For the O.P. No.3, 4&5: Ex-parte
DATE OF FILING: 09.12.2011
DATE OF DISPOSAL: 18.01.2017
Dr. N.Tuna Sahu, Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in banking service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. The brief fact of the complainant’s case is that he opened a Savings Bank Account with O.P.No.1 bearing Account No.30130238487 and subsequently OP No.1 issued an ATM card in favour of him for ATM transaction of his bank account. As stated in the complaint, for the said ATM card the complainant is regularly paying service charges to O.P.No.1. On 29.01.2011 when the complainant checked his account operated through ATM of the O.P.No.2 MCC Branch, Berhampur received an ATM customer advice bearing TXN. No.904 at 15.12 hrs from which he came to know about the fraudulent withdrawal of Rs.18,500/- from the said account on 28.1.2011(Friday). After this, he immediately complained the matter to the customer care of State Bank of India(SBI) over telephone on 29.1.2011 (Saturday) and duly acknowledged the complaint vide Docket No. AT33991216 and also filed an FIR in the B. N. Pur Police Station for necessary action. In this regard, the complainant also filed a written complaint to Deputy Manager Sri M. D. Patnaik on 31.01.2011 in the office of O.P.No.1. On 28.01.2011 while trying to withdraw the required amount from the twin ATM Centre attached to Medical College Campus, SBI Branch, the said ATM did not work soon after the complainant inserted the debit card in ATM machine and he changed to the second one and withdrew a sum of Rs.1500/- at 17.56 hours. The complainant reported the matter to O.P. No.1 and customer care but despite all, the OP No.1 did not take any step to refund the amount unauthorized withdrawn from his account. The complainant sent a notice to O.P.No.1, 2 and 3 on 4th February 2011 through a registered Consumer Protection Organization namely, “VEDIC” bearing Letter No.10 dated 4.2.2011. Immediately after this notice, the O.P.No.1 sent a reply which was received by the organization on 14th February 2011. But the O.P.No.3 advised through a letter vide No.PBCS/10-11/6899/013587 dated 12.2.2011 to the representative of the organization to approach O.P.No.4. But neither the O.Ps replied satisfactorily to the complainant nor redressed his grievance properly the reason best known to them. Being aggrieved, the complainant filed this complaint through an authorized person of VEDIC Organization and prayed for refund of the amount of Rs.18,500/- along with Rs.5,000/- toward compensation with interest 9% per annum for financial loss, mental agony, physical harassment along with cost and any other reliefs as deems fit in the interest of justice.
3. Upon notice the O.P.No.1 filed written version through his learned counsel Shri Y. Sriram Murty, Advocate, Berhampur. In the written version, it is stated that the complaint is entirely misconceived, baseless and untenable in law and is liable to be dismissed as such the transaction in question was made free of charges without any consideration for profit. The Forum has got no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the provisions of Consumer Protection Act, 1986 and is exclusively triable by Civil Court, because the facts stated in the complaint shows clearly the occurred incident or alleged loss is due the careless action of the complainant who admittedly has not followed the procedure fully while operating the ATM for withdrawing the amount and as such the complaint is liable to be dismissed summarily. The transaction entered between the parties to the above alleged dispute are governed by the terms and conditions as laid down in USER’S MANNUAL of Sate Bank CASH PLUS ATM-CUM-DEBIT CARD and any deviation of procedure, terms and conditions committed by the ATM card holder and loss occurred to him due to such action, Bank is not liable to pay the loss, compensation or damage. On 28.1.2011 while the complainant was trying to withdraw the required amount from twin ATM Centre attached to Medical College Campus SBI Branch and the said ATM machine did not work so he changed to the second one and withdrew a sum of Rs.1,500/-( Rupees One Thousand and Five Hundred ) only. The statement of complainant shows clearly that without waiting for the transaction to be completed in first ATM machine he inserted debit card changed to the second ATM machine and withdrew a sum of Rs.1,500/- at 17.56 Hrs and admittedly on 28.1.2011 between 17.56 Hrs and 18.00 Hrs the complainant has operated twice the two ATM machines attached to Medical College Campus SBI Branch for withdrawing the required amounts and now here in his complaint the complainant has stated that when first ATM did not work, after following the procedure strictly he withdrew the ATM card and inserted the same in second ATM and withdrew Rs.1500/-, hence the complainant is negligent in operating the ATM machines for his negligence, Bank cannot be held liable to pay Rs.18,500/- and alleged compensation of Rs.5,000/- with interest of 9% per annum. The O.P.No.1 by its letterNo.PBD/03/2011 dated 7.2.2011 informed the complainant that as per the ATM log report the transaction dated 28.1.2011 for Rs.18,500/- is successful using complainants ATM card hence Bank is unable to refund the amount claimed. The annual maintenance fees of Rs.50/- will be recovered from all ATM-Debit card holder is not a service charges, so complaint is liable to be dismissed. The procedure to be followed by ATM card holder for operating his account through ATM clearly shows it is impossible to withdraw the amount without connivance of ATM card holder. Because without having access to personal identification number it is impossible to withdraw money from ATM in the instant case the complainant admits on 28.1.2011 between 17.56 Hrs to 18.00 Hrs he operated both the ATM’s, hence burden is on him to prove his allegation beyond doubt to claim refund of Rs.18,500/- and also Rs.5,000/- with interest @ 9% per annum and compensation. The O.P. No.2 to 5 are not necessary parties to this case because the related ATM is managed by this O.P. No.1 and O.P. No.2 to 5 are no way connected with the said twin ATMs. This Forum has no jurisdiction to grant any of the relief’s claimed by the complainant and the complainant is not a consumer to claim any relief under the provision of the Consumer Protection Act. The complaint is concocted, frivolous and vexatious and liable to be dismissed as per Section 26 of the Consumer Protection Act. The allegations made therein the complaint are baseless, wrong and are not supported by documents to support complainant’s allegation. Hence the complainant is not entitled to any relief what so ever and is not entitled to claim and recover alleged amount of Rs.18,500/- and also Rs.5,000/- with interest @ 9% per annum as compensation from the O.Ps is liable to be dismissed summarily. Hence the O.P.No.1 prayed to dismiss the complaint with costs.
4. The O.P.No.3, 4 and 5 though received the notice duly served by this Forum but did not prefer to appear and file the written version hence the O.P. No.3,4 & 5 are declared ex-parte on 19.12.2013.
5. Upon notice the O.P.No.2 filed written version/argument through his learned counsel Shri B.K. Mohanty, Advocate, Berhampur. It is stated that the allegations made in the complaint are not all true and correct and the complainant is put to strict proof of those allegations which are not specifically admitted herein. The complainant is a standing customer of State Bank of India, Main Branch at Berhampur, Dist: Ganjam namely Aananta Panda, S/o Late Adikanda Panda, at present residing at LIG Colony, 3rd Lane, Gajapati Nagar at Berhampur, Dist: Ganjam has filed this case and the O.P.No.1 is the Main Branch, near Municipal Gymnasium, Berhampur and the said branch of SBI doing banking business like opening of different accounts, maintaining the said accounts etc. and O.P.No.2 is another branch of State Bank of India and looking after maintenance of ATM centre situated near to its branch and O.P.No.3 is the Head Office of State Bank of India and O.P.No.1,2, 4 and 5 are administrative sub-ordinate of O.P.No.3 and as such O.P.No.3 is the necessary party and O.P.No.4 is the local Head Office of Eastern Zone to look after the matters related to ATM centers and O.P.No.5 is the Local Head Office of Odisha to look after the grievances of the customers etc are not relevant to this case. As the complainant is having his account with O.P.No.1, all other parties have no direct role/business with this disputes and this case is not maintainable against them due to mis-joinder of parties. Their Bank i.e. SBI is the largest public sector bank of the nation having wide ATM network throughout the country. It issues the ATM card subject to certain terms and conditions and the customer has to enter into a contract accepting the same by signing on the application form. The ATM card was issued to the complainant on accepting the terms and conditions for ATM cards for all its customers. The customers should take adequate precaution to protect their own interest and money while operating their ATM cards with the existing facilities/systems. No ATM transaction is possible without simultaneous use of card and PIN number. The PIN number is most confidential number which must not be disclosed or displayed to any other person. In the instant case, when the PIN number and card is with the complainant, it is not possible to operate the ATM without of his conveyance and knowledge. Moreover, as per record a sum of Rs.1500/- and Rs.18,500/- were withdrawn in quick succession from the ATM, State Bank of India, MCC Branch and the ATM transactions were successfully carried out. No excess money was also found in the ATM. In view of the above, these O.Ps are neither liable to return the amount of Rs.18,500/- withdrawal from the account of the complainant, nor responsible to pay compensation of Rs.5000/- with interest of 9% per annum for financial loss, mental agony, physical harassment and cost etc as claimed. This O.P.No.2 has also provided all necessary information and extended full cooperation to the complainant hence there is no deficiency in service. The complainant has also lodged an FIR with the Police which adds criminal dimension to the case. So, the allegation made regarding deficiency in service by this O.P.No.2 is not at all true and the same is denied in toto. This case involves complex question of facts, evidence and law. Moreover, investigation regarding the criminal angle of the case is under active consideration of the police. Hence, this Hon’ble Forum has no jurisdiction to admit the case and try the same and the matter can be properly adjudicated in the Civil or Criminal Court after completion of the police investigation. The matter requires thorough police investigation and punishment of the guilty and confiscation of the amount from the criminal. This O.P.No.2 is not liable to pay anything or responsible for the alleged misuse of the ATM card, as per the terms and conditions of the contract entered at the time of issue of the ATM card. The petition is barred by limitation and the same has not been properly valued. The complaint is not maintainable due to non-joinder of police as a party and mis-joinder of parties. Hence the O.P.No.2 prayed to dismiss the complaint with exemplary cost in the interest of justice.
6. On the date of final hearing of the consumer dispute the authorized person for the complainant is present. The learned counsels for the O.P.No.1 as well as for O.P.No.2 are also present. The case is proceeded ex-parte against O.P.No.3, 4 and 5 due to non-appearance of the parties. During the course of hearing of the consumer dispute we heard the arguments from the authorized person for the complainant and also perused the complaint, written argument and other materials placed on the case record. We have also heard the arguments from the learned counsels for the O.P. No.1 as well as for O.P.No.2 and have also verified the documents filed by them in support of their case.
On perusal of the case record, it appears that there is no doubt or dispute that the present complainant is a customer under O.P.No.1 as is evident from the bank passbook bearing Account No.30130238487 issued on 05.08.2009 in favour of the complainant. It is also beyond doubt that the O.P. No.2 has issued an ATM Card to the complainant for ATM transaction of his savings bank account. The authorized person for the complainant during the course of hearing of the matter submitted that the complainant on 29.01.2011 at ATM Centre MCC Berhampur vide ATM customer advise bearing TXN No.904 at 15.12 hrs came to know that a sum of Rs.18,500/- was withdrawn fraudulently from his account No. 30130238487 on 28.01.2011. The complainant immediately informed the matter to the Customer Care of the State Bank of India over telephone on the same day and registered a complaint bearing Docket No.AT33991216. The complainant though time and again redressed his grievance before the O.Ps but no heed was given to his complaint. He also prayed before the Forum to carefully go through his complaint, written argument and additional written argument and pass an order as per the merits of the case. The complainant hence filed this complaint in this Forum to direct the O.Ps to refund Rs.18,500/- to the complainant along with interest @9% per annum till final realization and to pay Rs.5000/- towards compensation in the interest of justice. He also cited a decision of Hon’ble National Commission in support of his arguments in the case of Bhadra N Dalal Vs. Bank of India reported in IV (2011) CPJ 33 (NC).
On the contrary, the learned counsel for the O.P. No.1 submitted that it is impossible to commit fraud on the ATM of complainant since the Card and four digits personal identification number is with the customer and it was advised to the customer not to disclose the secret number to others for the safety of his bank account. In this case the complainant neither alleged regarding theft of his ATM card nor disclosed the secret number to anybody hence the question of fraudulent withdrawn of Rs.18,000/- from the account of complainant does not arise. It is also submitted that no amount can fraudulently be withdrawn merely in absence of security guard and non-working of CCTV camera. The allegations made in the complaint clearly shows that complainant had kept the card in his safe custody and no one had access to it nor it was missing and the complainant is only aware about his four digits secret number. In support of his argument he has also cited an authority of Hon’ble National Commission in the case of State Bank of India Vs. K.K. Bhalla vide Revision Pretention No.3182 of 2008 decided on 7.4.20111. Hence, the O.P. No.1 is not liable to pay any of the amounts claimed by the complainant and the case is liable to be dismissed with cost.
Similarly, the learned counsel for the O.P. No.2 in his submission contended that State Bank of India is the largest public sector bank of the nation having wide ATM network throughout the country. It issues the ATM Card subject to certain conditions and the account holder has to enter into a contract accepting the same by signing on the application form. As per Clause – C (2) of the terms and conditions of ATM card, an unauthorized person can only access to ATM Card and four digits personal identification (PIN) if the card is not in the possession of the customer hence the card should remain in card holder’s possession. Clause D (2) of the ATM terms and condition states that bank is not liable for any financial loss in case of unauthorized use of the card and Clause –E (1) of the terms and conditions speaks that bank has the express authority to debit the designated account of the card holder for all withdrawals /transfers effected using the card as evidenced by bank’s records which will be conclusive and binding on the card holder. He further submitted that no ATM transaction is possible without simultaneous use of card and PIN number. The PIN number is most confidential number which must not be disclosed or displayed to any other person. In the instant case when the PIN number and card with the complainant, it is not possible to operate the ATM without his connivance and knowledge, hence the O.P. is not responsible for the loss. Moreover, as per records, a sum of Rs.1500/- and Rs.18,500/- were withdrawn in quick succession from the ATM, State Bank of India, MCC Branch and the ATM transactions are successfully carried out. In view of the above, the O.P. No.2 is neither liable to return the amount of Rs.18,000/- nor responsible to pay compensation of Rs.5,000/- with interest of 9% per annum for financial loss, mental agony, physical harassment and cost. He also relied on a decision of Hon’ble National Commission in support of his case in the case of State Bank of India Vs. K.K. Bhalla vide Revision Pretention No.3182 of 2008 decided on 7.4.20111 and prayed that the Hon’ble Forum may graciously be pleased to take the above facts and circumstance into consideration and dismiss the complaint with exemplary cost in the interest of justice.
6. We have considered the contentions raised by the counsels for respective parties and have also perused the case record. We have also gone through the documents like bank passbook, ATM customer Advice receipt and correspondences made by the complainant with the O.Ps. On perusal of the ATM customer Advice receipt it appears that on 28.01.2011 at about 17.56 vide TXN No.1877, the complainant checked his balance at MKCG Medical –II ATM counter and found that a sum of Rs.20,523.77 was available balance in the savings bank account of the complainant which is beyond doubt or dispute. Similarly, the complainant on the same day at about 17.56 vide TXN No.1878 withdrew a sum of Rs.1,500/- leaving an amount of Rs.19023.77 as available balance in his savings bank account. However, on 29.01.2011 at about 15.12 vide TXN No.904 in the ATM counter of MCC, Berhampur when the complainant requested for statement of account, he found that on 21.01.2011 a sum of Rs.18,500/- was withdrawn unauthorizedly from his account leaving Rs.523.77 as available balance. From the aforesaid discussion it is crystal clear that a sum of Rs.18,500/- was unauthorized withdrawn from this account which was not known to the complainant. The complainant also lodged a complaint before O.P. No.1 on 31.1.2011 and the O.P.No.1 on 07.02.2011 vide his letter No.PB/03/2011 informed the complainant that the disputed transaction was successful. After that the complainant contacted O.P.No.3 (customer care) and on his advice of O.P.No.3 also redressed his grievance before O.P. No.4 but that also did not yield any result. It is a fact that on behalf of the complainant the voluntary organization VEDIC has written letters to the O.Ps time and again to do the needful but the O.Ps did not respond properly to refund the disputed amount to the complainant. In this respect we would like to say that the O.Ps are custodian of complainant’s money and they are liable to refund the amount debited unauthorized from the account of the complainant. In this case, the complainant time and again though informed the matter to the O.P.No.1 but he did not take any effective steps to settle the matter satisfactorily. It also needs to be noted that the petitioner was quite vigilant in bring the whole matter to the notice of the bank authorities immediately and filed complaint before them. It is also an admitted fact that there was no available of CCTV camera and due to absence of CCTV camera, the O.P. bank could not provide the footage with respect to the person who actually operated the machine and withdrew the money from his account through the ATM. The fact remains that not only there was negligence in maintaining CCTV cameras in the ATM counter but the ATM system operated by the O.P. bank wrongly permitted an unauthorized withdrawal of amount of Rs.18,500/- from the account of the present complainant. In this case, the O.P. Bank has not submitted any report with regard to cash transaction, ATM log detail and excess case report to prove their case that no amount was drawn unauthorizedly. Moreover, the O.P. No.1 has also admitted that there was no security person deployed in the alleged ATM counter to protect the ATM machine from entry of unauthorized persons. That being the case, it is clear that some third person by foul play has manipulated the ATM machine and unauthorizedly withdrawn the amount from the account of the complainant. In this context, in our considered view we would like to say that the O.Ps are liable to make good of the loss of the complainant. In view of this, the order of National Commission in the case of State Bank of India Vs. K.K. Bhalla vide Revision Pretention No.3182 of 2008 decided on 7.4.20111 will not get attracted to the facts and circumstances of the present case. Our findings is also fortified by the decision of the Hon’ble National Commission in the case of Vidyawanti Vs. State Bank of India & Others reported in 2015 CJ 838 (NC).
7. In this case, the complainant has prayed before this Forum to direct the O.Ps to refund Rs.18,500/- to his savings bank account and to pay a sum of Rs.5,000/- towards compensation for mental agony and physical harassment along with interest @ 9% per annum for financial loss and cost of litigation. In this regard we are of the view that we are not inclined to direct the O.Ps to pay a sum of Rs.5,000/- towards compensation for mental agony and physical harassment since there is not cogent and convincing documentary evidence placed on record to prove the same but certainly would like to direct the O.Ps to refund the amount of Rs.18,500/- to the complainant with savings bank rate of interest from the date of unauthorized withdrawn to till realization of the amount. When the unauthorized withdrawn amount of the complainant carries savings bank interest to be paid by the O.Ps there is no justification to award compensation in favour of the complainant. However, we would like to allow a sum of Rs.500/- towards cost of litigation to be paid by the O.Ps at the same time since the O.Ps have forced the complainant to file a consumer dispute through a voluntary consumer association to get back his amount.
8. In the light of the above discussion and in view of the peculiar fact and circumstance of the case, we partially allowed the case of the complainant against O.Ps who are jointly and severally liable to refund an amount of Rs.18,500/- to the complainant along with savings bank rate of interest from the date of unauthorized withdrawal of the amount till the date of actual refund to the complainant. The O.Ps are also directed to pay a sum of Rs.500/- towards cost of litigation to be paid to the complainant along with refunded amount. The aforesaid order shall be complied by the O.Ps within 45 days from the date of receipt of this order failing which the complainant is at liberty to recover the whole amount as per relevant Sections of Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
9. The order is dictated and corrected by me and pronounced on this 18th day of January 2017 under the signature and seal of this Forum. The office is directed to furnish copy of this order to the parties free of cost as per rules. A copy of the order be sent to the server of
