For the O.P.No.5: EXPARTE.
DATE OF FILING: 02.01.2013
DATE OF ISPOSAL: 02.01.2018.
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of Consumer Protection Act, 1986 against the Opposite Parties (for short O.Ps) alleging deficiency in banking service and for redressal of her grievances before this Forum.
2. Briefly stated, the case of the complainant is that the complainant is a house wife and bona fide customer of O.P.No.1 having account No.31817532245 since long and from the day of opening of the said account, the complainant has been transacting through this account. The complainant has also availing ATM facility from the O.P.No.1 for day to day transaction. As per the complaint, she had been to Aska with her husband Sri Prakash Chandra Sahu on 20.07.2012 who withdrew a sum of Rs.200/- at Aska Market ATM centre. The said ATM centre is maintaining by O.P.No.2. The complainant also withdrew a sum of Rs.200/- from SBI ATM centre located at Kodala on 22.07.2012 through her husband Sri Prakash Chandra Sahu. When the ATM Customer Advice Receipt bearing No.8156 was received for the transaction by her husband, it comes to his notice that her account has a balance of Rs.14,322/- instead of Rs.34,322/-. The husband of the complainant thereafter collected another ATM customer Advice – Mini Statement on 22.07.2012 bearing No.8157 from the ATM Centre of O.P.No.1. From the said ATM customer advice receipt it also comes to light that a sum of Rs.20,000/- only was withdrawn unauthorizedly from the Aska Market-II ATM centre of O.P.No.2 on 20.07.2012. It is also stated in the complaint that the complainant filed an FIR with the O.P.No.5 for investigation on 24.07.2012 and subsequently filed a written complaint with the O.P.No.1 on 25.07.2012. It is also alleged that the O.P.No.1 did not resolve the complaint within the stipulated period as prescribed under the payment and settlement system Act, 2007 and RBI guidelines. The O.P.No.5 has not taken any action so far even after filing of an FIR filed by the complainant. It is also alleged that the O.P. No.1 to 4 are using defective software and machines for ATM centre installed at Aska. The O.P.No.1 to 4 are aware that an ATM card holder is not entitled to withdraw an amount exceeding Rs.15,000/- per transaction through ATM. But in this case, an amount of Rs.20,000/- was withdrawn on 20.07.2012 which speaks volumes against the service and conduct of the O.P.No.1 to 4 and they failed to prevent such withdrawals through ATM. Due to the above negligent act, the complainant requested to O.P.No.1to4 to credit the unauthorized debited amount with interest and also requested to O.P.No.5 for a proper inquiry into the matter. Due to non cooperation and none response from O.P.No.1, the complainant issued an Advocate notice through Registered Post with acknowledgement to O.P.No.1 to 3 on 21.08.2012. The said notice was duly acknowledged by the O.P.No.1 & 2 on 24.8.2012 but they did not choose to reply the notice nor take any action to credit the amount of Rs.20,000/- in the account of the complainant within stipulated time as per Advocate’s notice. When the O.Ps did not give any heed to the grievances of the complainant, he suffered from financial loss and mental agony hence alleging deficiency in service on the part of the O.Ps the complainant has filed this consumer complaint with the prayer to direct the O.P. No.1 to 4 to credit the amount of Rs.20,000/- in the account of the complainant with 12% interest from the date of unauthorized debit and to pay an amount of Rs.20,000/- as compensation towards agonies suffered along with Rs.5,000/- towards cost of litigation in the best interest of justice.
3. Upon notice the O.P.No.1 to 4 appeared through learned counsel Shri B.K. Mohanty on 12.02.2013 and filed written version on 03.07.2013 and written argument on 06.08.2013. In the written version/arguments it is stated that the O.P.No.1 is the Branch Manager of the Bank and in his official capacity is filling this written version on behalf of all the O.Ps i.e. 1 to 4. Being the principal officer of the Bank, he is responsible and authorized for the day to day functioning of the bank and hence the O.P.No.2 to 4 have no direct role in this case and they are not necessary parties in this case. The allegations made in the complaint petition are not all true and correct and the complainant is put to the strict proof of such of those allegations which are not specifically admitted herein. The O.P. submits that 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 applicant/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 for ATM card use, which reads that, “please remember that an unauthorized person can access the ATM service on card holder’s account if he gains the card and the PIN. The card, therefore, should remain in Card Holder’s possession and should not be handed over to anyone else. The card is issued on the condition that the Bank bears no liability for the unauthorized use of the card. This responsibility is fully that of the Card Holder” and as per Clause-D (2) of the terms and conditions of ATM card use, which reads that “any financial loss arising out of unauthorized use of the card till such time the bank records the notice of loss of card will be to the card holder’s account” and as per Clause-E (1) of the terms and conditions for ATM cards, which reads that, “the 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”. The O.P. further submitted that the ATM card was issued to the complainant on her accepting the terms and conditions for ATM card use 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. It is also submitted that the daily cash withdrawal limit on the State Bank Domestic ATM cum Debit card has been enhanced to Rs.40,000/- with effect from 07th July, 2008. It is also contended that no ATM transaction is possible without simultaneous use of card and PIN number, the 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 her connivance and knowledge. Moreover, as per records i.e. the ATM switch details, the card was used on 20.7.2012 for withdrawn Rs.200/- at 08:55 and Rs.20,000/- at 08:57 from the adjacent ATM at State Bank of India ATM counter, Aska Market-II, Aska, Ganjam and the ATM transactions were successfully carried out. Successful ATM transactions are not possible without inserting a valid ATM card and entering the correct PIN number. Hence, it is imperative for the customer to ensure safe keeping of card and PIN number. In view of the above, these O.P. No.1to4 are neither liable to credit the amount of Rs.20,000/- in the account of the complainant with 12% interest nor responsible to pay compensation of Rs.20,000/- towards agonies suffered by the complainant physically, mentally and financially and not to pay the cost of Rs.5,000/- towards litigation fees etc as claimed. This O.P. 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 this case. So the allegations made regarding deficiency in service by this O.Ps are not at all true and the same is denied in toto. It is further contended that this case involves complex question of facts, evidence and law. Moreover, the investigation regarding criminal angel of the case is under active consideration of the police. Therefore, this Forum has no jurisdiction to admit and adjudicate the case and this matter can be properly adjudicated in the Civil and Criminal Court after completion of the police investigation. Due to the above facts, this case does not come within the scope and ambit of the consumer Forum and there is no deficiency in service on part of this O.Ps. The matter requires thorough police investigation and punishment of the guilty and confiscation of the amount from the criminal. The O.P. No.1to4 are 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. Further, it is also contended that the petition is barred by limitation and the same has not been properly valued. The complaint is not maintainable due to non-joinder and mis-joinder of necessary parties, hence the O.Ps prayed to dismiss the case with cost in the interest of justice.
4. Notice was issued against the O.P.No.5 but he neither chooses to appear nor filed any written version hence the O.P.No.5 was declared exparte on 03.09.2013 and proceeded accordingly.
5. On the date of hearing of the consumer dispute, we have heard the learned counsel for the complainant as well as for the O.P.No.1 to 4. During the course of hearing the learned counsel for the complainant submitted that the present complainant is a bona fide customer of O.P.No.1 having account No.31817532245. The complainant had been to Aska with her husband on 20.07.2012 who had withdrawn a sum of Rs.200/- at Aska Market ATM center. The said ATM center is maintained by O.P.No.2. The complainant was again withdrew a sum of Rs.200/- from State Bank of India ATM centre located at Kodala on 22.07.2012 through her husband. On receipt of ATM customer advice receipt bearing No.8156 he could know that the said account has a balance of Rs.14,322/- instead of Rs.34,322/-. Thereafter the husband of the complainant collected a mini statement on 22.07.2012 bearing No.8157 and from the said mini statement he could know that a sum of Rs.20,000/- was withdrawn unauthorizedly from Aska Market –II ATM center of O.P.No.2 on 20.07.2012. The complainant accordingly filed an FIR with O.P.No.5 on 24.07.2012 and subsequently filed a written complaint with O.P.No.1 on 25.07.2012. Though a written complaint was filed, neither the O.P.No.5 nor the O.P.No.1 was taken any steps to refund the unauthorizedly withdrawal amount of Rs.20,000/- to the complainant. The learned counsel for the complainant also relied on a few citations of Hon’ble National Commission in support of his case reported in IV (2011) CPJ 330 (NC) in the case of Bhadra N. Dalal versus Bank of India and in the case of Vidyawanti versus State Bank of India and Ors reported in 2015 CJ 838 (NC) and prayed to direct the O.Ps to give the relief as prayed above.
6. On the contrary, the learned counsel for the O.P.No.1 to 4 contended that soon after the dispute was detected on verification of statement of accounts, the complainant filed a complaint before O.P.No.1 and also lodged an FIR before O.P.No.5 and when no result was reaped she issued a legal notice to the O.P.No.1to4 through her Advocate on 21.08.2012. In all her correspondences and complaint has clearly stated that on 20.07.2012 her husband had operated ATM by using her card to withdraw a sum of Rs.200/- and on 22.07.2012 again her husband operated her ATM to with draw a sum of Rs.200/- respectively. Subsequently, she complained before O.P. No.1 that a sum of Rs.20,000/- was withdrawn unauthorizedly from her account through ATM counter located at Aska Market. It is earnestly submitted that as per the Clause-C(2) of the terms and conditions for ATM card, the ATM card should not be handed over to anyone else since unauthorized person can access to the ATM service on card holders account if he gains access to the card and PIN number. He further submitted that the card is issued on the condition that Bank bears no liability for unauthorize use of the card. Similarly, as per Clause- D(2) of the terms and conditions of the ATM card “Any financial loss arising out to unauthorized use of the card till such time the Bank records the notice of loss of card will be to the card holders account”. He further submitted that according to Clause-E (1) of the terms and conditions of ATM card, “the 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”. Therefore, it is clear that the complainant has violated the terms and conditions of the ATM card use by handing over the same to her husband for which the O.Ps are not liable to pay any compensation or nor to refund the amount. Accordingly, the learned counsel for the O.P. No. 1 to 4 contended that bank is not liable to refund the unauthorized withdrawal of Rs.20,000/- and not to pay compensation of Rs.20,000/- and cost of Rs.5,000/- and prayed to dismiss the case with cost. He has also relied on an authority of Hon’ble National Commission in the case of State Bank of India versus K. K. Bhalla decided on 07.04.2011 vide R.P.No.3182 of 2008 where it was held that when card and PIN number with self custody /knowledge of the complainant it is not possible for money to be withdrawn by an unauthorized person from the ATM and prayed to dismiss the case with cost.
7. We have heard the above submissions of learned counsel for the complainant as well as for the O.P.No.1 to 4 and thoughtfully considered the same after going through the materials available on the case record. On a careful perusal of the documents and as admitted by the learned counsel for the complainant, it is beyond doubt or dispute that the complainant had handed over the ATM card to her husband to withdraw a sum of Rs.200/- on 20.07.2012 at Aska Market ATM Centre and an amount of Rs.200/- on 22.07.2012 at Kodala respectively. As per the terms and conditions of use of ATM card, the ATM card is not transferable. The terms and conditions of the ATM use vide Clause-D (2) and E (1), the card holder should keep the ATM card in his or her safe custody and it should not be handed over to anybody who may cause unauthorized use of the same by accessing the card and PIN. As per the terms and conditions, if the card holder handed over the same to someone for withdrawal of money, the bank has no liability for the unauthorized use of same. In the instance case, it is an admitted fact that the present complainant had handed over the said ATM card to her husband for withdrawal of money on two occasions as discussed above. Since, the complainant has violated the terms and conditions of use of ATM card and unauthorizedly handed over the same to her husband for withdrawal of money as discussed above, the bank bears no liability for unauthorized withdrawal of money from her account. The O.P. Bank is not liable to credit the amount Rs.20,000/- to the account of the complainant due to violation of terms and condition of ATM card.
8. In the light of the above discussions and considering facts and circumstances of the case, we feel that the case of the complainant has no merit for consideration due to violation of terms and conditions of ATM Card use by the complainant. Our finding is fortified with the decision of Hon’ble State Consumer Disputes Redressal Commission, West Bengal reported in CLD 2004, Volume 12, Part-5, page 362 where it was held ‘where ATM cardholder had allowed his driver to use card in violation of the conditions of the card, bank could not be held liable for any unauthorized withdrawal’. The citation relied on by the learned counsel for the complainant is not applicable to this case due to distinguished factual difference of the said cases to that of present case in hand, hence we are not inclined to accept the same and rejected. In the light of foregoing discussions, deliberation and decision of law, we feel that the complaint of the complainant has no merit for consideration and deserves to be dismissed.
9. In the result, the complaint of the complainant is dismissed due to devoid of any merit. The case of the complainant is disposed of accordingly. However, there is no order as to cost.
10. The order is pronounced on this day of 2nd January 2018 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
