District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 79/2022.
Date of Institution:10.2.2022.
Date of Order:24.04.2023.
Smt. Shashi Lata W/o Sh. Sant Lal R/o H.No. 2175, Sector-3, Ballabgarh, Distt. Faridabad Aadhar card No. 3106 7957 1526.
…….Complainant……..
Versus
1. State Bank of India, HUDA Market, Sector-3, Faridabad branch through its Branch Manager.
2. Punjab National Bank, Ballabgarh Branch Distt. Faridabad through its Branch Manager.
…Opposite parties
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Avinash Kumar , counsel for the complainant.
Kunwar Surender Singh, counsel for Opposite party No.1.
Sh. Amit Bhalla , counsel for opposite party No.2.
ORDER:
The facts in brief of the complaint are that the complainant was the holder of Saving Bank Account No. 30093217660 with opposite party No.1. The complainant was also the holder of one ATM card of the opposite party No.1 to withdraw the amount from her account through ATM card. The complainant was an old aged lady of 60 years above and always remain sick due to suffering from various diseases of old age, hence, she was unable to operate her above said bank account and her husband always maintain the said bank account as well as ATM card of the complainant with the prior consent and permission of the complainant. On 09.01.2022, there was urgent need of funds for repairing of house, hence, the husband of the complainant had gone to the ATM of State Bank of India, situated at Near Tagore School, Sector-3, Ballabgarh, Distt. Faridabad for withdrwal of the amount and withdrawn a swum of Rs.5,000/- from the said ATM. The husband of the complainant had noted that no security guard was available on said ATM booth. When the husband of the complainant was withdrawing his ATM card from ATM machine after completing the transaction, in the mean time two unknown persons had reached in the said ATM booth and changed the ATM card of the complainant from the husband of the complainant by misguiding him. When the husband of the complainant had reached in his house and handover the ATM card to the complainant in the meantime it had come to the notice of the husband of the complainant that ATM card had been changed. The husband of the complainant immediately informed at Customer Care Number of opposite party No.1 prior to this several messages of withdrawl of the amount of Rs.10,000/- in three times and Rs.5000/- one time from the ATM of the opposite party No.2,
which was situated at Sihi Gate, Ballabagarh, Distt. Faridabad. Thereafter the husband of the complainant made a complaint in this regard to P.P. Sector-3, Ballabgarh, Distt. Faridabad vide Diary No. 294-5P-II dated 09.1.2022. On the very next day i.e.10.01.2022 the husband of the complainant had intimated in this regard to the opposite party No.1 as on 09.01.2022 it was holiday of the bank due to weekly off. Thereafter the opposite party No.1 had taken the footage of above said ATM from their head office, Faridabad. The complainant many times requested the opposite parties to return her amount of Rs.35,000/- as the said amount was very essential for the livelihood of the complainant and her family members as the complainant and her husband were senior citizen and having no source of income and they were spending their life on their savings.The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) pay Rs.35,000/- alongwith interest @ 24% p.a. from the date of withdrawl of the said amount i.e. on 07.01.2022 till its actual final realization.
b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 21,000 /-as litigation expenses.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the complainant had not came with clean hands before this Hon’ble Forum and had suppressed the true & actual facts she herself was liable for her negligent act as she herself given opportunity to third person for exchange her ATM card and knowingly or unknowing provide time & opportunity to know
pin code of her ATM. ATM was not used in SBI ATM but the amount was withdrawn from the ATM of Punjab National Bank Ballabagarh, for which the reply opposite party was not liable. Opposite party No.1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant and submitted that the complainant himself was not vigilant in handling his ATM card and was easily hoodwinked by the fraudsters who, as stated by the complainant, changed his ATM card and thereafter withdrawn money form his account by using the same. The complainant could not be allowed to take advantage of his own wrong and negligence by making baseless and unsubstantiated allegations against the replying opposite party. The complainant had acted in a most negligent and imprudent manner while using his ATM card and easily allowed the same to be changed by the fraudsters. Even thereafter he did not pursue the police authorities for registration of FIR against the fraudsters due to which neither fraudsters could be arrested nor his money could be recovered. Opposite party No.2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against
opposite parties–State Bank of India with the prayer to: a) pay Rs.35,000/- alongwith interet @ 24% p.a. from the date of withdrawl of the said amount i.e. on 07.01.2022 till its actual final realization. b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 21,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.C1/A –affidavit of Smt. Shashi Lata, Ex.C-1 - letter dated 09.01.2022,, Ex.C-2 & 3– Covering page of passbook, Ex.C-4 & 5 – wardsap message, Ex.C-6 – adhaar card, Ex.C-7 – Adhar card, Ex.C-8 to 11– OPD card,, Ex.C-12 - prescription, Ex.C-13 – Discharge summary, Ex.C-14 – envelop.
On the other hand counsel for the opposite party No.1 strongly agitated and opposed. As per the evidence of the opposite party No.1 affidavit Ex.RW-1/1 – Umesh Punjani Branch, Manager, State Bank of India, HUDA Market, Sector-3, Faridabad, Haryana.
Opposite party No.2 led in his evidence Ex.R1/1 – affidavit of Anu Agrawal, Chief Manager, Punjab National Bank, Mohna Road, Ballabgarh, Distt. Faridabad, Haryana,
6. In this case, the complaint was filed with the prayer of pay Rs.35,000/- alongwith interet @ 24% p.a. from the date of withdrawl of the said amount i.e. on 07.01.2022 till its actual final realization.
7. After going through the evidence led by the complainant as well as the opposite party, in this case Ms. Shashi Lata who is the complainant is not the user of ATM card. ATM card was used by the husband of the complainant and
during using of ATM card was exchanged by somebody else. During the course of arguments, the counsel for the complainant has placed on record the State Bank of India compensation Policy.
As per Compensation Policy:
4.6.2 Limited Lkiability of a Customer:
b. Limited liability of a Customer:
i) In cases where the loss is due to negligenc eby a customer , such as where he has share dthe payment credentials, the customer will bear the entire loss untill he reports the unauthorised transaction to the bank. Any loss occurring after the reporting of the unauthorised transaction shall be borne by the bank.
The Compensation policy against the complainant.
The counsel for the complainant has also placed on record the MACA No. 1433/2010 & 1952/2010 against the award in OPMV 28/2008 dated 30.01.2010 of Motor Accident Claims Tribunal Tirur passed by the Hon’ble High Court of Kerala at Eranakulam which was decided on 16th march, 2021.
Ratio of these MACAs are not applicable to the facts of the present case.
The counsel for the complainant argued at length that there was no security guard and 3 & 4 persons entered and forcibly exchanged the ATM card. No complaint was filed to the police. As per the RBI instructions that ATM card was not transferable and the husband of the complainant was using the ATM. It shows that the complainant herself is not aware to RBI instructions. As per the allegations the
complainant did not file any complaint to the police or other higher authorities as per evidence. Hence, no deficiency in service on the part of the opposite party has been proved. Resultantly, the complaint is dismissed. Copy of this order be sent to the parties concerned free of costs.
Announced on:24.04.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
