KUNDAN KUMAR KUMAI

This is an appeal u/s 41 of the Consumer Protection Act, 2019, preferred against the final order dated 31/01/2023, passed by the Ld. DCDRF, Dakshin Dinajpur in CC/15/2018.

Brief facts of the Appellant/Bank’s Case are that, the Respondent had a bank account in the Appellant/Bank, being A/c No.32383187959 and one ATM Card having No.5196 2000 2339 2409, having a balance of Rs.4,49,388.11 paise (Rupees four lakhs forty-nine thousand three hundred eighty-eight and eleven paise) only, as on 25/03/2017. At that time, the Respondent used to work in Saudi Arabia, as a labour and he had returned home and stayed till 11/10/2016. The Respondent had again gone to Saudi Arabia, by Quatar Airways flight, from Kolkata to Jedda via Doha, along with his ATM Card. In the month of July 2017, the Respondent came to know that the balance in the bank account, had been withdrawn through ATM Card on and from 15/06/2017 to 15/07/2017. On 27/07/2017, the Respondent sent a complaint to the Appellant/Bank from Saudi Arabia, through Air Post, praying for necessary action against such fraudulent withdrawal, along with a prayer for CCTV Footage and as per instruction from the Appellant/Bank, had deposited Rs.3,500/- (Rupees three thousand five hundred) only, as charges for getting the CCTV Footage. The Respondent had also lodged a G.D.E., before the IC, Balurghat P.S. being G.D.E. No. 1249/17. The Respondent returned home on 06/11/2017 and had immediately gone to the Appellant/Bank for CCTV Footage, but the Appellant/Bank declined to hand over the same and also tried to avoid the Respondent, without rendering any service. On queries by the Respondent, the Appellant/Bank had admitted that duplicate ATM Card could never be activated, without the authentication of the Appellant/Bank. The Respondent had never withdrawn any amount even though the available balance Savings Account was Rs.44.91paise (Rupees forty-four ninety-one paise) only, even though the ATM Card had not been lost. The last transaction had been on 15/07/2017, when on two occasions the amount totaling to Rs.40,000/- (Rupees forty thousand) only, had been withdrawn through the ATM. The Appellant/Bank had suggested, that the Respondent close the bank account, without rendering any customer service, in order to usurp the money of the Respondent. Finding no alternative, the Respondent lodged this complaint before the Ld. DCDRF, Dakshin Dinajpur, with necessary prayers.

The Appellant/Bank, in order to contest the claim, entered appearance by filing written version, wherein it was admitted that the Respondent had a bank account and an ATM Card had been issued in his favour. It was also mentioned that as a pre-condition for holding an ATM Card, the person should use the Card with great Care and the Card and Registered Mobile, should not be handed over to anyone and the PIN number, should not be disclosed to anyone. It was also mentioned that the Respondent, while residing outside India, should have opened one NRI Account, but the Respondent had not intimated the Appellant/Bank, about his job at Saudi Arabia and his subsequent absence from India. It was further mentioned, that it was the Policy of the Appellant/Bank to send a new ATM Card, on the verge of the expiry of the old ATM Card, to facilitate the customer from operating the account, without any problem. It was also the Policy of the Appellant/Bank, that no manual or paper PIN no. would be issued, as was done previously and the PIN had to be generated through the Registered Mobile No., from the OTP sent to the Registered Mobile or through the ATM machine and on-line generation, but in all cases, the OTP had to be sent to the Registered Mobile No. It was further mentioned, that as the old ATM Card of the Respondent would have expired on 30/06/2017, the Appellant/Bank had sent a new ATM Card being Card No.5596 0100 6583 2949, issuance date being 12/04/2017. The ATM PIN had been generated through the registered mobile number and all the transactions/ATM of the alleged amount, had taken place through the new ATM Card, as there had been no special instruction, from the Respondent to stop the transaction. That apart, all the SMS connected with the transaction had been sent to the registered mobile, but the Respondent had never made any complaint. It was also mentioned that the video footage would be provided, if the Ld. Forum so directed and by a letter dated 25/08/2017, the Respondent had also been informed that the video footage would be handed over to the Police, if required during investigation. It had also come to the knowledge of the Appellant/Bank that the wife of the Respondent had fled away, after taking the money from the account of the Respondent. It was further prayed that the claim case be dismissed as there was no deficiency of service.

