BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE : Hon’ble Mr. Justice R. SUBBIAH PRESIDENT
Tmt Dr. S.M.LATHA MAHESWARI MEMBER
F.A.NO.177/2013
(Against order in CC.NO.50/2010 on the file of the DCDRC, Cuddalore)
DATED THIS THE 25th DAY OF AUGUST 2021
1. Manager
State Bank of India
ManjakuppamCuddalore – 607 001
2. Manager
State Bank of India M/s. S. Makesh
NRIT Division Counsel for
Anna Salai, Chennai Appellants / Opposite parties
Vs.
1. R. Rajinikanth
S/o. Ramalingam
Naduthittu 608 801 M/s. J. Paulraj
Thiagavalli Post, Cuddalore District Counsel for R1
2. POA of R.Rajinikanth
S. Ramasekaran
S/o. Lakshmanan
No.27, Murugaiyya Nagar
Tiruppapuliyur, Cuddalore – 2
3. POA of R. Rajinikanth & Ramasekaran
M. Nizamudeen
Tamil Nadu Consumer Council
Cuddalore Respondents/ Complainants
The 1st Respondents as complainants filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the opposite parties praying to set aside the order of the District Commission dt.9.10.2012 in CC.No.50/2010.
This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing on bothside and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:
ORDER
JUSTICE R. SUBBIAH, PRESIDENT
1. This appeal has been filed as against the order passed by the District Commission, Cuddalore, directing the appellants/bank to pay a sum of Rs.282000/- alongwith interest @6% p.a., from 12.4.2010 to till date of payment, alongwith cost of Rs.2000/-, on the ground that there is negligence on the part of the bank.
2. The case of the complainant before the District Commission is as follows:
The 1st Respondent/ complainant had an NRE A/c.30094539562 with the opposite party bank. On seeing the advertisement, the complainant applied for Debit Card facility from the appellant/ bank and obtained an SBI Maestro card No.6220180489180000379. This card had the facility of drawing the money from any ATM centers even in foreign countries.
The allegation of the complainant is that while he was working as an Off Shore Survey Engineer in a vessel at Saudi Arabia, a sum of Rs.2,82,000/- had been drawn periodically from his above account, during the period from 21.11.2008 to 2.12.2008 by way of using the ATM card unauthorisedly. The complainant had stated that during the alleged period he was not in a position to use his ATM card. When subsequently he verified the account, he found that a sum of Rs.282000/- was illegally withdrawn from his NRE account, by using a fake ATM card. Therefore, he forwarded a complaint through email on 12.12.2008 regarding the illegal withdrawal of money, but he did not get any positive reply from them. Subsequently, against the bank, the complainant gave another complaint to ATM Channel Manager, State Bank of India, Pondichery. Then only the complainant came to know that entire transaction took place in Malaysia, and about the fraud committed by some miscreants using the fake card. The opposite party bank is responsible for the money deposited by the customers, but they failed to fulfill their responsibilities. Hence the complainant filed this complaint before the District Commission for directing the Bank to pay Rs.282000/- towards the amount taken from his account by playing fraud, alongwith interest, and compensation of Rs.50000/- and cost of Rs.3000/-.
3. The said complaint was resisted by the opposite party/ bank before the District Commission by filing version as follows:
It is true that the complainant has NRE Account (Non Resident External Account) in the Respondent Branch and has also obtained SBI Maestro Card (Debit Card) by availing facilities to withdraw cash from ATM Centers in foreign countries also. It is possible to withdraw cash from ATM by using a PIN number, which is known to the complainant alone. The Switch centre of SBI Mumbai which is monitoring the overseas operation traced this particular ATM card transaction by its trace number between 26.11.2008 to 1.12.2008 and found that the alleged transactions were done at Malaysia. The amount withdrawn from ATM at Malaysia is in order by using the Debit card of the complainant. If not so, it is a fraud committed by some miscreant. A criminal case is under investigation and hence this complaint is premature. It is the duty of the complainant to keep the debit card safely and keep the PIN number secretly in mind. Thus prayed for dismissal of the complaint.
4. In order to prove the case on the side of the complainant, documents Ex.A1 to A15 were marked, and on the side of the opposite party the complaint lodged before CBCID was marked as Ex.B1. The District Commission, by analysing the evidence, has allowed the complaint mainly on the reasoning that even if the money is withdrawn by a 3rd party, by using a fake card, the bank alone is responsible. Aggrieved against the said order, the present appeal is filed by the appellants/ bank.
5. The learned counsel for appellant before this commission would submit that though the respondent/ complainant produced Ex.A3 to prove that he was working in a ship at Saudi Arabia during the date of withdrawal, he has not produced any document about the countries he travelled during the alleged period. It is the responsibility of the card holder to keep the card safely. The appellant had already lodged a complaint before the CBCID, and the criminal investigation is not completed. Therefore, the complaint filed by the complainant was premature. Without considering all these aspects, the District Commission on an erroneous reasoning, has allowed the complaint stating that even if the 3rd party withdrew the amount, by using the fake card, the bank is responsible. Such finding is not legally sustainable.
6. Apart from the above submission, the learned counsel for appellant would also submit that the present complaint was filed by one Mr.Nijamudeen as a power agent. On seeing the cause title of the complaint, it would reveal that the Respondent/ complainant delegated the power to one Mr.S.Ramasekaran, and the said Ramasekaran has delegated the power to one Mr.Nijamudeen, which is not permissible in law. Therefore, on that ground also the complaint is liable to be dismissed.
7. The learned counsel for the Respondent/complainant would submit that it is the responsibility of the bank to protect the money of the customer, failing to do so, would amount to deficiency in service. Therefore, Respondent/ complainant is entitled for the relief sought for in the complaint.
8. It is the case of the appellant/bank that the amount could be withdrawn from anywhere by using the Debit card. It is the responsibility of the complainant to keep the pin number secretly. When the ATM card was in the custody of the complainant, the bank cannot be held responsible. In this regard, the bank had also lodged a complaint before the CBCID. Therefore, the complaint is premature in nature.
9. It is the stand of the opposite party/ bank that the amount had been withdrawn from an ATM centre at Malaysia. But the complainant would submit that during the alleged period he was working as an Off Shore Survey Engineer in a vessel at Saudi Arabia. In order to prove the bonofide he has filed Ex.A3 a certificate issued by the Captain of the ship, where the complainant had been working during the alleged period which would show that the complainant was on board for the period from 14.11.2008 to 27.12.2008. The said certificate would also endorse that the port entry during that period was only “Tanajip Port, Rastanura Port and Damam Port in Saudi Arabia”. Therefore it is clear that the complainant had not entered Malaysia during the alleged period. This shows that the amount was withdrawn by some miscreants during that period, using some fake card, though the card was in the custody of the complainant.
10. Having considered the submissions made, we are of the considered opinion that the Bank, being an organization should be in a position to trace out the details about the usage of the card when there is some complaint. Had the Bank alerted the complainant by way of message etc., when the card was being used continuously from someother country, further withdrawal or loss of money would have been prevented. But the bank had failed to do so. Therefore, certainly there is negligence on the part of the appellant also. Moreover, it is not disputed that the complainant himself was holding the card during the disputed period. Therefore, it is absolutely made clear that the amounts would have been withdrawn by using a fake card. When it is known that there are always risk factors involved in handling the ATM cards by anybody unauthorizedly, we wonder why then the banking institutions had not taken any steps or preventive measures to trace out the unauthorized withdrawal by using a fake card?. Without taking such measures, promoting the usage of ATM card instead, and then blaming or fixing the responsibilities on the gullible public cannot be encouraged. Therefore, we find no error in the holding of the District Commission, that there was deficiency in service on the part of the opposite parties. Accordingly, the appeal is devoid of merits and deserves to be dismissed.
11. In the result, the appeal is dismissed by confirming the order of the District Commission in CC.No.50/2010 dt.9.10.2012. There is no order as to cost in this appeal.
S.M.LATHAMAHESWARI R. SUBBIAH
MEMBER PRESIDENT
INDEX : YES / NO
Rsh/RSJ/ ORDERS
