Haryana

Panchkula

CC/244/2014

RAJINDER KUMAR. - Complainant(s)

Versus

MANAGING DIRECTOR,STATE BANK OF PATIALA. - Opp.Party(s)

COMPLAINANT IN PERSON.

06 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                   

Consumer Complaint No	:	244 of 2014
Date of Institution	:	18.11.2014
Date of Decision	:	06.04.2015

 

Rajinder Kumar son of Sh.Gian Chand, aged 43 years, R/o House No.392, Pipliwala Town, Manimajra, Chandigarh.

                                                                                      ….Complainant

Versus

1.       The Managing Director, State Bank of Patiala, Head Office, The Mall, Patiala.

2.       The Manager, State Bank of Patiala, SCO No.414, Sector-8, Panchkula.

3.       The Zonal Manager, State Bank of Patiala, Sector-5, Panchkula.

                                                                      ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:               Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.Anil Sharma, Member.

 

For the Parties:     Complainant in person. 

Mr.Abhineet Taneja, Adv., for the OPs.

 

ORDER

(Dharam Pal, President)

1. Rajinder Kumar-complainant has filed this complaint against the Ops with the averments that he has a saving bank A/c No.55116506216 alongwith ATM card facility. On 26.06.2014 at 7:47 AM, the complainant visited the ATM to withdraw the amount but the same was not operational. The complainant approached the branch of Bank and brought the same to the notice of Mr.Rana, Bank Manager who also found that the withdrawal amount from complainant’s account through ATM card was dispensed with and total amount of Rs.17,968/- had already been withdrawn by some unknown person. Thereafter, the complainant approached the Op No.2 about the non-operational of his account who asked the complainant to submit the documents like identity/residential proofs so as to make his account operation through ATM card, which undoubtedly proved that the withdrawal of amount by the complainant was dispensed with by the OP-Bank itself for want of documents. The complainant visited the OP No.2 for looking into withdrawal of amount through ATM Card and resolving the matter. However, the complainant was asked for 2-3 days and thereafter on his next visited, the complainant was sent to Zonal Office where he contacted Mr.Saini who assured the complainant to solve the matter very soon. On his next visits, the complainant was made a shuttle between the OP No.2 and OP No.3 without any solution. The officials of the Bank also showed no interest by saying that they could not do anything and the complainant could do anything whatever he liked and also told that not to come again. The complainant brought all the facts to the notice of Head Office i.e Op No.1 vide his letter dated 16.07.2014 (Annexure C-2). Thereafter, the Ops also replied vide their reply No.PKL-8/748 dated 17.07.2014 disowned the responsibility of withdrawal of amount by any staff member of the bank. The complainant visited many times to Bank to seek the solution of withdrawal of money but to no avail. The complainant also issued a mandatory notice of 15 days to the Ops on 11.09.2014 and the Ops replied the mandatory notice vide reply dated 06.10.2014. Even after the withdrawal of money by some unknown person, the account of the complainant was still blocked and the complainant has not been able to operate the same. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared before this Forum and filed written statement by taking some preliminary objections and submitted that the complainant made a complaint dated 16.07.2014 with the Ops in which he stated that on 26.06.2014, he received a message on his mobile regarding withdrawal of Rs.2500/- from his account and he called his friend Mr.Pal who is one of the staff members of the Bank, advised him to contact the branch. The complainant also stated that when he reached the branch, he was informed that his account has already been stopped on the request of Mr.Pal on his behalf so the illegal withdrawal of amount by some other person before the operation of the account was stopped was well within the knowledge of the complainant, therefore, no amount was withdrawn after the account of the complainant. It is submitted that if the Ops have not stopped the operation of complainant’s account, much more amount could have been withdrawn. It is submitted that on 27.06.2014, the Ops received a mail from the complainant regarding misuse of ATM card by some unknown person from unknown place. It is submitted that the Ops checked the transaction and found that 11 online POS transactions for Rs.17,968/- were made from the account of the complainant on 26.06.2014 and in this regard, a copy of details of transaction as obtained from card-operations cell through Link Office, Mumbai of the Bank indicated that the transactions were made on 26.06.2014 from 13.28.17 hrs to 14.26.48 hrs (Annexure OP/2). It is submitted that all the transactions were done within the time span of one hour before the account stopping on the request of the complainant through his friend Mr.Pal. It is submitted that on enquiry, it was found that the complainant disclosed his card details, PIN number to some unknown person who called from mobile No.8294673285. It is submitted that SBI Bill desk suggested the complainant to approach the relevant Cyber Crime Cell and lodging a complaint for resolving the grievance. It is submitted that a letter dated 17.07.2014 was issued to the complainant and whole factual position was brought to the notice of the complainant. Thus, there is no deficiency in service on the part of Ops and prayed for dismissal of the complaint with costs.
3. The complainant has tendered into evidence affidavit Annexure C-A along with document Annexure C-1 to C-7 and closed the evidence. On the other hand, counsel for the OPs has tendered into evidence affidavit Annexure OP/A along with documents Annexure OP/1, OP/2, OP/2-A, OP/3 & OP-4 and closed the evidence.
4. We have gone through the entire evidence and heard the arguments addressed by the learned counsel for the parties.
5. After scrutinizing the entire evidence, we are of the opinion that there are certain issues in this case, which point out that complicated questions of facts and law are involved in this complaint, which are beyond the purview of a summary of adjudication by this Forum. At the same time, there is positive evidence on the same issues which point out towards deficiency in service on the part of the OP.
6. So far as the question of recovery of Rs.17,968/- is concerned according to the complainant, the disputed transaction of Rs.17,968/- conducted on his ATM card on 26.06.2014, the detail of which are as under:-

