ANUP K. THAKUR

1.      Under challenge in this Revision Petition No. 4791 of 2013 is the impugned order dated 26.09.2013 of the State Consumer Redressal Commission, Haryana, Panchkula (‘State Commission’ hereafter) in First Appeal No. 331/2013. Vide this order, the State Commission had upheld the order of the District Consumer Disputes Redressal Forum, Gurgaon (‘District Forum’ hereafter) dated 01.04.2013 in Consumer Complaint No.958 of 2009.  The District Forum, in turn, had found no deficiency in service on the part of the respondent/OP bank and had consequently dismissed the complaint as having no merit.

2.      Very briefly, the facts of the case are that the petitioner/complainant (‘complainant’ hereafter) had a savings bank account with the respondent/OP-Standard Chartered Bank since April 2006. He also had an ATM/Debit Card of the OP bank.  When the complainant issued a cheque no.300384 dated 11.11.2008 for Rs.8,589/- in favour of Ambience Facilities Pvt. Ltd., his cheque was dishonoured due to insufficient funds in his account on 28.11.2008.  He obtained a statement of account from the bank and came to know that Rs.4,51,000/- had been withdrawn from his account during the period 25.10.2008 to 27.11.2008.  He contacted the bank and on their advice lodged FIR No.355 dated 29.11.2008 with PS. DLF, Gurgaon.  The case of the complainant is that these transactions were without his knowledge and that the OP had failed to send him SMS alerts for these withdrawals through ATM.  It is also his case that he had lost his debit card, a loss he learnt about when he looked for it after his cheque was dishonoured on 28.11.2008.  Since he did not get relief from the OP, he filed a consumer complaint with the District Forum, seeking refund of Rs.4,30,000/- with interest and a further sum of Rs. 2 lakh as compensation for harassment and pain suffered.  This complaint was contested by the OP.  It was submitted by the OP that the mobile banking facility was introduced in February, 2008 for all savings bank account holders.  However, the account holders had to get themselves enrolled to avail the said facility.  Since the complainant did not enrol, his savings account was not updated for extending mobile banking facility, and therefore, no SMS alerts were sent to him for any transaction.  It was further submitted that ATM cash withdrawal required a person to be physically holding the debit card, and having the personal identification number (PIN). Without this, it was not possible to withdraw cash from ATM.  It was further submitted that it was the responsibility of the customer/complainant to ensure safety of his card at all times and take immediate steps to report it’s loss or misplacement to the bank to avoid any fraudulent transaction.  Accordingly, when the OP was informed about the disputed transactions, it immediately blocked the said card.  As such, there was no deficiency in service on the part of the OP.

3.      District Forum noted that the savings bank account holders of the OP were required to register themselves to avail this facility of mobile banking including SMS alerts.  Admittedly, the complainant did not get himself registered as he was under the impression that being an account holder, he was automatically registered with the OP.  This, however, reasoned the Forum, was an argument without any merit:

“when he is not registered with the Bank for availing this facility naturally no SMS message/alert regarding utilization of his debit card for ATM cash withdrawal or Point of Sale transaction was given to him validly by the Bank as it was to be given through a Machine.  Thus, the Claim of the complainant regarding automatic registration to avail this Mobile Banking Facility cannot be accepted even by a prudent person.”  

The District Forum further reasoned that in fact, the complainant was not even aware whether the debit card was in his possession and only came to know when his cheque was dishonoured.  It further reasoned that clearly, the complainant had failed to keep the debit card and the PIN in his safe custody. Therefore, possibilities are that some unauthorized person, or a family member, or a friend, got possession of the card with the PIN; possibility is also that he himself handed the card with PIN to the said person or that he himself used the card and was now blaming OP for failing to send SMS alerts.  As such, District Forum found that the complainant was himself negligent and he could not put the blame on the OP bank. On appeal, the State Commission, after hearing the learned counsel for the petitioner/appellant, recorded its order as below:

        “I have heard the learned counsel for appellant/complainant and perused the record as well as order of District Consumer Forum. I am of the opinion that the complainant has a bank account with OP and also has an ATM/Debit card. It is also admitted fact the SMS banking facility was launched by the bank in February, 2008 regarding which they have given wide publicity for the scheme to their customers including the complainant. But on the reverse of quarterly account statement for the period April to June 2008, the account holder has to register with them for mobile banking including mobile commerce by calling phone banking or visit to the nearest branch/ATM etc which found mentioned very much in this advertisement and admittedly the complainant has never got himself registered for mobile banking facility with the OP as he was under the impression that being the account holder he is automatically got registered with them but it has no merit as banking facility can be availed only by the account holder with the bank and not by a third person but particularly for availing mobile banking facility even account holder has to get himself registered with bank through its various systems which he failed to opt by getting himself registered for availing such facility. On the other hand the impugned amount have been withdrawn by some one who was holding physically his debit card as well knew about PIN number. Before withdrawal of the said disputed amount from his account by using debit card he was not even aware whether the debit card is in his possession. Moreover, when the complainant came to know about the dishonour of his cheque dated 16.11.2008 for Rs.8589/. he became conscious for the first time about its whereabouts and on searching he found that it is being lost though the debit card holder as per instructions of bank was required to keep it in safe custody and also to memorize its PIN for its utilization and by giving written direction to destroy the PIN supplied to them or usually to change the PIN after once it is utilized of his own by the card holder. It shows that the complainant failed to keep his debit card and the PIN in safe custody.

