IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/29/2016.
Date of Filing: Date of Admission: Date of Disposal:
01.03.16 10.03.16 27.06.19
Complainant: 1.Arnab Ghatak
S/O- Late Ajit Kumar Ghatak,
117/1, Pilkhana Road,
Berhampore, PO & PS- Berhampore,
Pin- 742101
2. Shyamali Ghatak
W/O- Late Ajit Kumar Ghatak,
117/1, Pilkhana Road,
Berhampore, PO & PS- Berhampore,
Pin- 742101
-Vs-
Opposite Party: 1. The Branch Manager, Bank Of India
14, Bimal Singh Sarani,
Istaldeghi, (Laldighi) PO- Berhampore,
Pin- 742101
2. Managing Director, Bank Of India,
A Nationalized Bank, having Registered Office,
STAR HOUSE, C 5, G Block,
Bandra Kurla Complex,
Bandra (East)
Mumbai - 400051
Agent/Advocate for the Complainant : Sri. Pran Krishna Saha.
Agent/Advocate for the Opposite Party No.1 : Sri. Jayanta Bagchi.
Agent/Advocate for the Opposite Party No.2 :
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Asish Kumar Senapati, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Arnab Ghatak & Another (here in after referred to as the Complainants) filed the case against the Branch Manager, Bank of India and Another (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainants having a savings bank account being No. 421010100017155 in the OP No.1 and the Complainants have also an ATM Card. On 27.02.14, the balance in the savings account of the Complainant was Rs.4,63,963/-when the Complainants applied for a new ATM Debit Card due to loss of the previous one. On 27.02.14, the OP No.1 handed over a new ATM Card to the Complainants and asked the Complainants to withdraw a sum of Rs.100/- for correctness and verification of their card and the OP No.1 asked the Complainant to disclose their password and the Complainants disclosed their password as per request of the OP No.1.
The Complainants drew some amount on several dates from 24.03.14 to 22.12.14 amounting Rs.23,365/- through their debit card and online shopping. Subsequently, the Complainants went to the OP No.1 on 27.06.15 and deposited a sum of Rs.5,00,000/- as closure proceeds and withdrew a sum of Rs.5,00,000/-. On 30.06.15, the Complainants updated from pass book and found that a sum of Rs.4,40,598.34/- had been withdrawn on various dates either through online purchase or by using debit card. The Complainants asked the OP No. 1 to refund the said amount as they had not withdrawn the said amount of Rs.4,40,598.34/- but the OP No.1 did not pay any heed to it. Ultimately, the Complainant No.1 s wrote a letter dated 30.06.15 to the Op No.1 for refund of Rs.4,40,598/.34/- but of no result. The OP No.1 has withdrawn the said amount of Rs.4,40,598.34/-. Hence, the Complainants have prayed for refund of Rs.4,40,598.34/- along with compensation of Rs.50,000/- for mental pain and agony against the OPs.
The OPs filed written version on 11.07.16 contending that the case is not maintainable. The OPs denied the allegations against the OP No.1. The Complainants got the secret password along with ATM Debit Card and no bank staff would be able to withdraw any amount from the account of the Complainants. From the account ledger reports of the Complainants and online shopping refreshment and other transactions, it is palpably clear that the Complainants withdraw money through ATM with their confidential pin number and paid bill amount of Shops, Hotel and establishment and Organization etc. online. There is no deficiency in service on the part of the OPs. The OPs have prayed for dismissal of the complaint with cost.
On the basis of the above versions following points are framed for proper adjudication of the case :
Points for decision
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the OP, as alleged ?
- Is the Complainant entitled to get any relief, as prayed for?
Point no.1
The Ld. Advocate for the Complainants have not taken part in hearing of argument. No written argument is filed by the Complainant.
The Ld. Advocate for the OPs submits that the Complainant is not a consumer.
On going through the written complaint, written version, evidence, written argument of the OP No.1 and documents filed by both sides, we find that the Complainants are consumers as they hired the services of the OP No.1 for consideration.
Point No.2
None on behalf of the Complainants have taken part in hearing of argument.
The Ld. Advocate for the OPs has submitted nothing on this point.
On perusal of materials on record, we find that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint.
Point Nos.3&4
The Ld. Advocate for the Complainants has not taken part in the hearing of argument and the Ld. Advocate for the OPs submits that no amount can be withdrawn from any ATM counter without ATM card and four digit secret pin.
It is contended that the OP No.1 has never asked the Complainants to disclose their password at the time of delivery of the new ATM Debit Card. It is urged that the OP No.1 has already submitted the statement of accounts in respect of the savings account and it appears from the said statement of account that the ATM Card of the Complainants was used for online purchase, withdrawal from ATM counter and online payment for bills of Hotel, Parlour etc. He submits that no withdrawal or online payment from ATM Debit Card can be possible without ATM Card and secret four digit pin. He draws our attention to a decision passed by the Hon’ble National Commission passed in Revision Petition No. 3182 of 2008 dated 07.04.11 where in it is held that ‘ in the instant case it is not disputed that the ATM Card or pin remain in the self-custody/knowledge of the Complainant. In view of elaborated 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 that 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 the case and in all probability, these fraudulent withdrawals occurred either because the ATM Card or the PIN Number fell in wrong hands’.
The Ld. Advocate for the OPs has submitted that the Ops have no deficiency in service. He prays for dismissal of the complaint with cost.
We have gone through the written complaint, written version, evidence of the Complainant No.2, evidence of the Op No.1, documents and written argument of the OP No.1 and the decision referred by the Ld Advocate for the OPs.
Admittedly, the Complainants have a savings bank account in the OP No.1 and the Complainants have also an ATM Debit Card. The Complainants have stated that in spite of non-withdrawal of any amount a sum of Rs.4,40,598.34/- had been debited from their account and the OP No.1 is responsible for it because the OP No.1 took the secret password from the Complainants at the time of delivery of ATM Card.
It is very difficult to believe that the Complainants disclosed password or the secret pin number to the OP No.1 at the time of receiving the ATM Card and the complainants did not change the pin number after taking delivery of the ATM Debit Card in spite of fact that the secret pin number had been disclosed to OP No.1. On going through the statement of accounts supplied by OP No.1 in respect of the savings account of the Complainants, we find that the ATM Debit Card had been used on several dates for withdrawal of amount, online payment of bills for Hotel,shops and Parlour etc. It is not known to us whether the Complainants have verified the payments from the Shops, Hotels or Parlours to ascertain who actually enjoyed the services of Hotels, Parlours or Purchase any article through online by using the ATM Debit Card.
With due regard to the decisions referred by the Ld. Advocate for the OPs, we are of the view that no withdrawal from ATM Debit Card can be made without ATM Card and four digit secret pin number. The ATM Card and secret pin Numbers were within custody and knowledge of the Complainants and so it is not believable that the OP No.1 withdrew the amount of Rs.4,40,598.34/- by using the ATM Debit Card which was exclusively under the custody of the Complainant.
We find that the Complainant have not been able to establish any deficiency in service on the part of the OP No.1. We think that the Complainants are not entitled to get any relief against any of the OPs.
Reasons for delay
The Case was filed on 01.03.16 and admitted on 10.03.16 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case fails
Fees paid are correct. Hence, it is
Ordered
that the consumer case No. CC/29/2016 be and the same is hereby dismissed on contest against the OPs without cost.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member President.
