The case of the complainant is that he is a consumer of OP bank and also consumer of UBI , Pandua Branch but on 15.7.2015 at about 2:30 p.m. one unknown non Bengali lady telephoned the complainant from Mobile and represented herself as Manager of SBI and wanted to activate the validity of the complainants ATM card, he on good faith informed the lady his number of ATM card which was visible at the top of the same and he was in the notion that without pin No. no one can withdraw money. Then the non Bengali lady uttered for half an hour regarding the six digits and requested the complainant to note down the said digits and requested the complainant to delete the messages which entered into the mobile of the complainant. And the complainant did the same on good faith. The complainant did not disclose the PIN of the ATM card. SBI Pandua Branch Hooghly did not inform the complainant about the withdrawal of money for the first two times amounting to Rs.9990/- only and Rs.20,000/- only. Later on SBI informed the complainant about the withdrawal of Rs.3000/- each for three times. This complainant assailed that if the OP could have informed the complainant in time about the withdrawal of Rs.9,990/- and in that event second withdrawal of Rs.20,000/- would not have been possible. The Complainant lodged an FIR in Pandua P.S. on 16.07.2015, U/S-420/406 IPC but the SBI Pandua Branch did not inform him about the action taken by them or the bank concern did not take any information from the P.S. mentioned above about the unauthorized withdrawal of money. According to the complainant for the negligence and deficiency of service of the SBI Pandua Branch, Hooghly he has suffered financial loss mental agony and sufferings.
The OP filed written version denying the allegations as leveled against him and averred that the complaint petition is bad for non joinder of necessary parties as the entire matter of ATM under the control of the switch centre Belapur, Mumbai and also the Asst. General Manager of local head office Kolkata are the necessary parties of this case. It is fact that there was admittedly a withdrawal of total Rs.38,990/- from the account of the petitioner from the ATM counter on 15.07.2015 which clearly shows in the JP/EJ log statement that the said transaction made successful and no cash excess in the respective ATM. On the basis of complaint lodged by the complainant the bank authority lodged an FIR before the Pandua P.S. U/S- 420/406 IPC dated 16.07.2015. As the entire matter of ATM under the control of the switch centre Belapur, Mumbai and also the Asst. General Manager of local head office of SBI Kolkata is the necessary party, the SBI Pandua ADB is not a necessary party in the matter. He averred that it is completely false allegation against the Branch manager of SBI Padua ADB branch regarding the process of ATM card. That the complainant has approached this Hon’ble Forum with unclean hands and has deliberately concealed/suppressed material facts having a definite bearing on the outcome of the present case and also made false and hold allegation against the OP. The instant case is barred by law and lack of jurisdiction as no cause of action arose within the knowledge of branch manager of OP bank and within the periphery of the Ld. Forum at Hooghly District. On the basis of complaint from the valued customer the ATM user our bank authority has engaged the service Engineer of ATM supplier and the said matter is under the investigation of Pandua police. It is clear from the pass book that the same is a successful transaction. In this connection please note that custody of ATM card and PIN is the primary responsibility of the card holder. Any ATM transaction cannot be successful in absence of both card and PIN. From the complaint petition it is inferred that the alleged withdrawal of Rs.38,990/- is successful due to use of card along with correct PIN, for which the complainant in this case is the solely responsible and bank cannot be held responsible for any negligent act or omission on the part of the cardholder/ customer. From the statements of complaint petition neither the OP bank nor the SBI Pandua ADB Branch has not made any breach of duty or deficiency of service, not harassed the petitioner and as such the petitioner is not liable to get any relief or cost or compensation.
The complainant filed evidence on affidavit which is the replica of the complaint petition.
Both sides filed written notes of arguments which are taken into consideration during the passing of final order.
The argument as advanced by the advocate of the complainant heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Sri Amarendra Narayan Chakraborty is a ‘Consumer’ of the Opposite Party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the OPs carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
- Whether the Complainant Sri Amarendra Narayan Chakraborty is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being a customer of the OP bank is maintaining a savings bank account and operating an ATM card before the OP bank, so he is entitled to get service from the service provider i.e. OP bank.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that he is a consumer of OP bank but on 15.7.2015 at about 2:30 p.m. one unknown non Bengali lady telephoned the complainant from Mobile and represented herself as Manager of SBI and wanted to activate the validity of the complainant’s ATM card, he on good faith informed the lady his number of ATM card which was visible and printed on the top of the same and he was in the notion that without pin no one can withdraw money. Then the non Bengali lady uttered for half an hour regarding the six digits and requested the complainant to note down the said digits and requested the complainant to delete the messages which entered into the mobile of the complainant. And the complainant did the same on good faith. The complainant did not disclose the PIN of the ATM card. SBI Pandua Branch Hooghly did not inform the complainant about the withdrawal of money for the first two times amounting to Rs.9990/- only and Rs.20,000/- only. Later on SBI informed the complainant about the withdrawal of Rs.3000/- each for three times. This complainant assailed that if the OP could have informed the complainant in time about the withdrawal of Rs.9,990/- and in that event second withdrawal of Rs.20,000/- would not have been possible. The Complainant lodged an FIR in Pandua P.S. on 16.07.2015, U/S-420/406 IPC but the SBI Pandua Branch did not inform him about the action taken by them or the bank concern did not take any information from the P.S. mentioned above about the unauthorized withdrawal of money. According to the complainant for the negligence and deficiency of service of the SBI Pandua Branch, Hooghly he has suffered financial loss mental agony and sufferings.
The sole OP denied the allegations as leveled against him and averred that the complaint petition is bad for non joinder of necessary parties as the entire matter of ATM is under the control of the switch centre Belapur, Mumbai and also the Asst. General Manager of local head office, Kolkata are the necessary parties of this case. It is fact that there was admittedly a withdrawal of total Rs.38,990/- from the account of the petitioner from the ATM counter on 15.07.2015 which clearly shows in the JP/EJ log statement that the said transaction made successful and no cash excess in the respective ATM. On the basis of complaint lodged by the complainant the bank authority lodged an FIR before the Pandua P.S. U/S- 420/406 IPC dated 16.07.2015. As the entire matter of ATM under the control of the switch centre Belapur, Mumbai and also the Asst. General Manager of local head office of SBI Kolkata is the necessary party, the SBI Pandua ADB is not a necessary party in the matter. He averred that it is completely false allegations against the Branch Manager of SBI Padua ADB branch regarding the process of ATM card. That the complainant has approached this Hon’ble Forum with unclean hands and has deliberately concealed/suppressed material facts having a definite bearing on the outcome of the present case and also made false and hold allegation against the OP. The instant case is barred by law and lack of jurisdiction as no cause of action arose within the knowledge of branch manager of OP bank and within the periphery of the Ld. Forum at Hooghly District. On the basis of complaint from the valued customer the ATM user, the bank authority has engaged the service Engineer of ATM supplier and the said matter is under the investigation of Pandua police. It is clear from the pass book that the same is a successful transaction. In this connection he stated that custody of ATM card and PIN is the primary responsibility of the card holder. Any ATM transaction cannot be successful in absence of both card and PIN. From the complaint petition it is inferred that the alleged withdrawal of Rs.38,990/- is successful due to use of card along with correct PIN, for which the complainant in this case is solely responsible and bank cannot be held responsible for any negligent act or omission on the part of the cardholder/ customer. From the statements of complaint petition neither the OP bank nor the SBI Pandua ADB Branch has not made any breach of duty or deficiency of service, not harassed the petitioner and as such the petitioner is not liable to get any relief or cost or compensation.
From the instant case it is clear that the complainant shared his ATM card number to any third person as a result the miscreants’ withdrawal money from his account and the complainant got information from the messages sent by the OP bank. As a result the complainant lodged a complaint before the Pandua P.S. & also the bank lodged an FIR before the Pandua P.S. U/S- 420/406 IPC dated 16.07.2015. But there is no information regarding the investigation of the case. Being aggrieved the complainant filed the instant complaint before this Forum for reliefs as prayed in the prayer portion of the complaint petition. The case of the OP is that due to sharing of PIN & card number the miscreants withdrawal the money from the account of the Complainant. The withdrawal of money is transparent from the account of the complainant except the cardholder. As a result the complainant suffered loss. But the role of the OP is not satisfactory. He has taken the plea that the cardholder disclosed his PIN to third person and third person being capable enough to withdraw money from any account after getting the card number or PIN number. So it is transparent that no bank account is secured by its custodian. It is the utmost question how the money has been withdrawal from the ATM machine in absence of ATM card and the PIN. The OP in his argument stated that the JP/ EJ log depicts that the said transaction made successful and no such excess in the respective ATM. But OP could not make it clear from which machine/ machines the impugned 5 transactions took place and failed to produce the CC TV footage of those transactions. So it is crystal clear that the Complainant is duped by the miscreants those who are capacitated to make withdrawal of money from the ATM machine in absence of credit/ debit card & PIN.
Everywhere in the w/v as well as BNA the OP tried to evade his responsibility by stating that the complaint petition is non-joinder of necessary parties like ATM switch centre at Belapur, Mumbai & AGM local head office, Kolkata. Once the complaint was made citing specific incidents of unauthorized withdrawal, it was the duty of the bank to have carried out the necessary verification in the matter, rather than washing their hands off from the whole episode. Till date the OP failed to inform us the fate of the investigation that started in accordance with the complaint lodged by complainant as well as OP. The miscreants are well about the account details of the bank as a result he/she called in a specific mobile no of a person who is maintaining account in that bank. The complainant on good faith informed the non Bengali lady about the number of the ATM card which is normally visible and printed at the top of the same. But the complainant did not disclose the PIN of the ATM card. Despite that the money has been withdrawn by the miscreants. The OP failed to inform by messages about the withdrawal of money for the first two times amounting to Rs.9990/- & Rs. 20000/- as a result the complainant did not take measure to prevent the subsequent transactions.
In Vidyabati vs. State Bank of India & Ors ( RP No. 4868/2012 decided on 18.02.2015) the allegation was that there had been unauthorized withdrawal from the savings bank accounts of the complainant as well as some other person. This Commission held that since the money had been wrongly withdrawn by the foul play from the account of the complainant as well as some other person, the bank was liable to make good the loss.
In State Bank of India vs. Dr. J.C.S. Kataky, Revision Petition No. 3073 of 2016 order dated 3rd May, 2017 the Hon’ble National Commission held that once the complaint was made citing specific incidents of unauthorized withdrawal, it was the duty of the bank to have carried out the necessary verification in the matter, rather than washing their hands off from the whole episode.
From the above discussion we are in the opinion that the complainant proved his case by producing sufficient documents and argued on the point whether the OP is deficient in providing service and he is under liability to pay compensation alongwith other reliefs prayed in the prayer portion of the complaint.
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case and the Opposite Party bank is liable to pay compensation for mental pain and agony of the complainant.
ORDER
Hence, it is ordered that the complaint case being No.142 of 2015 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs.5,000/-.
The Opposite Party is directed to pay a sum of Rs.38, 990/- with interest @10% p.a. from the date of withdrawal on 15.07.2015 till the realization and a sum of Rs.10,000/- as compensation for mental pain & agony within 45 days from the date of this order.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
