Date of Filing: 08.10.2013 Date of Final Order: 17.03.2015
The case of the complainant, Dhilan Kr. Ukil is that on 24-01-2013 he went to Kolkata for his treatment regarding cardiac problem. There he tried to withdrawn money through the ATM but did not get money due to mechanical fault of ATM machine. Thereafter he return back to Dinhata and went to S.B.I., Dinhata Branch and updated his pass book being No.11262725245 and came to know that Rs.28,000/- was withdrawn from his said account and he suspected that any unknown person illegally withdrawn said money from his bank account. He informed the matter to the Assistant Director, Consumer Affairs and Business Practice on 20-06-2013 but in vain. He again informed the matter to the Branch Manager, S.B.I., Dinhata Branch but no consequence.
Hence, the case claiming of Rs.28,000/- as lost money, Rs.1,100/- as travelling Expenses and Rs.25,000/- as compensation for harassment, Totaling Rs.54,100/-.
The O.P, S.B.I., Dinhata Branch has contested the case by filing W/V denying all material allegation of the complaint contending inter-alia the case is not maintainable and the complainant has no cause of action to bring the case.
It is the specific case of the O.Ps that the ATM card of the complainant with secret password all are kept with the complainant in his possession. The complainant on 24-01-2013 withdraw amounting to Rs.28,000/- only from his S.B.I. account being No.11262725245 through using his own S.B.I. ATM Card being No.6220180020900011089 from State Bank ATM at Mukundapur and the said transaction was successful at their end and naturally the said amount of Rs.28,000/- only debited from the savings bank account being No.11262725245 of the complainant.
After receiving the complaint (letter) from the complainant the O.P informed and forwarded the matter to the Complaint Management System and after receiving such complaint Sealdah ATM Branch response on 25-02-2013 and reply them that the said transaction was made on 24-01-2013 successful in ATM Log & Also in customer transaction and no excess cash reported by agency i.e. no excess amount was received at the respective ATM for the amount.
The original fact of the case is that the complainant on 24-01-2013 entered into the above name and place of ATM and thereafter he has also inserted his card after putting his secret PIN number and entered the amount of Rs.28,000/- only and thereafter collected the amount and leave the ATM counter, because without PIN number no one can withdraw money from the complainant’s account. Ultimately, the O.P has claimed for dismissal of the case.
In the light of the contention of the complainant, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant is a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, perused the entire documents in the record also heard the argument by the parties.
Point No.1.
Admittedly the complainant has a savings bank account being No.11262725245 in Dinhata Branch of the S.B.I. and used the said ATM Card issued by the said bank.
So it cannot be said that the complainant is not a customer under the O.P bank.
Point No.2.
The O.P, S.B.I. has branch at Dinhata within this jurisdiction of the Forum and total claim of this case is Rs.54,100/- which is far less than maximum pecuniary jurisdiction of this Forum i.e. Rs.20,00,000/-. So, this Forum has territorial as well as pecuniary jurisdiction to entertain and try the instant case.
Point No.3 & 4.
Admittedly the complainant Dhilan Kr. Ukil has a savings bank A/c No. 11262725245 with ATM facility in State Bank of India, Dinhata Branch (O.P.) and on 24-01-2013 he made an attempt to withdrawn Rs.28,000/- from the said account from ATM counter of S.B.I. situated at Mukundapur for his treatment purpose..
It is the case of the complainant that he did not get said money due to fault in ATM machine but on going to S.B.I, Dinhata Branch, he came to know that said Rs.28,000/- was withdrawn from his account and he suspected that said money was illegally withdrawn by any unknown person.
On the other hand it is the case of the O.P bank that ATM Card with secret code was kept with complainant and he has withdrawn Rs.28,000/- from the said ATM counter and said Rs.28,000/- was duly debited from his account.
It is also the further case of the O.P that on receiving complaint from the complainant the matter was sent to complaint management and Sealdah ATM branch informed that said transaction was made on 24-01-2013 and successful in ATM Log and also in customer transaction and no excess cash reported by agency i.e. no excess amount was received by said ATM counter.
Copy of the customer transaction reveals that Rs.28,000/- was successfully withdrawn from said ATM counter.
So, it is clear that by using ATM Card and secret Code of the complainant Rs.28,000/- was withdrawn from said ATM counter.
The complainant in his complaint alleged that he suspected some unknown person withdrawn said amount from his account.
During hearing of argument Ld. Advocate/Agent of the complainant submitted that to ascertain whether the present complainant used the ATM Card in question, CC-TV footage is a must, but the O.P bank did not produce any such CC-TV footage which amounts to negligence on the part of the O.P bank.
In support of his contention he cited a copy of judgement of Hon’ble State Commission, Chandigarh in 1st appeal No.1052/2009, where Hon’ble State Commission pleased to observed that the appellant also not produced CC-TV footage to prove its version that the respondent had operated the ATM machine situated in the appellant branch and not the ATM machine which is located in the Tangra Bank branch and allowed the appeal in favour of the complainant.
He cited another copy of judgement passed by Hon’ble State Commission, Chennai in FA No.1043/2011, where Hon’ble State Commission pleased to allow the appeal on the ground that the fact remains that not only there was negligence in maintaining CC-TV cameras in the ATM room but the ATM system operated by the O.P bank wrongly permitted withdrawal of amount exceeding Rs.15,000/- in one day against the rules which obviously facilitated the withdrawal of the amount fraudulently from her account.
On the other hand in his reply Ld. Advocate/Agent submitted copy of the judgement passed by Hon’ble National Commission in Revision Petition No.3182 of 2008, where Hon’ble National Commission pleased to observe that we are not convinced by this reasoning of either the District Forum or the State Commission, particularly, in view of the fact that merely because the CC-TV was not working on those dates and its footage was thus not available, does not mean that the money could be withdrawn fraudulently without using the ATM Card and the PIN Number. In case the ATM Card has been stolen or the PIN number had become known to persons other than ATM Card holder then the CC-TV coverage could have helped in identifying the persons who had fraudulently used the card. In the instant case it is not disputed that the ATM Card or PIN remained in the self-custody/knowledge of the respondent. In view of elaborate procedure evolved by the petitioner/bank to ensure that without the ATM Card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, we find it difficult to accept the respondent’s contention. No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM Card or the PIN number fell in wrong hands.
Considering over all matter in consideration and materials on record and relying upon the ruling passed by the Hon’ble National Commission we are constrained to hold that the complainant has failed to prove his case and the case is liable to be dismissed.
Accordingly, Point Nos.3 & 4 are disposed off against the complainant.
As such the case fails.
ORDER
Hence, it is ordered that,
The present Case No. DF/122/2013 be and the same is dismissed with cost of Rs.2,000/- payable by the complainant to the “State Consumer Welfare Fund”, West Bengal.
Let plain copy of this Final Order be supplied, free of cost, to the concerned parties/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
