West Bengal

Siliguri

40/S/2013

DIPAK CHAKRABORTY, - Complainant(s)

Versus

SRI ASHIM KUMAR ADHIKARI, - Opp.Party(s)

14 Aug 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. : 40/S/2013.       DATED : 14.08.2015.

                

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                          MEMBERS                    : SMT. PRATITI  BHATTACHARJEE &

                                                              SRI PABITRA MAJUMDAR.

 

COMPLAINANT                           : DIPAK CHAKRABORTY,

  Asst. Commr., Special Bureau

  (Govt. of India),

  Cabinet Secretariat,

  “Spandan”, Pranami Mandir Road,  Siliguri,     

  Darjeeling, WB.

  Mobile No. 91264 16962.

 

O.Ps.           1.                : SRI ASHIM KUMAR ADHIKARI, 

Branch Manager, State Bank of India,     

Hakimpara Branch (Sunday Branch),

  Siliguri – 734 001, Darjeeling, WB.

  Ph. No. 0353 2529585,

  e-mail ID: Sbi.07245@sbi.co.in.

 

2.                     : SHRI TARUN P. LALA,  

  Regional Manager, State Bank of India, 

   Sky Star Bldg. Panitanky More, Sevoke Road,

  Siliguri – 734 001, Darjeeling, WB.   

  M/No.918001193652/91353-2430388.

 

                                                                                                                                                                      

FOR THE COMPLAINANT         : Sri Monojit Roy, Advocate.

FOR THE OP Nos.1 & 2                 : Sri Nilay Chakraborty, Advocate.­­­­­­­­­­­­­­­­­­­­­­­­­________________________________________________________________________________________________________________________________________________

J U D G E M E N T

 

 

 

Mr. Biswanth De, Hon’ble President

 

The complainant’s allegation is that on 27.05.2012 at 11.46 a.m. the complainant intended to withdraw Rs.10,000/- from Pakurtala-Hakimpara ATM counter (ATM ID No.510A 00478907).  The amount was not supplied by the ATM machine.  He tried again but result is same i.e., the ATM did not give any money to the complainant on 27.05.2012 at 11.46 a.m.  The slip bearing no.6493 and 6495 displayed “sorry unable

 

 

Contd…..P/2

-:2:-

 

 

 

to process”.  Later the complainant found that mini statement (Txn No.6497) shows Rs.20,000/- was deducted twice from his account balance. 

Thereafter, the complainant the matter to the Branch Manager, SBI, Hakimpara and SBI customer care for the force debit of Rs.40,000/- from his account balance of Rs.1,00,778/-.  Thereafter the matter was informed again to ATM Channel Manager, SBI Zonal Office, Sevoke Road.  It is alleges that there is racket of mal practitioners who are misappropriating ATM money by mechanical device making some fault in ATM machine.  It is also alleges that some bank employee might be involved.  The bank authority did not do anything for his relief.  Accordingly, this complaint has been lodged.

It is also allegation that the complainant was informed by mobile phone described in para-7 that Rs.40,000/- would be returned on 21.06.2012.  On being asked the wife of the complainant told the pin of ATM card to expedite the process.  The complainant returned home and found that Rs.27,900/-, Rs.17,499/-, Rs.1,595/- and Rs.599/- have been withdrawn from his account.  The complainant again informed the matter to the Regional Manager.  The complainant also stated in para-10 that later on Rs.27,900/- and Rs.19,700/- has been returned on 29.06.2012, but the complainant did not get back Rs.40,000/- withdrawn fraudulently from ATM by some perpetrator on 27.05.2012 in this complaint. 

The OP Nos. 1 & 2 have filed written version denying inter-alea all the material allegations raised by the complainant.  The OPs have laid down actual facts and circumstances in para-5.  The complainant has a savings bank account in State Bank of India, Hakimpara Branch bearing Account No.20122371740.  Complainant has ATM card and ID No.  On 27.05.2012 at about 11.46 a.m. the complainant went to the ATM counter of SBI located at Pakurtala-Hakimpara branch to withdraw Rs.10,000/- and punched his ATM card inside the machine and typed

 

Contd…..P/3

-:3:-

 

 

the secret code and later left the machine without closing the transaction.  He then punched his card inside the adjacent ATM machine and typed the secret the secret code and withdrawn Rs.10,000/- and left the counter.  After he left the counter, an unknown person entered and at that relevant time the first ATM was still in operation, which the complainant forgot to close.  The unknown person taking the advantage of the same might have checked the balance of the account of the complainant and withdrawn a sum of Rs.40,000/- from that account. 

It is also the case of the OP that instant case is filed on a flimsy ground with a malafide intention to lower down reputation of OP and the complainant is not entitled to receive the amount.  Accordingly, the case is frivolous and deserves to be dismissed.

To prove the case the complainant has filed the following documents :-

1.       Information to Branch Manager, Hakimpara Branch, dated 28.05.2012.

2.       Slip of ATM Annexure-II.

3.       Letter to ATM Channal Manager, SBI dated 06.06.2012 & dated 21.06.2012. 

4.       Letter to M.S. Roy, Reserve Bank of Indian, regarding irregularity of ATM transaction with the account of the complainant.

5.       Letter to Banking Ombudsman, regarding forgery in ATM transaction.

6.       Letter to General Manager, Bengal Circle, State Bank of India, Kolkata dated 12.06.2012.

7.       F.I.R. to Officer-in-Charge, Siliguri P.S. against ATM forgery on the account of the complainant dated 15.06.2012 and  many other documents. 

OPs have filed original C.C.T.V. footage.

The complainant also filed evidence-in-chief and documents. 

OP Nos.1 & 2 have also filed Evidence-in-chief.

 

Contd…..P/4

-:4:-

 

 

Points for decision

 

1.       Whether there is deficiency in service or neglect on the part of the OPs?

2.       Whether complainant has suffered monitory loss and harassment?

3.       Is the complainant entitled to get any relief ?

 

Decision with reason

 

In the evidence-in-chief the complainant has stated his case that on 27.05.2012 at about 11.46 a.m. he tried to withdraw Rs.10,000/- from Pakurtala-Hakimpara ATM counter, but he did not received the amount from ATM machine.  The two slips no.6493 & 6495 displaying “sorry, unable to process were received by the complainant.  But afterwards, the complainant found Rs.40,000/- had been withdrawn from his savings account.  He then made complaint to the Branch Manager and other connected authorities, but he did not receive back the said Rs.40,000/-.  The complainant has stated in his petition as well as in his evidence-in-chief sum facts of occurring played with the complainant in his account.  In his absence his wife got some calls from some numbers and pin number and other number, ATM card had been taken from his wife.  After returning the complainant found that Rs.27,900/-, Rs.17,499/-, Rs.1,595/-, Rs.599/- have been withdrawn in four consecutive attempts.  This fact has also been informed to the bank authorities vide annexure filed by the complainant and shown in his evidence on affidavit.  In para-28 in affidavit he has specifically mentioned the transaction slips and letters and FIR for appropriate action.  In all this complainant has written 25 letters and complaints to different authorities including banking ombudsman dated 17.01.2013.  He has also filed letters of response from OC Cyber Crime dated 29.06.2012.  These are the following :-

1.       Letter dated 28.05.2012 to OP No.1 (Annexure-‘A’).

2.       Transaction slip bearing no.6493 (annexure- B).

 

Contd…..P/5

-:5:-

 

 

3.       Transaction slip bearing no.6495 (annexure- C).

4.       Transaction slip bearing no.6497 (annexure- D).

5.       Letter dated 06.06.2012 to ATM Channel Manager (Annexure-E).

6.       Letter dated 12.06.2012 to GM, SBI, Kolkata (Annexure-F).

7.       Letter dated 15.06.2012 to Sri M. S. Roy (Annexure-G).

8.       Letter dated 15.06.2012 to Chief GM, SBI, Bengal Circle (Annexure-H).

9.       FIR dated 15.06.2012 to Siliguri P.S. (Annexure-I).

10.     Letter dated 21.06.2012 to ATM Channel Manager (Annexure-J).

11.     Letter dated 23.06.2012 to AGM, SBI (Annexure-K).

12.     Letter dated 24.06.2012 to Pradip Chaudhuri Chairman, SBI (Annexure-L).

13.     Letter dated 24.06.2012 to SP, Darjeeling (Annexure-M).

14.     FIR dated 26.06.2012 to Siliguri P.S., (Annexure-N).

15.     Letter dated 29.06.2012 to Dy IG, CID (Annexure-O).

16.     Message from DGM Customer Service dated 25.06.2012 (Annexure-P).

17.     Message from DGM Customer Service dated 29.06.2012 (Annexure-Q).

18.     FIR dated 03.07.2012 to Siliguri P.S., (Annexure-R).

19.     Letter dated 10.07.2012 To ATM Regional Office, SBI, Siliguri (Annexure-S).

20.     Letter dated 07.08.2012 To ATM RM 2, RBO, Siliguri (Annexure-T).

21.     Msg copy RM2 RBO Siliguri 08.08.2012  (Annexure-U).

22.     FIR dated 11.08.2012 to O.C., Siliguri P.S., (Annexure-V).

23.     Complaint to Sri M.S. Roy, B.O., RBI (Annexure-W).

24.     Letter from banking ombudsman dated 17.01.2013 ref no. kol obd/2335/2012-13 (Annexure-X).

25.     Response from O/C, Cyber Crime dated 29.06.2012 (Annexure-Y). 

  The complainant also marked those as exhibit 1 to 25 as mentioned in evidence-in-chief.

 

Contd…..P/6

 

-:6:-

 

 

From the annexure-I, it is seen that F.I.R. has been lodged before the police.  The incident took place on 27.05.2012 and in the said F.I.R. he has narrated what he has done regarding the incident of forging money.  The copy of annexure-I was given to the Addl. Superintendent of Police, Siliguri. 

Annexure-M & N show the F.I.R. dated 26.06.2012 to Superintendent of Police and to Siliguri P.S.  The annexure-N which is continuation of previous F.I.R. has been added regarding the second episode of taking pin number and withdrawal of money. 

Annexure-X is reply from Office of the Banking Ombudsman.  Banking Ombudsman informed their inability for elaborate documentary and oral evidence and for which the complaint is closed. 

Annexure-Y is a request to the complainant to approach DIG/CID, West Bengal. 

The evidence–in-chief supported by the 25 documents very clearly shows that the incident of money missing on the relevant date from the ATM counter stated hereinbefore on repeated occasion have been informed to different authorities of State Bank of India, authorities of ATM, authorities of Reserve Bank, and authorities of police including Superintendent of Police and OC, Cyber Crime.  But no fruitful results have reflected in the record.  Only the Office of the Banking Ombudsman replied the proceedings before the banking ombudsman are not appropriate because, the allegation involved oral and documentary evidence.  There is no action on the part of the Siliguri P.S. not a single scrap of paper is in record to show that police authorities have taken any step regarding the complaint of the complainant and the deplorable condition stands on this day that the grievances of the complainant is still unattended. 

The OPs have filed evidence-in-chief, and OPs have stated that the complainant has a savings bank account in their branch.  On 27.05.2012 at about 11.46 a.m. the complainant went to the ATM counter of SBI located at Pakurtala-Hakimpara to withdraw

 

Contd…..P/7

-:7:-

 

 

Rs.10,000/- and punched his ATM card inside the machine, and typed the secret code and later left the machine without closing the transaction.  He then punched his card inside the adjacent ATM machine and typed the secret code and withdrawn Rs.10,000/- and left the counter.  After he left the counter, an unknown person entered and at that relevant time the first ATM was still in operation which the complainant forgot to close.  The unknown person taking the advantage of the same have checked the balance of the account of the complainant and withdrawn a sum of Rs.40,000/- from that account. 

So, now it is admitted position that complainant is an account holder of State Bank of India, having said card and pin number and the allegation of loss of money of Rs.40,000/- is also admitted by the bank.  But bank authorities intend to shift the duty of care and attention on the complainant that “after he left the counter, an unknown person entered and at that relevant time the first ATM was still in operation which the complainant forgot to close”.  It is also stated by OPs that the unknown person taking the advantage of the same checked the balance and withdrawn a sum of Rs.40,000/-.  Checking the balance is a one part of transaction and withdrawn money is another part of transaction.  For checking the balance punching of the card is necessary with pin code number and when the balance is seen, then another punching is necessary and then again insertion of pin is necessary, and then only money can be withdrawn i.e, money can be given by the ATM.  Two acts i.e., checking of balance and withdrawn of money cannot be done by one punching of ATM card.  Moreover, to maintain security the bank authorities must take necessary steps.  There is no averment in the evidence regarding that arrangement.

So, from the above facts quoted hereinbefore by both sides, show that bank authorities are absolutely reluctant to help the customer for whose interest the bank is created.  A bank is run by the money of the consumer viz-a-viz public.  It is the duty of the bank authorities to take

 

Contd…..P/8

-:8:-

 

 

appropriate steps to protection of the customers.  There is no evidence to that effect from any corner of higher or lower authorities of bank.  There is no due care and attention of the bank authorities to protect the interest of the customers. 

The acts itself shows that there is negligence of duty and deficiency in service on the part of the bank authorities.  The principle of res-ipsa-loquitor i.e., the act itself shows that there is negligence on the part of the bank authorities.  Even after receiving the complaint the lower and higher authorities of SBI are sleeping wherein the poor customer has been compelled to run from post to pillar for getting his money back.

Bank must think that customer is an asset of bank.  Bank is of the customer not that customer is for bank.  But in this case, there is no iota of evidence that bank authorities have taken any positive steps to mitigate the grievances and loss of valuable customer.  This is of course deficiency of service of bank authorities towards the consumer. 

So, after going through material on record adduced by both sides it is crystal clear that there is negligency and deficiency on the part of the OPs. 

Hence, the complaint succeeds on contest. 

Now, let us consider the prayer of the complainant regarding compensation. 

The complainant prays for refund of Rs.40,000/-, compensation of Rs.10,000/- and cost of litigation.

The prayer of the complainant is very moderate and very innocent. 

The complainant very honestly prayed and compensation of Rs.10,000/- and cost of litigation. 

We have seen the conduct of both sides.  We have seen the precarious condition of the complainant to seek Redressal by approaching different authorities from State Bank of India to Reserve Bank of India, Ombudsman and complainant filed 25 documents.  But he did not get any relief from any corner.  Therefore, the complainant is

 

Contd…..P/9

-:9:-

 

 

compensated for mental harassment, pecuniary loss and suffering.  The complainant has become a subject of mockery as per fact of complainant as second episode.  There is no repentancy on the part of the OPs and no sympathy of the bank authorities regarding the loss of complainant, regarding the harassment of the complainant. 

So, as per nature of this complaint, as per conduct of the OPs, this Forum is of considered opinion that that the complainant is entitled to get refund of Rs.40,000/- from the OPs.

The complainant is also entitled to get Rs.2,00,000/- for consortium.

The complainant is also entitled to get Rs.50,000/- as punitive damages arising due to the negligence act of the OPs. 

The complainant is also entitled to get cost of the litigation amounting to Rs.50,000/- from the OPs.

The complainant is also entitled to get interest @ 9% per annum from the date 27.05.2012 till full realization.

In the result, the case succeeds.

Hence, it is

                     O R D E R E D

that the Consumer Case No.40/S/2013 be, and the same is hereby allowed on contest.

The complainant is entitled to get refund of Rs.40,000/- from the OPs.

The complainant is also entitled to get Rs.2,00,000/- for consortium from the OPs.    

The complainant is also entitled to get Rs.50,000/- as punitive damages arising due to the negligence act of the OPs.

The complainant is also entitled to get cost of the litigation amounting to Rs.50,000/- from the OPs.

The complainant is also entitled to get interest @ 9% per annum from the date 27.05.2012 till full realization.

 

Contd…..P/10

-:10:-

 

 

The OP Nos.1 & 2, who are jointly and severally liable, are directed to refund of Rs.40,000/- by issuing an account payee cheque in the name of the complainant within 45 days of this order.  

The OP Nos.1 & 2, who are jointly and severally liable, are directed to pay Rs.2,00,000/- by issuing an account payee cheque in the name of the complainant for consortium, within 45 days of this order.

The OP Nos.1 & 2, who are jointly and severally liable, are directed to pay Rs.50,000/- by issuing an account payee cheque in the name of the complainant as punitive damage due to negligence act of the OPs, within 45 days of this order.  

The OP Nos.1 & 2, who are jointly and severally liable, are directed to pay Rs.50,000/- by issuing an account payee cheque in the name of the complainant towards cost of litigation, within 45 days of this order.

The OP Nos.1 & 2, who are jointly and severally liable, are directed to pay interest @ 9% per annum from the date 27.05.2012 till full realization, within 45 days of this order.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

 -Member-                     -Member-                         -President-