Brief fact of this case:-  This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant stating that the complainant have one S.B account and one S.B. pension account and another one pension account of his wife at opposite party bank. On 18.7.2017 the complainant have received a mobile phone call who identified himself Bank Mangaer, SBI Sheoraphuly branch and told him to attend at the SBI, Sheoraphuly branch on 20.7.2017 and also asked him to change his old ATM card and told him the few numbers of the ATM card (the number is 6220180776900043033) and they drew Rs. 39,000/- from his S.B. account no. 10357308481 and the same way they drew Rs. 1000/- from his S.B. pension account no. 10357384305 and the card no. is 5103720115624403 and the same way they drew Rs. 1200/- from his wife’s S.B. pension account no. 10357380956 and told him that there is no sufficient fund in their pension account and these should be enhanced. When he came to realize after updating the S.B. account that Rs. 41,200/- have been looted from their account he immediately lodged a F.I.R./ G.D. at Serampore P.S. on 18.7.2017 and on 19.7.2017 he have submitted in writing the complaint to Branch Manager, SBI, Sheoraphuly branch. Then immediately the branch manager blocked his three numbers ATM cards. After a few days Serampore P.S. informed him over telephone that only Rs. 51/- has been recovered and the process is going on but still now he have not been informed anything from the P.S. and whereabouts of the cases. After few days later when he went to the office of the Cybercrime, Bhowanibhaban, Kolkata but they told him that it has been too late and refused to take his papers. Then he also attended the office at Lalbazar, Bank Fraud they heard his prayer and put on their office record. Then he also went to Zonal office of SBI at Shibpur, Howrah but they did not response to his prayer.

Complainant filed the complaint petition praying direction upon the opposite party to pay sum of Rs. 41,200/- with interest and to pay a sum of Rs. 10,000/- for mental harassment and to pay a sum of Rs. 5000/- as litigation cost.

Defense Case:- The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him. It is the specific case of the opposite party side that this case is not maintainable in the eye of law and there is no cause of action and this case is barred by limitation and this Forum has no territorial or pecuniary jurisdiction to try this case. It has also been pointed out that the State Bank of India regularly send messages, circulate awareness notifications, statutory warnings to its customers in all media regarding fraudulent activities and/ or practices and/ or phishing attacks done by fraudsters. State bank or any of its representatives never sends any email/ SMS or calls over phone to get personal information, password or one time SMS (high security) passwords. Any such e-mail/ SMS or phone call is an attempt to fraudulently withdraw money from his account through internet/ digital banking. It also advices never to respond to any such email/ SMS or phone calls. It is also advices to its customers to please report immediately if someone receives any such email/SMS or phone calls. But the complainant ignoring such advices of the State Bank and shared his so called ATM card nos. with callers and thereby indulged in the fraudulent activities of the cyber criminals. The opposite party has diligently done its duty and has carried out its responsibilities by immediately blocking any such ATM cards which has also been categorically admitted by the complainant. During any pending police investigation in any matter no court, Judicial forum and/ or authority has any power, under the law of the land to interfere with such investigation and the alleged action has been done by the complainant’s irresponsible and negligent nature so, the opposite party have no liability. For all these reasons opposite party side has prayed for dismissing this case with heavy cost.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss elaborately.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have been emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have contested this case but no separate M.A. application has been filed due to the reason best known to him. Under this position this District Commission has passed the order of proceeding further hearing of this case. On this background it is also mentionworthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Baidyapara, P.S. Serampore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also territorial and pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite party which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite party. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to this provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite party and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite party. Thus, the above noted three points of consideration are decided in favour of the complainant.

Decision in respect of point nos. 4 and 5: The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite party or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted question there is necessity of scanning the evidence on affidavit filed by the parties and also there is necessity of making scrutiny of the documents filed by the parties of this case. Regarding this matter after going through the evidence on affidavit on record and documents filed in this case it appears that on the following points, the parties of this case have not raised any objection;-

1. There is no dispute over the issue that the complainant and his wife have their accounts in the SBI Sheoraphuly Branch who is the op of this case.
2. It is also admitted position that in respect of those accounts of complainant and his wife the opposite party have issued ATM cards in favour of the complainant and his wife.
3. It is also admitted fact that the said ATM cards and accounts of the complainant and his wife were in active condition prior to the filing of this complaint case and the complainant and his wife used to operate the said account and ATM cards without any interruption / disruption before initiation of this complaint case.
4. There is no controversy over the issue that on 18.7.2017 the complainant received a phone call from mobile ph no. 8294698706 and the person who was making the telephone call identified himself as bank manager of SBI Sheoraphuly Branch.
5. It has not been denied by the parties that after the receiving of the said telephone call Rs. 39,000/-, Rs. 1000/- and Rs. 1200/- respectively had been taken away from the accounts/ ATM cards of the complainant and his wife.
6. It is admitted fact that the complainant and his wife have not yet received back the above noted amount in their accounts which are lying in the SBI Sheoraphuly Branch who is the opposite party of this case.
7. It is also admitted fact that after occurrence of the incident of taking away of the above noted amount of money from the accounts of the complainant and his wife, the complainant lodged FIR/ diary at Serampore Police station and police authority of Serampore Police Station started enquiry in connection with the above noted incident.

8. It has not been controverted by the parties that after the initiation of the police case police authority informed the complainant that Rs. 51/- only have been returned in the account of the complainant and his wife.
9. There is no dispute over the issue that the police authority of Serampore Police Station have not yet completed the investigation/ enquiry in connection with the above noted incident.
10.  There is no controversy over the issue that the complainant after the occurrence of the incident of taking away the above noted amount of money from their accounts also tried to take help of the Cyber Crime Section of Bhawani Bhavan and also of the police authority of Lalbazar but without getting any result.
11.  The bank authority (op of this case) immediately after receiving the intimation of the said incident blocked the account numbers and ATM cards of the complainant and his wife.

On the background of the above noted series of admitted/ non disputed facts and circumstances it is important to note that the main point of difference and/ or apple of discord between the parties is that complainant is claiming that due to deficiency of service on the part of the opposite party, bank the amount of Rs. 41,200/- has been looted from their accounts lying in the SBI Sheoraphuly Branch and it has not yet been refunded. But on the other hand, the opposite party, bank is adopting the plea that due to negligent activities of the complainant the said incident of taking away of the amount of Rs. 41200/- has been occurred and the SBI authority is always circulating the fact of not disclosure of any account number/ any ATM card no or PIN no to any person but the complainant has not paid any heed to the appeal of bank authority and for all these reasons bank is not at all responsible for the incident of taking away of Rs. 41,200/- from the accounts of complainant and his wife.

Regarding the above noted question and/ or factor it is very important to note that this District Commission after making scrutiny of the evidence of affidavit filed by the parties and also after examining the documents which have been filed by the parties of this case finds that the complainant has proved the case that the amount of Rs. 41200/- has been taken away from the accounts of the complainant and his wife. It is also important to note that the SBI authority who is the opposite party of this case have also not produced any documents to show that the mobile ph no. 8294698706 is not at all connected with the bank manager or other members of SBI Sheoraphuly Branch. This factor is clearly indicating that the opposite party, bank authority has not discharged their onus of proving that the telephone call which is received by the complainant is not made by the bank authority. This vital matter is clearly indicating that there is gross violation of service on the part of the opposite party, bank authority. Over this issue the definition of expression “service” in Section 2 (O) of Consumer Protection Act, 1986 was wide enough to comprehend services of every description and the District Forum has the jurisdiction to entertain and try such compliant. This legal principle laid down by the Hon’ble Apex Court and it is reported in 2022(2) CPR 249 (SC). Thus it is crystal clear that the service provided by the opposite party, bank authority is not at all proper and it clearly indicates that there is deficiency in service and so the complainant is entitled to get the relief which has been described in points of consideration nos. 4 and 5 of this case.

Thus, the above noted two points of consideration are also decided in favour of the complainant and it is held that the complainant is entitled to get refund of Rs. 41200/- from SBI Sheoraphuly Branch, who is the opposite party of this case and complainant is also entitled to get compensation on the ground of mental harassment of Rs. 5000/- and the complainant is further entitled to get litigation cost of Rs.. 5000/- from the SBI Sheoraphuly Branch, who is the opposite party of this case.

In the result it is accordingly

ordered

that the complaint case being no. 41 of 2018 be and the same is allowed on contest but in part.

It is held that the complainant is entitled to get refund of Rs. 41,200/- and the complainant is also entitled to get Rs. 5000/- as compensation for mental harassment on the part of the opposite party and the complainant is further entitled to get litigation cost of Rs. 5000/- from opposite party, bank.

            Opposite party is directed to pay the said amount of Rs. 51,200/- within 2 months from the date of this order otherwise complainant is given liberty to execute the order as per law.

In the event of failure to comply with the order the opposite party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 60 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties or their ld. Advocates/Agents on record by hand under proper acknowledgement or sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.