Haryana

Yamunanagar

CC/1273/2012

Sham Sunder S/o. Barkat Ram - Complainant(s)

Versus

SBI - Opp.Party(s)

Parmod Gupta

30 May 2016

ORDER

 

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                                Complaint No. 1273 of 2012.

                                                                                                Date of Instt. 11.12.2012.

                                                                                                Date of Decision:30.05.2016

Sham Sunder aged about 61 years son of Shri Barkat Ram, resident of 44, Arjun Nagar, Jagadhri.                                                                                                                                                                                                                                                                                                                                                                                                           ..Complainant

     Versus

1. State Bank of India, Model Town, Yamuna Nagar, through its Branchy Manager.
2. Central Bank of India, DAV Market, Yamuna Nagar, through its Branch Manager. 

                                        ..Respondents.

Before: SH. ASHOK KUMAR GARG …………….    PRESIDENT

            SH. S.C. SHARMA  …………………………MEMBER  

Present:       Sh. Parmod Gupta, Advocate, counsel for complainant

                    Sh. P.K.Kashyap, Advocate, counsel for respondent No.1.

                    Sh. J.S.Anand, Advocate counsel for respondent No.2.

ORDER   

1.                     The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986.  

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant is having an account with the  respondent No.1 (hereinafter referred as Op No.1) State Bank of India, Model Town Branch, Yamuna Nagar bearing account No. 10847930585 with the facility of ATM card and the Op No.1 is charging Rs. 50/- on account of providing the facility of ATM services. On 5.11.2012, the complainant was in dire need of money, so, he went to the ATM of Maharashtra Bank, Lal Dwara, Yamuna Nagar but no transaction was done by the said machine and as per receipt there was no balance in the account of the complainant. Upon this, complainant immediately went to the Bank of Op No.1, who told that some person has withdrawn the amount on 18.06.2012 illegally from the ATM of OP No.2 in two installments of Rs. 10,000/- each, which is not possible, because at the time of issuance of ATM, it was told that more than 15,000/- can be withdrawn in one day from the ATM and then the complainant immediately gave this thing in writing to Op No.1 on 6.11.2012, but the OPs did not pay any heed to the genuine request of the complainant. It has been further mentioned that it is the duty of the bank to safeguard the money of the customer even the OPs bank did not bother to send the matter to the police for investigation nor the matter was investigated at their own level. Hence, there is a deficiency and negligence in service on the part of OPs. As such, this complaint praying therein that the Ops be directed to pay Rs. 20,000/- alongwith interest at the rate of 24% per annum w.e.f. 18.06.2012 till realization and also further to pay compensation as well as litigation expenses. In support of his complaint, complainant tendered his affidavit and documents such as photo copy of application dated 06.11.2012 as Annexure C-1 and Photo copy of pass book as Annexure C-2 and closed his evidence.

3.                     Upon notice, OPs appeared and filed its written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable, complainant has no locus standi to file the present complaint, estopped by his own act and conduct, complainant has concealed the true and material facts from this Forum and has not come to this Forum with clean hands. The true facts are that on 06.11.2012 the complainant gave an application (Annexure R-1) to the OP No.1 regarding withdrawal of amount of Rs. 20,000/- from his saving account bearing No. 1084930585 on dated 18.06.2012 from the ATM Machine of Op No.2 Bank i.e. Central Bank of India. After receiving the complaint from the complainant, OP No.1 wrote a letter dated 8.11.2012 (Annexure R-2) to the OP No.2 to provide CC footage but the OP No.2 replied on the same day vide letter (Annexure R-3) mentioning therein that footage can be provided of previous one month. As the desired footage of 18.06.2012, which is beyond one month, so, the same cannot be provided. After that OP No.1 sent a request letter (Annexure R-4) to the ATM Switch Centre to provide video footage but the ATM Switch Centre also sent their reply stating therein that as per revised guidelines of 10.07.2011 the time limit for raising this dispute through system is over due to which they are unable to process the claim. Hence, the claim of the complainant has been rightly rejected vide letter (Annexure R-5) and lastly prayed for dismissal of complaint being no deficiency in service or unfair trade practice on the part of OP No.1. On merit, reiterated the stand taken in the preliminary objections and prayed for dismissal of complaint. Counsel for the OP No.1 tendered into evidence affidavit of Bharti Naudiyal Manage State Bank of India as Annexure RW/A and documents such as Photo copy of letter dated 06.11.2012 as Annexure R-1, Photo copy of letter dated 8.11.2012  sent to Central Bank of India regarding CCTV Footage as Annexure R-2, Photo copy of letter dated 8.11.2012 as Annexure R-3, Photo copy of E-mail alongwith reply as Annexure R-4 & R-5 and closed the evidence on behalf of OP No.1.

