STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

APPEAL CASE No.F.A-25/2014

1. The State Bank of India,

(Represented by the Regional Manager),

State Bank of India, Tripura Region,

District-West Tripura.

2. The Assistant General Manager,

State Bank of India, Agartala Branch,

Agartala – 799001,

District – West Tripura.

                                     ….    ….    ….    ….    Appellants.

                   Vs

Shri Sambhu Kanti Debnath,

S/O, Late Jadu Gopal Debnath,

Resident of Joynagar Middle Road,

P.S-Agartala, District-West Tripura.

                                    ….    ….    ….    ….    Respondent.

PRESENT :

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

For the Appellants    :      Mr.H.K.Bhowmik,Adv.

          For the respondent   :      Mr.K.Datta,Adv.

Date of Hearing         :    28.01.2015.

Date of delivery of Judgment  :13.02.2015.

J U D G M E N T

S.Baidya,J,

            This appeal filed on 11.09.2014 under Section 15 of the Consumer Protection Act., 1986 by the appellants, the State Bank of India is directed against the judgment and order dated 18.07.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-15 of 2014 whereby the Ld. District Forum allowed the complaint exparte directing the O.Ps, present appellants to refund the amount of Rs.16,000/- which was found missing from the S.B. account of the complainant on 20.12.2013 with a further direction to pay a sum of Rs.2,000/- as compensation for mental agony and harassment and also a sum of Rs.1,000/- as cost of litigation to the complainant within a period of 30 days from the date of judgment, failing which the amount shall carry interest @ 9% p.a. after the expiry of 30 days till the payment is made.       

2. The case of the appellants as narrated in the memo of appeal, in brief, is that the complainant lodged the complaint before the Ld. District Forum, West Tripura, Agartala alleging that he is maintaining a Savings Bank Account vide No-30532523403 with the State Bank of India, Agartala Branch (appellant No-2 herein) and the said account is having A.T.M. card-cum-debit facility and on 20.12.2013 at about 07.59 hours, he operated the A.T.M. card and withdrew an amount of Rs.3,000/-from his account through his A.T.M. card from Battala State Bank of India keeping a balance of Rs.16,806.69 only in his account and on the same day, at about 19.49 hours, he again went to the same A.T.M. counter for withdrawing some more amount when he was shocked to find that someone had fraudulently withdrawn an amount of Rs.16,000/- from his said account and so, due to the paucity of fund in his account, he had to withdraw only a sum of Rs.500/- at that time.                                                
3. It has also been alleged that the complainant had carefully kept his A.T.M. card as well as Pin number used for operating A.T.M.-Cum-Debit card in his personal custody and as such he suspected that his account was fraudulently operated by someone and immediately, he reported the matter to the appellant No-2 as to the missing of Rs.16,000/- from his account, but the appellant No-2 was not ready to take any action on his oral complaint and as such on the next day i.e. on 21.12.2013, he made a complaint with the appellant No-2 and also lodged the complaint in writing with the Officer-In-charge of West Agartala Police Station narrating the whole incident and the said matter was entered into a G.D. book vide West Agartala Police Station G.D. Entry No-1062 dated 21.12.2013. It is also alleged in the complaint that appellant No-2 had engaged a staff of his branch to examine the C.C.T.V. Footage to identify the person who had committed the mischief, but nothing could be traced out. It is also alleged that in spite of repeated requests to the appellant No-2 to refund the said amount fraudulently withdrawn from his account, it has yielded no fruitful result.
4. It has also been alleged that due to the fault and defective service of A.T.M. in question, there have been fraudulent withdrawal of Rs.16,000/- from his account which amounts to negligence and deficiency in service on the part of the appellant herein. It has also been alleged that the impugned judgment has been passed exparte in the absence of the appellant-O.Ps, and being aggrieved by and dissatisfied with the impugned judgment and order dated 18.07.2014, the appellant has preferred the instant appeal on the grounds that the Ld. Forum has erred both in facts and law and has failed to appreciate the evidence adduced by the respondent, that the Ld. Forum failed to appreciate that the appellants who were the O.Ps in the complaint was not represented legally by any counsel, but proceeded exparte in favour of the petitioner-complainant. The further ground of appeal is that the present appellants filed this appeal, not only on the basis of merit of the impugned judgment, but also to give the appellants an opportunity to raise their voices by filing their respective pleadings and also to adduce the evidences both in orally and documentary as they failed to oppose in the Ld. Forum during hearing of the case due to unavoidable circumstances i.e. for internal communication-gap of the concerned staff and the authority of the bank in regard to the fixing of the date of the case. The other ground of appeal is to send back the case on remand to the Ld. Forum for providing an opportunity to the present appellants to contest the case in the Ld. Forum and hence, the instant appeal has been filed.               

