By Sri. A.S. Subhagan, Member:
This is a complaint filed under section 12 of the Consumer Protection Act 1986.
2. The facts of the case in brief are as follows:- The Complainant has an account in Opposite Party Bank which is a savings bank account bearing No.57068330711. The Complainant had availed facility of ATM card from the Opposite Party and transactions were done through ATM card as well as through cheques. While on traveling in a bus from Ernakulam to North Jetty during the period from 10.06.2014 to 15.06.2014 the ATM card was lost and it was intimated to the Opposite Party and applied for a new ATM card. After completing the proceedings a new ATM card was issued to the Complainant. On 08.01.2015 a maturity amount of LIC policy and on 09.01.2015 a chit amount from Muthoot Fin Corp were deposited in the above account. The amounts were collected for the marriage of Complainant’s son which was scheduled to be conducted on 19.01.2015. On 14.01.2015 when the Complainant went to the bank for withdrawing Rs.20,000/- it was found that an amount of Rs.40,000/- each were seen withdrawn from his account on 13.01.2015 and on 14.01.2015 through the ATM booth at Ernakulam without the knowledge of the Complainant. The Complainant approached the Manager of the Opposite Party of the Opposite Party bank and verified the account in the presence of the Manager and it was found that the assailants used the lost ATM card and withdrawn Rs.80,000/- from the account of the Complainant which was stopped by the Opposite Party before six months. The Opposite Party admitted their fault and directed the Complainant to file a petition before the police and also assured that they would credit the lost amount in the account of the Complainant. The Opposite Party told that they will contact the police and provide the CCTV clipping to detect the assailants. But the Opposite Party did not credit the amount in the account of the Complainant. The Complainant frequently approached the Opposite Party but they twisted from their words and shouted to the Complainant and alleged that the Complainant had not filed application for fresh ATM card and not submitted any application etc. The Opposite Party is having CCTV facilities to detect the assailants but they had not taken any steps in this regard and had not credited the amount in the account of the Complainant. They handled the crime with gross negligence and due to the callous attitude of the Opposite Party the Complainant had loss and damages. The gross negligence and callous attitude of the Opposite Party amounts to unfair trade practice and hence this complaint is filed praying the Commission to direct the Opposite Party to pay Rs.80,000/- being the amount withdrawn from the account of the Complainant with 12% interest from 13.01.2014, to pay Rs.2,000/- being the expenses of the Complainant in connection with the filing of Police complaint and other expenses, to pay an amount of Rs.10,000/- being the loss and damages and mental agony and to pay Rs.2,500/- as cost of this proceedings.
3. The Commission registered a case and notice was issued to the Opposite Party for appearance. The Opposite Party entered appearance and detailed version was filed. In version the Opposite Party admitted that the Complainant had availed an ATM card in her account and she had been using the ATM facility also. According to the Opposite Party the allegation that the ATM card was lost while travelling in a bus from Ernakulam North to Jetty was not informed to the Opposite Party. The allegation that she had informed the Opposite Party while applying for a new ATM card after three months is also not correct. The New ATM card was issued to the Complainant only on 04.09.2014. The Complainant did not block the transaction of alleged lost ATM card. Even when she applied for a new ATM card she did not make any application for blocking the transaction nor he made any complaint to the bank about the loss of ATM card. The allegation that she had deposited the maturity amount of LIC Policy on 08.01.2015 and a chit amount from Muthoot Fin Corp on 09.01.2015 was known to the Opposite Party only when she came to complaint about the loss of money. The withdrawals of Rs. 40,000/- each on 13.01.2015 and 14.01.2015 by a person using the ATM card through ATM counter at Ernakulam were known to the Opposite Party only when the Complainant came to tell about the loss of money. The amount is lost as the person who withdrew the amount had used the correct secret code number to withdraw the amount. The Complainant had not submitted any written complaint to the Opposite Party. The Complainant had not filed any complaint to any authority about the loss of the ATM card. The allegation that the Opposite Party had told the Complainant that he would provide CCTV clipping to detect the persons is also not correct. The alleged withdrawal was from the ATM counter at Ernakulam and hence the Opposite Party is not able to get the CCTV clipping. The Opposite Party had not made any such assurance to the Complainant at any time. The Opposite Party has got CCTV facilities only for the branch and it does not have the facilities connecting all branches. The Complainant ought to have filed a complaint before the Police Station from where the amount was withdrawn. The Complainant had not filed a petition to the bank or to the Police in Sulthan Bathery or anywhere else. If a complaint had been filed before Police, they could get the CCTV clipping from the ATM counter from where the amount was withdrawn. The alleged ATM Card was used by the party on 03.12.2014 also for withdrawing amount. So, there was total negligence and carelessness on the part of the Complainant. The Opposite Party has not committed any negligence or unfair trade practice and so the Opposite Party is not liable to pay any amount to the Complainant as alleged in the complaint. Therefore the complaint may be dismissed with costs to the Opposite Party.
4. On the basis of the above allegations of the Complainant and contentions of the Opposite party in version, the Commission raised the following points for considerations.
- Whether there has been any unfair trade practice /deficiency in service
from the Opposite Party?
- If so, whether the Complainant is entitled to get compensation and
what should be the quantum of compensation?
- Whether the Complainant is entitled to get cost of the complaint and
other relief?
5. The evidence in this case consists of the oral testimonies of PWI to PW6,
Exts. Al to A4 and Xl series of documents submitted by the Complainant and the Opposite Party respectively.