4.                     OP No.2 filed its written statement by taking some preliminary objections such as complaint is not maintainable; no locus standi, no relationship of consumer and supplier between the complainant and OP No.2 and on merit it has been stated that on 18.06.2012, transaction has taken place with the ATM card of the complainant. If the ATM card of the complainant was misused by somebody else or it was lost by the complainant, the Op No.2 bank cannot be blamed. The fact remains that transaction has taken place with the ATM card of the complainant on the given date and the amount was withdrawn either by the complainant or by somebody else on his behalf. If the complainant had lost his ATM card, he should have reported the matter to the concerned Bank to stop the operation of his ATM account. It is the duty of the complainant also to protect his ATM card from being misused. Lastly, prayed for dismissal of complaint qua OP No.2. OP No.2 failed to adduce any evidence; hence its evidence was closed by court order on 15.02.2016.

5.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very carefully and minutely.

6.                     The moot question is whether the amount of Rs. 20,000/- has been drawn by the complainant through ATM Machine or not?

7.                     Learned counsel for the complainant has argued that on 05.11.2012, the complainant visited the ATM Machine of OP No.2 to withdraw the money but from the perusal of the receipt it came to the notice of the complainant that there was no balance in the account of complainant. Upon this, he visited the Branch of OP No.1 in which he was having his saving account and moved an application (Annexure C-1/R-1). On enquiry, it came to the notice of the complainant that an amount of Rs. 20,000/- had already been withdrawn by someone on 18.06.2012 from his account through ATM Machine of Op No.2 Bank. It has been further argued that it was the duty of the Bank to save the money of the customer and further argued that even the OPs Bank has failed to provide footage of the CCTV Camera. Hence, there is a deficiency in service on the part of OPs and complainant is entitled to get Rs. 20,000/- from the OPs Bank.

                        On the other hand, counsel for the OPs hotly argued that there is no deficiency in service on the part of OPs as the Op No.1 bank immediately sent a letter (Annexure R-2) to the Bank of OP No.2 and further also sent a letter (Annexure R-4) to the Switch Centre for providing the CCTV footage but as the complainant used his ATM after a period of about 5 months, so, the OP No.2 could not provide CCTV footage etc. Hence, there was no option with the OP No.1 to reject the claim of the complainant and further argued that it is also quite possible that the alleged amount/transaction may be withdrawn by the complainant himself or by somebody else on his behalf and in the absence of any cogent evidence it cannot be said that the complainant has not withdrawn the amount from the ATM Machine. Lastly, prayed for dismissal of complaint.

                        After hearing both the parties at length, we are of the considered view that the complainant has failed to prove his case that there is any deficiency in service on the part of OPs. A specific clause has been incorporated in the user manual of ATM Card that the Bank cannot be held liable to compensate the customer for unauthorized used of ATM card as it is the duty of the customers to take precaution to keep the PIN Safe. According to the ATM withdrawal system, whenever any customer wanted to withdraw some money, the consumer had to use his Pin number ( password) which was a secret number and was known only to the customer and none else and according to the record of the bank the amount had actually been withdrawn. Further, we have also perused the case law titled as State Bank of India vs. K.K.Bhalla, 2011(3) CLT page 256 (NC) –in which it has been held that ATM cum Debit Card as well as the PIN numbers was only in his personal custody and knowledge.  Merely because the CCTV was not working on that and footage was not available does not mean that money could be withdrawn frequently without using ATM Card and PIN number and the same view has been  discussed in case law titled as The Branch Manager, State Bank of India Versus Samuel Tirkey & others, 2013(3) CLT page 604. 

                        In the present case, the complainant has lodged his complaint on 06.11.2012 after a long time from the alleged withdrawal dated 18.06.2012 i.e. after near about 5 months from the date of alleged withdrawal which shows that complainant was not visible. As per version of the complainant someone has withdrawn the amount of Rs. 20,000/- in two installments of Rs. 10,000/- each from his saving account by using his ATM, five (5) months prior, so, we are of the considered view that complainant might have handed over his ATM to someone else or left it in a casual manner anywhere and his near and dear who knre the secret Pin Code of the ATM has used the said ATM card. So, the complainant cannot be hold to the OPs Bank responsible for his own negligence.

11.                  Keeping in view the above mentioned facts and circumstances and going through the citations, we are of the considered view that the plea of the complainant is not tenable and law cited by the OPs is fully applicable to the facts of the present case.  Hence, there is no merit in the complaint and the same is hereby dismissed. The parties are left to bear their own costs.  A copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.

Announced in the open court:

Dated: 30.05.2016.

                                                                                    ( ASHOK KUMAR GARG)

                                                                                     PRESIDENT

  

                                                                                      (  S.C. SHARMA)

                                                                                        MEMBER