Punjab

StateCommission

A/11/646

SBI - Complainant(s)

Versus

R.K Verma - Opp.Party(s)

Gagan Anand

19 Mar 2015

ORDER

First Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

First Appeal No.646 of 2011 

 

                                              Date of institution: 15.04.2011.

                                              Date of Decision:   19.03.2015.

 

State Bank of India, SCO No.35, Phase-1, Mohali Branch, through its Assistant General Manager, Sh.C.G.Sharma.

                                                          .….Appellant/Opposite party.

                                      Versus

 

R.K.Verma, resident of House No.2659-A, MIG Super, Sector 70, Mohali (Punjab).

 

                                                   ..…Respondent/Complainant.

 

First Appeal against order dated 18.03.2011 of District Consumer Disputes Redressal Forum, SAS Nagar.

Before:-

 

                Shri J.S.Klar, Presiding Judicial Member

                Shri Vinod Kumar Gupta, Member.

 

Present:-

                For the appellant      :  Ms.Shalini Munjal, Advocate

 For the respondent  :   Sh.Mohit Jaggi, Advocate

 

Vinod Kumar Gupta, Member

 

                This appeal has been preferred by the appellant (opposite party in the complaint) against the respondent of this appeal (complainant in  the complaint) under Section 15 of the Consumer Protection, 1986 (hereinafter referred to as the ‘Act’) against order dated 18.03.2011 of District Consumer Disputes Redressal Forum, SAS Nagar Mohali (hereinafter called the ‘District Forum’) in  Consumer Complaint No.32 of 2011, vide which, the complaint of the complainant was allowed and opposite party was directed to refund the amount of Rs.15,000/- with 9% p.a. interest from the date of withdrawal i.e. 26.11.2010 till the date of its actual credit to the account of the complainant, besides Rs.10,000/- as compensation for mental harassment and Rs.2000/- as costs of litigation.

2.             The brief facts of the case of the complainant are that Sh.R.K.Verma, complainant filed the complaint against the opposite party on the averments that he was having a Saving Bank Account No.10175934516 with the opposite party.  The opposite party issued him an ATM card.  It was further pleaded in the complainant that on 26.11.2010 at about 1250-1310 hours, he withdrew Rs.14,000/- from his account through ATM Booth of the OP, installed in the Phase 7, Mohali and thereafter reached home.  After about an hour, he received an SMS on his mobile phone to the effect that besides the amount of Rs.14,000/-, he had also withdrawn another amount of Rs.15,000/- from his account from the same ATM machine.  On reading the above SMS, he was shocked to find it and he immediately rushed to the OP branch and enquired about the matter from the bank.  On checking his account, the official of the bank told him that Rs.15,000/- was also withdrawn from his account, although he had not withdrawn that amount.  It was further alleged that somebody else withdrew this amount from his account on a false card.  He is a senior citizen aged about 65 years and had suffered due to the negligence of the OP bank.  The withdrawal of the amount of Rs.15,000/- occurred due to the faulty ATM machines only.  Legal notice was sent to the OP to this effect and reply was sent by the OP, which is not satisfactory at all.  Hence, he filed the complaint seeking direction to the OP to refund him the amount of Rs.15,000/- with interest and further to pay him Rs.50,000/- as compensation and litigation expenses to the tune of  Rs.5,500/-.

3.             The complaint was contested by OP by filing the written reply before the District Forum.  Preliminary objections were taken by OP that the present complaint is not maintainable, as there was no possibility to clone the ATM Card in One Minute only, as the ATM Card and Secret PIN No. is always with the complainant.  It was further replied that the complainant withdrew the amount of Rs.14,000/- from one ATM machine on 26.11.2010 at 12.23 p.m.  The disputed amount of Rs.15,000/- from the second ATM installed in the same booth on the same day was withdrawn on that date at 12.24 p.m.  Two transactions thus, took place within a gap of one minute time only, therefore, there was no human possibility of any other person to clone the ATM card in one minute's shortest time.  It was further pleaded that the CCTV footage showed that he used his ATM on both the ATM machines and he himself withdrew both the amounts from the ATM Machines in one minute's time.  The secret PIN number of the card is known to the cardholder only and not to anybody else and thus, he could withdraw the amount through ATM Card exclusively. It was further submitted that the representation submitted by the complainant was sent to all the concerned authorities and a perusal of EJ/JP/Roll shows that TXN No.9436 dated 26.11.2010 ID-324647 for Rs.15,000/- was having response code of 000-SUCCESSFUL and the payment was withdrawn on the same day within a gap of one minute which is clearly mentioned in the statement receipt.  There was, thus, no deficiency in service or unfair trade practice on the part of the OP in this case.  Dismissal of the complaint was prayed for by the OP.

4.             The complainant tendered in evidence his affidavit Ex.CW-1/1, copies of statement of accounts dated 26.11.2010 Ex.C-1, ATM statements dated 26.11.2010 Ex.C-2 and Ex.C-3, his application to the OP dated 26.11.2010 Ex.C-4, legal notice Ex.C-5, reply dated 20.12.2010 to the legal notice Ex.C-6, information about fraud through cloning of ATMs downloaded from internet Ex.C-7 and C-8, Statement of accounts Ex.C-9, application Ex.C-10 and postal receipt Ex.C-11 and closed the evidence.  The OP tendered in evidence the affidavit of C.G.Sharma, Asstt. General Manager Ex.RW-1/1, copies of CD of CCTV footage Ex.R-1, letter dated 29.11.2010 Ex.R-2 and reply dated 20.12.2010 to the legal notice of the complainant Ex.R-3 and closed the evidence.  On conclusion of evidence and arguments, the District Forum, Mohali allowed the complaint of the complainant and OP was directed to refund the amount of Rs.1`5,000/- with interest @ 9% per annum from the date of withdrawal i.e. 26.11.2010 till the date of actual credit into the account of the complainant to the complainant and also to pay him compensation for mental harassment to the tune of Rs.10,000/- and litigation costs to the tune of Rs.2000/-.  Dissatisfied with the order of District Forum, SAS Nagar (Mohali), the instant appeal has been preferred against the same by the opposite party now appellant.

