maintained by the O.P. side. No iota of the evidence has been forthcoming to lend ground to suspect O.P’s disservice rendered towards the complt. to cause fraudulent loss to her from her A/C, as alleged by the Complt.
This appears that the O.Ps have paid up/refunded the amount of Rs- 5,500/- so fraudulently withdrawn from the complt’s A/C by the use of her Debit card from Rupnarayanpur A.T.M. counter as the available materials on record revealed. The other two fraudulent withdrawals reportedly had taken place elsewhere in which place (s) the O.P’s had, in the absence of any available contrary evidence on record, no obvious control to check the C.C.T.V. of the concerned A.T.M. counter or to collect data quickly there from.
This appears to be a good gesture of the O.P. side, opposite to the allegations of disservice leveled with the O.Ps of this case.
It is pertinent to reflect that the cited references of the Hon’ble D.C.D.R.C. dtd. 22.04.2019 and the cited reference of the Delhi District court, Civil Judge 1 dtd. 31.05.2015 are not lending guidance to be observed by this Commission to reach the decision in this compliant when the background history of this complaint has been assessed thoroughly by this Commission.
In the premises, we find that the O.Ps didn’t rendered any deficiency in service to the complainant in respect of the fraudulent losses suffered by her. Accordingly, the complt., in this case, cannot be found to be entitled to get any relief(s) in this case from the O.Ps of this case.
So, both these two issues are decided against the complainant and are thus disposed of.
Hence it is ordered…
ORDERED
That the compliant case be and the same is dismissed exparte but without cost.
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Let a plain copy of this order be supplied to the contesting parties of this complaint case, by hand/ by Regd. Post with A/D forthwith, free of cost, for information and necessary action, as per law & relevant rules.
