CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/310/19

          Date of Institution:-   14.08.2019

          Order Reserved on:- 16.01.2024

                         Date of Decision:-     18.03.2024

IN THE MATTER OF:

Chanda, D/o Late Sh. Hari Chand,

R/o J-366, Dakshinpuri, Ambedkar Nagar,

New Delhi - 110062  

.….. Complainant

VERSUS

1. State Bank of India

Through its Chairman

Corporate Centre State Bank Bhavan

Madame Cama Road,

Nariman Point,

Mumbai – 400021

2. Branch Manager

State Bank of India

Ambedkar Nagar, Sector V,

Dakshinpuri, New Delhi

.…..Opposite Parties

   ORDER

Suresh Kumar Gupta, President

1. The complainant has filed the complaint under section 12 of Consumer Protection Act, 1986 (hereinafter referred to as Act) with the allegations that her brother Mahesh Chand had expired and his compensation amount of Rs.8,56,167/- was received out of which Rs.2,14,042/- was kept in saving bank account whereas a sum of Rs.6,42,125/- was kept in FD with OP-2. Her family got transferred Rs.3 lakh from the amount of FD in the saving bank account due to her marriage. On 03.11.2017, two withdrawals of Rs.10,000/- each were done by her. On 11.11.2017, she went to withdraw the money and found that there is no amount in her account. A mini statement was taken out from ATM and shocked to see that entire amount of Rs.281000/- has been withdrawn on 10.11.2017 and 11.11.2017. There are two entries of SIPL Pushpa Jems and JE of Rs.45000/- and reverse entry of same amount in the name of reverse POS PUR. Both the entries are not reflected in the mini statement though reflected in the passbook. 11.11.2017 and 12.11.2017 were holidays due to second Saturday and Sunday upon which she contacted OP-2 on 13.11.2017 and narrated the incident but in vain. She informed the Police to register the FIR but in vain. She filed an application under section 156 (3) CRPC upon which directions were given by the Court to register the FIR. FIR no.60/218 under section 379 IPC PS, Ambedkar Nagar was lodged. She has not handed over her ATM card to anyone. The maximum withdrawal per day per transaction in case of ATM is Rs.20,000/- whereas a sum of Rs.80,000/- was withdrawn through ATM, Rs.80,000/- via transfer, Rs.40,000/- via ATM, Rs.40,000/- via transfer and Rs.41,000/- was withdrawn for which no clear reason has been given in mini statement. The notification dated 06.07.2017 issued by RBI categorised all fraudulent and unauthorised withdrawals as zero liability and limited liability. The zero liability would be in case where deficiency neither lies with the bank nor with the customer but in the system but the transaction is reported by the customer within three days of transaction. She has duly informed the bank within three days so her case comes under the category of zero liability. There is deficiency of service on the part of the OP. Hence, this complaint.

2. The OPs have filed the joint reply to the effect that complainant has done the transaction on 09.11.2017 to 11.11.2017 and withdrawn a sum of Rs.2,81,000/- by using the ATM card. There is no misdoing on the part of OP. The complainant did not try to contact the bank within 24 hours to block the card but she has contacted after three days of the transaction. She has not intentionally contacted the bank as she herself has done the transaction.  The complainant has not tried to register her mobile number with the OP for SMS alert on each transaction. The complainant wants to save someone by taking advantage of her own wrong. In case of ATM, the withdrawal is Rs.40,000/- at that time. There is no merit in the complaint.

3. The complainant has filed the rejoinder wherein he has reiterated the version of complaint and denied the averments of the written statement.

4. The parties are directed to lead the evidence.

5. The complainant has filed his own evidence and corroborated the version of complaint and placed reliance on the documents Ex.C-1 to C-9.

6. The OP did not file the evidence by way of an affidavit. On 05.08.2022, OPs were proceeded ex-parte.

7. We have heard Ld. Counsel for the complainant and perused the entire material on record.

8. It is clear from the evidence on record that complainant is having bank account no.35772185288 with OP-2 and ATM card facility has been given to the complainant by OP-2. It is not disputed by OPs in the reply that complainant was not having a sum of Rs.281000/- in her account.

9. It is clear from the bank statement Ex.C3 that seven transactions have taken place on 10.11.2017 and 11.11.2017 and a sum of Rs.281000/- has been withdrawn through ATM and by transfer.

10. The complainant came to know about the transactions on 11.11.2017 when she went to withdraw the money and found that there is no amount in her account. 12.11.2017 and 13.11.2017 were holidays due to second Saturday and Sunday and thereafter she has made a complaint Ex.C4 dated 13.11.2017 to OP-2 and thereafter complaint Ex.C5 was given to PS, Ambedkar Nagar. FIR Ex.C6 was registered by the order of the Court.

11. The complainant brought the matter to the notice of the OP within three days on coming to know about the withdrawals.

12. The Ex.C8 is the printout taken from internet showing that daily cash withdrawal and transaction limit through ATM is Rs.25,000/-.

13. Ex.C9 is the notification dated 06.07.2017 issued by RBI showing that the liability of the customer is zero where unauthorized transaction takes place due to contributory fraud/negligence/deficiency on the part of the bank or where the deficiency lies neither with the bank nor with the customer in case of third party breach but lies somewhere else and customer reports the matter within three working days on receipt of communication to the bank.
14. The transactions are of 10.11.2017 and 11.11.2017. The complainant came to know about the same on 11.11.2017. The matter was reported to the OP-2 on 13.11.2017 as 11.11.2017 and 12.11.2017 were holidays. The matter was reported to the OP-2 within three days in accordance with the notification issued by RBI.

15. The CCTV footage/video clipping would have been the best evidence to show whether complainant has used the ATM or not. The OP-2 has failed to produce the video footage/video clipping of the ATMs from which withdrawal has taken place. The OP-2 should have supplied the CCTV footage/video footage to the complainant which was not done. The video footage of the withdrawals should have been produced by the OP before the Commission. The OP-2 should have taken the timely action on the complaint of the complainant. The timely action on the part of OP-2 would have resulted into preservation of the video footage. The inaction on the complaint of complainant is writ large from the record. There is no explanation from the OP-2 why timely action was not taken on the complaint of complainant.

16. The amount of Rs.40000/- each was transferred thrice. The OP-2 could have checked from the record about the accounts in which said amount has been transferred but no action was taken by the OP-2 and just passed the buck on the complainant that she has done the transactions and wants to conceal the real person. The FIR would not have lodged on the complaint of complainant in case she was at fault. The plea in the WS is without any merit.

17. The Ex.C8 i.e. banking instructions show that a sum of Rs.20000/- is the maximum withdrawal limit through ATM. The OP has not filed any document with the WS that the limit was Rs.40,000/- at that time.
18. The operating system of the ATM is secured where possibility of manipulation is very minimum but irregularity in the system cannot be ruled out.

19. The OP will be responsible even if a third party has withdrawn the amount without using the actual ATM Card.

20. The OP has not filed any evidence to controvert the evidence led by the complainant. The OPs are ex-parte so there is nothing on the record to view the evidence led by the complainant with the aid of spectacles.

21. The net result of aforesaid discussion is that it is not possible to believe the version of OP that complainant herself has withdrawn and transferred the amount. The OP-2 has not properly investigated the matter as a result CCTV footage was not preserved and records were not checked. There is deficiency of service on the part of OPs.

22. Hence, in view of our discussion, the complaint of the complainant is allowed to the effect that OPs shall jointly or severally refund the amount of Rs.2,81,000/- with interest @7% p.a. from the date of legal notice till its realization. The complainant has undergone mental agony so she is entitled for compensation on this score also. The OPs shall pay jointly or severally Rs.25,000/- towards compensation. The OPs shall comply with the order within 45 days from the date of receipt of order failing which complainant is entitled for interest @7% p.a. on compensation from the date of order till its realization.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 18.03.2024.