        Therefore, District Consumer Forum rightly dismissed the complaint of the complainant.

        There is no force in the present appeal.  No ground to interfere with the impugned order is made out.

        Finding no merit in this appeal, it is dismissed.”

Hence, this revision petition now before the National Commission.

4.      The matter was heard on 5.2.2020. 

5.      Learned counsel for the petitioner/complainant submitted that the complainant was a senior citizen, an ex-army personnel, who had been the victim of a fraud in which Rs.4,51,000/- was withdrawn from his account without his knowledge.  He only learnt about it when his cheque was dishonoured for want of sufficient funds.  This was on 28.11.2008.  He submitted that the impugned order of the State Commission seemed to have confused mobile banking and SMS alerts.  He drew attention to Annexure-R4 filed with the revision petition, this being relevant extracts under the title “PRIORITY BANKING”.  He also cited Annexure-R3 filed with this revision petition, a copy of a blank cheque of the petitioner showing that he was accorded priority banking facility.  This provided in clause 10.2 for automatic alerts without any need for prior registration.  Therefore, he argued that there should be no confusion qua mobile banking and SMS alerts: argument that the OP did not send SMS alerts because the complainant had not registered for mobile banking facility in February, 2008, was wrong.  This difference has not been considered by the lower fora which can therefore be called an error apparent.  Thereafter, he highlighted the fact that the State Commission had stated that the impugned amount had been withdrawn by someone holding physically the debit card as well as knowing the PIN number; the District Forum had also emphasized this very aspect and arrived at the conclusion that the complainant was negligent. He concluded by saying that the onus to prove that the complainant was negligent was on the OP.

6.      Learned counsel for the respondent/OP drew attention to the cheque and relevant extracts “Priority Banking” (Annexure-R3 and R4) and to the account opening form which had been filed as additional documents by the petitioner.  Referring to this, he submitted that the account opted for by the complainant was saving account-Axcess Plus, and not what the learned counsel has referred to as “Priority Banking”.  This account has been subsequently upgraded to priority banking on 23.10.2009. Therefore, argued the counsel, this ground cannot be taken in the revision petition and it is for this reason that this ground had not been taken before the District Forum and the State Commission.  He then drew attention to his synopsis of arguments, para 7 thereof which reads as under: “In the present revision petition, the Petitioner in Ground-H seeks to urge that he was a priority customer and the SMS alerts were automatically attached to the Priority Banking.  It is submitted that the Priority Banking facility was upgraded to the Petitioner’s account on 23.10.2009 and prior thereto, it was a normal xcess Plus Savings Account.”  Learned counsel argued that as such, it was for the first time that this argument was being taken and that too at the revisionary stage.

7.      In a short rebuttal, learned counsel for the petitioner argued that if the priority banking argument was not pleaded earlier, then, equally no submission was made by the OP that SMS alert was not sent because the complainant was not a priority banking customer.  He emphasized that as a priority banking customer, his platinum debit card came with a reassured insurance benefit which covered him for fraudulent transactions.  He drew attention to his appeal petition, where clause 10.2 of the priority banking relevant had been extracted (supra), to argue that there was no need for any prior registration for automatic alerts and as the mobile number was in the records of the OP, it was the OP’s duty to send SMS alerts.

8.      After having heard arguments from the learned counsels, and carefully considered the record, I am of the view that this revision petition cannot sustain.

9.      The facts of the case are not in dispute.  SMS facility was widely advertised by the OP bank in February 2008 and admittedly, the complainant did not respond to this and took no steps to get himself registered.  It is hard to believe that he did this because he was aware that he was a priority customer and would be getting SMS alerts in any case.  It is the complainant’s own case that he came to know only when his cheque dated 11.11.2008 for Rs.8,589/- was dishonoured.  There are no details provided in the complaint or arguments as to when did the complainant come to know that his cheque had been dishonoured and as to what was the manner in which he got this information: This also could have thrown some light on whether the complainant had been negligent or not.  Admittedly, it is at this stage that he began to look for his debit card and failed to find it.  Admittedly, if he did not have the card with him and if the same had been lost, it could have been used/misused by somebody else.  The lower fora have surmised that even this could not have been done unless the user of the card was in physical possession of the card and in the know of the PIN number.  Without this, the ATM card simply could not have been used. Learned counsel for the petitioner’s argument that it was for the OP to prove that the complainant had been negligent is irrelevant in the face of complainant’s own admission that he had lost the card and that he came to know that he had lost the card only when he looked for it after his cheque had been dishonoured.

10.    Based on the above reasoning, the lower fora have disallowed the complaint.  I do not find any reason to do otherwise. There is no error apparent in the logic and reasoning of the State Commission or the District Forum.  As to the averment of priority banking and automatic SMS alerts, this still does not explain why the complainant did not opt for mobile banking facility including SMS alerts when the OP widely advertised it in February 2008.  Nor does it explain the carelessness in the complainant’s handling of his own ATM card. Clearly, no deficiency in service has been proved against the OP.

11.    Finally, it is apt to recall that the revisionary jurisdiction is limited to only errors apparent of fact or law.  This has been laid down in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269, relevant portion of which is reproduced below:-

“8. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.

No such errors apparent can be seen in the impugned order.

12.    In view of the discussion above, this Revision Petition, after consideration, is dismissed.  The order of the State Commission is upheld. No order as to costs.