FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant has filed this case U/s 35 of CP Act, 2019.
The fact of the case in brief is that on 04.04.2020 at about 3.00 PM the complainant went to UCO Bank at Khidderpore Branch, 67, D H Road, Kolkata-700023 wherein his debit card with last four digit 9548 of SBI, Khidderpore Branch, Kolkata-700023 was lost or misplaced. The copy of the passbook of UCO Bank is annexed herewith as annexure “C”.
It is further stated that thereafter the complainant went to the bank and consulted the matter with man of the OP bank on 06.04.2020 at about 11.00 AM and requested the branch manager for blocking the ATM card in question of the said bank. But the branch manager told him that the server is not functioning properly though he assured the complainant that he will block the ATM/debit card later on. On 04.06.2023 at about 10.30 PM, The complainant received a phone call from a person who introduced himself as the branch manager and he told that he will block ATM card and asked the complainant to provide the ATM card No. The complainant then gave the last four digit No. to that person over telephone and also provided him the last five digit No. of ATM card in question then the person told the complainant that he received an OTP in his phone and asked the complainant to tell him the OTP quickly. Believing the words of the said unknown person the complainant provided the OTP on several times.
It is further stated by the complainant that on 06.04.2020 at about 10.40 PM, the debit card of the complainant automatically blocked after the illegal transaction from the said debit card. Thereafter, on 07.04.2020 the complainant went to branch manager of SBI for getting information about the last night transaction from branch manager, the branch manager then handed over him a statement of his A/c wherein it is reflected that the complainant withdrawn the amount of Rs. 19,458/- in total and closing amount was of Rs. 1,965/- on 07.04.2020 set hold of Rs. 4,999/-, on 08.04.2020 and again set hold of Rs. 4,999/-.
It is alleged by the complainant that for 11.05.2020 a sum of Rs. 70.80 paise which is withdrawn by unfair trade practice and deficiency in service from SBI A/c No. 37190985187 of the complainant and the bank statement is annexed as annexure “D”.
It is further stated that his ATM/Debit card has been used for transaction in Paytm Noida/Amazon and the mobile No. which has been used as 8391043959/07098779907/838823560/6290576290579139/9004676782. The copy of the concerned bank statement is annexed herewith as annexure “E”.
It is further stated by the complainant that as per direction of the RBI during the lock down period EMI and loan disbursement cannot be done without the prior sanction of the A/c holder and he was surprised enough that how two transaction of Rs. 4999/- have been done and put on hold in his pension A/c when he did not submit any filing form/credit expenditure/KYC/last 3 years form 16 against said OD loan.
On 07.04.2020 the complainant went to OP bank at 11.00 AM and intimated the matter to the branch manager, inspite of same in the evening of the same day the branch manager was informed him about two transaction of Rs. 4,999/- which was put on hold.
The complainant further stated that on 08.04.2020 he again went to the said bank and filed the written complaint to the branch manager of SBI (annexure “F”).
It is the further case of the complainant that he received a letter to the branch manager of OP SBI vide letter No. BR/GEN/30/03 dated 27.04.2020 demanding to pay the amount of Rs 4,999/- wherein even without sufficient balance in his savings A/c as mentioned above rather the amount of Rs. 4,999/- has been withdrawn from his pension A/c and how the bank permits such transaction till solve the matter (annexure “G”).
The complainant further stated that he submitted a petition of complaint to the several branch of SBI and the branch manager of SBI sent the declaration cum complaint form dated 08.04.2020 but the branch manager of the OP bank sent the same after one month (annexure “H”).
It is further stated by the complainant that bank deducted of Rs. 4,999/- on 29.04.2020 and Rs. 70.80 paise on 11.05.2020 from his A/c as his pension amount was transferred but the all transaction were made after blocking his debit card on 06.04.2020 at about 10.40 PM. Thereafter the complainant submitted a complaint to the banking ombudsman and a meeting was conducted between the complainant and SBI on 19.10.2020 wherein it is observed that an OD had been created on complainants’ A/c of Rs. 4,999/- then SBI during the meeting had accepted that the OD was created due to technical error on the part of their bank so the ombudsman bank to credit the OD amounting to INR 4,999/- along with 23.60 x 3 ATM charges to the complainant then the OP bank credited an amount of Rs 5,069.80/- to the A/c of the complainant under the head “ODO Advisory” on 02.02.2020.
The Complainant stated that he is a retired senior citizen and he is passing his days with his family member with great hardship due to the illegal withdrawn from his pension A/c. Hence, he has filed this case with a prayer to give direction of the OP bank to refund a sum of Rs. 1,00,000/- along with interest @ 18 % p.a. from the date of deposit till realisation and also prayed for compensation of Rs. 20,000/- along with litigation cost.
The OP SBI (Khidderpore) has contested the case by filing a WV denying all the material allegations levelled against them. The contesting OP has submitted a WV that the petition of complaint is vague, baseless, and motivated and the complainant has filed this case only to harass the OP-1.
It is stated by the OP bank that surprisingly, misplacing of his credit card on 04.04.2020 at about 3.00 PM. The complainant did not report the matter to the branch of the OP Bank and also did not lodge any complaint on 05.04.2020 which shows that the complainant himself was highly negligent to take appropriate step for blocking the lost card which should be done at once as per banking rules and regulations. It is denied by the contesting OP-1 that on 06.04.2020 at about 11.00 am. The complainant went to concerned bank and consulted with them in respect of missing debit card or requested the branch manager for blocking the ATM card. It is also denied that the branch manager told the complainant that the server was not working properly and he will block the ATM card of the complainant later on.
It is also denied by the complainant on 06.04.2020 at 10.30 PM. He received a phone call from an unknown person who introduced him as the branch manager of OP bank and the complainant supply the OTP for several times to the person and also supply the last four digits of the ATM card to that person. As per OPs case, the complainant was highly negligent in respect of misplacement of debit card and he did not take any proper step to block the debit card in the concerned branch of SBI rather the supply four digit of ATM card and OTP to an unknown person who rang the complainant at 10.30 PM on 06.04.2020 introducing him as branch manager of SBI. The complainant without verifying the identity of the person supplied the valuable information in respect of his ATM card and mischief was done.
Hence, OP-1 Bank is in no way responsible for withdrawal of total amount of Rs 19,458/- from the SBI A/c No. 30790985187 of the complainant. It is admitted by the OP-1 in WV that by mistake an OD A/c of Rs. 4,999/- had been created due to technical error and that has already been credited to the A/c of the complainant along with Rs. 23.60 paise into three ATM charges on 02.02.2021 after realising their mistake.
It is the case of the OP-1 that the complainant has suffered due to his sheer negligence and he has already taken the recourse of law by lodging FIR.
So, the grievance of the complainant regarding the creation of OD has already been settled and the OP-1 bank credited the OD amount of Rs. 4,999/- along with Rs. 23.60 into three ATM charges on 02.02.2021. Thus, the grievance of the complainant has already been settled against the OP-1. So, question of giving compensation to the complainant of Rs. 1,00,000/- with interest @ 18 % has no leg stand upon and thus, the same is liable to be dismissed with cost.
In view of the above pleadings the points of consideration are as follows.
- Is the case maintainable in its present form and law?
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OP-1?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainant entitled to get?
Decision with Reasons.
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
From the materials on record and also considering the position of law it appears that this commission has got the territorial as well as pecuniary jurisdiction to try this case.
It is also found that the case is filed well within the period of limitation and the complainant has ample cause of action to file the case.
Admittedly, the complainant has savings A/c as well as pension A/c in the branch of Khidderpore of SBI ie OP-1 bank being SBI A/c No. 30790985187. So, undoubtedly the complainant is a consumer and the OP-1 bank is a service provider within the ambit of CP Act, 2019.
It is the case of the complainant that on 04.04.2020 at about 3.00 PM the complainant went to UCO bank Khidderpore Branch wherein his ATM card/debit card last four digit which is 9548 issued by SBI, Khidderpore Branch Kolkata-700023 was misplaced or lost (annexure-“C”).
The complainant stated that on 06.04.2020 at about 11.00 AM he requested the branch manager of Khidderpore Branch SBI for blocking the lost ATM card/debit card in question but the branch manager told him that server is not functioning properly and he assured the complainant that the ATM/Debit card will be blocked later on. But except his oral allegation, no supporting documents is there to show that the complainant requested the Branch manger of SBI khidderpore branch on 06.06.2020 at a 11.00 AM. He requested him to block the ATM card in question of his pension A/c and the branch manager told him that the same cannot be blocked on that very moment due to non functioning of the server of the branch that will be made after words. The further case of the complainant is that on 06.04.2020 at about 10.30 PM he received a phone call from an unknown person who introduced himself as the branch manager who told him that the ATM card in question will be blocked and asked the complainant to provide the ATM card No. and asked him to give last four digit of the said ATM card. Subsequently, he supplied last five digit to that person and also supplied him the OTP for several times. Then , it is found that five transaction were done for the total amount of Rs. 19,498/- and showing closing amount of Rs. 1,965/- thereafter, on 07.04.2020 and 08.04.2020 the bank set hold Rs. 4,999/- and Rs. 23.60/- x 3 equal to Rs. 70.80 on 11.05.2020 (annexure “D”) which was clear unfair trade practice on the part of the OPs Khidderpore branch, SBI.
on a close scrutiny of the evidence on record in this respect, it appears that the OP-1 bank admitted the fact that though by mistake they created an OD A/c of Rs. 4,999/- due to technical error along with Rs. 23.60 x 3 ATM charges and they credited the same to the A/c of the complainant on 02.02.2021 immediately after realising their mistake , but from conduct of the complainant it appears that though he tried to put the burden on the OP-1 but it is/was gross negligence on the part of the complainant to supply the ATM card No. and the OTP to an unknown person who incidentally introduced him as branch manager, without verifying his identity.
At the present age, it is well known to us that the hackers/miscreants are calling the common people over telephone by introducing them as branch manager and tried to get the ATM No. and PIN No. of their ATM card with an intention to withdraw the money from the A/c of the victim beyond his knowledge . In the instant case the complainant is also the victim of that crime. but immediately after missing the ATM/Debit card on 04.04.2020 it was the duty of the complainant to go to the Khidderpore branch of SBI wherein his A/c is lying and requested the authority to block the ATM card but he did not do the same. He was highly negligent and after the alleged transaction was done of Rs. 19,498/- has been withdrawn from his A/c. He felt the importance of the situation and rushed to the OP-1 bank with a request to block the ATM card.
It is not the common practice that when the debit card holder has come to the bank by stating that card is missing then the bank asked him that they will block the card later on due to non functioning of server if that be so, it is the duty of the complainant to wait in the bank till functioning of the server and left the bank after blocking the card. He did not do his duty rather he without verifying identity of the caller has supplied valuable information including PIN, ATM card and OTP to the miscreants who withdraw the amount from his pension A/c.
From the document annexure “B” dated 08.04.2020, it appears that the complainant informed the O/c, Ekbalpure PS that on 06.04.2020 someone used his debit card holding debit card last four digit 9548 and withdrawn a sum of Rs. 19,498/- by five transaction and his closing A/c showing on Rs.1,965/- thereafter on 07.04.2020 set hold Rs. 4,999/- and on 08.04.2020 set hold Rs 4,999/- which has been stolen from his SBI A/c. So, it is palpably clear that the complainant informed the matter to the branch manager actually on 16.06.2023 by his letter dated 16.06.2020 and the bank received the same on 10.08.2021. so, from the document it is crystal clear that the complainant did not bank do not take proper step to block the debit card immediately after the incident rather he informed the bank after lodging FIR at Ekbalpure PS in respect of fraudulent transactions hold on 06.04.2020 in respect of OD A/c It is admitted fact that the bank mistakenly deducted the amount of Rs 4,999/- in open OD A/c and immediately after noticing the same it was credited to the pension A/c of the complainant. So, on a close consideration of the material evince on record, it is held by this commission that the OP-1 bank is in no way held responsible for the fraudulent transaction from the pension A/c of the complainant by an unknown miscreants rather it is held due to gross negligence on the part of the complainant.
Under such circumstances though the complainant is a consumer but he failed to prove his case that there was any sort of deficiency in service on the part of the OP bank and thus, the complainant is not entitled to get the relief as prayed for.
In sum, in view of discussion made above, it is held that the complainant failed to prove this case that there was any sort of deficiency in service of the OP bank. Thus, he is not entitled to get relief as prayed for.
All the points are thus decided and considered accordingly.
The case is properly stamped.
Hence,
Ordered
That the case be and same is dismissed on contest against the OP-1 without any cost.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.