Points for consideration.

5.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned judgment and (2) whether the impugned judgment is liable to be set aside or otherwise.     

                         Decision with Reasons.

6.  Both the points are taken up together for the sake of convenience and brevity.
7. Admittedly, the respondent-complainant has a Savings Bank Account with the State Bank of India bearing account No-30532513403 and the connected A.T.M.-Cum-Debit card bearing No-6221080000200273647 operated singly having an amount of Rs.19,806.69 as on 19.12.2013 lying deposited in the said account. It is admitted fact that the complainant on 20.12.2013 at 07.59 hours withdrew an amount of Rs.3,000/- from his said account from Battala A.T.M. counter of State Bank of India. It is also admitted fact that the complainant on the same day i.e. on 20.12.2013 at about 19.49 hours withdrew a sum of Rs.500/- only using his A.T.M.-Cum-Debit card from the said Battala A.T.M. counter of State Bank of India. It is the specific case of the complainant-respondent that while on 20.12.2013 at about 19.49 hours he visited Battala A.T.M. counter of State Bank of India for withdrawing an amount, the A.T.M. Customer Advice showed that an amount of Rs.16,000/- has been withdrawn from his account on the same day i.e. on 20.12.2013 after withdrawal of Rs.3,000/- in the morning of the same day. It is further specific case of the complainant that he alone handles the said A.T.M.-Cum-Debit card and he did not inform any other person the Pin Number and also did not handover his A.T.M. card, but an amount of Rs.16,000/- has been shown fraudulently withdrawn from his said Savings Bank account.   
8. The learned counsel for the appellants, State Bank of India submitted that on receipt of the summons issued from the Ld. District Forum one employee of the State Bank of India appeared personally before the Ld. District Forum on 25.04.2014 in connection with the said case No.C.C.-15/14 without engaging any learned counsel. He also submitted that for the fault of that employee there occurred a communication-gap between the said employee and the bank authority for engaging a counsel to defend the present appellants in the Ld. District Forum. He also submitted that due to such communication-gap, no lawyer has been engaged by the Authority of the State Bank of India in the said complaint case and as a result, the said complaint case was proceeded exparte and the judgment was also passed, accordingly. He also submitted that the appellants-bank came to know about the said judgment on receipt of the same on 21.08.2014 as sent by the Ld. District Forum. He also submitted that no doubt, it is a fault on the part of the State Bank of India in the matter of engaging a counsel for defending the State Bank of India before the Ld. District Forum in connection with the said complaint case, but the said default happened for the fault of the employee concerned of the State Bank of India. He then submitted for providing the appellants an opportunity to file the written objection in the said complaint case and also adduce evidences for final adjudication of the matter in dispute.    
9. On the other hand, the learned counsel for the respondent-complainant submitted that admittedly, almost in every A.T.M. counter of the State Bank of India there is the installation of C.C.T.V. from which all transactions can be visible. He also submitted that on the basis of the complaint by the complainant to State Bank of India, an employee was engaged by the bank, but the complainant was not found appearing before the A.T.M. counter at the relevant time and date when an amount of Rs.16,000/-was shown withdrawn. He also submitted that from the A.T.M. Customer Advice, it is evident that Rs.16,000/- was withdrawn after the withdrawal of Rs.3,000/-. He also submitted that in spite of his repeated requests to the bank, the said amount of Rs.16,000/- which has been fraudulently withdrawn from his account has not been refunded to his account by the State Bank of India. He also submitted that as the complainant never withdrew the said amount of Rs.16,000/- from his Savings Bank Account, it is obligatory on the part of the bank on the basis of his complaint to find out as to who withdrew that amount from his account and how it was withdrawn, but the appellants-bank did not take any proper step and as such the respondent being the complainant lodged the complaint before the Ld. District Forum seeking redress. He also submitted that the appellants-bank, in spite of receipt of the summons, sent an employee to the Ld. Forum and thereafter, the bank intentionally and willfully did not take any step in that complaint case to conduct that case either personally or by engaging any learned counsel on their behalf. He also submitted that for the fault of the appellants-bank and finding no alternative, the Ld. District Forum was compelled to proceed with the complaint case exparte and passed the judgment accordingly. The learned counsel for the respondent further submitted that the Ld. District Forum passed the impugned judgment on the basis of the available materials and on the other hand, the appellants-bank could not show anything to justify for their not appearing and conducting the said complaint case before the Ld. District Forum. He also submitted that the impugned judgment passed by the Ld. Forum being proper, legal and justified should be affirmed and the appeal should be dismissed.     
