The complainant’s case in brief is that he is a staff of RPF posted at Siliguri Junction Railway station and his Account Number with State Bank of India, S.F. Road, Siliguri is 30616505251.  On 03.09.2015 while his said Account Pass Book was updated he came to learn that on 01.09.2015 one after another four times on the same date an amount of Rs.36,066/- was withdrawn

Contd…..P/2

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from Kolkata ATM from his said account.  But on that very date that RPF personnel, Rabi Sarkar, complainant was on duty at Diesel Shade, Siliguri Junction.  On being aware of such withdrawal of said amount he approached to SBI Branch Manager to lodge a complaint there.  But Bank Manager of S.F. Road Branch, Siliguri first advised him to go to Police Station and after lodging of FIR he was told to come to bank to lodge complaint and on the basis of the same complainant lodged FIR at Pradhan Nagar Police Station.  After one week from that date complainant came to learn from Pradhan Nagar P.S. that said copy of FIR has been sent to Cyber Police Station and on 13.09.2015 Cyber Police Station informed complainant while he reached there for submission one copy of complaint at SBI branch, S.F. Road and as a result of that complainant furnished one copy of complaint to S.F. Road Branch of SBI on 15.09.2015 and received copy of Cyber Police Station was also deposited to that branch by complainant.  Subsequently, on 26.09.2015 complainant took information from Cyber Police Station, Siliguri on which they reported that investigation is on.  This case has been initiated by complainant against Bank Manager, SBI branch, Station Feeder Road as OP No.1 and OP No.2 is SBI Regional Manager, Sevoke Road, Siliguri, Darjeeling and SBI Zonal Manager, Shakespeare Sarani, Kolkata as OP No.2 & 3 respectively and OP No.4 is Officer-in-Charge, Cyber Crime Police Station, Siliguri unit, Siliguri, Darjeeling. 

It is the case of the complainant that the OPs did not help him for refund of said money and till the date of filing the case he got no refund which is intentional from the part of the OPs by which his money was misappropriated and for that reason this case has been initiated with a prayer for refund of that missing amount of Rs.36,066/- in the account of the complainant and thus prayer has been made for direction upon the OPs to that effect.  Additional compensation of Rs.20,000/- has been claimed along with litigation cost of Rs.10,000/- separately from the OPs. 

It appears from the case record that OP No.4 appears in this case on 19.04.2016 by filing a Xerox copy of identity card and prayed for time for filing authorisation on the next date but OP No.4 ultimately failed to appear with authorisation and on 22.03.2017 order was made for running of the case exparte against the OP No.4.  OP Nos.1, 2 & 3 filed written version on the same date i.e., on 22.03.2017.  It appears further from the case record that OPs had filed one application on 11.07.2016 which was rejected by the Order dated 02.03.2017.  On 01.12.2016 complainant filed one application mentioning the

Contd…..P/3

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name of Yes Bank Limited bereft of any address thereon.  It is found further from the case record that on 19.04.2017 complainant led evidence supported by an affidavit and thereafter OP Nos.1, 2 & 3 who are contesting OPs on the next date on 16.05.2017 submitted their examination-in-chief along with an affidavit as well as furnished documents.  OP Nos.1, 2 & 3 submitted written notes on argument on 30.01.2018.  Thereafter, on 07.05.2018 argument was heard from both sides in part as complainant did not file W/N/A and submitted for filing of the same as well as some original documents on the next date.  But as on the next date i.e., on 10.05.2018 none found present on behalf of the complainant though hazira was filed so, argument from OP’s side was heard in full. 

On the pleadings of the parties the following issues are framed for determination of the real question of controversy here in this case in between the parties.

1)       Is the case maintainable in its present form and nature?

2)       Is the case barred by limitation?

3)       Has there any deficiency in service on the part of the OPs?

4)      Is the complainant entitled to get any relief as prayed for?

