KUNDAN KUMAR KUMAI

This is an appeal preferred u/s 41 of the Consumer Protection Act, 2019, against the order dated 26/06/2023, passed by the Ld. DCDRC,
Darjeeling, in CC/7/2021.

The Appellants’ case in brief is that, the Respondent/Complainant being a resident within the jurisdiction of the Appellant/Bank, had maintained a Savings Bank Account bearing no. 20017733768 in that bank. The Respondent/Complainant only used Cheques to withdraw money and despite having an ATM Card, had never used the same. On 16/12/2019, she had gone to withdraw some amount through her Cheque, but the Appellant/Bank, intimated that she did not have sufficient balance in her above A/c. On that very date, she had updated her Pass-Book and was shocked to find that Rs.69,000/-( Rupees Sixty-Nine Thousand only), had been withdrawn on different dates being Rs.20,000/-( Rupees Twenty Thousand only)  on 14/11/2019, through GCC to the A/c of Mrs. Roshima Bibi, on that very date further transaction of Rs.10,000/-( Rupees Ten Thousand only)  each through ATM Cash Counter 93181 opposite bus stand, had been withdrawn on two occasions, on 15/11/2019, another Rs.10,000/-( Rupees Ten Thousand only)  had been withdrawn from ATM Cash Counter 93190, Bhiwani and another Rs.10,000/-( Rupees Ten Thousand only) had been withdrawn on the same date from ATM Cash Counter 93181 opposite bus stand, on 20/11/2019, another Rs.4000/-( Rupees Four Thousand only)  had been withdrawn from ATM Cash Counter 5025, Bhiwani Road Jind and another Rs.5000/- ( Rupees Five Thousand only)had been withdrawn on 05/12/2019 from ATM Cash Counter 39911004, Hansi. As the Respondent suspected foul play, she lodged a written complaint before the Branch Manager, on 16/12/2019 itself and lodged a written complaint before the Sadar Police Station, which was registered as GDE No.728/19 dated 16/12/2019. She was advised to visit after some time, but in spite of visiting on many occasions, no fruitful result emanated. Finally, she lodged a complaint before the Assistant Director, Consumer Affairs & Fair Business Practices, GTA, Darjeeling, on 13/02/2020. Despite numerous attempts, no relief was provided to the Respondent/Complainant. Finding no alternative, she lodged a complaint before the Ld. DCDRC, Darjeeling, with necessary prayers.

The Appellants appeared to contest the claim by filing written version, wherein they have denied the main allegations and have stated that a sum of Rs.20,000/- (Rupees Twenty Thousand only) transferred to the A/c of Mrs. Roshima Bibi, had been kept on hold. It is further stated that the Respondent/Complainant had never intimated regarding the loss of her ATM Card and therefore the Respondent/Complainant was responsible for the usage of the ATM Card as the PIN Code was known to her only and thus the Appellant/Banks were in no way liable, for the loss caused from such transaction. It was also submitted that on receipt of the Application Form, the ATM Card had been blocked. It was also stated that the Respondent/Complainant had filed a false and vexatious claim, which needed to be dismissed.

After going through the materials and evidence on record, the Ld. DCDRC, Darjeeling, passed the impugned Order directing the Appellants jointly and severally, to pay an amount of Rs.49,000/-( Rupees Fourth-Nine Thousand only) along with Rs.5000/-( Rupees Five Thousand only) as litigation cost, within 45 days from the date of order. The Appellant/Banks were further directed, jointly and severally to credit Rs.20,000/-( Rupees Twenty Thousand only), lying in the A/c of one Roshima Bibi, within 45 days, failing which, all the above amounts would attract interest @ 6% p.a.

Being aggrieved by the impugned order, the Appellant preferred this instant appeal on the ground that the Ld. DCDRC, Darjeeling, erred in law and facts while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the Appellants at the time of final hearing, had submitted that the Respondent/Complainant being the ATM Card holder, was responsible for the transactions made through ATM, as the PIN was exclusively known to her only and, therefore she could not take advantage of her own wrong. Moreover, the Appellant/Bank, had promptly blocked her Card and promptly seized the fraudulent transactions and therefore was not guilty of any deficiency of service. It is also argued that the impugned order suffered from assumptions and presumptions and therefore the same could not be sustained.

Ld. Advocate for the Respondent/Complainant, on the other hand, countered the above argument, on the ground that the Respondent/Complainant, was incapable of using the ATM Card as she had not generated the PIN also, for usage. Under such circumstance, the transactions by the use of ATM Card in faraway area, from her residence in Darjeeling, clearly indicates that the secrecy of the ATM Card had been compromised, following which the Appellant/Banks should have enquired within the system, to locate such mischief. That apart even after the passage of 19 months, the Appellant/Banks had failed to produce the CCTV footage, to at least establish the persons who had been involved with the transactions. Hence, for this reason the appeal should be dismissed.

The transactions arising out of the said ATM is not disputed. The only transaction that has been shown to have transferred Rs.20,000/- (Rupees Twenty Thousand only), to the A/c of one Roshima Bibi and it also had been stalled, by the Appellant/Banks, with no sort of any objection or protest from the said Roshima Bibi, clearly indicates that the transaction appeared to be a fraudulent one. In this respect, no sort of any coercive measures, on the part of the Appellant/Banks, by way of taking recourse to police help, to unearth the truth, appears to be appalling, especially when the Respondent/Complainant, had complained about the non-usage of the ATM card. That apart non-production of the CCTV footage of the transactions from the ATM Counters indicated, also points to the lethargy of the Appellant/Banks, to delve deep into the mystery of the usage of the ATM Card of the Respondent/Complainant. Therefore, the Appellant/Banks cannot simply take shelter behind the theory, that the holder of the ATM Card is always responsible for its usage, especially when the Respondent/Complainant had clearly denied using the ATM Card, during her transactions in the said A/c. In this regard, also no evidence to counter the above, had been produced by the Appellant/Banks, which was well within their grasp and easy to produce. This inability on the part of the Appellant/Banks, to deflect the accusations of the Respondent/Complainant, results in the failure of their case, as well as this appeal.

In view of the above findings and observations, the instant appeal cannot be sustained. As a result, the instant appeal fails.

It is therefore

ORDERED

That the instant appeal be and the same is dismissed on contest, but without cost.

The impugned order is hereby upheld.

The Appellants are directed to comply with the directions in the impugned order within 45 days from the date of receipt of this order, failing which, interest @ 9% would be attracted.

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRC, Darjeeling, for necessary information.

Statutory deposits, be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC, to do the needful.