Samaresh Kumar Mitra, Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant, Ashoke Mallick that he is a customer of opposite party no.1 Bank and he is a State Govt. Employee and he has a salary account being no.31920788845 along with A.T.M. service facility but on 8.1.2016 at about 11.40 a.m. when he tried to withdraw Rs.10,000/- from his account through the A.T.M. card due to some technical problem the A.T.M. Machine did not functioned properly and as a result he failed to withdraw his required amount and finally the said transaction was ended without disbursing any amount and generating any receipt.
The complainant states that as there was an urgent need of money he compelled to proceed towards another A.T.M. of S.B.I. therefore on his way he suddenly received a SMS in his scheduled mobile no. from Bank stating that an amount of Rs.27,000/- has been withdrawn at a time from his said account and then finding no other alternative the complainant updated his account from A.T.M. counter and he became astonished to found that only Rs. 107/- is lying in his account. Being very much helpless with the situation the complainant went to the opposite party no. 1 and explained everything to him.
The complainant also states that in the office of opposite party no. 1 he lodged a written complaint on 8.1.2016 and prayed for taking necessary steps for recovery of his stolen amount of Rs.27,000/- and when he was going to make a prayer regarding the “C.C.T.V.” footage of the said A.T.M. counter the opposite party no. 1 specifically directed him not to make any prayer in that regard and also pressurized him by stating that it is not the jurisdiction of the complainant to ask for “C.C.T.V.” footage from the bank authority rather it is the duty of the complainant to file an application through concern police authority and he fully relied upon the opinion of opposite party no. 1 and on 8.1.2016 he filed another written representation before the opposite party no. 1 through concerned police authority. The complainant further states that on 13.1.2016 again he made a written representation and made specific prayer before the opposite party no. 1 for video footage of incident and thereafter he visited the office of the opposite party no. 1 with a hope of some positive result but that was of no result. After passing more than one and half month without getting any proper feedback on 29.2.2016 he again made a written complaint over the matter and prayed for taking necessary action and copy of the said written application also forwarded before the different authorities.
The complainant also states that thereafter through a letter dt. 21.3.2016 issued from the office of op no.2 he was instructed to lodge FIR at police for video footage of the ATM and the video footage is kept in their ATMs for 90 days from the date of transaction but in this regard he further begs to state that is has been stated earlier that he had already intimated the entire matter before the concern authority on the date of the occurrence of the offence and he also asked for video footage of the incident and he also submitted that the copy of the above stated letter of intimation to the office of op no. 1, therefore it is needless to mention that the ops only to escape from his liability did nothing but to send that baseless letter and as such there is gross deficiency in service on the part of the ops and on 11.5.2016 the complainant again submitted a written application for reminder and expresses his helpless condition therein.
The complainant further states that on 22.9.2016 he made an application u/s 6 of the R.T.I. Act, 2005 before the consumer education and protection cell, Reserve Bank of India, Kolkata, who is the regional controlling authority of Banking System and Regulation and asked for whether the said ATM is capable of give withdrawal of Rs.27,000/- only at a time in one transaction and on the very date who withdrew the said amount and why he is not getting the chance to see the video footage of the ATM on the day of the said event and thereafter the authority of Reserve Bank of India in reply to the application u/s 6 of R.T.I. Act, 2005 of the complainant, through the letter dt. 28.9.2016 informed the complainant that his application is transferred to C.P.I.O., S.B.I., R.T.I. Department, 9th floor SBI Bhawan, Madame Cama Road, Nariman point, Mumbai 400 021, Maharastra (i.e. one of the associates of opposite party no. 3).
The complainant further states that after receiving the aforementioned letter from the RBI, he waited for few days for any positive response from the side of the ops but in spite of that when he did not receive any result then he through a letter dt. 20.10.2016 gave reminder to the aforementioned associates of opposite party no. 3 and made a prayer to do the needful for providing him the necessary information and through the letter dt. 31.10.2016 he ultimately received the reply from the office of opposite party no. 2 but the reply is nothing but irresponsible statements from the part of the opposite parties.
The complainant further states that cause of action firstly arose on 8.1.2016 and is continuing till today and the same has been arose at the area of Bhadreswar and Chandannagar P.S. which is within the jurisdiction of Ld. Forum.
Complainant filed the complaint petition praying direction upon the opposite party to pay sum of Rs. 27,000/- and compensation of Rs. 50,000/- and cost of case and any other relief/reliefs which the complainant entitled to get.
The opposite party No.1 contested the case by filing written version denying inter-alia all the material allegations as leveled against him. The opposite party no. 1 submits that the present case is not at all maintainable as non-joinder of necessary parties in this case and it is admitted facts that the complainant tried to withdraw Rs. 10,000/- from his account through his ATM Card from SBI ATM counter and due to some technical problem the said ATM machine did not functioning properly and as a result the complainant was failed to withdraw his required amount and finally said transaction was ended without disbursing any amount and generating any receipt from said ATM and thereafter the complainant did not push cancelled bottoms in the said ATM and therefore his secret password had remained open to other person.
The opposite party no. 1 further states that the password of operating ATM card is only known by ATM holder only and it is the conclusive system and therefore no person inclusive Bank Manager or any Bank officer has no opportunity to get any knowledge about password of every ATM holder and without knowledge of password number of complainant, there is no opportunity to anybody to withdraw said amount from the said ATM counter which is stolen from his account.
The opposite party no. 1 further states that some miscreants and fraudulent person may withdraw said amount of Rs. 27,000/- from ATM counter from the account of the complainant for almost his negligence and latches on the part of the complainant and the Bank authority was rightly stated to him on 8.1.2016 when complainant was asked him to supply CCTV footage from Bank and the Bank authority shall not bound to supply CCTV footage to the complainant or any concerning person if concerning police authority asked bank to supply for necessary investigation. The opposite party no. 1 also states that the complainant will not entitled to get any relief as per prayer of the complaint petition and the present complaint case is liable to be dismissed with exemplary cost.
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 and the opposite party heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainants Mousumi Mallick & Aivi Mallick are ‘Consumers’ 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 Complainants?
4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
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.
1).Whether the Complainants Mousumi Mallick & Aivi Mallickare ‘Consumers’ of the opposite party?
From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainants being beneficiary /legal heirs of deceased customer of the OP bank who used to maintain a salary account and operated an ATM card before the opposite party bank, so the complainants are entitled to get service from the service provider i.e. opposite party bank.
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainants 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, Ashoke Mallick is that he was a customer of opposite party no. 1 bank and he has a salary account being no. 31920788845 along with A.T.M. service facility but on 8.1.2016 at about 11.40 a.m. when he tried to withdraw Rs.10,000/- from his account through the A.T.M. card due to some technical problem the A.T.M. Machine did not function properly and as a result he failed to withdraw his required amount and finally the said transaction was ended without disbursing any amount. For his urgent need of money he compelled to proceed towards another A.T.M. of S.B.I. therefore on his way he suddenly received a SMS in his scheduled mobile no. from Bank stating that an amount of Rs.27,000/- has been withdraw at a time from his said account and then finding no other alternative the complainant updated his account from A.T.M. counter and he became astonished to found that only Rs. 107/- is lying in his account. The complainant also states that in the office of opposite party no. 1 he lodged a written complaint on 8.1.2016 and prayed for taking necessary steps for recovery of his stolen amount of Rs. 27,000/- and also prayed for CC TV footage but the request of the complainant being turned down by the opposite party.
The complainant filed an application through concern police authority before the opposite party no. 1. After passing more than one and half month without getting any proper feedback on 29.2.2016 he again made a written complaint over the matter and prayed for taking necessary action and copy of the said written application also forwarded before the different authorities of opposite party.
The complainant also states that vide letter dt. 21.3.2016 issued from the office of opposite party no.2 he was instructed to lodge FIR at police for video footage of the ATM and the video footage is kept in their ATMs for 90 days from the date of transaction. The complainant further states that on 22.9.2016 he made an application u/s 6 of the R.T.I. Act, 2005 before the consumer education and protection cell, Reserve Bank of India, Kolkata, who is the regional controlling authority of Banking System and Regulation and asked for whether the said ATM is capable of give withdrawal of Rs.27,000/- only at a time in one transaction and on the very date who withdrew the said amount and why he is not getting the chance to see the video footage of the ATM on the day of the said event and thereafter the authority of Reserve Bank of India in reply to the application u/s 6 of R.T.I. Act, 2005 of the complainant, through the letter dt. 28.9.2016 informed the complainant that his application is transferred to C.P.I.O., S.B.I., R.T.I. Department, 9th floor SBI Bhawan, Madame Cama Road, Nariman point, Mumbai 400 021, Maharastra (i.e. one of the associates of op no. 3). The complainant waited for a few days for any positive response from the side of the opposite parties but in spite of that when he did not receive any result then he through a letter dt. 20.10.2016 gave reminder to the aforementioned associates of opposite party no. 3 and made a prayer to do the needful for providing him the necessary information and through the letter dt. 31.10.2016 he ultimately received the reply from the office of opposite party no. 2 but the reply is nothing but irresponsible statements from the part of the ops. Getting no alternative the complainant filed the instant complaint before this Forum praying directions upon the opposite party as prayed in the prayer portion of the complaint petition. During the pendency of the complaint petition the complainant died and the said complainant has been substituted by his legal heirs and the legal heirs are contesting the case.
The opposite party denied the allegations as leveled against them and averred that it is admitted facts that the complainant tried to withdraw Rs. 10,000/- from his account through his ATM Card from SBI ATM counter and due to some technical problem the said ATM machine did not functioning properly and as a result the complainant was failed to withdraw his required amount and finally said transaction was ended without disbursing any amount and generating any receipt from said ATM and thereafter the complainant did not push cancelled bottoms in the said ATM and therefore his secret password had remained open to other person.
The opposite party no. 1 further states that the password of operating ATM card is only known by ATM holder and it is the conclusive system and therefore no person inclusive Bank Manager or any Bank officer has no opportunity to get any knowledge about password of every ATM holder and without knowledge of password number of complainant, there is no opportunity to anybody to withdraw said amount from the said ATM counter which is stolen from his account.
The opposite party no. 1 further assailed that some miscreants and fraudulent person may withdraw said amount of Rs. 27,000/- from ATM counter from the account of the complainant for almost his negligence and latches on the part of the complainant and the Bank authority was rightly stated to him on 8.1.2016 when complainant was asked him to supply CCTV footage from Bank and the Bank authority shall not bound to supply CCTV footage to the complainant or any concerning person if concerning police authority asked bank to supply for necessary investigation.
During the period of argument the opposite party failed to prove that the impugned transaction made by the complainant was successful one by producing CC TV footage and Electronics Journal print. The opposite party also referred a case decision of Hon’ble National Commission in State Bank of India vs. K.K.Bhalla, Revision petition No.3182 of 2008 in which it is held 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 .
Everywhere in the w/v as well as BNA the opposite party tried to evade their responsibility by stating that the complaint petition is non-joinder of necessary parties and others. 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 opposite party failed to inform us the fate of the investigation that started in accordance with the complaint lodged by complainant as well as opposite party.
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 may hold that the complainant did not receive any amount from the impugned transaction but a sum of Rs.27000/- has been withdrawn from the account of the complainant and after getting message the complainant informed the matter to the opposite party but the opposite party bank failed to prove that the complainant suffered loss on the behest of negligence on his part and the opposite party is no way deficient in providing service to their consumers. On the contrary it is crystal clear the opposite party jointly and/or severally tried to save their own skin avoiding the course of service which they ought to provide. So the opposite party is deficient in providing service to its consumer for which the beneficiaries of the consumer are entitled to have cost and compensation.
From the above discussion we are in the opinion that the complainants proved their case by producing sufficient documents and argued on the point whether the opposite party is deficient in providing service and they are under liability to pay compensation alongwith other reliefs prayed in the prayer portion of the complaint petition.
4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants have abled to prove their case and the Opposite Party bank is liable to pay compensation for mental pain and agony of the complainants.
ORDER
Hence, it is ordered that the complaint case being No.19 of 2017 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs.6,000/-.
The Opposite Party is directed to pay a sum of Rs.27,000/- 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.
