Tripura

StateCommission

A/4/2021

State Bank of India, Represented by its General Manager - Complainant(s)

Versus

Smt. Babi Bhattacharjee - Opp.Party(s)

Mr. A. L. Saha, Mr. Kajal Nandi

03 May 2021

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.4.2021

 

1. State Bank of India,

Head Office

Represented by its General Manager

Address: 18 19, Devdas Kamlleg Block, Synergy Building

Bandra Kurla Complex, Bandra East,

Behind National Stock Exchange, Mumbai - 400051.

 

2. State Bank of India,

Agartala Branch,

Represented by its Branch Manager, 

Address: Hari Ganga Basak Road, 

P.O. Agartala, P.S. West Agartala,

District - Tripura West, Pin – 799001.

… … … … … … Appellant/Opposite Parties.

•  

1. Smt. Babi Bhattacharjee,

W/o Sri Shyamal Chakraborty,

Resident of C/o Ranabir Gope,

Opposite of Govt. Press office,

P.O. & P.S. A. D. Nagar, 

District - West Tripura, Pin: 799003.

… … … … … … Respondent/Complainant.

 

 

Present

 

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

Dr. Chhanda Bhattacharyya

Member,

State Commission

 

Mr. Kamalendu Bikash Das

Member,

State Commission

 

 

 

For the Appellants:                                              Mr. Amrit Lal Saha, Adv.

For the Respondent:                                           Mr. Diptanu Debnath, Adv.

Date of Hearing & Delivery of Judgment: 03.05.2021.

 

J U D G M E N T [O R A L]

 

 

U.B. Saha, J,

In this appeal challenge is to the judgment dated 29.01.2021 passed by the learned District Consumers Disputes Redressal Commission (hereinafter referred to as District Commission), West Tripura, Agartala  in Case No. C.C.54 of 2020 whereby and whereunder the learned District Commission allowed the complaint petition directing the opposite parties, the appellants herein, to refund the amount of Rs.57,069/- to the Savings Account bearing No.37748002379  of the complainant within a period of one month from the date of judgment along with interest @6% per annum from the date on which the said amount was debited to her Savings Account or it is withdrawn from her Savings Account. The learned District Commission also directed the opposite parties in addition to pay Rs.5,000/- towards litigation costs, failing which, the rate of interest will be increased @9% per annum instead of @6%.

2. Heard Mr. Amrit Lal Saha, Ld. Counsel appearing for the appellants (hereinafter referred to as opposite parties/Bank) as well as Mr. Diptanu Debnath, Ld. Counsel appearing on behalf of the respondent (hereinafter referred to as complainant).
3. Brief facts of the case are as follows:-

The complainant, Smt. Babi Bhattacharjee, the respondent herein, was maintaining a Savings Bank Account No.37748002379 with the State Bank of India, Agartala Branch, the appellant-opposite party no.2. She was also provided with an ATM card bearing No.515740006513989 in connection with her aforesaid Savings Bank Account. On 31^st December 2019, the complainant went to the SBI, Bardowali Branch for depositing some money in her aforesaid Savings Bank Account by using the ATM card provided by the opposite party-Bank, but she found that the ATM card was not working. On query with the Bank staffs of the SBI, Bardowali Branch, she could learnt that her ATM card had been blocked by the opposite party-Bank and she was advised to consult with the SBI, Agartala Branch, i.e. the opposite party no.2 in this regard. The complainant on the same date went to the SBI, Agartala Branch and informed the matter to the Bank Officials and again she was informed by the Bank Officials that her ATM card had been blocked by the Bank Authority, as ATM card has been skimmed and hacked and money had been unauthorisedly withdrawn from her aforesaid Savings Bank Account at Kolkata IOCL Petrol pump on 16.11.2019. The complainant was provided a printout copy taken from the computer system of the opposite party no.2, Bank regarding the transaction details dated 16.11.2019. On that date, the complainant first time came to learnt that in total Rs.57,069/- had been withdrawn by way of six transactions at IOCL Petrol pump at Kolkata. On that day she made a G.D. Entry at West Agartala Police Station stating the aforesaid incident. The Bank Officials of the opposite party no.2 assured the complainant that they will take necessary steps for the refund of the money which were unauthorisedly withdrawn from her account at Kolkata. Thereafter, the complainant on many occasions visited the opposite party no.2, Bank to enquire about the matter, but there was no response on the part of the Bank Authority.

