DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No. 831/2008
SHRI AJAY SHETTY
R/O 11-B, BABA KARAK SINGH MARG,
NEW DELHI-110001 ….Complainant
Versus
STATE BANK OF INDIA
REP. BY ITS AUTHORISED REPRESENTATIVE
PARLIAMENT ANNEXE BRANCH
PARLIAMENT STREET
NEW DELHI-110001 ….Opposite Party
Date of Institution : 16.12.2008 Date of Order : 23.11.2017
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Briefly stated, the case of the complainant is that the complainant has saving account bearing No. 30039453704 and ATM Card bearing No. 6220180370200106505 with the OP bank and his salary used to be regularly credited in the said saving account directly by the Lok Sabha Secretariat. On 12.12.2006, the complainant lost many of his belongings including his said ATM card issued by the OP bank while shopping at Connaught Place, New Delhi. Complainant telephonically instructed the OP bank to block the said card and also informed other banks with which he had credit/ debit cards. Subsequently, complainant lodged a complaint with the Connaught Place police station at 02.30 PM on 13.12.2006 which was registered as NCR No. 720/2006 and the police issued the complainant copy. The complainant visited the Parliament Annexe branch of the OP bank and gave a written complaint on 18.12.2006 along with a copy of the police complaint to the OP bank with one Mr. Saxena of the OP bank in its Parliament Annexe Branch at Parliament Street, New Delhi marking attention to one Mr. P.V. Ramanan and the same was also acknowledged by OP staff at 03.15 PM on the same day with his initials on the written complaint. The OP bank was bound to block the ATM Card lost for which oral complaints as well as a written complaint with acknowledgement were lodged with the OP bank. OP bank issued a new ATM card in place of the lost one bearing No. 622018037020114855 on 10.01.2007 itself and hence the OP bank was personally estopped and barred from contending that it was not aware of the loss of the card of the complainant and is a clear acknowledgement of the OP bank. OP bank has been criminally negligent and continued to allow illegal withdrawals as a result of which the following unauthorized and illegal withdrawals had taken place:-
Date ATM Withdrawal
01-01-2007 Rs. 12,727.79
02-01-2007 Rs. 12,727.29
03-01-2007 Rs. 12,713.29
07-01-2007 Rs. 12,828.28
08-01-2007 Rs. 12,828.28
15-01-2007 Rs. 06,404.02
Total Amount illegally allowed to be withdrawn : Rs. 70,228.95
No proper reply was received from the OP bank. Complainant sent a legal notice on 11.08.2008 in response to which he got telephone calls as response from the OP bank and was telephonically told that the “error would be rectified” and the amount would be “re-credited” to his account. Despite repeated enquiries in person and through telephone calls did not evoke any tangible concrete response between the period of the said legal notice and till the filing of this complaint. Hence, pleading deficiency in service on the part of the OP, the complainant has filed the present complaint for issuing the following directions to the OP:
- To credit the said amount of Rs. 70,229.45 with the normal interest of 5.5% as per S.B. A/C procedure and rules till the date of re-credit from the date of illegal withdrawal allowed;
- To pay a penal interest of 24% per annum on the entire amount till the date of realization from the date of allowing illegal withdrawals;
- To pay an amount of Rs. 70,000/- for mental agony, physical exertion, non-utilisation of the said amount, tortuous and other liabilities and for criminal deficiency in service;
- To pay an amount of Rs.50,000/- as damages;
- To pay an amount of Rs.2,500/- as notice and litigation costs.
OP in its reply has inter-alia stated that the complaint is not maintainable and is liable to be dismissed because when any customer loses his/ her ATM card it is his/ her responsibility to block the ATM by calling on Toll free number immediately. When the ATM card is issued to a Customer he/ she gets a toll free number mentioned on ATM card and hence it is the duty of the customer to call on toll free number and block the ATM immediately so that no one can misuse the said ATM card. But in the present case complainant has failed to block the ATM by calling on Toll free number immediately. Hence there is a contributory negligence on the part of complainant. Complainant is so negligent on his part that he gave written complaint to the OP bank after 6 days of the incident. Hence, there is no deficiency in service on the part of OP bank. It is the duty of the customer of ATM cardholder to keep PIN in his/ her safe custody. In the present case the PIN number was known to only complainant and without feeding of PIN number by complainant no withdrawal “either inform” of cash or shopping can be done by using debit cum ATM card of complainant. Complainant did not block the card and continued to allow illegal withdrawal as a result of which the following unauthorized and illegal withdrawals had taken place:-
Date ATM Withdrawal
01-01-2007 Rs. 12,727.79
02-01-2007 Rs. 12,727.29
03-01-2007 Rs. 12,713.29
07-01-2007 Rs. 12,828.28
08-01-2007 Rs. 12,828.28
15-01-2007 Rs. 06,404.02
Total Amount illegally allowed to be withdrawn : Rs. 70,228.95
It is denied that the complainant got telephone calls from the OP bank regarding “error would be rectified” and amount would be “re-credited” to his account. OP bank received the legal notice dated 11.08.2008 and suitable reply was given to the counsel for the complainant vide reply dated 13.10.2008. It is stated as follows:-
“Issue of a new card in place of the old lost card on 10.01.2007 by the respondent bank should have a request at least three weeks prior as alleged.”
OP has prayed for dismissal of the complaint.
In the rejoinder, complainant has stated that the ATM card was lost on 12.12.2006 and he filed the complaint on 13.12.2006 with the Connaught Place police station and gave a written complaint to the OP bank on 18.12.2006. It is submitted as hereunder:-
“6. That thereafter much later, almost 20 days after the oral complaint, 19 days after the police complaint registered as NCR 720/2006 and 14 days after the written complaint illegal and unauthorized withdrawals have taken place from the said account which clearly and amply demonstrates the deficiency in service, negligence and defect on the part of the respondent bank which is bound to block the ATM card lost, for which an oral complaint, a police complaint, as well as a written complaint with acknowledgement were lodged with the respondent bank much earlier than the dates of the said unauthorized and illegal withdrawals in January 2007.
7. That in fact it takes over three weeks for the bank or for that matter any bank to issue a new card which in the instant case has been done further clearly and amply demonstrating and bearing testimony to the fact that the bank was in the knowledge of the loss of the said ATM card in lieu of which a new card has been issued which process takes about three weeks and from the date of the issue of the new card if three weeks were calculated in the reverse it is also much earlier than the unauthorized and illegal withdrawals.
8. That in fact the respondent bank issued a new ATM card in place of the lost one bearing no. 6220180370200114855 on 10-01-2007 and hence the respondent bank is personally estopped and barred from contenting that it is not aware of the loss of the card of the complainant and the issuance of a new card in place of the lost card itself is a clear acknowledgment of the respondent bank’s knowledge of the card lost and the processing time of minimum of three weeks means, in the instant case, the process has started way back in 19-12-2006 which is about 13 days earlier from the date(s) of the said unauthorized and illegal withdrawals allowed by the bank for which criminal negligence the answering complainant reserve his right to proceed in accordance with law.”
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Shri J.P. Sharma, Branch Manager has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties and have also carefully gone through the record.
The complainant filed police complaint registered before the police station dated 13.12.2006 as exhibit CW1/1. Complainant has also filed the complaint regarding loss of ATM card dated 18.12.2006 to the OP bank as exhibit CW1/2. Exhibit CW1/3 relates to new ATM-cum-debit card issued by the OP bank. Complainant sent a letter dated 31.01.2007 to the OP bank regarding withdrawing of the amount of Rs.70,229.45p. from his saving account as exhibit CW1/4. Complainant sent a legal notice dated 11.08.2008 to the OP as exhibit CW1/5. OP vide letter dated 13.10.2008 sent a reply to the legal notice as annexure R-1.
We proceed to decide the case on the presumption that the complainant did not send any intimation regarding loss of his debit card to the OP bank till 18.12.2006 and is tried to be stated on behalf of the OP. Thus, as per the admitted case of the OP itself the OP bank had received a written information regarding loss of the ATM debit card of the complainant on 18.12.2006. Therefore, immediately after receiving the said complaint from the complainant on 18.12.2006, it had become the legal and statutory duty of the OP to immediately block the lost ATM Card of the complainant so that no one could make any transaction through the said ATM card at least after 18.12.2006. Therefore, it does not lie in the mouth of OP to say that the present case is a case of contributory negligence inasmuch as all the withdrawals made through the said lost ATM Card pertained to the period 01.01.2007 onwards.
Therefore, we are of the considered opinion that the said transactions had infact taken place with some possible connivance of the officials of the OP. Thus, the OP bank was/is highly and grossly negligent in performing of its statutory duty while allowing unauthroised persons to withdraw an amount of Rs. 70228.95p. from the saving account of the complainant. Thus, we hold that the OP was grossly negligent in performing its statutory duty and also committed deficiency in service.
Therefore, we allow the complaint and direct the OP to pay Rs.70,228.45p along with interest @ 5.5% from 15.01.2007 till date of realization.
OP is also directed to pay a sum of Rs.25,000/- for harassment and mental agony undergone by the complainant including cost of litigations.
The order shall be complied within 30 days of receipt of copy of this order failing which the OP shall become liable to pay interest @ 9% per annum on the amount of Rs. Rs.70,228.45p from 15.01.2007 till its realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 23.11.17
