This case has arisen out of application U/s 35 of the Consumer Protection Act, 2019.
The case of the complainant is that as an holder of SB A/c No:33469173034 she took loan of Rs.40,000/- from S.B.I, Itahar Branch on depositing/mortgaging a cash certificate of Rs.55,000/- & on 01.07.2019 the balance amount in her SB account was shown Rs.66,447.72. She came to the bank on 15.07.2019 to repay the loan and on enquiry she came to know that Rs.20,000/- + 20,000/- + 20,000/- + 6,000/- total Rs.66,000/- has already been withdrawn through ATM card vide No:5103720260452451 on 01.07.2019 & 02.07.2019. She told O.P.No:2 that her ATM Card is permitted to withdrawal only Rs.20,000/- per day and there is no scope to withdraw Rs.60,000/- in one day & that she did not withdraw any money through her ATM Card in between 01.07.2019 to 15.07.2019. So the complainant and her husband requested O.P.No:2 to return the money withdrawn from her account who assured her to return it within 03 months.
That she lodged a written complaint before the OC, Itahar P.S, registered as Itahar P.S GDE No:533, dated 15.07.2019. Thereafter she always contacted the O.P.No:2 but no fruitful result comes out. On 25.07.2019 she lodged another written complaint to O.P.No:1 & 2 stating all facts and requested Branch Manager to collect CCTV footage of the said date when incident taken place. Due to Covid-19 no news would be collected and in August, 2020 the complainant and her husband contacted the Branch Manager & came to know that O.P.No:2 was transferred to another Branch, so they explained present Branch Manager about the incident and O.P.No:1 made it clear that the complainant would not receive any amount. She prays for direction to O.Ps to pay Rs.66,000/- with interest @10& p.a from the date of withdrawal, compensation of Rs.20,000/- for harassment and mental pain & litigation cost of Rs.5,000/-.
O.Ps contested the case by filing W.V denying the case of the complainant stating that the complainant on 16.07.2019 came to the SBI, Itahar Branch and filed an application wherein she alleged that she never withdraws any amount from her A/c No:33469173034 through her ATM Card so requested to refund the amount. The Bank Authority gone through the records and found that on 01.07.2019 by 04 transaction through ATM Card of the petitioner total amount of Rs.66,000/- was withdrawn from her savings account. On verification it further reveals that the messages of said withdrawal delivered in her mobile account No:919153609325 on 01.07.2019 at 16:37:13, 16:36:23 & 16:33:43 respectively and on 02.07.2019 at 07:13:06. In spite of receiving said messages the complainant remain silent and did not made any complaint before any authority long 15 days. Receiving the said complaint, the Bank Authority immediately lodged complaint online accompanied by “Card Holder declaration-cum-complaint (Annexure A1), necessary information for dispute international ATM and domestic & International point of sale/e-commerce transaction (Annexure A2) and recommendation of Branch Manager (Annexure-B)” before the AGM (ATM) at LHO Department. The said complain has not yet been finalized but she in order to un lawful gain made this complaint against the O.Ps on false grounds only to avoid her liabilities. They pray for dismissal of the case.
Points for consideration
- Whether there was/ is any deficiency in service on the part of the O.P(s)/Bank which gives rise cause of action to file the case?
- Whether the complainant is entitled to get relief (s) as prayed for?
D e c i s i o n w i t h r e a s o n s
Admittedly, the complainant is the holder of savings bank A/c No:33469173034 with S.B.I, Itahar Branch /O.P.No:1 & Dipankar Kundu/O.P.No:2 was the then Branch Manager of the bank.
It is not disputed that complainant took loan of Rs.40,000/- from O.P.No:1/Bank which was credited to her above mentioned savings bank A/c on 01.07.2019 (Journal No:102470660) BY TRANSFER, showing current balance 66,447.72 CR.
The complainant’s case as to mortgage of her cash certificate for securing that loan is not relevant in this case.
The complainant mentioned her ATM Card, issued by the Bank Authority, vide No:5103720260452451 with permissible withdrawal limit of Rs.20,000/- only per day. She did not disclose the class of said card viz Visa Card, Master Card, Rupay Card etc. She did not produce ATM Card, rather withheld it, so the adverse presumption can be taken against her. Settled position of Law is initial burden lies on the person who alleges, here the complainant, that the withdrawal limit was Rs.20,000/- only per day, which she has failed to discharge. Specially, when O.P.W.1/present Branch Manager of the bank in cross-examination deposed that without perusing ATM Card it would not be possible for him to say the withdrawal limit of a card & if he get the card he can say the withdrawal limit of that card.