After going through the evidence on record, the Ld. DCDRF, passed the impugned order, directing the Appellant/Bank to pay a sum of Rs. Rs.4,89,388/- (Rupees four lakhs eighty-nine thousand three hundred eighty-eight) only, along with interest at bank’s rate from 16/06/2017, till full realization along with Rs.3500/- for the cost of CCTV Footage and Rs.10,000/- towards litigation cost and Rs.10,000/- towards compensation, within 45 days from the date of the Order.

Being aggrieved by the impugned order, the Appellant/Bank preferred the instant appeal on the ground, that the Ld. DCDRF, had erred in law and facts, while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the appellant at the time of final hearing had submitted that, once the ATM card had been issued and the same had been utilized for withdrawing the cash from the ATM counter, the responsibility of the appellant bank ended as the PIN generated for the use of the ATM card could only be done after the OTP sent to the registered mobile number, had been inserted. In the instant case there is no allegation of the ATM card being lost and the CC TV footage also proved that the cash had been withdrawn using the ATM card from the ATM counter. He had relied on the judgment passed by the Hon’ble NCDRC on a Revision Petion no. 3182 of 2008 between State Bank of India and K.K. Bhalla. He therefore, prayed for allowing the appeal.

Ld. Advocate for the respondent on the other hand had countered that the new ATM card had not been received by the respondent, as the respondent was not in India at the relevant time, for which reason the bank officials could have manipulated the card and withdrawn the amount. That apart the registered phone number being number 7501759642 had been lying with the respondent at Saudi Arabia, whereas the pin had been generated from the mobile no. 9002460521. He therefore, prayed for upholding the impugned order, as it was correctly passed.

From the materials in the record and the impugned order, it transpires that, the Ld. Bench had the privilege of going through the Video footage of 16/06/2017, when 20,000/- (twenty thousand) only, on two occasions, had been withdrawn by card no. 5596xxxx xxxx 2949, which clearly establishes that the new card had been used for the withdrawal of the amounts.  That apart, it is the case of the respondent, that the ATM card had been used for withdrawing the amount of Rs. 4,40,000/- (Four Lakh forty thousand) only. Hence from the above findings it becomes clear that in the absence of any allegation, of the ATM card being lost or stolen, it would be safe to presume, that the card had been utilized, as per the norms and directions laid down by the Appellate/Bank. Therefore, when the Appellant/Bank submitted, that the ATM card had been sent to the registered address, the onus now shifts upon the respondent to prove the contrary. In this regard the respondent has not only failed to discharge the onus, but also failed to explain as to how he came to know about the withdrawal of the amounts in the month of July 2017, when his accounts had been almost emptied. That apart, there is also no explanation forthcoming from the respondent as to how he could have missed the SMS alerts sent to the registered mobile number, after every withdrawal, especially in the backdrop of his assertion the registered mobile number had been switch off while in Saudi Arabia, which is quite natural. The only contention raised by him, in this regard, is that the registered mobile no. 7501759642 had been lying with him, at Saudia Arabia, whereas the PIN had been generated through the OTP, sent to 9002460521. It is obvious, that both the mobile no. had been supplied by him and the safe custody of the same, was his responsibility. The Appellant/Bank cannot be accused of complicity for discharging their lawful duties. Thus, this argument of the Respondent, cannot be sustained Hence the failure on the part of the respondent to discharge the onus, shifted upon him, results in the failure of the respondent to established his assertion.

The Ld. Bench below, also appears to have erred in alleging the deficiency of service and negligence, simply because the Video footage had been produced after a gap of more than 4 years and the Appellant/Bank had failed to lodge a complaint immediately after the receipt of the complaint, from the Respondent. In this regard, it can be stated in defense of the appellant bank that, when there was no allegation of loss or theft of the ATM card, the transaction by the ATM card, could not be found to be suspicious, merely on the allegation, as the ATM card could not have been made functional without the insertion of the OTP, sent to the registered mobile number, which is deemed to be under the safe custody of the Respondent. That apart mere delay in producing the Video footage, cannot be a ground for negligence in service, as the Ld. Bench was fully equipped with powers to enforce the early production of the same.

Under the circumstance, in view of the above findings and observations it can be safely concluded that, the impugned order can not be sustained. As the result the instant appeal succeeds,

       It is therefore

                                             Ordered

That the instant appeal be and the same is allowed on contest, but without costs.

The impugned order is hereby set aside.

Copy of the order be sent to the parties, free of costs.

Copy of the order be sent to the Ld. DCDRC, Dakshin Dinajpur for necessary information.

Statutory amount be returned from whom received.

Joint Registrar, Siliguri Circuit Bench, WBSCDRC, to do the needful.