Decision with reason

Issue Nos.1 & 2

Ld advocate for the OPs did not raise these two above issues emphatically.  However, from the materials on record it appears that the nature of the case as it has been stated is maintainable in its present form and nature and moreover, it is not barred by limitation as per relevant provision of the Consumer Protection Act, 1986 as because the cause of action of this case has arisen on 01.09.2015 and the case has been instituted on 11.01.2016.  So, both these two points are disposed in favour of the complainant.   

Issue No.3

This is the vital issue which place pivot role in this case and to consider the matter whether the OPs have been in deficiency in service or not.  We, have gone through meticulously the papers and documents on record and especially the facts and circumstances of the case as those are reflected in the complaint as well as in the written version including the evidences of the parties as produced before this Forum along with affidavits.  In this context, the written

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notes on arguments are also looked into for proper adjudication of this case.  At the time of argument as put forward orally by the ld advocate for the complainant it is submitted that OP-SBI Bank who are OP Nos.1, 2 & 3 remained very much negligent about the allegation of the complainant from the very beginning about the matter of four times’’ total withdrawal of money from ATM in Kolkata and they did not give importance over such loss of the complainant and thus OP-Bank is liable for deficiency in service from their part.  Ld advocate on behalf of the OP-Bank, on the other hand submitted that complainant withdrew money from his account of SBI bank branch, 161, Station Feeder Road, Dist.- Darjeeling on 01.09.2015 four times amounting Rs.36,066/- by operating his ATM card at Amahar Street through machine no.52442 of Yes Bank Ltd., Amahar Street, Kolkata and through any ATM machine of State Bank of India.  It is further submitted that Yes Bank Ltd. is a necessary party to this case which has not been impleaded so by the complainant.

During argument ld advocate for the OPs has referred one judgement of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in between State Bank of India Vs K. K. Bhalla as reported in II (2011) CPJ 106 (NC) and ld advocate drew the attention of the Forum with the underlying principle as laid down therein as this present case is very much similar to the facts and circumstances of that referred case.

After hearing both sides over the instant issue we have scanned the relevant materials on case record.  It is pertinent to note here that complainant once filed one application for making Yes Bank Ltd. a party to this case, but that petition was not pressed subsequently by the complainant.  There is no doubt in it that through ATM machine on 01.09.2015 by operating ATM card a sum of Rs.36,066/- were withdrawn from the Account of the complainant which is lying with the SBI branch of S. F. Road situated within the jurisdiction of this Forum.  But the ATM machine wherefrom such amount was withdrawn is in Kolkata at Amahar Street which is of Yes Bank Ltd situated there.  It is in common thinking that four digit identification number (PIN) of ATM card having its own number are for personal use secluded from others.  For operation of said ATM card identification number attached to that ATM card is required to be known to others and the presence of that particular ATM card is also required at a time for withdrawal of money from any ATM machine.  There is no whisper as regards matter of missing/theft or pick pocketing of ATM card

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from the possession of the complainant or ATM card holder here in this case.  Had that been so there must would have some information to Police Station in the form of General Diary which is not the case here. 

In this context the referred case law as mentioned above is very much similar to this present case in its facts and circumstances.  It has been enshrined from the observation of that referred case as passed by Hon’ble NCDRC, New Delhi that where is the utility of CCTV footage and on this backdrop in this instant case also the matter of CCTV footage and production of the same before this Forum has become meaningless.  The ATM card and use of that ATM card where it has been operated through which ATM machine for withdrawal of money is truly a matter to be looked into with importance but under the facts and circumstances of this case while it is found and established that such ATM card did belong to the complainant and complainant is the person under whose custody only the identification number (PIN) for operation of that ATM card has been there then there is no justification to involve the OP-Bank in the matter of deficiency in service towards the complainant.  This issue is thus disposed of against the complainant. 

Issue No.4

Foregoing negative findings over the vital issue of deficiency in service as run against the complainant, so, we are to conclude that complainant’s case fails in its entirety and accordingly, liable to be dismissed. 

All the issues are thus disposed of and the instant complaint fails. 

Proper fee paid. 

Hence, it is,

                     O R D E R E D

that the instant being Consumer Case No.3/S/2016 be and the same is dismissed on contest against the OPs.  No order as to cost.

A copy of the order be given to the parties free of cost.