10. We have gone through the pleadings made out in the complaint, the order sheets of the Ld. District Forum, the deposition of the complainant as P.W.1, the documentary evidences, the impugned judgment and the memo of appeal. From the A.T.M. Customer Advice (Ext. 1 and 2) concerning the Savings Bank account of the complainant, it appears that Rs.3,000/- was first withdrawn on 20.12.2013 and thereafter, on the same day a sum of Rs.16,000/- was also shown withdrawn by using the same A.T.M.-Cum-Debit card and also an amount of Rs.500/- was also shown withdrawn on the same day by using the same A.T.M. card, but from the SMS (Ext. 3), it appears that Rs.3,000/- was withdrawn at 7.55.41 hours, but an amount of Rs.16,000.20 was shown withdrawn on the same day at 7.45.17 hours and Rs.500/- was withdrawn on the same day at 19.31.19 hours. So, it is found that as per SMS, Rs.3,000/- was withdrawn subsequent to the withdrawal of Rs.16,000.20. This circumstance is found contradictory to the A.T.M. Customer Advice (Ext.1 and 2). This anomaly, according to us, can only be explained properly by the appellants-bank, if they are given an opportunity to make out their case explaining this anomaly. Furthermore, as per A.T.M. Customer Advice only an amount of Rs.16,000/- is found withdrawn, but as per SMS (Ext.3) an amount of Rs.16,000.20 is shown withdrawn. This is another anomaly in this case. To us, the bank is the proper authority to explain as to how they maintained the account and as to how the SMS was sent for an erroneous amount, not tallied with the A.T.M. Customer  Advice.      
11. Going through the impugned judgment, we find that the Ld. District Forum also observed that unfortunately, due to the non-participation of the O.Ps in the proceeding, they could not be asked to produce the C.C.T.V. footage before the Forum to examine as to who had actually manipulated the account of the complainant at the relevant time. In view of the above, we also find it necessary the production of the C.C.T.V. footage before the Forum for proper adjudication of the matter in dispute finally. It will not be out of place to mention that at times it is reported that an amount is withdrawn by a miscreant fraudulently from the bank account of other person through the manipulation of A.T.M. or otherwise. We are also of the view that to end such type of transaction as alleged, an opportunity should be given to the appellants-bank authority to clarify the circumstances satisfactorily. Keeping that view in mind, we are inclined to give the appellants-bank an opportunity to contest the claim of the respondent-complainant by filing written statement/objection and also adducing proper evidences in support of their case to be made out in the written objection for proper adjudication of the matter in dispute. That being of our view, we are inclined to send back the case on remand to the Ld. District Forum after setting aside the impugned judgment with certain directions given below for proper adjudication of the matter in dispute. At the same time, we make it clear that we have not entered into the merit of the case and decided nothing finally on merit. As the case is going back on remand to the Ld. District Forum, the impugned judgment is hereby set aside.

1. Both the parties are directed to appear before the Ld. District Forum on 21.02.2015 for receiving necessary directions.
2. The Ld. District Forum shall provide an opportunity to the appellants-State Bank of India to file written statement/objection in complaint case No.C.C.-15/14 within the time to be fixed by the Ld. District Forum.
3. The Ld. District Forum shall provide opportunities to both the parties to adduce evidences in support of their respective cases.
4. The Ld. District Forum shall hear and dispose of the case and pass judgment afresh on the basis of the evidences already on record and also on the basis of the evidences to be adduced by the parties afresh in the light of the observation made in the body of the judgment.      

12. Let a copy of the judgment along with record of C.C.-15/14 be transmitted to the Ld. District Forum, West Tripura, Agartala forthwith.

                     MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura