Delhi

East Delhi

CC/370/2014

MOHIT MAHAJAN - Complainant(s)

Versus

S.B.I - Opp.Party(s)

10 Mar 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

 

C.C. NO.  370/2014

 

	Mohit Mahajan S/o Pawan Mahajan R/o 177-B, DDA Flats Jhilmil Satyam Enclave Delhi 110095	….Complainant
Versus
1	State Bank of India C-61, Anand Vihar, Delhi 110092	……OP1
2	State Bank of India 43, Navyug Market, Ghaziabad, U.P.-201001	……OP2
3	State Bank of India Local Head Office Sansad Marg, Parliament Street, Delhi 110001	……OP3
4	State Bank of India Corporate Centre, 16th Floor, State Bank Bhawan, Madam Cama Road, Mumabi 4+ 00021	……OP4

 

                                                         

 

Date of Institution: 15.04.2014

Judgment Reserved on: 10.03.2022

Judgment Passed on: 10.03.2022

                  

QUORUM:

Sh. S.S. Malhotra (President)

Ms. Ritu Garodia (Member)

Sh. Ravi Kumar (Member)

 

Order By: S.S. Malhotra (President)

 

JUDGEMENT

1. Complaint pertains to deficiency in service on the part of OP1/State Bank of India for not resolving the issue of disputed transactions in complainant’s account by unknown persons. The brief facts are that the complainant opened a saving bank account bearing no. 33225768803 with OP1 Bank i.e. State Bank of India at Anand Vihar on 21.4.2013. The complainant was told that he would receive ATM Card at his address and then he could contact their branch with identity proof to get PIN. He received his cheque book on 28.06.2013 at his address.
2. The complainant received a message on his mobile phone on 1.9.2013 stating that an ATM card has been dispatched on 24.08.2013. The complainant received another message on 2.9.2013 at 03:13 p.m. that his account has been credited with Rs.1,45,600/-. He received another message on 3.9.2013 around 02:30 p.m. that his account was credited with Rs.1,86,700/-.Complainant called OP1 on phone number 011-22145050 at 03:45 p.m.  but connection was busy.
3. The complainant received another call from OP2, Ghaziabad Branch of State Bank of India, inquiring about some transactions in complainant’s account and he was informed that an investigation was being conducted and his account has been put on hold.
4. The complainant went to OP1 on 4.9.2013 to resolve the matter. He met Mr. Ajay from the bank and enquired about deposit of two amounts in his bank account. He was informed that two cheques have been deposited and around Rs. 50,000/- had been withdrawn from complainant’s ATM card. As the complainant had not received any ATM card, he asked them to show the ATM card receiver’s signature. Mr. Ajay told the complainant that the bank would write an application to Post Office, Jhilmil, regarding receiver’s signature.
5. The complainant also asked them to bring the register where signature of the customer are taken before issuing PIN details. It is alleged that complainant’s signature did not match the signature in the register.  It is further imputed that Mr. Ajay called the lady clerk who is deputed at the window, which gives PIN details to bank customers and questioned her about the identity proof of the person who took the PIN details. The lady clerk did not remember the identity proof given for the PIN details. The complainant asked them to show CCTV footage of that day but he was informed that it would take around 24 hours to show the same. Mr. Ajay was apologetic about inconveniences and offered to open a new account for the complainant but at the same time refused to accept any complaint in writing. The complainant had to lodge a complaint on the web site www.sbi.co.in and was issued ticket number CD-5195720268. The complainant made complaints to OP3 & OP4, which are local head office and corporate centre of State Bank of India respectively. 
6. On 6.9.2013, the complainant received a call from State Bank of India and one Ms. Manorma enquired about the aforesaid complaint. On 7.9.2013, complainant received a call from OP1 asking about his written complaint. On 8.9.2013, complainant lodged a complaint in P.S. Anand Vihar vide DD no. 18-B. On 14.9.2013, complainant went to P.S. Anand Vihar and enquired about his complaint. As he didn’t get any positive response, he called on the concerned S.H.O. On 15.09.2013, complainant met S.H.O., Anand Vihar and requested him to lodge an F.I.R (First Information Report) in this concern. On 16.09.2013, the complainant accompanied by S.H.O. went to OP1’s branch of the Bank. The S.H.O. asked the branch manager to call the person who delivered the PIN of the complainant. The lady clerk who issued the PIN said that she had enquired about complainant’s driver licence at that time. The S.H.O. assured the complainant that if no action was taken soon, an F.I.R. would be filed against bank and person involved in this matter.
7. On 24.9.2013, the complainant received a call from Mr. Ramender Singh who was a sub-Inspector (S.I.), Ghaziabad Police Station. The S.I. enquired about the aforesaid matter and told him to come to Ghaziabad. Complainant informed S.H.O., Anand Vihar about this enquiry. He sent reminders for resolution of disputed transactions to OP2, OP3 & OP4 and was given ticket no. C51959720268.
8. On 26.9.2013, the said S.I., Ghaziabad Police Station called the complainant regarding the transaction done on his A.T.M. Card. On the same date complainant went to OP1 branch and received speed post number on which the A.T.M. card had been delivered. Thereafter, he went to Post Office, Jhilmil, to enquire about the matter. He was informed by Mr. Mishra, Station officer, at Post Office that the bag containing post on 29.8.2013 has been stolen/lost and a complaint in this regard has been lodged in Police Station, Vivek Vihar, Delhi.
9. On 16.3.2014, the complainant was threatened by a person in his own house.
10. On 23.3.2014, complainant again received a call from Shri Yogender Kumar, S.I./I.O. of Police Station, Kavi Nagar, Ghaziabad to join investigation as an F.I.R. has been lodged against him. A notice u/s 160 Cr. P.C. was served on him. On 24.3.2014, the complainant went to Police Station, Kavi Nagar, Ghaziabad, and filed a detailed reply. The complainant also made supplementary statements to the earlier police complaints filed in police station, Anand Vihar.
11. The complainant wrote multiple letters to bank authorities but no action has ever been taken till date. On 7.10.2013, the complainant received threatening call that he would be implicated in false criminal case.
12. The complainant ultimately has filed the present complaint and prayed that -

1. OP should close the complainant’s bank account and refund Rs. 1100/- alongwith interest ;
2. OP be directed to investigate the matter.
3. OPs be directed to transfer the money in account of the aggrieved person from which it was illegally transferred;
4. to direct OPs to pay compensation and litigation cost.

13. The complainant has filed a photocopy of deposit slip; copy of cheque book; SMS messages on his mobile; emails complaints dated 5.9.2013, 24.9.2013, 07.10.2013, 17.10.2013; police complaint dated 8.9.2013; F.I.R. dated 29.8.2013; Police Notice u/s 160 Cr.P.C.; reply dated 24.3.2014 in police station, Kavi Nagar by the complainant; supplementary statement in police station Anand Vihar vide DD No. 43-B.
14. OP1, OP3 & OP4 have filed their written statement. It is stated that the complaint is not maintainable as it involved fraud and forgery. They have also given details of four F.I.R./complaints pending investigation in different police stations in U.P. The details of which are mentioned below: -
    1. FIR No. 332 dated 29.08.2013 u/s 379 IPC in Police Station, Vivek Vihar, Delhi, has been lodged by Jhilmil Head Post Office, Delhi.
    2. FIR No. 295 of 2014 u/s 420/467/468/471 IPC has been registered in Police Station, Kavi Nagar, Ghaziabad U.P. and the complainant was called by the police station by serving notice u/s 160 Cr. PC.
    3. Complaint dated 8.9.2013 for registration of F.I.R. with SHO, Police Station, Anand Vihar, Delhi vide DD No. 18-B dated 8.9.2013
    4. Complaint for registration of F.I.R. dated 9.6.2014 before Police Station, Anand Viar, Delhi lodged by OP1 vide DD No. 30-B dated 11.0.2014.
15. It is further submitted that the complaint is bad for non-joinder of necessary parties. The Jhilmil Head Post Office, Department of Post is a necessary party that has not been impleaded. It is admitted that an ATM card bearing no. 4591500104637059 was dispatched through speed post to complainant. The post office had lost/handed over the said ATM to someone and had not informed about the same to OP1. Thus, the Jhilmil Head Post Office is liable for any deficiency.
16. It is further submitted that the complainant should have contacted the branch of OP1 for his ATM PIN after receiving the message on 24.8.2013. No financial loss has been caused to complainant as no amount deposited by complainant has been withdrawn from his saving bank account.
17. The complainant had opened a saving bank account with OP1 on 21.8.2013. OP1 dispatched an ATM card through speed post that has been lost/handed over to someone by post office. The complainant made an oral complaint for the first time on 4.9.2013. It appears that some miscreants had received ATM card from Jhilmil post office and frudently collected ATM PIN on 31.8.2013. The two cheques bearing no. 850120 & 046906 for Rs.1,86,700/- & Rs.1,45,600/- respectively were deposited in complainant’s account at Raj Nagar, Ghaziabad branch and Navyug Market Branch Ghaziabad respectively on 2.9.2013 and proceeds were credited to his saving bank account maintained with OP1. The cheques were from Sardar Vallabh Bhai Patel University of Agriculture and Technology, Meerut, U.P. On 2.9.2013, Rs.80,000/- was withdrawn from ATM and on 3.9.2013, an amount of Rs.22,778/- was used for purchasing. 
18. On 4.9.2013, OP1 sent a letter to Post Master, Jhilmil Colony, enquiring about delivery status of SBI Debit card/ATM card. On 9.6.2014, OP1 lodged a complaint for registration of F.I.R. in P.S. Anand Vihar, Delhi vide diary no. 30-B. On the same day OP1 also wrote to another letter to Jhilmil Post Office enquiring about delivery status of ATM card. Post office vide its letter dated 27.6.2014 informed OP1 that the post man bag had been stolen alongwith the ATM card.
19. OP1 vide letter dated 21.5.2014 requested complainant to open a new saving bank account for smooth financial transactions. OP while admitting the SMS sent for Rs.1,45,600/- credited in complainant account denied that it had sent one more message of credit in complainant’s account for Rs.1,86,700/- on 2.9.2013 around 2:30 p.m. It is said that the complainant has received the message on 03.09.2013.
20. OP has denied that the complainant had ever met Mr. Ajay on the same day. It is emphasized that Mr. Ajay Prakash, Asstt. Manager of OP1, received a call from Navyug Market, Ghaziabad Branch about deposit of cheques in the complainant’s account. Mr. Ajay Prakash called the complainant on his mobile number requesting him to visit the branch. Complainant visited the branch on 4.9.2013. It is alleged that the complainant vide his letter dated 26.9.2013 has requested them to save the CCTV footage but had not asked them to show the same.  It is admitted that Ms. Manorma had spoken to complainant enquiring about the whole matter and the S.H.O., Anand Vihar and the complainant came to the branch to enquire about the whole matter and the OP prayed for dismissal of the complaint.
21. OP1 has filed letter dated 4.9.2013; complaint to Police Station, Anand Vihar dated 9.6.2014; letter dated 9.6.2014 to Post Master, Jhilmil; reply dated 27.6.2014 from the post office; letter dated 21.5.2014 from OP1 to complainant.
22. Complainant has filed rejoinder and evidence by way of affidavit alongwith written arguments. Complainant in his rejoinder has stated that though a letter by OP1 bank to post office with respect to delivery of ATM card was written on 4.9.2013, the follow-up letter was written on 9.6.2014 after 278 days. It is submitted that OP filed complaint for registration of F.I.R. on 11.6.2014 after nine months from the date of deficient services.
23. The complainant further stated that since he had not engaged the Jhilmil Post office for delivery of ATM card and therefore, he has not made the post office as a party rather OP is liable for any deficiency on the part of postal department. OP had also not provided CCTV footage to Police Officer for identifying the miscreants who had taken PIN details and ATM Card. The ATM PIN was issued without verification and signature of thecomplainant. OP wrote the letter dated 21.05.2014 for opening a new bank account only after receiving the notice from this Commission. The complainant had spent more than Rs.25000/- till then in defence of the above case. . 
24. OP1 has filed evidence by way of affidavit of Shri Ajay Prakash, Asstt. Manager.
25. I)   OP2 has not filed written statement but has filed an affidavit of Ms. Sadhna Gupta, Dy. Manager, Navyug Market, Ghaziabad, U.P. alongwith written argument.

II)  The OP2 in its affidavit states that State Bank of India has already lodged FIR against the complainant. The complainant has filed the complaint with the intention to take false defence and subvert the police investigation. He stated that cheque for Rs.1,45,600/- was issued from the account of one Shri Naresh Kumar and was deposited at OP2 is Branch. When OP2 came to know about the cheque being forged, it put a hold on the complainant’s account. The amount was credited back to the account of Shri Naresh Kumar. A complaint dated 24.10.2013  was lodged with the Police Station Kotwali, Ghaziabad. In respect of cheque for Rs.1,86,700/- a complaint was registered in Police Station, Kavi Nagar, Ghaziabad, by Raj Nagar Branch of SBI. OP2 has not annexed any document with its pleadings.

A final report for FIR 295/2014, lodged by SBI Branch Manager, Raj Nagar Branch, Ghaziabad at Police Station, Kavi Nagar, Ghaziabad dated 6.12.2014 has been filed. The Final Report states that there was no role of complainant in the fraudulent transactions. An amount of Rs. 1,84,000/- was deposited out of which 84,000/- had been used for shopping and Rs.1,00,000/- remained in the account. The money used by the miscreants has been recovered from bank clerk Ms. Shruti. No CCTV footage is available with any branch of bank and no pertinent information has been provided by the bank. Evidence by way of affidavit is only filed in support of version presented by litigating parties. In the absence of written statement of OP2 their affidavit of evidence cannot be appreciated in disposal of the present controversy.

26. We have perused the file and examined the documents on record. It is admitted by both the parties that complainant opened a saving bank account on 21.8.2013 and an ATM Card was dispatched by speed post. The said card did not reach the complainant as it was lost by post office. Two cheques for Rs.1,45,600/- & Rs.1,86,700/- were deposited in complainant’s account on 2.9.2013 and 3.9.2013 respectively and SMS was sent by OP bank to the complainant regarding the same. The complainant went to the bank on 4.9.2013 to make a complaint enquiring about transactions in his account and met Mr. Ajay, Assistant Manager. He again went to OP1 bank alongwith S.H.O. on 15.9.2013. He wrote several e-mail complaints to branch office, local Head Office and Corporate Centre of State Bank of India.
27. Issues before us for consideration is

1. Maintainability of complaint
2. Misjoinder of parties by not impleading post office.
3. Deficiency and negligence on OP’s part in misuse of complainant’s ATM card.

28. Section 3 of the Consumer Protection Act, 1986 provides alternate and supplementary remedy in a consumer dispute. In the present case, when the consumer has raised a consumer dispute with grievance that there is deficiency in service on the part of OPs, it has to be decided on merits in accordance with the law. Complainant in this case, admittedly is a consumer and is entitled to use the services of bank qua his saving bank account and withdrawals of ATM card. He has raised a dispute regarding deposits and withdrawals of money by strangers. The complainant even as per the written statement of the OPs and investigation conducted by the Police in all the FIRs lodged in this concern was no way involved in disputed transactions or deposit of cheques or use of ATM card. In fact, the money withdrawn has been recovered from Ms. Shruti, bank clerk on account of negligence of the clerk of OPs which certifies and prove that there was negligence on the part of SBI, its employee and its manager and no negligence on the part of complainant. Further, there has been no fraud or forgery alleged or proved against the complainant. Investigation regarding such deposits and withdrawal has been conducted by police and final report has been submitted.  The Commission is not going into the matter of investigation or fraudulent transaction. It is only deciding the negligent act of bank and deficiency in providing the service which has been proved. Hence, the complaint is maintainable.
29. The second issue before us is whether the post office should have been impleaded as a party. In this matter the complainant has neither used the speed post nor took the services of the post office or paid any consideration to the post office. Thus, there is no relationship of consumer and service provider in between the post office and complainant. OPs are free to pursue the remedies available against the post office on their own regarding loss of ATM card.
30. The bank admits that ATM card was dispatched to complainant through speed post. A complaint in OP1 branch was made by the complainant within 24 hours i.e. on 4.9.2013 of receiving  SMS about deposit of cheques. OP also admits that Mr. Ajay Kumar, Asstt. Manager, received a call from bank branch at Navyug market, Ghaziabad regarding deposit of cheques in complainant’s account. He also met the complainant on 4.9.2013 regarding the disputed transactions and an enquiry was made regarding the PIN details of the ATM card given by the bank personnel. The said ATM card was used for withdrawal of money from the complainant’s account. As per complainant’s version, Mr. Ajay called the staff responsible for giving PIN details to the customers. The staff was a lady clerk who also showed the register on which the signature of customers are used to be taken when the PIN details are given. The complainant’s signature was significantly different from what was shown in the register. As per the final report filed by police, the money used for ATM withdrawal was recovered from Ms. Shruti, a lady clerk of the Bank which inter-alia means that the bank after conducting an internal enquiry had found the lady clerk of SBI on fault. This also means that the SBI was at fault in providing services to the complainant. OPs are completely silent about difference in signature of PIN recipient in the bank register. It has neither placed the photocopy of relevant page on record nor it has accepted or denied discrepancy in signature. OP in its pleadings has blamed the complainant for not rushing to the bank after getting an SMS about dispatch of ATM card while no control have been exercised on the staff giving PIN details and no subsequent verification has been done in spite of repeated complaints.
31. OP1 also sent a letter to Post Office on 4.9.2013, regarding delivery of ATM card. However, there was no follow up action on that. The subsequent letter to post office was sent only on 9.6.2014 i.e. after delay of many months. Post office vide its letter dated 27.6.2014 has intimated that the post man bag was stolen on 22.8.2013. The said bag contained the speed post article sent by the bank and an FIR has been lodged in Vivek Vihar Police Station. There is no record of any action taken by bank against the post office for lost of ATM card.
32. OP also admits that request was made by the complainant for saving CCTV footage. However, no CCTV clippings were made available to complainant regarding the person who has taken the PIN details of ATM card from OP1 branch and persons who had deposited the disputed cheques at Raj Nagar Branch, Ghaziabad & Navyug Market Branch, Ghaziabad. Despite various police complaints by all parties and internal investigation by the bank, no effort to save the CCTV footage and providing them to investigating agencies was made. This fact has been reiterated in the Final Report filed by the I.O. in the complaint.
33. OP1 in the complaint dated 9.6.2014 to Police Station Anand Vihar has also stated that some fraudsters had used the complainant’s account for fraudulent activities and the police was required to take action on the same.  It is surprising that despite repeated follow ups by complainant orally and through emails, no action was taken by the bank.  In fact the complainant who was cooperating fully with the investigating agencies and was undergoing harassment for no fault of his own was now saddled with criminal complaints lodged against him by different branches of the bank.

 

34. Even, the offer of a new saving account was made to complainant vide letter dated 21.5.2014 after a notice was issued by this Commission. OP has also not filed any report of internal enquiry conducted by bank regarding this disputed transaction or the amount recovered and the involvement of bank personnel.
35. Hon'ble NCDRC in Chairman, Punjab National Bank Vs M/s. Leader Valves Ltd. has observed as under :

Para 11 The first fundamental question that arises is whether the Bank is responsible for an unauthorized transfer occasioned by an act of malfeasance on the part of functionaries of the Bank or by an act of malfeasance by any other person (except the Complainant / account-holder). The answer, straightaway, is in the affirmative. If an account is maintained by the Bank, the Bank itself is responsible for its safety and security. Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the consumer / account-holder), is its responsibility, and not of the consumer.

Para 13   It is seen that the Complainant, on his part, had been diligent and dutiful in bringing the unauthorized transfers to the notice of the Bank. Without undue delay, he brought the unauthorized transactions to the Bank's notice the same day in the evening on checking his accounts. His responsibility ended there and the Bank's responsibility started. It was the Bank's responsibility to identify the systemic failure, remedy the pecuniary loss and injury to the Complainant.

Para 19   Rather than immediate remedy and apology, the Bank preferred an illogical nebulous proposition that if it could trace the unauthorized transactions and reverse the entries, so far so good, else, it was the Complainant's risk and cost, whether it was a man-made or systems' failure is inconsequential, whether the Complainant was not at fault is inconsequential, whether the Bank was at fault is inconsequential, the Bank has no responsibility, no accountability, the Bank is under no obligation to remedy the Complainant's pecuniary loss and injury.

 

 

36. Applying such a clear and appropriate observations of the Hon’ble NCDRC to the facts of the case, the complainant had to run from pillar to post for no fault of his own to get his saving bank account in order. It is clear that the entire episode of unauthorized deposit and its withdrawal through ATM took place because of negligence of bank personnel in issuing PIN details to a person other than complainant. No report of internal enquiry or money recovered from any bank personnel is placed on record. Not only this, instead remedying the complainant, the bank and all its branches with their Heads, started proceedings against the complainant for which he even had to face the police action for no fault on his part, and not only this, the police in its investigation did not find any fault on the part of complainant, but despite that bank is trying to justify its action, thereby compelling the complainant to visit police station and ultimately filed the present complaint. This, in our view is serious lapse on part of public financial institution and amounts to deficiency in service. OP3 & OP4 who are the controlling authorities as OP1 & OP2 have also not taken any action against the Manager of OP1 & OP2, thereby giving complete liability to deal with innocent customers at their own whims and fencies.
37. We, therefore, hold  all the OPs jointly and severally liable for gross deficiency in service and direct them to pay compensation of Rs.25000/- for mental harassment, agony and inconvenience and Rs.25000/- towards expenses while defending an FIR which was lodged by OP2 against the complainant for no basis at all against the complainant. It is further ordered that the OP would return the amount of the complainant lying in his bank account with interest upto date.
38. This order be complied with within 30 days from the date of the order.
39. Copy of the order be supplied / sent to the parties free of cost as per rules.
40. File be consigned to Record Room.
41. Announced on 10.3.2022

 

DELHI

 

 

 

(Ritu Garodia) Member

(Ravi Kumar) Member

(S.S. Malhotra) President