6. Point No. l:- The grievance of the Complainant is that though the Complainant had intimated the loss of her ATM Card to the Opposite Party, and eventhough a new ATM Card was issued to her by the Opposite party, she lost Rs.80,000/- from her account as the Opposite Party bank failed to cancel the operation of the old ATM card. But the Opposite Party contents that the Complainant had not given any written complaint to the bank for cancellation of the lost ATM card. The Opposite Party has admitted that the Complainant was issued new ATM card on 04.09.2014. The Opposite party has also admitted that the withdrawal of Rs.40,000/- each on 13.01.2015 and 14.01.2015 by a person using the ATM card through ATM centre at Ernakulam was known to the Opposite party only when the Complainant came to the bank to tell about the loss of money. Anyway it is evident that the loss of money from the account on 13.01.2015 and 14.01.2015 is occurred only after the issue of the new ATM card to the Complainant by the Opposite Party. In re-examination with permission, PW6 who is the Station House Officer of Ernakulam Town North Police Station has given oral evidence as to the fact that only one ATM Card shall be issued to one customer has understood by him by inquiry in bank. So it was the duty and responsibility of the Opposite Party to block the operation of the lost ATM Card at the time of issue of the New ATM Card. Hence, here the Opposite Party bank has failed to do so. As a new ATM card was issued to the complainant the contention of the Opposite Party that Complainant had not given any written complaint to block the operation of the lost ATM Card shall not stand.
7. Another allegation of the Opposite party is that the Complainant had not submitted any petition to the Police Station regarding the loss of money from her account through the lost ATM Card. PW5, the Civil Police Officer of North Police Station, Ernakulam has given oral evidence in examination of witness that Police complaint regarding this matter was filed by the Complainant in Sulthan Bathery Police which was forwarded to Ernakulam North Police Station for enquiry. Ext.X1 series of documents substantiate the oral deposition of PW5. PW5 has also added that Branch Manager, Sulthan Bathery SBT has not extended any help and co-operation in connection with the enquiry. The Opposite Party bank has not forwarded any reply or communication to the questionnaire sent by the police to the Opposite Party. In re-examination PW5 has stated that for going ahead with the enquiry, reply has to be received from SBT, Sulthan Bathery Branch. He added that for all the matters shown in the letter should be answered by the Branch Manager, SBT, Sulthan Bathery. Xl series is the official enquiry report of Ernakulam North Police Station which has been verified by the Commission. PW6, The Station House Officer, Ernakulam North Police Station has also stated in his deposition that the Opposite Party has not co-operated in any stage of the enquiry. Exhibit X1(9) which is the acknowledgement card substantiates that the questionnaire forwarded by the Sub Inspector of Police, Ernakulam South Police Station has been received by the Opposite Party bank. So the contention of the Opposite Party that the Complainant has not submitted any petition to the police in connection with the loss of ATM Card and loss of money from her account is proved to be false. The Opposite Party bank has failed to take any initiative to block the operation of the lost ATM Card even at the time of issue of the New ATM Card. The Opposite Party was duty bound to do so. The Opposite Party bank has not co-operated with the Police enquiry. The Opposite Party has not given even a reply to the letter / questionnaire forwarded by the Police Authorities. The Opposite Party bank was negligent in discharging their duties and responsibilities. Hence the Commission finds that there has been unfair trade practice /deficiency in service from the part of the Opposite Party bank.
8. All other allegations and contentions are immaterial in this case. So point No.1 is proved in favour of the Complainant.
9. Point No.2:- As point No.1 is proved in favour of the Complainant he is entitled to get compensation.
10. Point No.3:- As point No. 1 and 2 are proved in favour of the Complainant he has the right to get cost of the complaint and proceedings and
other relief prayed for.
In the result, the complaint is allowed and the Opposite Party is directed :-
- To pay an amount of Rs.80,000/- (Rupees Eighty thousand only) being the amount lost to the Complainant due to the negligence of the Opposite Party together with 6% interest per annum from the date of loss of the amount,
- To pay an amount of Rs.2,000/- (Rupees Two thousand only) being the expenses of Complainant in connection with the filing of police complaint and other expenses,
- To pay an amount of Rs.2,500/- (Rupees Two thousand and Five hundred only) being the cost of the complaint.
To pay an amount of Rs.10,000/- (Rupees Ten thousand only) being the compensation for loss and damages and mental agony and
The above amount shall be paid by the Opposite Party to the Complainant
within one month from the date of this order failing which the complainant shall have the right to realise the amount with 8% interest by due process of law.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Commission on this the 16th day of February 2021.
Date of filing: 03.02.2015.
PRESIDENT:
MEMBER :
MEMBER :
APPENDIX.
Witnesses for the complainant:
PW1. Mary Rose Joy Complainant.
PW2. Shiju. Employee, Taj Hotel Ernakulam.
PW3. Raveendran. Station Writter, Sulthan Bathery Police Station.
PW4. George P. George. ASI, Sulthan Bathery Circle Office.
PW5. Syam Kumar. CPO, North Police Station, Ernakulam.
PW6. Sanal. SHO, Ernakulam Town North Police Station.
Witness for the Opposite Party :
OPW1. Snehajan. Manager, SBT, Sulthan Bathery.
Exhibits for the complainant:
A1. Receipt. dt:28.01.2015.
A2. Copy of Register of Petitions (one page)
A3. Copy of Property Register (one Page)
A4. Copy of Letter. dt:14.01.2015.
Exhibits for the Opposite Party:
X1(1) Report.
X1(2) To Whomsoever it may concern. dt:16.12.2015.
X1(3) Core Transaction.
X1(4) Certificate. dt:16.12.2015.
X1(5) ATM Transaction details.
X1(6) Certificate. dt:16.12.2015.
X1(7) ATM Transaction details.
X1(8) Certificate. dt:16.12.2015.
X1(9) Acknowledgement.
X1(10) Copy of Letter.
X1(11) Copy of Account transaction details.