Terminal ID	Ret. ID	Term LN	Terminal owner	A/c No.	Card No.	PR No.	TR. Date	Tr. Time	D/C	Tr. Amt
5904	470000000005904	MDS	FreeCharge FreeCharge	55116504216	6038455020200043810	275649	26-Jan-14	3:28:17	D	798
2301	139428	PRI	www.ccavenue.com/charg	55116504216	6038455020200043810	201408743926	26-Jan-14	13:55:33	D	10
13907	1339779	PRI	Mpesa_BD	55116504216	6038455020200043810	201408746052	26-Jan-14	14:00:20	D	2500
13907	1339779	PRI	Mpesa_BD	55116504216	6038455020200043810	201408747408	26-Jan-14	14:03:13	D	2500
2301	139428	PRI	www.ccavenue.com/charg	55116504216	6038455020200043810	201408752311	26-Jan-14	14:15:40	D	2500
2301	139428	PRI	www.ccavenue.com/charg	55116504216	6038455020200043810	201408752806	26-Jan-14	14:16:58	D	2500
2301	139428	PRI	www.ccavenue.com/charg	55116504216	6038455020200043810	201408755445	26-Jan-14	14:18:36	D	2500
4077	281782	PRI	Oxicash_BD	55116504216	6038455020200043810	201408754522	26-Jan-14	14:21:18	D	1980
1824	45666	PRI	PayU	55116504216	6038455020200043810	201408755504	26-Jan-14	14:23:45	D	1000
1824	45666	PRI	PayU	55116504216	6038455020200043810	201408756027	26-Jan-14	14:25:10	D	1000
1824	45666	PRI	PayU	55116504216	6038455020200043810	201408756707	26-Jan-14	14:26:48	D	680

 

The abovesaid transactions were not authorized by the complainant, it is to be decided whether the details credelcails of this ATM card were sale by the complainant with any one or not. The abovesaid detail shows that the credit card number is admittedly of the complainant. There was usage of the credit card of the complainant on 26.06.2014 at 13:28:17 hrs to 14:26:48 hrs and a message was received on his mobile regarding withdrawal of Rs.2500/- from his account thereafter, the complainant tried to contact the Ops but when he received no response, he contacted his friend Mr.Pal and on the instructions of Mr.Pal, his account was stopped. The Ops have alleged that as per the contents of complaint of the complainant that the fact regarding the illegal withdrawal of the amount by some other person before the operation by the account was stopped was well within the knowledge of the complainant. Now it is a matter of detailed evidence production record, computer data and cross-examination of the witnesses and only thereafter, a finding can be recorded. Secondly, the complainant has alleged fraudulently withdrawal from his account through his ATM card which was in his custody. It was the duty of the complainant to take sufficient care and not to disclose and allow the information of his ATM. Again it is a matter of detailed evidence whether the complainant took sufficient care and did not permit the misuse of ATM card. At any rate, fraud is to be proved like a criminal charge and the same beyond the purview of summary jurisdiction of this Forum. Thirdly, no police report in respect of the loss has been lodged by the complainant. The complainant in his compliant has alleged that the card was intact with him and it was online transaction. The complainant has not produced any document to show that he made any effort for registration of an FIR with the police about fraudulent withdrawal of Rs.17,968/- from his account. It was the duty of the complainant to lodge an FIR with the police.