Finding no alternative, the complainant send a letter dated 08.06.2020 to the opposite party no.2 with a copy to the opposite party no.1 requesting them to recover the amount or to refund the amount. The case of the complainant before the Bank Authority was that she was not at Kolkata on 16.11.2019 and or other dates as and when unauthorisedly, the money was withdrawn from the Kolkata IOCL Petrol pump. In her letter dated 08.06.2020 also, she stated those facts in details, but the opposite parties paid no heed towards her requests.

Being aggrieved by the action of the opposite parties, she filed a complaint petition before the learned District Commission seeking reliefs as sought for including compensation on the ground of deficiency of service.

4. In due course of time, the learned District Commission issued notices upon the opposite parties. The opposite parties though received the notice, but did not turn up to contest the case. Hence, the case was proceeded ex parte against them.
5. The complainant examined herself as P.W.1 and submitted her examination-in-chief by way of an affidavit. She also produced 11 documents comprising 16 sheets under a Firisti before the learned District Commission. The documents are, namely, copy of pass book details of the complainant, copy of the printout transaction details, copy of the printed form of the G.D. Entry details, copy of the affidavit, Aadhar card of the complainant, copy of letter dated 08.06.2020 sent by the complainant, copy of letter sent to the address of General Manager, SBI, copy of online news publication dated 19.11.2019, copy of newspaper publication online regarding skimming of ATM Cards, Declaration made by the SBI and copy of press release made by the SBI, Regional Manager, RBO Agartala which were marked as Exhibit-1 series.
6. The learned District Commission on the basis of the allegations made by the complainant and considering the evidences adduced by the complainant formulated the following points for deciding the case:-

1. Whether there is any deficiency of service on the part of the O.Ps towards the complainant and have also indulged any unfair trade practices?
2. Whether the complainant is entitled to get any compensation/relief as prayed for?

7. The learned District Commission considering the evidence on record and the documents available before it passed the impugned judgment.
8. Being aggrieved by and dissatisfied with the impugned judgment, the opposite parties have preferred the instant appeal.
9.  Mr. Saha, Ld. Counsel while urging for setting aside the impugned judgment would contend that admittedly, the opposite parties i.e. the appellants herein, failed to appear before the learned District Commission even after receipt of the notice. His main argument before this Commission is, as the appellant-opposite parties did not get opportunity to adduce their evidence before the learned District Commission thus, it would be proper for this Commission to set aside the impugned judgment and remand the matter before the learned District Commission to decide the case afresh providing opportunity to the Bank-opposite parties. Mr. Saha placed one letter dated 04.06.2020 written by Chief Manager, (CM&CS), ATM Dept. Local Head Office, Guwahati to Assistant General Manager, State Bank of India, Agartala Branch to show that “SMS alerts were successfully delivered to the registered mobile No. of the customer. However, she reported the incident after 34 working days”.
10. Mr. Debnath, Ld. Counsel while supporting the impugned judgment would contend that the learned District Commission rightly passed the impugned judgment directing the appellant-Bank to refund the amount of Rs.57,069/- and in addition to that Rs.5,000/- towards litigation cost along with interest @6% per annum. In support of his aforesaid contention he has relied upon the judgment of the Hon’ble National Consumer Disputes Redressal Commission (in short, National Commission) in Vidyawanti Vs. State Bank of India and Ors. (Revision Petition No. 4868 of 2012), wherein the Hon’ble National Commission allowed the Revision Petition filed by the complainant of that case and setting aside the order of the State Commission and restored the order of the District Forum wherein the District Forum directed the opposite parties to pay a sum of Rs.40,000/- to the complainant along with interest @ 9% per annum from the date on which the said amount was debited to the saving account of the petitioner/complainant. He has also relied upon a judgment of the Hon’ble State Consumer Disputes Redressal Commission (in short, State Commission), Punjab in State Bank of India, Main Branch Malout Road, Sri Muktsar Sahib, through its Chief Manager Vs Nachattar Singh (First Appeal No.1185 of 2014), wherein the Hon’ble State Commission dismissed the appeal and restored the order of the District Forum. In that case, the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib (in short, District Forum) directed the Bank-opposite party no.1 to pay Rs.20,000/- to the complainant with interest @7.5% per annum from 13.09.2013 till actual realization through bankers’ cheque along with Rs.4,000/- as litigation expenses. Being aggrieved by the aforesaid order of the District Forum, the appellant, State Bank of India in that case preferred the appeal before the State Commission, Punjab, Dakshin Marg, Sector 37-A, Chandigarh wherein the Hon’ble State Commission, Punjab observed as under:

10. From the perusal of the record, no evidence has been led by the OP that whether they had investigated the matter at their end or not? The OP also did not look into the averment of affidavit given by the complainant despite he being a Government servant and his salary being credited by his Department. OPs were required to examine whether the complainant was present in his office at 1.39 p.m. on 13.09.2013 or he was not present in his office at the time of withdrawal to find out the genuineness of his complaint. However, it is an admitted fact by the counsel for the OP in District Forum had stated that it was clear from the pendrive that complainant was not one of the persons, shown in CC TV footage, who withdrew the money from OP's ATM at 1.39 p.m. Thus, it can be safely concluded that two persons as seen in the pendrive might have cloned the ATM card of the complainant by the clever use of technology.

11. In order to find out the latest developments pertaining to news about credit/debit cards, we have downloaded in our official computer, the directions issued by the Reserve Bank of India to all commercial banks pertaining to misuse of ATM- Debit/Credit Card. From these directions, we find that Reserve Bank of India issued instructions to banks to upgrade their magnetic strip ATM cards to chip cards by Sept, 2017, in order to avoid cloning of their cards.

12. This possibility cannot be ruled out that the ATM Cards having magnetic strip can be cloned by anti-social elements.

13. In view of the above observations and also as per directions of Reserve Bank of India supra, we find that possibility of ATM Cards having magnetic strip being cloned by way of using skimmers and hidden cameras installed by the fraudulent people in ATM Cabins, cannot be ruled out, which are situated outside the premises of the banks.

He has finally relied upon a judgment of the Hon’ble State Commission, Haryana in Dr. Subhash Chander Vs State Bank of India (First Appeal No.735 of 2013), the Hon’ble State Commission, Haryana while deciding the aforesaid appeal set aside the order of the District Forum and allowed the appeal/complaint petition filed by the appellant-complainant, Dr. Subhash Chander directing the respondent-Bank to pay the amount of Rs.1,27,447.64 to the appellant-complainant along with interest at the rate of 9% per annum. The fact of that case is almost similar to the case in hand. In that case, the illegal transactions from the account of the appellant-complainant was in California, United States of America and in the instant case, the alleged illegal transaction from the complainant’s account referred to above was in Kolkata IOCL Petrol pump.  

11. We have gone through the evidence on record. It appears from the record that the learned District Commission after receipt of the complaint petition issued notices upon the opposite parties i.e. appellants herein, but none of them appeared even after receipt of the notices. Mr. Saha, Ld. Counsel in his usual fairness submits that it is the admitted position that the appellant did not appear before the learned District Commission and also did not adduce any evidence. His main contention is that, the complainant was informed by way of SMS regarding the alleged unauthorized transaction in question. He has also contended before us to set aside the impugned judgment and remand the matter before the learned District Commission to decide the case afresh, but we are unable to accept the contention of Mr. Saha to the effect that the complainant was informed regarding the unauthorized transaction by way of SMS at this stage as the said fact was not placed before the learned District Commission and or informed the complainant, the respondent herein, before filing the instant appeal though the Bank Authority receipt the letter of the complainant dated 08.06.2020.
12. We are in full agreement with the decision of the Hon’ble State Commission, Punjab in State Bank of India Vs Nachattar Singh (supra), wherein the Hon’ble State Commission stated, inter alia, that “This possibility cannot be ruled out that the ATM Cards having magnetic strip can be cloned by anti-social elements”. In the instant case also, the Bank Authority themselves informed the complainant that her ATM card had been blocked by the Bank Authority, as ATM Card had been skimmed and  hacked and money had been unauthorisedly withdrawn from the aforesaid Savings Bank Account at Kolkata IOCL Petrol pump. In State Bank of India Vs Nachattar Singh (supra), the Hon’ble State Commission also stated that “In order to find out the latest developments pertaining to news about credit/debit cards, we have downloaded in our official computer, the directions issued by the Reserve Bank of India to all commercial banks pertaining to misuse of ATM Debit/Credit Card. From these directions, we find that Reserve Bank of India issued instructions to banks to upgrade their magnetic strip ATM cards to chip cards by Sept, 2017, in order to avoid cloning of their cards.” Therefore, it can be easily said that the Reserve Bank of India also considered that ATM card can be misused and also cloning of the ATM card is possible. Thus, it cannot be ruled out in the instant case also, the same thing happened particularly when the Bank Authority did not appear before the learned District Commission even after receipt of the notice neither reply to the letter dated 08.06.2020 nor appeared before the learned District Commission to controvert the claim of the complainant. Hence, we are of the opinion that the learned District Commission did not commit any error while passing the impugned judgment.

In the result, the appeal is dismissed being devoid of merit. No order as to costs.

Send down the records to the learned District Commission, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura