Karnataka

Bangalore 4th Additional

CC/117/2018

B. Sampath - Complainant(s)

Versus

The Bank of Baroda - Opp.Party(s)

J Ravindra Babu

02 Nov 2018

ORDER

Complaint filed on: 17.01.2018

                                                      Disposed on: 02.11.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.117/2018

DATED THIS THE 2^nd NOVEMBER OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mr.B.Sampath

S/o Late Balaram Naidu,

Aged about 47 years,

R/at no.32, 6^th block,

NIT staff quarters,

Palace Guttahalli,

Bengaluru-03.

 

By Adv.Sri.J.Ravindra Babu     

 

V/s

Opposite party/s

Respondent/s:-

 

1. M/s.Bank of Baroda,

Palace Orchards Branch, no.240/1, Ganesh Krupa, Sadashivanagar,

Bengaluru-80.

Rep. by its Authorized Signatory

 

2. Bank of Baroda,

Regional office at no.72,

1^st floor, Nitesh Lexington Avenue, Brigade Road, Bengaluru-25.

Rep. by its Manager

 

3. Bank of Baroda,

Head office at Suraj

Plaza-1, Sayaji Ganj,

Vadodara-390020.

Rep. by its Manager

 

By Advocates M/s.IndiaLaw LLP

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1, 2 & 3 (hereinafter referred to as Op.no.1, 2 & 3 or Ops) seeking issuance of direction to pay Rs.15,000/- being the loss suffered by the Complainant towards damages along with interest at 18% p.a. from the date of transaction dtd.28.10.16. Further direct the Ops to pay damages of Rs.25,000/- for mental agony; cost of Rs.4,000/- and to grant such other reliefs deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, he is one of the saving bank account holder in the Op.no.1 bank and his SB a/c no.1011100003691 and he is also possessing a ATM card bearing no.4029 8502 0316 3081 (hereinafter referred to as said ATM card). It is the case of the Complainant that, on 28.10.16 in order to withdraw the amount from ATM machine and thereby inserted his card for withdrawing a sum of Rs.15,000/-. Since the Complainant has not received the said amount from ATM machine and accordingly he has got a counter fail from the said ATM machine with an endorsement ‘transaction declined’. Hence, he approached the Op.no.1 to enquire about the same, by the time he was about to enquire, he received a message in his mobile number that a sum of Rs.15,000/- has been debited in his account. Thereafter, the Complainant informed about the said fact to Op.no.1 persons and for that they instructed the Complainant to obtain a mini statement from the ATM machine. Hence, the Complainant again inserted his card and obtained mini statements and it confirms that the said amount of Rs.15,000/- has been deducted from the account of Complainant. Immediately, he informed the above fact to Op.no.1 and for that Ops have assured that within a span of 24 hours the said amount of Rs.15,000/- will be credited to his account. The Complainant further submits that, after lapse of 24 hours, the Complainant again approached Op.no.1 on 02.11.16 and lodged complaint on 03.11.16. Thereafter also there was no response from Op.no.1 bank and Complainant again approached Op.no.1 and for that they have informed that the some fraudulent transaction has been taken place in that regard and advised him to lodge a police complaint. Accordingly, he lodge a police complaint on 23.12.16 and also lodge complaint before Op.no.1 on 23.12.16. Apart from that the Complainant has also sent message through his gmail to Op.no.1 to look in to the matter. The Complainant further submits that, since from that day, the Complainant approached Op.no.1 several times, but there was no proper response from them in that regard and the Complainant has been made to run from floors to pillars and all his efforts vent in vain. The act of Ops towards Complainant amounts to deficiency of service. In this context, he issued legal notice dtd.16.08.17 but there was no response. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op.no.1 to 3 did appear and filed version.  The sum and substance of the version of the Op.no.1 are that, the complaint filed by the Complainant is not maintainable either in law or on facts, hence liable to be dismissed.  Ops further submit that, on perusal of the available records and documents with them, it is be noted that on 28.10.16 at 14.17 having ATM ID, the Complainant tried to withdraw an amount of Rs.15,000/- however the transaction was declined and at about 14.19 on the same day he had tried to withdraw the said amount but again the transaction got declined. Subsequent to that, he had tried withdrawing the amount at around 14.21, wherein the transaction was processed and the amount of Rs.15,000/- was withdrawn from the account. Further to which, he had tried withdrawing twice and both the transactions were declined. Ops further submit that, though a complaint was lodged, the Ops has thoroughly conducted enquiry and found that the transaction was successful and that the Complainant has received the amount. The Ops have promptly responded and reverted that since the transaction was successful and the Ops are in no position to reverse the amount. It is a bank having good reputation and is known for providing best services and in no way the bank would commit anything detrimental. The amount of Rs.15,000/- was withdrawn by the Complainant and therefore the question of claiming for refund and compensation does not arise. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A12. The Chief Manager of Op bank filed affidavit evidence and got marked the document as Ex-B1. Both filed written arguments. Heard both side.

   5. The points that arise for our consideration are:

1. Whether the Complainant proves deficiency of service on the part of Ops, if so, whether he entitled for the relief sought for ?    
2. What order ?

           

 

6.  Our answers to the above points are as under:

Point no.1: In the Negative.  

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:  We have briefly stated the contents of the complaint as well as the version filed by the Ops. The undisputed facts which reveal from the pleadings of the parties goes to show that, Complainant is having saving bank account in the Op.no.1 bank and he is also possessing a ATM card bearing no.4029 8502 0316 3081. It is the grievance of the Complainant that, on 28.10.16 in order to withdraw the amount from ATM machine, he inserted his card for withdrawing a sum of Rs.15,000/-. Since the Complainant has not received the said amount from ATM machine and accordingly he has got a counter fail from the said ATM machine with an endorsement ‘transaction declined’. In this context, he approached the Op.no.1 to enquire about the same, by the time he was about to enquire, he received a message in his mobile number that a sum of Rs.15,000/- has been debited in his account. But the said amount was not re-credited inspite of repeated requests. The say of Ops are quite different, stating that, the transaction has been successful which can be seen on going through the contents of Ex-B1. We have gone through the contents of Ex-B1, wherein cash withdrawal amount of Rs.15,000/- is successful. Though the transaction was declined on the same day, the said withdrawal found to be true. It is not the case that, his PIN number was fell in wrong hand, hence, by using the said PIN number, the unknown person have withdrawn the said amount. Complainant also issued a letter dtd.23.12.17 marked as Ex-A5 addressing to Op.no.1, wherein he stated as:

Sub: Fraud transaction taken place in my account 10110100003691 on 28.10.16.

 

I refer to the above subject and write to inform you that, I have tried to withdraw for Rs.15,000/- from my account number 10110100003691 on 28.10.16 in Palace Orchards e-lobby ATM (ATM ID: 1RDNBGL02). Since I have not received the amount I lodge the complaint as an unsuccessful transaction. Later on enquiry I found that the debit transaction in the account is created by using some other ATM ID at the same time which was fraudulent and which was not taken by me.

 

          8. If the above contents of the letter are strictly construed, the said amount has been debited from his account. As we already stated above, unless and until, PIN number is not made known to anybody else, hence presumption can be raised that, it is the Complainant who has withdrawn the said amount. Further, we are of the opinion that, Complainant might have not waited till releasing of the amount from the ATM machine. In this context, we placed reliance on the decisions of Hon’ble National Commission cited by learned counsel for the Ops.

1. Revision Petition no.3182/2008 in the case of SBI vs. K.K.Bhalla, dtd.07.04.11, wherein the relevant portion reads thus:

We have heard the learned counsel for Petitioner as well as the Respondent and have gone through the evidence on record.

It is not in dispute that the ATM Card was issued to the Respondent and that he had kept the Card in his safe custody. Thus, no one had access to it nor was it ever missing. Further, only the Respondent was aware of the special four digit PIN number which is essential to operate the ATM Card. Despite all these facts, learned fora below ruled in favour of the Respondent only on the grounds that the CCTV footage which was required in respect of ATM transactions was not made available and this was a major lapse on the part of the Petitioner/Bank since it breached the security and safety in ATMs and was thus, clearly a deficiency in service.

We are not convinced by this reasoning of either the District Forum or the State Commission, particularly, in view of the fact that merely because the CCTV was not working on those dates and its footage was thus not available, does not mean that the money could be withdrawn fraudulently without using the ATM Card and the PIN number. In case the ATM Card had been stolen or the PIN number had become known to persons other than ATM card holder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card. In the instant case it is not disputed that the ATM Card or PIN remained in the self-custody/knowledge of the Respondent. In view of elaborate procedure evolved by the Petitioner/Bank to ensure that without the ATM Card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, we find it difficult to accept the Respondents contention. No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM Card or the PIN number fell in wrong hands.

2. Revision Petition no.3973/2014, in the case of Raghabendra Nath Sen vs. Punjab National Bank, dtd.17.12.14, wherein at para 5 it is held that:

5. It can hardly be disputed that no withdrawal from an ATM can be made unless the ATM card / debit card issued to the account holder is inserted in the ATM machine followed by use of the ATM Pin provided to the customer. The ATM pin is known only to the customer and therefore, it is not possible for a third person to withdraw any cash through the ATM even if he is able to clone the ATM/debit card issued to the customer.

9. Looking to the Ex-B1, transaction found to be successful. Hence, in the light of the decisions cited supra, we come to the conclusion that, there is no any deficiency of service on the part of Ops. Accordingly we answered the point no.1 in the negative.

 

           10. Point no.2: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is dismissed.

 

          2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

         

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 2^nd November 2018).

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.B.Sampath, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Original ATM receipts, Original mini statement obtained from ATM
Ex-A2	Original complaint acknowledgement dtd.03.11.16
Ex-A3 & A4	Police complaint dtd.23.12.16 and acknowledgement
Ex-A5 & A6	Complaint dtd.23.12.16 issued to Op.no.1 and gmail dtd.03.01.17
Ex-A7	Legal notice dtd.16.08.17
Ex-A8 to A12	Postal receipts, postal acknowledgements, complaint dtd.27.09.17 and internet print out- track consignment

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Rajesh Haswani, who being the Chief Manager of Op bank was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1

Statement reflecting the transaction

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT