OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI-03

                                                                                                C.C.19/2012

Present:-

1) Md.Sahadat Hussain, A.J.S.         - President

2) Smti ArchanaDekaLahkar            - Member

3) Md Jamatul Islam                         -Member

Sri Siba Prasad Bora                                                          -Complainant

S/O- Late Gopi Ram Bora

H.No-19, Sijubari,Kahilipara Link Road,

Opp. Mazar,Notboma,Hatigaon,Guwahati-781038

P.S-Hatigaon,Kamrup(M),Assam

  -VS-

1) The Assistant  General Manager                                     -Opp.party

State Bank of India, Dispur Branch

P.O- Secretariat ,P.S- Dispur, Guwahati-781006

Kamrup Metro , Assam

Appearance:

Ld advocate Mr S.N. Sarma for the complainant , Smt  Meera Hazarika Bora and Ld advocate Mr Baikuntha Nath Thakuria  for the opp. party .

Date of oral argument - 16/08/2018  

Date of judgment          -20/08/2018

JUDGMENT

This is a proceeding U/S- 12 of the Consumer Protection Act, 1986

1.           The complaint filed by Sri Siva Prakash Bora  against the Assistant  General Manager  ,State Bank of India ,Dispur Branch was admitted on 31/03/2012 and notice was served upon them and they also  filed written statement  on 05/06/2013 . The complainant filed his evidence on affidavit on 06/11/2013 and he was cross examined by the Ld counsels of the opposite party, and thereafter the opposite party side filed evidence of Sri Samarendra Chand and he was also cross -examined by complainant side’s Ld  advocate and thereafter on 27/06/2017 Ld advocate Mr Ajoy Hazarika filed written argument for the complainant, and Ld advocate Smt  Meera Hazarika Bora filed written argument for the opposite party on 01/08/2017 and finally on 16/08/2018 we heard oral argument of Ld advocate Mr S.M.Sarma  for the complainant and of Ld advocate Mr Baikuntha Nath Thakuria for the opposite party and today we deliver the judgment which is as below-
2.          The complainant’s case in brief is that on 26/09/2011 , at about 11.54 AM he had withdrawn Rs.5,000/- from Savings Bank Account No-1082165034 from an ATM Booth having ATM ID No-SIOA003030176 at Hatigaon by using his ATM card bearing No-6220180303000589794 and after withdrawal of the said Rs.5,000/- the balance remaining in his account was Rs.2,83,988.07/- and on the same day when he went to check -up  his remaining balance at  about 7.29PM from the said ATM  booth, he was shocked after finding  that an amount of Rs.22,299/-  was found unauthorisedly withdrawn  from his account as POS PRCH and he then immediately try to talk to the bank at  toll free customer care no i.e. 1800-112211 and 080-26599990 but found no response from them, and on the next morning i.e. 27/09/2011 at about 10.10 AM,  when he went  to SBI, Dispur branch to bring the matter to their notice and submitted written complaint narrating the incident and requested to restore   the said amount of money and on that day he also  issued a cheque of Rs.2,50,000/- from his remaining balance in the said account  to deposit the same  as termed deposit and the opposite party bank received the said cheque issuing the receipt to him, but the opposite party informed him that Term Deposit Certificate  couldnot be issued as there have taken place two more withdrawal as POS PRCH from his account meanwhile ; and  receiving that call he immediately went to the office of the opposite party  again and made request  to take immediate  measures in order to save his money in his account and also to issue his Term Deposit Certificate  of Rs.2,50,000/- and to refund the misused amount from his account,  but they did not take any step; and then on 28/09/2011  he went to and requested the Ombudsman by filing a complaint to issue direction to the opposite party to restore unauthorized withdrawn amount of Rs.22,299/- immediately along with interest after lapse of almost three  months from the said  incident .The opposite party did not issue the Term Deposit Certificate of Rs.2,50,000/-  out of his remaining balance amount  in his account and then he again lodged another complaint before Banking Ombudsman  on 24/11/2011 regarding non issue of Term Deposit Certificate  . After hearing him the ombudsman delivered its decision  in a concileation meeting held on 14/12/2011, but issued no  direction in respect of his 1^st complaint dtd.28/09/11 but issued direction in respect of his  2^nd complaint and he also accepted the said decision . He never  made any POS PRCH and nor anybody else authorized by him to do POS PRCH  on his  behalf . Some other used his ATM No. fraudulently  and in  the material  time the ATM card was with him, and in such situation he found that due to negligence of the opposite party the said Rs.22,299/- was misused and therefore the opposite party is liable  to restore the said  amount. Accordingly he  pray to  this forum to direct the opposite party  to return the said Rs.22,299/-  and also to pay him Rs.50,000/- as compensation for  causing  mental stress and physical harassment  as well as financial loss to him.
3.         The pleading of the opposite party side is that there is no cause of action for  filing the complaint. The allegation of the complainant that Rs.22,299/-  was withdrawn from his account by someone without his knowledge and authority vide POS PRCH (point of sale purchase) which means somebody purchased something by fraudulently using  the complainant’s money is absolutely false  and absurd because ATM card with its secret  number always remains  along with the applicant only, and hence there is no scope either mechanically or otherwise to withdraw  money without his knowledge or consent;  and so the allegation is a making one, which was done with an intention to make illegal demand on the plea of the fraudulent withdrawal from his account  by other person. The  allegation  of the complainant  that he informed the opposite party about the matter through toll free number of SBI i.e. 1800-112211 & 080-26599990 and that nobody responded to his call is not true. On receiving written application on 27/09/2011 , they lodged CMS  complaint in the bank system on 27/09/2011 but there was no  demand from the complainant to  block the ATM  card , the bank did not block the ATM  card, however on information regarding  further  debits from his account the bank blocked the ATM card and informed him the matter over phone and the bank also by sending mails to the concerned departments for stop payment  from his account and the matter was also reported to the local head office for further follow up actions. The Term Deposit Certificate  of Rs.2,50,000/- couldnot be  issued for want of sufficient fund in his lone account due to two withdrawals from his lone account as POS PRCH  by the complainant or his agent  using his ATM  card. The withdrawals from his account had been made by the applicant himself or by his agent using his ATM card and hence the bank couldnot  restore  the said amount  under bank’s rule . The Banking Ombudsman passed order satisfying the 2^nd complaint dtd.24/11/2011 filed by the complainant and as 1^st complaint is not sustainable due to applicant’s negligence or own fault  regarding maintaining secrecy of the ATM card or secret number . The ombudsman did not give any  relief to him in respect of his 1^st complaint. They did not cause any harassment physical or mental as well as financial loss to the complainant as Rs.22,299/- was  withdrawn  by using  his ATM  card and the secret number of his ATM card which always remain with the applicant only since  withdrawal  by any other person  is not possible at all and the said  withdrawal is possible only for  negligence and carelessness  of the applicant in  keeping  his secret ATM card  and the number, for which, any  of his person or agent might have made these withdrawals. Therefore,  they are not liable to  pay him damages of Rs. 5,000/- and compensation of Rs.10,000/-  and to refund Rs.22,299/- .On the application of the complainant dtd.28/09/2011  24/11/2011 , the Ombudsman conducted conceleation meeting on 14/12/2011  at 3PM and the complainant have been settled with findings tha “ both parties agreed  that SBI will deposit a sum of Rs.24,399/- & Rs.10,514/- in the bank account of Sri Bora and issue one TDR of Rs.2,50,000/- with value date of 27/09/2011. The SBI will also issue a new ATM Card with new pin to Sri Bora . The complaint is treated as resolved and closed under the provision of Clause-II (I)  of Banking Ombudsman, Scheme ,2006” . The said decision has been accepted by the applicant and as such the complainant has no reason to file the present complaint before the forum, and this forum also have no jurisdiction upon  a finally settled case and hence the complaint is liable  to be dismissed with compensatory cost of Rs.10,000/-.

4.        We have perused both sides’ pleading as well as the evidence . We have also perused the argument of both sides’ ld counsels . We have found that both sides admit that the complainant has a Savings Bank Account  in the SBI,Dispur branch vide Account No-10821650349 along with ATM Card No-6220180303000589794, and that on 26/09/2011 , he had withdrawn an amount of Rs.5,000/-only through his ATM card in ATM ID No-S10A003030176 situated at Hatigaon ,Guwahati and after withdrawal of the aforesaid sum the balance amount in his account was Rs.2,83,988.07 but on that very day while he  took out a mini statement from the aforesaid ATM booth  at about 7.29PM he noticed that an amount of Rs.22,299/- was withdrawn from his account showing as POS PRCH (point of sale purchase)

The complainant states that Rs.22,299/-was withdrawnby miscreants on 26/09/2011 by POS PRCH and he then informed the customer care of the opposite party about that through toll free no-1800112211 and 080265599990 and the complainanton the next day on 27/09/2011 at about10.10 AMreportedthe matter to Dispur branch along witha written complaint and requested to do needful step to stop further withdrawal immediately.

From Ext-D, which is a letterwritten by the complainant to Assistant General Manager ,SBI , Dispur branch,it is seen that he filed that letter on 27/09/2011informing Asst. General Manager that on 26/09/2011 ,he had withdrawn Rs.5,000/- through ATM situated at Hatigaon at 11.54AM; and after withdrawal, the balancewas Rs.2,83,988.07/- shown by the mini statement but while on the same day in the eveninghe took out a mini statement from the said ATM booth, he foundthat the balance in his account was Assistant General Manager,SBI , Dispur branch did not take any step to enquire the matter.

5. The complainant states in his evidence , that after experiencingthe aforesaid anomalies, he decided to invest a sum of Rs.2,50,000/- in a Term Deposit Account in order to secure his balance amount and accordingly issued a cheque for the same and after receiving the said chequethe bank informed him that the Term Deposit Certificate could not be issued due to the reason of two further withdrawalsfrom his account were made as POS PRCH . This fact is admitted by the opposite party side . Thus it is proved that after 1^st withdrawal of Rs.22,299/- from the account of the complainant throughPOS PRCHthe complainant vide his letter dtd. 27/09/2011informed the Assistant General Manager,SBI , dispur branch aboutthe matter and requested him to debit the said amount to his account butAssistant General Manager ,SBI , dispur branch did not take any step to enquire thematter and after that another two withdrawals through POS PRCH system were made from his account. The complainant states that these three withdrawals were not made by him but by someone unauthorisely.The opposite party side reversely states that the complainant or his agent had withdrawn these three amounts by himself or through his agent ,but to prove that fact the bank has not adduced any evidence, nor they have investigated about thematter . In a case of fraudulent withdrawal it is a duty of the bank to make proper enquiry but they did not take step to do that enquiry. Thus , it is a crystal clear that due to fault in the system of the bank including digital systemof the bank, three amounts were fraudulently withdrawn from the account of the complainant by miscreants through POS PRCH and also due to negligence of the bank, the miscreants were not detected. Therefore , for the fault of the system and for the negligence of the bank personnelof the bank, the loss suffered by the complainant andaccordingly the opposite party bank is liable to refund the amount which were fraudulently withdrawn by the miscreantsfrom the account of the complainant and therefore the opposite party is liable to refund the said amount to the complainant.

6.        Both sides also admit that the complainant approached the Banking Ombudsman on 24/11/2011 regarding issue of Term Deposit Certificate and also vide application dtd.28/09/2011 approached  the Banking Ombudsman in the matter of debiting the   amount of money, which was   illegally withdrawn by the miscreants  through POS PRCH from his account, and the Ombudsman, after hearing both the parties, directed the opposite party  to satisfy  the complaint dtd.24/11/2011 but did not give any decision  regarding complaint dtd.28/09/2011 and  the opposite party bank  satisfy the complaint dtd.24/11/2011 i.e. issuing  the Term Deposit Certificate  adjusting the later two withdrawals made  by miscreants  through POS PRCH . Thus , it is seen that the  1^st complaint dtd.28/09/2011 remains un-disposed  because the  Banking Ombudsman did not give any decision on it. It is found that both sides admit that in the  conciliation agreement (Ext-G) , the matter of  1^st complaint  which is dtd. 27/09/2011 was not  disposed of and it was left out by the Ombudsman

7.        In this case, it is already found that the 1^st withdrawal of Rs.22,299/-  was made by some miscreants through POS PRCH system and that  was done due to fault on the system including digital system of the opposite party bank and that fact is also  indirectly admitted by the opposite party bank. Therefore, the opposite party is liable to refund that amount (Rs.22,299/-) to the complainant with interest and refund  to do so is an act of deficiency of service  to the complainant .We  are also hence in opinion  that by  not refunding Rs.22,299/-,  which had been withdrawn by the miscreants by POS PRCH system,  to the complainant and by not issuing Term Deposit Certificate to him in time and by compelling the complainant to approach to the Banking Ombudsman  to get relief, the opposite party caused harassment to him and hence the opposite party is liable to pay the complainant compensation  of Rs.10,000/- along with cost of the proceeding of Rs.10,000/- . The opposite party is also liable to pay  an interest on Rs.22,299/- @6% per annum from 27/09/2011 having they illegally  refused to credit the said amount to the account of the complainant .

8.          Summing up our discussion as above, we hold that the complainant has  a prima facie case against the opposite party namely- Assistant  General Manager, State Bank of India, Dispur Branch including the authority of SBI and he has succeeded  to prove his case and hence the State Bank of India, Represented by Assistant  General Manager, Dispur Branch is directed to refund Rs.22,299/- with interest @6% per annum  from 27/09/2011 to the complainant and also to pay him Rs.10,000/- as compensation for causing harassment to him and Rs.10,000/- as cost of the proceeding  and they are directed to pay the awarded amount within 45 days , in default, other two amounts shall also carry interest at the same rate.

Given under our hand  and seal  today on this 20^th August, 2018.

  (Smt Archana Deka Lahkar)   (Md.Jamatul Islam)        (Md.Sahadat Hussain)                                                                                                                        Member                    Member                            President