Date of hearing : 4th day of March,2016

Date of Judgement : 18th day of March, 2016

Judgement

        The instant appeal U/s. 15 of the Consumer Protection Act, 1986  (hereinafter referred  to as ‘the Act’ ) is at the instance of OP No. 1  i.e.,  is  Chief Manager, State Bank of India, Kurseong Branch  to impeach the judgement  dated 7th July, 2014 passed by the Ld. District Consumer Dispute Redressal Forum, Darjeeling ( for short, Ld. District Forum ) in consumer complaint No. 23 of 2013. The First Appeal  No. 872 of 2014 initiated by the OP No. 3  i.e., Chief Manager, State Bank of India Bikanir and Jaipur and First Appeal F.A. No. 889 of 2014 has been initiated by OP No.6  i.e. Branch Manager, Axis Bank Ltd., New Delhi to challenge the  self same judgement. In other words, all the three appeals being  FA Nos. 862, 872 and 889 of 2014  have arisen  out of  common judgement, all the  three appeals will be disposed of  by a common order passed in this appeal.

        The Respondents  No.1 and 2  herein being Complainants   lodged  the consumer complaint U/s. 12 of the Act alleging that  they are joint Account holder at State  Bank of India, Kurseong Branch  and also  holder of Silver Card ATM. It is stated that on 25.05.2013 they  have made last transaction  and a sum of Rs. 6000/- was withdrawn and the balance  was shown in the delivery slip was Rs. 1,58,355/-.Till 06.05.2013 they did not make  any transaction either  through ATM  or by  using withdrawal  slip. On 07.06.2013 when they moved  with  ATM Card  to SBI ATM  counter  at Kurseong to  withdraw a sum of Rs. 20,000/- the ATM has displayed  ‘ insufficient fund’ and they got shocked  and got a slip  where they found  a balance of Rs.8855/- only and they  came to know that a sum of Rs. 1,49,500/- had already been  withdrawn  from their account from different ATM counters  of New Delhi by using ATM card whereas  during the period of transaction , i.e., on 27.05.2013 and 28.05.2013 the ATM  card was in their custody. The Complainants have made  several complaints and correspondences but it yielded no result. Hence, the complaint with the following reliefs, viz. – (a) For a direction on the OPs  to credit  Rs. 1,49,500/-  in the Complainants   account  with interest  thereon;(b) Compensation of Rs.1,00,000/- for mental harassment and agony;(c) For litigation cost of Rs.20,000/-, etc.

        The  OP No. 1 by  filing written version  disputed the allegations stating that the alleged  withdrawal of money originated far from Kurseong  and the same   maybe happened  due to gross negligence of complainants by  way of  either ATM Pin or ATM Card leaked or parted  without  their knowledge or  they made themselves  forgot  the transactions made by  them in the past. The other OPs  have not filed any written version.

        The Ld. District Forum  did not ask the complainant  to submit evidence on affidavit in accordance with the provisions of  Section 13(2)b)(i) of the Act and proceeded  to dispose of the case on the  basis of petition of complaint, written version  filed by  OP No. 1 and the  brief note of argument  filed on behalf of OP Nos. 1 and 2 and OP. No. 6.

        Having heard the Ld. Advocate for the parties, the Ld. District Forum by the impugned judgement allowed the consumer complaint  with a  direction upon the Opposite Parties jointly and severally  to credit of Rs. 1,49,500/-  in the account of the Respondent No. 1 and 2, compensation of Rs. 40,000/-and litigation cost of Rs.15,000/- which prompted  the OP Nos. 1, 3 and 6  to prefer the appeals.

        We have scrutinised  the materials on record and considered the submission advanced by the Ld. Advocates  appearing for the parties.

        Mr. Debashish  Choudhuri, Ld. Advocate appearing for  the Appellants   of FA No. 862/2014  has submitted that the Ld. District Forum  has committed a grave error by  deciding the dispute without asking the parties  to give any evidence by way of  affidavit. He  has further submitted  that the consumer complaint  was lodged on 19.09.2013 after  a  long delay of  90 days from  07.06. 2013 the date when  it was  first  discover by the Respondent  Nos.1 and 2  that the amount has been withdrawn  from their account  by using their ATM card.

        Mrs. R.Anthony,  Ld. Counsel for Appellant in FA No.872/2014  has contended that  his client  is  Chief Manager  of a Branch of New Delhi and  as his client  was not a service provider   of the Respondent Nos. 1 and 2,  her client should not have been   impleded  as a party to  this case.

        Mr. Debashis  Bhowmick, Ld.  Counsel  for the Appellant in FA /889 of  2014 has  submitted that the ATM  card can only be used  if the  customer inputs  his personal  four digit  identification number  which is selected by the customer and not  by the Bank. In the interest of security the customer is  advised to retain this Pin  in his memory so that no one else can obtain  information of the said PIN. He  has forcefully submitted that  unless a person is  in a possession  of the relevant AT M card and knows , the four digit PIN, the ATM card cannot be used and  operated. Ld. Counsel  has further  submitted that in the instant case the Respondent Nos. 1 and 2 have themselves stated that  ATM card had never left their personal custody and, therefore,  no one else  could have  access to use it.

        Mr. Indranil Biswas , Ld. Advocate   for the Respondent  Nos. 1 and 2 of all  three appeals has admitted that  the ATM card  as well the PIN number was  only in the personal custody and  knowledge  of his clients and they had used the card on several occasions   for withdrawals  being Pension Holder. However, Ld. Advocate for the Respondents Nos. 1 and 2  has submitted that the  CC T.V. footage  was not  available  and as  the amounts were  siphoned  off from the  ATM  counters of different Banks of New Delhi,   certainly  they  should be compensated by the Banks.

        After giving consideration  to the submission advanced by the Ld. Advocate  appearing for the parties it appears  to us that  the Ld. District Forum  did not  consider any  evidence on affidavit in accordance with the provisions of the Section  13 (2)(b)(i) of the Act and such should not have proceeded with  to  enter into hearing   without  following the provisions of the Act.

         Be that  as it may, it remains  undisputed that ATM card  was issued to the Respondent  Nos. 1 and 2  and they had kept the  card  in their safe custody. Thus, no one had access   to it  nor  was it ever missing. Only Respondents  Nos.1 and 2  were aware of the  said four digit PIN number which is  essential   to operate  of the ATM card.  Despite all these facts, the Ld. District Forum has passed the order only on the ground that the Respondent Nos. 1 and 2  were all the time at Kurseong and as the withdrawals  were made  through the ATM  at New Delhi it is not possible  for the Respondent Nos. 1 and 2  to withdraw the money from Delhi  after sitting at Kurseong. Such observation appears to us   perverse  because such untoward incident  may  happen  due to gross negligence  on the part of Respondent Nos. 1 and 2  on account of either ATM  PIN or ATM card  leaked   or parted with  without their knowledge or that  anything may happen. The non-functioning  of CC T.V. was not  material in the  facts and  circumstances of the case  because money cannot be withdrawn  fraudulently  without using of ATM card and PIN Number. In our case, it is  quite apparent  that the  ATM card or PIN  remained in the same custody  and knowledge  of the Respondent Nos. 1 and 2. In view of elaborate  procedure  evolved by the  Bank  to ensure that  without  ATM card  knowledge of the PIN  number  , it is not possible to withdraw the money  by any unauthorised person from an ATM.

        The Ld. District Forum without  considering  the matter  from the proper perspective, time and again has raised a question as to cyber crime  which has no relevancy with the  facts and circumstances   of the case.

        Therefore, having  due consideration  to the submission advanced by the Ld. Advocates  appearing  for the parties and taking into consideration  the decision of the National Consumer Commission dated 07.04.2011  in connection with the  RP  No. 3182/2008 ( State Bank of India – Vs. – K.K.Bhalla ) We have no hesitation to hold    that the Ld. District Forum  proceeded  in a wrong way and  arrived  at a decision which is  contrary to the provisions of law and the guidelines  enunciated by the higher authorities .

        For the reasons aforesaid,  all the  three Appeals  being Nos. 862 of 2014, 872 of 2014 and 889 of 2014  are, thus, allowed on contest. However, considering  the facts and  circumstances of the case, we do not make  any order as to costs   or in this appeal.

        The judgement dated 7th July, 2014 passed by the Ld. District Forum in  consumer complaint No.  23/2013 is hereby  set aside.

        Consequently, consumer complaint No. 23/2013 stands dismissed.

        The Registrar of this Commission is directed to send a copy of this  order to the concerned Ld. District Forum for information.