5.             We have heard learned counsel for the parties and have gone though the record of the case.

6.             As per the affidavit of Sh.R.K.Verma complainant vide Ex.CW-1/1, wherein, he deposed that on 26.11.2010 at about 1250-1310 hours, he withdrew Rs.14,000/- through ATM installed in Phase 7 Mohali and then came at home.  After an hour, he received one SMS on his mobile to the effect that besides Rs.14,000/-, another Rs.15,000/- were also withdrawn from the same ATM machine from the same account.  In para No.6 of his affidavit, he deposed that he sent the representative to the bank on the same day i.e. 26.11.2010, but no action was taken on the same.  On the other hand, as per affidavit of Sh.C.G.Sharma, Assistant General Manager, State Bank of India, Phase I, Mohali, Ex.RW1/1, he deposed that the ATM Card and Secret PIN No. were confidential matter and the record thereof is with the customer alone.  Since, it is a confidential PIN number, as such, the complainant was having the knowledge about the said PIN No.  and there is no possibility of any other type of misuser unless the ATM Card and Secret Pin number is handed over by the complainant himself deliberately to any other person or the said PIN No. is disclosed to any other person by him.  The complainant had withdrawn the amount of Rs.14,000/- on 26.11.2010 at about 12.23 p.m. and another amount of Rs.15,000/- was also withdrawn from the other ATM Machine installed at the same kiosk on the same date at about 12.24 p.m., as there are two ATMs Machines installed in one Kiosks and both the transactions took place within the shortest gap of one minute's time only.  We have perused the statement of account Ex.C-9, which clearly showed that on 26.11.2010, Rs.14,000/- has been withdrawn from the ATM machine No.229/- and amount of Rs.15000/- has been withdrawn from ATM machine No.9436 on 26.11.2010.  We have also perused Ex.R-2 dated 29.11.2010, the relevant portion reads as    under :-

ATM TXN-9436 DT.26.11.2010 ID 324647 for Rs.15,000/- A/C 10175934516           

On the above subject, we enclose a copy of EJ/JP ROLL and its perusal reveals that TXN No.69436 dated 26.11.2010 ID-324647 for Rs.15,000/- is having response code of “000-SUCCESSFUL.  Hence no refund is to be made of this TXN-9436.

7.             Mini Statement Ex.C-3 also shows that two transactions through ATM took place on 26.11.2010 for Rs.14,000/- and Rs.15,000/-.  As per the CCTV Ex.R-1 footage shows that the complainant entered in the ATMs booth  at 12.22:15 and worked at the ATM machine No.9436 at 12:22:17, 12:22:20 and 12.22.23.  After that he associated the second ATM Machine in the same booth bearing ATM Machine No.229 from there he withdrew  the admitted amount of Rs.14,000/- at about 12.23 hours.  It clearly shows that an amount of Rs.14,000/- from one ATM Machine Phase 7, Mohali on 26.11.2010 at 12.23 p.m. and Rs.15,000/- was withdrawn from second ATM at 12.24 p.m. installed in the same kiosk on the same day.  It means there are two ATM machines installed in the same kiosk.  It clearly shows that when once the ATM is inserted in the machine and the machine asks for the Secret Pin/confidential Pin Number, once the PIN number is entered, the transaction starts and the customer has accessed to his account and it continues till the transaction is completed or cancelled by the operating customer.  The District Forum has observed that the complainant had firstly put his card in the ATM Machine No.9346 and within a few seconds, he was made to shift by turbaned young man to the other machine No.229 from where the complainant withdrew the amount of Rs.14,000/-.  So, it was the duty of the complainant to cancel the transaction, when he moved from one machine to other ATM machine.  The possibility of third party's intervention in one minute's time is humanely ruled out in our opinion.  So, the complainant is found himself negligent as not to cancel the previous transaction in the ATM machine.  The complainant has not disclosed in his complaint as well as affidavit Ex.CW1/1 that there was another person present in the kiosk at that time when he withdrew the amount of Rs.14,000/- and the other person might have withdrawn the amount of Rs.15000/-.  The possibility of two human beings who have operated two ATM machines in a jiffy without knowledge of the complainant is ruled out in our view.  We find no deficiency in service on the part of the OP in this case after appraisal of above referred evidence on the record.  The order of the District Forum Mohali holding the OP liable is erroneous and is reversed in this appeal.

8.             Sequel to the above discussions, the appeal filed by the appellant is accepted and the order of the District Forum, Mohali dated 18.03.2011 is set-aside. Consequently, the complaint filed by the complainant is hereby dismissed.

9.             The appellant had deposited an amount of Rs.25,000/- with this commission at the time of filing the appeal.  The amount of Rs.25,000/- with interest, if any, accrued, thereon, be paid by registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days.

10.           The arguments in this appeal were heard on 09.03.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.

     (J.S.Klar)

                                                                                              Presiding Judicial Member

 

 

March 19, 2015                                                                     (Vinod Kumar Gupta)

Lb/-                                                                                                               Member