SRI NILAKANTHA PANDA, PRESIDENT

            The Complainant has filed this complaint petition, U/s – 12 & 13 of erstwhile Consumer Protection Act, 1986, read as U/s-35 of C.P.A.-2019 of the new Act (here-in-after called as the “C.P. Act - 2019”), on dated 30/11/2015, alleging a “deficiency-in-service” by the Ops, where, OP No.1 is the State Bank of India, Being represented through its Branch Manager, Soro Branch, At/PO. Uttareswar, PS. Soro, Dist. Balasore, OP No.2 is the General Manager (Network-1), State Bank of India, Local Head Office, Bhubaneswar, Pandit Jawaharlal Nehru Marg, Unit- III, Bhubaneswar and OP No.3 is the Chief Manager, State Bank of India, LHO, Bhubaneswar.

            The case of the complainant, in short, is that the complainant is working as a Clerk in a Govt. establishment and owned a SB Account bearing No.31746603080 with OP No.1 and he was also issued with a Debit Card by OP No.1. It is stated by the complainant that on 19/02/2013 at about 07.47 AM, he had withdrawn a sum of Rs.01, 500.00, but all on a sudden at about 07.50 AM, one strange message was received by him through its registered mobile phone, to the effect that a sum of Rs.20, 000.00 has been debited from his said Account. Then this matter was intimated to the appropriate authorities of the OPs for proper redressal and thereafter, the complainant moved from pillar to post, but in vain. He has not yet received back his money which was unauthorizedly, illegally and fraudulently debited from his account without his knowledge & consent. The Ops have totally failed to discharge their duties. For the self-same matter, the complainant has also lodged an FIR before Soro Police Station so also ventilated his grievance before the Superintendent of Police, Balasore. The complainant had also lodged a complaint before the learned Banking Ombudsman, Bhubaneswar, but the learned Banking Ombudsman “technically closed” the matter without any sufficient basis. Thus, finding no other alternative, the complainant was constrained to knock the door of this Commission with the reliefs, as sought for in the complaint petition.

            The cause of action to file the case arose on 19/02/2013, when the alleged amount has been debited from his account, on 16/03/2013, when the complainant had intimated the matter to the OP No.2, on 28/02/2013, when the complainant had intimated the matter to Regional Manager, SBI, Balasore and General Manager, SBI, Bhubaneswar, on 04/03/2013, when the complainant had lodged complaint before the learned Banking Ombudsman, Bhubaneswar and lastly on 15/05/2015, when the learned Banking Ombudsman closed the matter. Hence, this case.

            That to substantiate his case, the complainant relied upon the following documents, which are placed in the record-

1. Photocopy of complaint lodged by the complainant before OP No.1.
2. Photocopy of ATM customer advice dated 21/02/2013.
3. Photocopy of first page of SB Account of the complainant.
4. Photocopy of statement of transactions made in the Pass Book.
5. Photocopy of FIR lodged by the complainant before Soro PS.
6. Photocopy of letter dated 28/02/13 addressed to Regional Manager, SBI. Bls.
7. Photocopy of letter dated 28/02/13 addressed to General Manager, SBI, Bhubaneswar.
8. Photocopy of letter dated 25/03/13 addressed to General Manager (Network-1), Bhubaneswar.
9. Photocopy of letter dated 30/04/13 of AGM (CS) to the Secretary, O/O Banking Ombudsman.
10. Photocopy of letter dated 18/04/13 of BM, SBI to DGM, ATM (Operations), Navi Mumbai.
11. Photocopy of the detail transaction on 19/02/13 from 07.38 hours to 07.58 hours.
12. Photocopy of complaint lodged before the S.P., Balasore on 16/07/13.
13. Photocopy of letter dated 21/02/13 addressed to Manager, SBI, Soro.
14. Photocopy of letter dated 27/02/13 addressed to Branch Manager, SBI, Soro.
15. Photocopy of letter dated 15/05/13 of Secretary, BO (BHU) to the complainant.

            That in the present case, notices were issued against the Ops, but the OP No.2 & 3 neither appeared nor choose to file any written version, for which they were set ex parte, as reflected vide order dated 27/05/2016. OP No.1 appeared and filed written version.

            In his written version, OP No.1 has stated, inter alia, that the whole process of ATM transaction is a technical matter made on electronic system. At the time of issuing of ATM card to the customers, the concerned OP Bank has supplied the User Guide containing terms and conditions for handling the ATM card. According to the user guide, at the time of withdrawal of money from ATM, one has to insert ATM card and PIN should be used simultaneously. There are two numbers of ATM machines situates side by side at Uttareswar, Soro. In the present case, the complainant perhaps used both the ATMs for withdrawal of Rs.01, 500.00 from ON SITE ATM-I at around 07.46 AM on 19/02/2013 and thereafter used the ON SITE ATM-II situated at the same place at around 07.49 AM for withdrawal of alleged disputed Rs.20, 000.00, as evident from the E.J. Log Book of transaction No.5258 and 3219. There is also no excess cash as revealed from “No excess cash certificate” on the relevant date. There is also “No machine breakdown / Hardware problem” reported on that day. Moreover, the Bank has authority of the card holder to debit the designated account of the card holder for all withdrawals and payment effected by the card holder by using the card. Further, in respect of the ATM transactions, debits and credits of the amount in the account through ATM are all system generated transactions made by the ATM account holder only as per operation in the ATM followed by the Confidential Password with much care and caution. The complainant has used his ATM card twice on the relevant date from two ATM machines situated side by side at the same place at Uttareswar, Soro within three minutes interval and withdrawn both the amount Rs.01,500.00 and Rs.20,000.00. Thus, the Ops have not committed any deficiency in service. Therefore, the complainant for his unlawful benefit and illegal gain stating falsehood has falsely foisted this case. 

            That to substantiate its case, Op have relied on the following documents, which are placed in the case record.

1. Photocopy of E.J. Log Book of transaction No. 3219.
2. Photocopy of E.J. Log Book of transaction No. 5258.  
3. Photocopy of No excess cash certificate dated 18/04/2013.
4. Photocopy of No hardware problem report dated 30/04/2013.
5. Photocopy of Summary ATM weblogs.               

            In view of the above averments of parties, the points for determination in this case are as follows:-

(i)         Whether the Complainant is a Consumer or not?

(ii)         Whether the complainant has cause of action to file this case?

(iii)        Whether this consumer case is maintainable?

(iv)        Whether there is any deficiency in service on the part of the OPs?

(v)        Whether the complainant is entitled to get the relief, as sought for?

(vi)        To what other relief(s), the Complainant is entitled to?

F  I  N  D  I  N  G  S

            First of all it is to be ascertained as to whether the complainant is “Consumer” or not. From the averments of the pleadings of the complainant and document produced on behalf of the complainant vide above mentioned Annexures, it is clearly admitted and established that the complainant is having a Savings Bank Account holder under the State Bank of India, Soro Branch (OP-1) vide A/c No.31746603080 and he has been issued with an ATM card. The Ops have not disputed the fact that the complainant is not an account holder under their Bank. Thus, it is held that the complainant is a bonafide customer. Therefore, the complainant is well covered under the purviews of definition of “Consumer” as defined under the provisions of the Consumer Protection Act, 2019.

            That to arrive at conclusion, whether, there is a “Cause of Action” arose / lies on the part of the O.Ps, it is seen on the face of the complaint petition vis-à-vis the annexed exhibits relating to them and the submissions made during the hearings, it is observed that, admittedly there was an withdrawal of Rs 20, 000/-, which is not contested by the Ops, but is, disputed by the Complainant, as fraudulent & embezzlement. That as the Ops, in this case matter did not turnout appropriately up to the satisfaction of the complainant regarding impugned withdrawal, hence allegedly there from the cause of action considered to arose.

            That the learned counsel for the complainant submitted that on 19/02/2013 at about 07.47 AM, the complainant himself had withdrawn a sum of Rs.01,500.00, but all of a sudden at about 07.50 AM, one message was received by him to the effect that a sum of Rs.20,000.00 has been debited from his account. That for the proper redressal of the illegal withdrawal, the complainant has brought the matter in to the knowledge of OPs, also lodged an FIR before Soro Police Station so also intimated the matter to the Superintendent of Police, Balasore. The complainant in addition to the above had also lodged a complaint before the learned Banking Ombudsman, Bhubaneswar, but the learned Banking Ombudsman closed the matter without any basis, by expressing their limitation. Hence, as the claim of the complainant in question, could not be rectified / removed / sorted out, although after several letters, reminders, lastly the complainant got rejected. Hence it is determined that the present case filled is within the permitted scope of the C.P Act, hence it is maintainable under this Act.

            That to arrive at conclusion, whether, there is any deficiency on the part of the O.Ps & relief as may be entitled to the complainant, the following points, as stated by the complainant, are to be addressed collectively in pursuance to the documentary evidence as submitted. They are as under:-

            That the Section 2 (42) C.P.A.-19, deals with the definition of “Service” which means “Service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”. That in this context the Ops are Banking Concern as a service provider and the Complainant is a service recipient of it.

            Similarly, Section 2 (11) C.P.A.-19 deals with definition of “deficiency” which means “any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to performed by a person in pursuance of a contract or otherwise in relation to any service”.

            In the present case, it is to examine, along with above parameter, as to whether any fault, imperfection, shortcoming or inadequacy in the performance of service by the O.Ps-Bank which otherwise tantamount to deficiency of service within the meaning of Rule 2(g) of the Consumer Protection (CDRC) Rules, 2020.

            The, learned counsel for the contesting OPs has submitted that the process of ATM transaction is a technical matter made on electronic system. At the time of issuing of ATM card to the complainant, the concerned Bank has also supplied the User Guide containing terms and conditions for handling the ATM card. At the time of withdrawal of money from the ATM, one has to insert ATM card and PIN should be used simultaneously. It is further submitted that there are two numbers of ATM machines situates side by side at Uttareswar, Soro, Balasore. In the present case, it is the claim of the Ld. Counsel of the OPs is that, the complainant might have used both the ATMs for withdrawal of Rs.01, 500.00 from ON SITE ATM-I at 07.46 AM on 19/02/2013 and thereafter used the ON SITE ATM-II situated at the same place at 07.49 AM for withdrawal of Rs.20, 000.00 and it is so evident from the E.J. Log Book of transaction No.5258 and 3219 (Annexure-1). There is also no excess cash as revealed from “No excess cash certificate” on the relevant date (Annexure-2). There is also “No machine breakdown / Hardware problem” reported on that day (Annexure-3). The complainant has suppressed the material fact that he has ever received any message with regard to his first transactions. Moreover, the Bank has the authority to debit & credit the designated account of the card holders for all withdrawals and payment effected by the card holders by using the card. Further, in respect of the ATM transactions, debits and credits of the amount in the account through ATM are all system generated transactions made by the ATM account holder only as per operation in the ATM followed by the Confidential Password with much care and caution. Hence it is alleged by the counsel for OPs that the complainant has used his ATM card “twice” on the relevant date from two ATM machines situated side by side at the same place at Uttareswar, Soro within three minutes interval and withdrawn both the amount Rs.01,500.00 and Rs.20,000.00.

            That from the above rival submissions as advanced by both the parties, first of all it is to be threshed out whether the complainant has withdrawn Rs.01,500.00 on 19/02/2013 at about 07.47 AM or not. In this respect, Annexure-4, the photocopy of statement of transactions made in the account pass book of the complainant, it reveals that Rs.01, 500.00 was withdrawn from the ATM, SBI, Soro ON-SITE. Before withdrawal of the above amount, the balance in the account of the complainant was Rs.33, 761.00 and after withdrawal it became Rs.31, 761.00. On the other hand, the Ops have not challenged that the complainant has not withdrawn Rs.01, 500.00 at the relevant time on the alleged day. In this regard, Annexure-B shows that an amount of Rs.01, 500.00 has been withdrawn from the account of the complainant vide Transaction No.5258 on 19/02/2013 at about 07.46 AM and the available balance was Rs.31, 761.00, which gives ample corroboration from Annexure-4. The difference of one minute time is not a matter to disbelieve with regard to the transaction.   

            But the main crux of the fact that on the relevant day, the complainant, as stated, has not at all withdrawn Rs.20,000.00 from his account, rather on withdrawal of Rs.01,500.00 at about 07.47 AM, suddenly at about 07.50 AM he has received one message that a sum of Rs.20,000.00 has been debited from his account. That annexure-4 further reveals that an amount of Rs.20, 000.00 has been debited from the account of the complainant on the same day from the ATM, SBI, Soro ON-SITE-II. In this connection, Ops have stated that there are two ATM machines bearing ATM No.S10A00798001 & ATM No.S10B007980003 situate side by side at Uttareswar, Soro. The complainant might have withdrawn Rs.01, 500.00 from the on-site ATM-I at 07.46 AM on 19/02/2013 and thereafter withdrawn Rs.20, 000.00 from the on-site ATM-II situated at the same place at 07.49 AM. In this context, Annexure-A, the copy of E.J. Log Book of transaction, shows that at about 07.49 AM an amount of Rs.20,000.00 was withdrawn from the account of the complainant  on the same day vide Transaction No.3219 by using the same ATM card bearing No.6220180001600270423, which fact is also corroborated from the document produced by the complainant vide Annexure-11. Annexure-E, the summary ATM weblogs, shows that on the relevant day at 07.49.13 AM, an amount of Rs.20, 000.00 was withdrawn from the account of the complainant by using the same ATM card from on-site ATM-II, that too with the same Transaction Number.

            The complainant claimed that on the same day he had appraised the matter before the Bank Authority to which they did not listen, rather, they have stated that the transaction in question was a successful one. It is not out of place to mention here that debit cards play a crucial role in modern economy, enhancing convenience in speed of today’s payments system. Now a days even a beggar use the ATM / Debit card to make the payments easier and convenient. Simultaneously, fraudulent transactions are being rampant in the society; where desired money is not coming out from the ATM but message of debiting the amount from the account is received. In some instances one cannot withdraw any amount from his account by using the card, but message coming to the registered mobile that huge amount is shown to have been debited from his account either by purchasing goods and / or cash withdrawals. To protect the rights of the customers from such type of fraudulent transactions, Banks have fixed CCTV in all the ATM counters all over the country. When a customer complains before the Bank Authority that he / she has not withdrawn any amount from his / her account through the electronic process but message in his cell phone shown to have been debited some amount from his account, at that time, responsibility casts upon the Bank Authority to satisfy the customers that transaction has been made by the customer him / her self and the transaction was successful by showing the visual documentary proof in the shape of the footage of the CCTV recording. But, in the present case, when the complainant complained before the OP No.1 that an amount of Rs.20, 000/- has been debited from his account fraudulently on 19/02/2013 which he has not withdrawn, at that time, it was the prime duty of the OP No.1 to satisfy the complainant & itself (OP-1) by showing / verifying the proof either by proper documentary evidence or CCTV footage of that time frame, that he has personally withdrawn the amount from the alleged ATM or otherwise as alleged on the same day. But the OP No.1 has not examine the footage of the CCTV nor placed any satisfying documentary evidence before the complainant to show that he has personally withdrawn the amount in question from the ATM or by any other means, rather, blatantly stated that the transaction was successful.   

            On the other hand, OP No.1 has produced the letter dated 18/04/2013 vide Annexure-C wherein it has been mentioned that the transaction No.3219 dated 19/02/2013 is a successful transaction and as per branch ATM replenishment-cum–cash verification records no excess amount of cash is found on dated 19/02/2013 in the ATM S10B007980003. In the Annexure-C, OP No.1 has not provide the details of the amount i.e. total amount and the denomination of the currency note placed in the ATM S10B007980003 so also the total withdrawal of amount by the account holders on the very day so that it can be presumed that on 19/02/2013 the amount of loaded currency note in the ATM in question has been exhausted. Thus, Annexure-C does not give ample corroboration to the case of the Ops. Similarly, Annexure-D, the letter dated 30/04/2013 addressed to the Secretary, O/o The Banking Ombudsman, Reserve Bank of India, produced on behalf of the OP No.1, speaks itself that the disputed ATM transaction was successful one and it was advised that no hardware error was reported in respect of the disputed transaction at the ATM on that day. In this connection, OP No.1 has not placed any document to show that he is a technical expert who can assess the error in the ATM hardware. OP No.1 has also not produced any document to satisfy this Commission under what circumstances or basis he has reported that no hardware error was noticed in the ATM in question. Thus, it cannot be said that the document vide Annexure-D is free from any doubt.

            That to substantiate its stand, the OP-1, has submitted a case citation of Hon’ble NCDRC, 2017(1) CPR 508 (NC), wherein there is allegation of misappropriations of funds due to some technical fault; i.e. “Transaction Failure but Debited from Account”. That in this case matter Hon’ble NCDRC has turn down the allegation on the basis that during the whole process of ATM operation the complainant was “physically present” over there. Hence Hon’ble NCDRC proceeded to believe that, as the fund has been debited and the complainant was present, the debited fund must have been received by the complainant.

            That this commission upon meticulous perusal of the placed citation vis-a-vis the present case matter is unable to relay, for the following reason. That in this instant case matter, the instant complainant claimed that he was “away from the said ATM counter” at the time of incident; for which he was unaware of the happenings in the ATM chamber.

            That in furtherance, this commission concluded that the Ops have not come up with a clean hand, upon establishing with any evidence which is “third Party / Independent / Impartial”, which the complainant has referred several occasions, i.e. C.C. TV. Footage, to assertion the truthiness of the matter. This commission is of strong belief that, this CCTV “aspect” was not placed before Hon’ble NCDRC in the case of 2017(1) CPR 508 (NC), for which it could not be included / discussed in the placed citation.    

            That it is an admitted and accepted fact that, Banks owe a duty to protect the interest of the customers’ financial assets, by arranging sufficient security measures, as it derives profitable income in the shape if Interest out of customers fund available with it. Hence upon the above described context & situation, this Commission proceeds to relay upon the following citation. In this above connection, Hon’ble NCDRC in the case of “SBI v. Sansar Chand Kapoor reported in (2015) CPJ-135” have been pleased to observed that –

“It is an admitted case that CCTV recording was provided by the respondent No.2-Punjab National Bank to the petitioner State Bank of India but despite request of the complainant a copy of the said video footage was not provided to him. Though according to the petitioner bank the said video footage was shown to the complainant and his son-in-law when they visited the bank, that in our opinion would not be sufficient and considering the fraudulent withdrawal claimed by the complainant the bank ought to have made available a copy of the aforesaid CCTV footage to the complainant. The petitioner bank, therefore, was deficient in rendering services to the complainant, by not making available a copy of the aforesaid CCTV footage to him.”

            Therefore, basing upon the aforesaid state of affairs, payment of unauthorised withdrawal and compensation as claimed by the complainants is squarely covered by the expression “service” and “deficiency of services”. Thus, taking into consideration the factual matrix and position of law via-a-vis matters of present case matter, it cannot be said that the complainants have contributed any wrong at any point of time towards the apparent fault, imperfection, shortcomings or inadequacy in the performance of service by the OP more particularly when the OP has intentionally withheld the presentation of CCTV footage before this Commission and to resist the claim of the complainant. Thus, deficiency in service is clearly attributed to, against the OP. From the above discussions, this Commission is of the unanimous considered opinion that the complainant is rightfully entitled to the reliefs, as claimed in their complaint petition. 

            Having regards to our finding reflected above, the Complaint petition is allowed and the appearing & “ex-parte” O.Ps are hereby set liable.

            So, now upon careful consideration of all the materials available in the case record vis-a-vis submission made by complainant, this Commission is of the unanimous opinion that the O.Ps have not adjudicated the dispute properly before the Commission. That from the above analysis made in the foregoing paragraphs and the ratio decided by the Hon’ble NCDRC, it is held that the Ops are guilty in “deficiency in service”. There is no solution arrived by the appearing & ex-parte O.Ps for the loss sustained / suffered by the Complainant incurring out of deficiency on the part of O.Ps, which legally termed as deficiency-in-service by the O.Ps. Therefore, the complainant reserves the right to be entitled to get the relief as sought for.

            Hence, it is ordered –

O   R   D   E   R

            Having regard to the judgement reflected above, the Complaint Petition of the instant Complainant bears merit and hence allowed on contest against the OP No.1 and on ex parte against OP No.2 & 3. That this Commission is of the unanimous opinion that there is a gross deficiency on the part of the O.Ps. Hence, the O.Ps are hereby set liable, both jointly & severally for their gross deficiency of service. Hence all the O.Ps, are hereby directed to:-

1. To pay / re-pay / refund / credit the alleged withdrawn sum of Rs 20, 000/- (Rupees Twenty Thousand) only to its bank account bearing number: 31746603080.
2. To pay to the complainant a sum of Rs.07, 000/- (Rupees Seven thousand) only, for compensation and mental agony as suffered by the complainant along with interest @ 9.00% P.A. from date of cause of action (15/05/2015), till date of actual payment, for harassment & delay release of funds and deficiency in service.
3. To pay to the complainant a sum of Rs. 05, 000/- (Rupees Five thousand) only, for litigation expenses.
4. That delay in compliance of this order, for both the O.Ps, shall carry fine of Rs.500/- (Rupees Five hundred) only, per day, payable by the defaulter O.Ps to the complainant.

            All the aforesaid amounts will be paid by the O.Ps to the complainant within 45 days from the date of receipt of this order.

            That deferment in any manner / mode / reason / step for compliance of this order, all the O.Ps, shall carry an additional fine of Rs.250/- (Rupees Two hundred Fifty) only, per day and an additional interest of @ 12.00% P.M., upon Order No. 1 to 3, payable by the defaulter O.Ps to the complainant.

            In case of failure by any of the O.Ps to comply any of the orders as above mentioned, within the aforesaid stipulated time frame, the Complainant is at liberty to realize the same in the shape of cash, kind and / or in any other mode as afore mentioned, from the O.Ps as per the prevailing law.

            Pronounced in the open Court of this Commission on this day i.e. the 29th day of January, 2024 given under my Signature & Seal of the commission.