According to complainant on 15.07.2019 she came to know that amount of Rs.20,000/- + 20,000/- +20,000/-+ 6,000/- total Rs.66,000/- has already been withdrawn through her said ATM Card on 01.07.2019 & 02.07.2019, but her card is permitted to withdraw only Rs.20,000/- per day.
Be that as it may, ATM cum Debit Card of S.B.I has lowest permissible cash withdrawal limit of Rs.20,000/- per day, irrespective of the class/category of the card.
Statement of account depicts S.No.20, Type1, Post-Dt 01.07.2019, Jrnl.No.662994301, value-Dt 01.07.2019, Txn-Amount 20,000.00 DR, Curr-Balance 46447.72 CR, Chq-No-, Txn-Desc ATM WDL, Txn-Code 4060, S.No.19, Type-20, other descriptions are blank, Txn-Desc ATM CASH 5346 SBI, Mangalbari (1st Malda). That means the complainant by using her ATM Card withdraws cash Rs.20,000/- from the ATM Counter No:5346, S.B.I, Mangalbari 1st Malda.
Statement of accounts further depicts S.No:17, Type1, Post-Dt 01.07.2019, Jrnl. No:663080209, Value-Dt 01.07.2019, Txn-amount 20,000.00/- DR, Curr.Balance 26447.72CR, Chq. No-, Txn-Desc TO TRANSFER, Txn-Code 1055 & S.No:16, Type:20, other descriptions are blank, Txn-Desc 6074310151167583 00000031354323597. Similarly S.No:13, Type:1, Post-Dt 01.07.2019, Jrnl. No:663105012, Value-Dt. 01.07.2019, Txn-Amount 20,000.00 DR, Curr-balance 6447.72 CR, Chq No-, Txn-Desc TO TRANSFER, Txn-Code 1055 & S.No:12 & 11 Type 20 & 36 of same date other fields blank, Txn-Desc 37944595161 Mr. Ganapati Suresh 4591150296428741 000000 37944595161. That means both the transactions were ONLINE TRANSACTIONS through viz UPI, G-pay, Phone pay, MERCHANT, POS, NET BANKING etc (OTP based), which could be done up to the limit of Rs.1,00,000/-, beyond lowest cash withdrawal limit of Rs.20,000/- per day.
Statement of accounts further depicts S.No:9, Type 1, Post-Dt. 02.07.2019, Jrnl. No:674078613, Value-Dt 02.07.2019, Txn-Amount 6,000.00 DR, Curr-Balance 447.72 CR, Chq No-, Txn-DESC ATM WDL, Txn-Code 4060 & S.No:8, Type:20 of same date & journal number leaving other fields blank with Txn-Desc ATM Cash 3842 Omarpur Murshidabad. That means the complainant by using her ATM Card withdraws cash Rs.6,000/- from the ATM Counter No:3842, Omarpur, Murshidabad, on 02.07.2019.
Therefore, the complainant’s claim appears apparently false that on 01.07.2019 through her ATM Card by 03 transactions of Rs.20,000/- each total Rs.60,000/- were withdrawn. Statement of account on the other hand proves beyond reasonable doubt that by using ATM Card cash Rs.20,000/- was withdrawn from the ATM Counter of S.B.I, Mangalbari, (1st Malda), and by using ATM Card Cash Rs.6,000/- was withdrawn from the ATM Counter of Omarpur, Murshidabad which was/is within daily cash withdrawal limit of her card.
But other two transactions dated 01.07.2019 of Rs.20,000/- each were online transaction, in any means as mentioned herein above it might be, though on the same day i.e 01.07.2019, cannot be said to be bad or without authorization, as beyond daily cash withdrawal limit of Rs.20,000/-, her said ATM Card authorizes online transactions in any mode up to Rs.1,00,000/-.
Still O.P.No:2/the then Branch Manager of S.B.I, Itahar Branch forwarded complain with Annexure A1, A2, B before the AGN (ATM) at LHO Department, which has not been finalized till filing of the case, by this time the complainant filed this complain.
Under above facts and discussion, we are of the opinion that there was/is no deficiency of service on the part of the O.Ps but to avoid her liabilities the complainant filed this complaint for unlawful gain, so she is not entitled to get relief as prayed for.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-41/2020 be and the same is dismissed on contest against the O.Ps but without any cost.
Let a copy of this order be given to the parties free of cost.