7. In view of the reasons mentioned above, this Forum cannot record a finding in respect of the issues mentioned above. However, this Forum can certainly after analyzing the evidence, record of findings about other deficiency in service on the part of the Ops.
8. It is pertinent to note that the complainant has specifically pleaded that on 26.06.2014 at 7:47 am, the complainant visited the ATM to withdraw the amount but the same was not operational. The complainant approached the Op and brought the same to the notice of Mr.Rana, Bank Manager who in turn found that the withdrawal of the amount from complainant’s account through ATM card was dispensed with and that by that time a total sum of Rs.17,968/- had already been withdrawn by some unknown person. On 27.06.2014, the complainant visited the Ops for looking into the withdrawal of money and resolving the matter urgently. Thereafter, the complainant visited the office of Op No.2 and 3 but the Ops had not resolved the matter rather misbehaved with the complainant. However, the complainant made a written complaint on 16.07.2014 (Annexure C-2). The Ops have not disputed the receipt of the abovesaid complaint from the complainant. However, the written statement of the Ops shows that an investigation was conducted by Ramesh Kumar Saini, Chief Manager (RASMECCC), Panchkula and submitted his report (Annexure OP/3). In his report, Ramesh Kumar Saini has submitted as under:-

“All the eleven transactions aggregating Rs.17968.00 transacted on line on 26.06.2014 during the time 13.28.17 to 14.26.48 (Flagged-F). Complete detail of all these transactions including the location/name & address of POS is required to ascertain the factual position. Chhanel Manager (ATM) at Zonal office has already taken up the matter with the concerned quarter for getting these details so as to resolve the issue.”

But the Ops have not conducted any further enquiry in this regard.

9. It is quite evident that the Ops did not inform the complainant about the detail of disputed transaction like what was purchased, which IP address was used to make purchase and where were the services delivered. There is no information to the complainant as to what was done by the Ops in pursuance of the report submitted by Ramesh Kumar Saini (Annexure OP/3). Rather the Ops informed the complainant on 17.07.2014 that 11 online POS transaction for Rs/17,968/- have been made from the account of the complainant on 26.06.2014. On investigation of the matter, they observed that the complainant has disclosed the vital details of his ATM card to some unknown caller. The Ops further informed the complainant that none of their bank’s staff member is involved in making such mobile call to ascertain the ATM card details of the customers. The Op further informed the complainant that the detail of online transaction were also obtained through link of his Mumbai and it has transpired that the merchants have confirmed successful delivery of services and hence they are unable to refund the transactions. The SPI bill desk has suggested that the customer should approach the Cyber Crime Cell and lodge a complaint for resolving his grievances. To Cap it all, the Ops have not produced any copy of detailed investigation report allegedly made by them, in accordance which, the Ops reached at a finding that the disputed transactions were incurred by a person due to discloser of the detail of the ATM of the complainant. No affidavit of the officer who conducted such any investigation has been produced by the Ops. We are of the view that the omission on the part of the Ops to take a prompt action on ATM card holder dispute and providing him the information and non-production of its investigation report point out towards deficiency in service on the part of the Ops. As already observed above, though we cannot give a definite finding of fraud and other related matter detailed in para 6. Yet, we find that in action/omission to furnish information by the Ops as per detailed mentioned above clearly point out towards deficiency in service on their part.
10. We are, however, constrained to observe that the Ops do not appear to have conducted there functioning as prudent professionals, much less as members of a public sector establishment. Their pre-litigation and pleadings filed at the trial are more of an accusatory type, thereby suggesting that the entire blame lay with the complainant. These observations of the Bench are fortified by the following facts and circumstances.
11. In order to prove the averment that all the 11 relevant on-line transactions had already taken place before the Ops made the account of the complainant un-operative on his instructions received through his friend Mr.Pal (who also happens to be a Patiala based Manager in the establishment of Ops), the Ops were required to place the relevant documentation on record. The production of that documentation would have enabled the Ops to falsify the averment by the complainant that the 11 transactions had taken place after the instructions of ceasure of operation of the ATM had been given.
12. The non-production of the above indicated documentation and the non-indication of the follow up ‘action’ of the enquiry and Op clinchings prove that there was cognizable deficiency in service on the part of the Ops.
13. For the reasons recorded above, we find merit in the complaint and the same is partly allowed. The Ops are directed as under:-
    1. To credit the amount of 11 on-line transactions i.e. Rs.17,968/- into the account of the complainant.
    2. To make the payment of Rs.5000/- to the complainant as cost of litigation.
14. Before parting with the order, it is made clear that the complainant is at liberty to approach any appropriate Forum to establish that the disputed transaction was fraudulent made and that he did not share the credentials of his credit card with anybody and the amount was transferred on account of breach at security on the part of the Ops.
15. Let the order be complied with within 30 days from the receipt of the certified copy of the order. A copy of this order be sent to the parties free of costs. File be consigned to records after due compliance.

 

 

Announced

06.04.2015       ANIL SHARMA      ANITA KAPOOR             DHARAM PAL

                         MEMBER                MEMBER                PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.

    

                                 

                                                         DHARAM PAL

                                                          PRESIDENT