Date of Filing : 27.08.2012
Date of Order : 16.03.2013
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
Dated 16th MARCH 2013
PRESENT
Sri. J.N. HAVANUR, B.Sc., LLB (SPL) ……. PRESIDENT
Sri. H.M. SHIVALINGAPPA, B.Sc., LLB …….. MEMBER
CC No. 98 / 2012
Sri. Siraj Ahmed,
No. 10/2, 2nd Cross,
Vijayanagar, BEML Nagar Post,
KGF – 563 115.
(By Dr. R. Bhaskar Devadatha, Adv.) ……. Complainant
V/s.
State Bank of Mysore,
BEML Nagar Branch,
BEML Nagar Post,
KGF – 563 115.
(By Sri. N.V. Vadudevamurthy) …… Opposite Party
ORDER
By Sri. J.N. HAVANUR, PRESIDENT
This Complaint is filed by the Complainant against the OP praying to pass an Order directing the OP to pay an amount of Rs.1,45,000/- along with interest @ 18% P.A. on the said amount and award Rs.1,00,000/- as damages towards physical strain, mental agony & harassment and costs of Rs.10,000/-. The brief facts of the Complaint can be stated as under:
Complainant is a permanent employee of M/s. BEML Ltd., KGF with staff No. B449-22851 and he is having S.B. Account bearing No. 54029264085 in SBM, BEML Nagar Branch since 1990 and he possesses SBM ATM Card bearing No. 5046454016800024080. He is a honourable citizen and commands wide respect in the society. On 23.04.2012, around 6.45 PM Complainant went to SBM, BEML Nagar ATM situated in Bank premises to draw Rs.5,000/- to take his wife to Ramaiah Hospital, Bangalore, for postoperative treatment for varicose veins and he was shocked to see the group of people including woman inside the ATM. Though not very comfortable with a gang inside ATM, he withdrew Rs.5,000/-. One of them immediately told the Complainant “Sir, there has been lot of thefts of late, so please check your balance”. Complainant inserted his Card again to get a mini statement. While taking statement, one among the gang shakes the complainant’s hand and it resulted in the ATM card slipping out of his hand and dropped on the floor. Immediately one of them bent down and while picking up, the card was exchanged and handed over to him. Complainant understood that the ATM card was not belonged to him when he went to draw the cash on 02.05.2012. The exchanged Card pertains to one Smt. Kokila. The passbook was updated and it revealed that only Rs.25/- was the balance. Besides, Complainant’s salary of Rs.20,845/- deposited into his account on 28.04.2012 was also drawn from different ATMs at BEML Nagar, Hoskote, Bangalore and total amount withdrawn was Rs.1,45,781/-. Bank denies that their systems suffer from any weaknesses placing the blame squarely on the customer. Complainant lodged FIR bearing No. 0036/2012 dtd. 02.05.2012 at BEML Nagar Police Station, KGF and also at SBM, BEML Nagar. SBM, BEML Nagar has not initiated any action to help their customer i.e, the Complainant. So also, Police department has not taken any action. However, he was forced to surrender ATM Card of Smt. Kokila. Since the Police was lethargic in action, the Complainant himself sought video of CCTV cameras from SBM, BEML Nagar, SBI, Hoskote, Canara Bank, Lavelle Road, Bangalore, City Bank, MG Road, Bangalore and SBI HQ under RTI Act and also personally petitioned the CBI, Bangalore, Director & Inspector General of Police, Bangalore, Lokayuktha, Kolar, but no tangible action was taken so far. Complainant has lost all that he earned by hard labour. Contemporary financial loss has triggered in him fear and pain, depression and negative attitude and compelled to clear piling bills including his son’s & daughters’ fees and he has virtually turned to money lenders. His health has been deteriorated. SBM was petitioned to pay him the amount as he lost to its esteemed customer but to no avail. The amount lost by the Complainant was due to the gross negligence of the SBM because of the security weaknesses, not providing sufficient lighting at and around ATM and there are two machines at the site and both of them placed side by side and Bank failed to enforce the rule such as opening the door using ATM card, footage from both security cameras not provided under RTI, since only Camera fixed for two ATM, no provision to report confiscated cards immediately and also to call the police with leaving the machine etc. Hence, the Complainant has no alternative but to file this Complaint before this Forum praying to make an Order directing the OP to make full payment of Rs.1,45,000/- of the Complainant along with interest @ 18% P.A. and damages of Rs.1,00,000/- and costs of the petition of Rs.10,000/-.
2. After service of notice, OP has appeared through its Counsel and filed objections contending inter alia as under:
The Complaint filed by the Complainant is not maintainable either in law or on facts and it is liable to be rejected in limine. The allegations made in the Complaint that the Complainant is a permanent employee of BEML and he is banking with SBM, BEML Nagar branch since 1990 is true & correct. But, further allegations of the Complainant that he is a honorable citizen and commands wide respect in the Society is not within the knowledge of this OP. The allegations in Para-2 of the Complaint that on 23.04.2012 the Complainant went to withdraw the amount from his account and around 6.45 PM he went to draw Rs.5,000/- for his wife’s treatment and he was shocked to see group of people including woman inside the ATM and though he was not comfortable with gang he withdrew Rs.5,000/- and such other allegations made in the Complaint are not within the knowledge of this OP. The allegations made in Paras 3 to 5 are not within the knowledge of this OP. The allegations in Para-7 of the Complaint that the Complainant lodged complaint to Police and OP Bank are true and correct. But, the allegations that the Police has not taken any action is not within the knowledge of this OP. The allegations in the Complaint that the Complainant lost his huge amount due to gross negligence of OP Bank are absolutely false and incorrect. Further allegations of the Complainant that reasonable duties of Bank to customers stated by the Complainant are all absolutely false & incorrect. The above said facts narrated in the Complaint by the Complainant shows that the entire episode had happened due to negligence of the Complainant and no bank officials are involved in the entire transaction and due to his carelessness, his ATM Card was taken by the alleged fraudster and the customers are educated about the safe use of the Card in different fora, but still he pasted the ATM card most probably the secret pin number to a stranger and no security guards are provided in the SB groups ATM as a policy matter. The loss of amount was not for the absence of the security guard but for the negligence of card holder. On the complaint of the Complainant, Police has registered a case and OP Bank has assisted in the investigation and video tape is also seized including the video tape provided to them. In view of the same, OP Bank is not responsible and the act was only due to the carelessness of the Complainant. There is no deficiency of service on the part of OP and the Complainant has filed false & frivolous complaint instead of follow-up the matter with the concerned Police and investigating agencies. So, the Complaint is not maintainable. Hence, it is prayed to dismiss the Complaint with exemplary costs in the interest of justice & equity.
3. So from the averments of the Complaint of the Complainant and version of the OP, the following points arise for consideration:
(i) Whether the Complainant proves that he has lost the amount of Rs.1,45,781/- due to negligence of OP and there is deficiency of service on the part of OP as stated in the Complaint?
(ii) If point No. (i) is answered in the affirmative, what relief the Complainant is entitled to ?
(iii) What Order ?
4. Our findings to the above points are as under:
(i) Negative
(ii) In view of the negative finding on Point No. (i), Complainant is not entitled to any relief?
(iii) As per final order for the following reasons
REASONS
5. So as to prove the case, Complainant has filed his affidavit by way of evidence and produced 5 copies of documents along with Complaint and produced 5 documents along with Memo dtd. 15.09.2012 and produced 3 more documents as Annexure-1 to 3 on 02.03.2012. On the other hand, one Sri. Lakshmikanth, Manager of OP Bank has filed his affidavit on behalf of OP, but no documentary evidence is produced on behalf of OP. We have heard the arguments of both sides. We have gone through the oral & documentary evidence of the parties with more than ordinary care & precision.
6. One Siraj Ahmed who being a Complainant has filed his affidavit by way of evidence stating that he is a permanent employee of M/s. BEML Ltd., KGF and he is having S.B. A/c. bearing No. 54029264085 in OP Bank since 1990 and he is also having ATM Card bearing No. 5046454016800024080 in the said Bank. On 23.04.2012, at 6.30 PM he went to SBM, BEML Nagar ATM situated in the Bank premises to draw the cash for taking his wife to M.S. Ramaiah Medical College Hospital, Bangalore, for post operative treatment. He was shocked to see the group of people inside the ATM. He waited in vain for the group to come out, so he left the place and came around 7.15 PM, the group of people was still there. He had to draw the cash as he had already booked ambulance to go to Bangalore. He waited for few minutes and drew Rs.5,000/- at 7.50 PM under Slip No. 1142. The fraudsters stood in different places in ATM especially in front of ATM situated at northern side chambers so that they could easy visual access of the PIN being operated. One of them distracted his attention and swapped the ATM card. Since the PIN was known to them, they wanted ATM Card and hence they swapped and drew cash at regular intervals in Hoskote, Bangalore. He understood that his card was swapped only on 02.05.2012 when he went to SBM, BEML Nagar ATM to withdraw the cash. He reported the matter to the Manager, SBM, BEML Nagar and amount of Rs.1,45,781/- was withdrawn and the balance was of Rs.25/- as per pass book. He immediately lodged written complaint to the Manager, SBM, BEML Nagar, KGF. Simultaneously, he lodged police complaint in BEML Nagar Police Station, KGF and obtained FIR No. and date. Since there was no tangible action either by the SBM or by the Police, he sought CD containing copy of the footage under RTI dtd. 30.06.2012. SBM was petitioned to make good his loss, but to no avail. Legal notice was served on OP on 03.09.2012 and their response to the notice is produced. An amount of Rs.1,45,781/- was lost owing to gross negligence of the OP and there is deficiency of service on the part of OP. There is no security guard at the ATM. The Bank has failed to enforce the rule such as opening the door using ATM card, Alarm systems, surveillance cameras etc. So, present Complaint is filed before the Forum. So, he prays to pass an order as prayed in the complaint in the interest of justice.
7. By a careful reading of Complaint and evidence of the Complainant as mentioned above, it is made explicitly clear that the Complainant has tendered evidence before the Forum in accordance with Complaint. Let us have a look at the relevant documents of the Complainant so as to know whether the oral testimony of the Complainant stands corroborated by the documentary evidence or not. Document No. 1 of the Complainant produced along with Complaint is the copy of the passbook extract from 23.04.2012 to 30.04.2012 and in that extract the name of the Complainant, his address, Mobile No., ATM No. were written in ink and amounts have been withdrawn with the help of the ATM Card from 23.04.2012 to 30.04.2012. Document No. 2 is the copy of FIR registered on the Complaint of the Complainant dtd. 02.05.2012 for the offence punishable u/s. 420 IPC against the unknown person and in the FIR under the heading of FIR contents it is stated that on 23.04.2012 at 7.27 PM, Complainant has withdrawn cash of Rs.5,000/- from ATM of OP and thereafter Complainant gave his ATM Card to the neighbouring unknown person to get the mini statement and that unknown person with an intention to cheat the Complainant has changed the ATM Card of the Complainant and handed over another ATM Card and that person fled away in a Car bearing No. KA03 MH 7317 by taking ATM Card of the Complainant and withdrew Rs.1,42,920/- from the account of the Complainant and cheated the Complainant. By reading the FIR, it is made clear that the Complainant himself gave his ATM Card to the unknown person and made him to operate his ATM due to negligence of the Complainant himself. Further, the incident took place on 23.04.2012 at 7.27 PM as per FIR, but the Complaint came to be lodged on 02.05.2012 i.e., 9 days after the incidence and no explanation as such was offered by the Complainant in the FIR for lodging the complaint late. Besides, no allegation of negligence or deficiency of service is made against the OP in the said FIR. FIR is silent on this vital aspect. Next document of the Complainant is the Appeal of Complainant’s lawyer dtd. 02.08.2012 addressed to Deputy General Manager, SBM, Bangalore, to make good the loss of amount, but in the said Appeal no allegation of negligence or deficiency of service as such is made against the OP Bank specifically. The 4th document is the reply given by the OP Bank to RTI application of the Complainant. The letter dtd. 30.07.2012 issued by the Citi Bank addressed to the Complainant is produced by the Complainant wherein it is stated by the Bank that details requested by the Complainant under RTI are confidential in nature and cannot be issued and requested to provide the Court Order to accede to his request. The letter dtd. 28.07.2012 issued by SBI addressed to the Complainant is produced by the Complainant wherein it is stated that the Bank cannot disclose the video tapes and they expressed their inability to provide the same. The Bank later provided CCTV video tapes to the Police during investigation. Letter dtd. 07.08.2012 issued by SBI in the name of the Complainant is produced by the Complainant wherein it is stated that the Bank cannot disclose video tapes. Letter copy dtd. 09.07.2012 issued by the Canara Bank in the name of the Complainant is produced by the Complainant wherein it is stated that the video tapes cannot be provided. Sl. No. 1 of the document produced along with Memo dtd. 15.09.2012 is the copy of legal notice dtd. 03.09.2012 issued by the Complainant’s Lawyer calling upon the OP to pay Rs.1,45,000/- to the Complainant along with interest and costs within 15 days. The 3rd document of the said Memo is the copy of the report given by the Complainant to the Bank dtd. 03.05.2012 stating that he came to ATM on 23.04.2012, at 7.15 PM, and one of the gang member distracted him and swapped by ATM Card and handed over another Card. On 02.05.2012 when he came to ATM in SBM, BEML Nagar, he had problem to draw money and he reported the matter to Bank. The swapped card belonging to one Smt. Kokila. Immediately he got his passbook updated. At that time, he came to know that an amount of Rs.1,42,920/- has been withdrawn by the gang from various ATMs in Hoskote, Bangalore and SBM, BEML Nagar. So, he requested suitable action be taken and make good the loss. The 4th document is the copy of Complaint filed by the Complainant to the Police Station, BEML Nagar, dtd. 02.05.2012 for taking action against culprits who withdrew his amount by using his ATM Card. Five photos produced by the Complainant go to show that the some persons were there in ATM on 23.04.2012 for withdrawing the money from ATM. Annexure-1 of the Complainant consists of six Photos wherein the Complainant is seen in three photographs and these photos were taken on 23.04.2012. Complainant and other persons were seen in the photos and these persons came to ATM to withdraw money on the said date. Annexure-2 is some of the instructions to the customers for using SB Cards and some of the general guidelines for using the ATM Card with PIN is also produced by the Complainant. The documents of the Complainant as mentioned above do not throw any light on the point of negligence or deficiency of service on the part of the OP. On the other hand, the documents of the complainant go to demonstrate that on the fateful day i.e., on 23.04.2012 the Complainant has lost his ATM Card and he came to know about the withdrawal of the amount from his account by using ATM Card only on 02.05.2012 and filed the Complaint before the Police on 02.05.2012 against unknown person and not against OP. The facts narrated in the Complaint and report of the Complainant submitted to Bank dtd. 02.05.2012 go to reveal that the entire episode of missing of ATM Card of the Complainant has taken place on account of negligence and carelessness of the Complainant himself. For the negligent act of the Complainant, OP Bank cannot be blamed. The oral evidence of the Complainant that he lost the amount of Rs.1,45,781/- due to negligence of the OP and there is deficiency of service on the part of OP is not countenanced by clear & tangible material evidence. This all about material evidence of the Complainant. Let us have cursory glance at the evidence of the OP. One Sri. Lakshmikanth, Manager of the OP Bank has stated in his affidavit that the facts narrated in the Complaint go to show that the entire episode has taken place on account of the negligence of the Complainant and no bank officials are involved in the entire incident and due to the carelessness of the Complainant his ATM Card was taken by the alleged fraudster and withdrawn the amount. On the Complaint of the Complainant, Police have registered a case. In view of the same, their Bank is not responsible. There is no negligence or deficiency of service on the part of OP. So Complaint be dismissed with costs as the Complainant has filed false & frivolous Complaint against the OP. So, making careful scrutiny of the oral & documentary evidence of the Complainant and also oral testimony of the OP, it is vivid & clear that on 23.04.2012 Complainant has lost his ATM Card due to his negligence and made the fraudster to operate his ATM and Complainant came to know about the withdrawal of the amount from his ATM by fraudster only on 02.05.2012 and filed the Complaint on the said date without explaining inordinate delay in filing the Complaint. When the Complainant has taken ATM Card from the OP Bank, it is his duty to keep the Card safely. Instead of keeping the ATM Card safely, Complainant has handed over the same to an unknown person on the fatal day and allowed him to operate his account by using ATM card. The act of the Complainant in handing over his ATM Card to an unknown person and keeping silent upto 02.05.2012 from 23.04.2012 makes it clear that the Complainant is negligent and for his negligence OP cannot be blamed by branding him as negligence or deficiency of service etc. In fact, OP has not urged at all for withdrawing the amount of the Complainant by third person by using ATM Card of the Complainant. OP is not negligent and there is no deficiency of service as such on the part of OP. The material evidence placed by the Complainant in this regard is lacking in its credibility. So, due to paucity of the material evidence, we are of the considered opinion that the Complainant who knocks the door of the Forum seeking relief has miserably failed to prove with believable material evidence that he lost his money on the fatal day because of the negligence of the OP and there is deficiency of service on the part of OP and accordingly we answer this point in the negative.
8. Point No. (ii) – In view of our negative finding on Point No. (i), Complainant is not entitled to any relief and so we answer this point in the negative. In the result, for the foregoing reasons, we proceed to pass the following order:
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 16th day of March 2013.
H.M. SHIVALINGAPPA J.N. HAVANUR
Member President
