Andhra Pradesh

Chittoor-II at triputi

CC/47/2019

Manohar Revathi, D/o. Manohar - Complainant(s)

Versus

The Branch Manager, CANARA Bank, Tirupati - Opp.Party(s)

V.S.Venkat

05 Dec 2019

ORDER

                                                                                                                                           

                                                                                                                     Filing Date: 25-04-2019                                                                                                                                                                                       Order Date: 05-12-2019

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.

 

Present:-  Sri. T.Anand, President (FAC)

      Smt.T.Anitha, Member

 

THURSDAY THE FIFTH DAY OF DECEMBER, TWO THOUSAND AND NINETEEN

 

C.C.No.47/2019

Between

Manohar Revathi, D/o. Manohar,

Aged about 21 years, Door No.14/523,

Krishna Reddy Nagar,

Thimminaidupalem, Tirupati Town,

Chittoor District.                                                                             … Complainant

 

And

The Branch Manager,

CANARA Bank,

Tirupati Renigunta Road Branch,

Ramanujam Circle, Near Hotel Bliss,

Tirupati Town, Chittoor District.                                                   … Opposite Party 

 

          This complaint coming on before us for final hearing on 20.11.2019 and upon perusing the complaint and other relevant material papers on record and on hearing of Sri.V.S.Venkat, counsel for the complainant and Sri.S.Niranjan Babuji, counsel for the opposite party having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT(FAC)

ON BEHALF OF THE BENCH

         Complaint is filed under section 12 of the Consumer Protection Act 1986, with following allegations:- The complainant opened SB Account No. 5924101002862 in CANARA Bank on 21.02.2018 in Tirupati Renigunta Road Branch and also obtained ATM Debit card from the bank on the same day. The complainant has been depositing money and withdrawing amounts through ATM Card and sometimes by visiting the bank directly. As on 28.02.2019 there was balance of Rs.33,088.20Ps in her Savings Bank Account. On 01.03.2019 in the evening hours, the complainant received phone call from the Canara Bank and the bank employee enquired her about some data but on suspicion the complainant did not furnish any details including password. But within a 10 minutes she received message to her cell phone that an amount of Rs.10,000/- has been withdrawn through ATM Debit card. Likewise four SMS messages were received each time stating Rs.10,000/- withdrawn but one withdrawal reversed and Rs.10,000/- amount was credited to her account but there was withdrawal of Rs.3,000/- so, in total Rs.43,000/- withdrawn and Rs.10,000/- reversed. So an amount of Rs.33,000/- withdrawn from the complainant account. On the next day i.e. 02.03.2019 she complained to the opposite party by visiting the branch. But the Manager gave rudely stated that they are not responsible for the illegal withdrawals and directed the complainant to lodge a complaint before police and submit the copy of FIR to take further action in this matter. The complainant went to Alipiri Police Station and also East Police Station to gave complaint but the police refused to take the complaint by stating that, opposite party is only responsible person to give complaint. The complainant informed the same to opposite party but he did not hear the complainant words. The complainant thereafter issued legal notice to opposite party on 06.03.2019 by marking copy to CI of East Police Station and also to Superintendent of Police, Tirupati Urban District, but the opposite party received the same on 08.03.2019.

          2. After issuing the notice the complainant and her mother visited opposite branch on 09.03.2019 and requested the opposite party that, money is needed urgently since her marriage was fixed on 30.03.2019 and asked the opposite party to return her money but the opposite party did not respond and insisted for submission of copy of FIR to proceed further in this matter. The opposite party bank is responsible for the illegal withdrawal of money from ATM and as such committed an act of criminal breach of trust. On 22.03.2019, reply was issued by the opposite party stating that they cannot do anything to recover the amount in the absence of FIR copy. The complainant also gave complaint against opposite party regarding the same issue on 30.03.2019 to the police but they did not take any action against opposite party since opposite party is having high influence. Hence it is prayed to allow this complaint directing the opposite party to return Rs.33,000/- belonging to the complainant with interest @ 24% p.a. to pay Rs.50,000/- towards compensation for deficiency of service and to pay litigation expenses also.

           3.Opposite party filed the written version contending as follows:- At the outset, complaint allegations are denied. On 02.03.2019, when the complainant came to the opposite party bank she was informed that as per circular of the bank, she has to submit the copy of FIR or acknowledgment of police complaint with seal and signature in order to take further steps for reporting to card related unauthorized EBT (electronic banking transaction). Further opposite party obtained Annexure-I from complainant and hot listed her debit card and destroyed the same. The opposite party sent Annexure-II along with Annexure-I signed by the complainant along with her SB Account copy to Card Dispute Management section, Canara Bank, Bangalore on 08.03.2019 itself. It is further submitted that, money was withdrawn on 01.03.2019 at SBI ATM at Chennai. It is purely a cyber crime. In the opposite party bank nothing was happened as alleged in the complaint. If police refused to receive complaint, the complainant might have directly approach the higher officials of police and lodged the complaint since it is a cyber crime. The TATA AIG INSURANCE COMPANY will not accept the claim without police complaint. If the complainant produces the copy of complaint, the same will be processed. The opposite party is not able to settle the claim of the complainant since she did not submit the necessary documents within time. There is no question of deficiency in service on part of the opposite party hence, opposite party is not liable to pay any amount as claimed by the complainant. Hence it is prayed to dismiss the complaint.

           4.  The complainant filed chief evidence affidavit as PW-1 and marked Ex:A1 to A6. On behalf of opposite party, Sri.C.K.Gopinath, S/o. C.S.Krishnamurthy, Senior Manager filed chief evidence as RW-1 and marked Ex:B1 to B4.

          5.  Now the Point for consideration is:-

               Whether there is deficiency of service on part of the opposite party? If so, to what extent, the complainants are entitled for the reliefs sought in the complaint?

          6.Point:-  She is having SB Account No. 5924101002862 filed Ex:A1 which is first page of pass book and that she has been using the ATM Card issued by the opposite party bank for withdrawal of the amount. She has been using ATM Card issued by the bank since 21.02.2018 but on 01.03.2019 during evening time certain withdrawals have taken place through her ATM Debit Card without her knowledge and consent. Four transactions took place and each time Rs.10,000/- were withdrawn and the lastly Rs.3,000/- was withdrawn and thus Rs.43,000/- were withdrawn from her account in total and Rs.10,000/- was reversed since she has only balance of Rs.33,088.20Ps in her SB account. It is further case of the complainant that, on 02.03.2019 when she approached the Manager of opposite party bank, he did not give proper answer and directed her to lodge police complaint and file copy of the FIR in the bank in order to proceed further in this matter and following advice of the Manager, the complainant approached Alipiri Police Station and also East Police Station to lodged police complaint but the police did not register the complaint by stating that the proper person is the Manager of opposite party bank to lodge complaint. It is the argument of the counsel for the complainant that, it is the responsibility of the opposite party bank to see that the amounts are re-credited to the account of the complainant and they failed to lodge complaint with police on behalf of the complainant and thus the opposite party bank committed deficiency of service for which the opposite party bank is liable to pay compensation also to the complainant besides paying Rs.33,000/- which were illegally withdrawn by unauthorized persons.   The counsel for the complainant submitted decision reported in (2017) 2 ConLT 216 of PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION judgment in Axis Bank Bhudhlada –Appellant Vs. PARAMJIT SINGH – Respondent in support of his contention there is deficiency of service on part of the opposite party bank.

          7. The opposite party counsel has argued that, there is no deficiency of service on part of opposite party bank in as much as the complainant failed to give complaint before the cyber crime police and submit copy of FIR to opposite party bank to proceed further. He has submitted two citations in support of the case of the opposite party bank.

           i). National Consumer Disputes Redressal Commision, New Delhi Judgment in     

               Revision Petition No. 3973 of 2014 between Raghabendra Nath Sen and Howra  

               District Consumer Protection Society Vs. Punjab National Bank Branch, Howra    

              Maidan.

          ii). 2011 SCC OnLine NCDRC 157 : (2011) NCDRC 156  = 2011 NCDRC 156

              between State Bank of India – Petitioners Vs. K.K.Bhalla – Respondents.

           From the documentary evidence produced by both sides, there is no dispute that the complainant is the customer of opposite party bank as, she is its account holder vide Ex:A1. Ex:A2 is legal notice office copy dt: 06.03.2019 issued to opposite party complaining deficiency of service as the bank failed to get back Rs.33,000/- withdrawn from the account of complainant through ATM. Ex:A3 is reply given by the bank dt:22.03.2019 wherein they have taken stand that, though they are ready to help the complainant in getting back the amounts withdrawn, the complainant failed to produce copy of FIR to the bank to initiate process of getting back the amounts. It is stated that, the bank has nothing to do with the alleged ATM transactions since the transactions have not taken place in the branch and it is purely a cyber crime. Ex:A4 wedding card is filed in order to show that, the complainant was in need of money due to her marriage and that the bank did not take any action on her repeated request to reimburse the money. Ex:A5 is acknowledgment of CI of Police to show that, the police received the legal notice issued by the complainant. Ex:A6 is Aadhar card of the complainant.

           8. The bank has relied upon circular No.50/2019 dt: 01.02.2019 filed on behalf of opposite party. Ex:B1 was issued by card Dispute Management Section Digital Banking Services Wing Head Office, Bangalore with regard to the documents to be submitted by card holder in respect of Unauthorized Electronic Banking Transactions (EBT). A duty is cast upon by the complainant to submit copy of FIR or acknowledgment of police complaint to the branches as per Ex:B1 circular. It is specifically mentioned that the document is mandatory for reviewing the instances from the angle of authorized or unauthorized transactions. Further Ex:B2 Annexure-I and II filed by opposite party. It is signed by the complainant giving the details of her account number, ATM Card number, the amount lost in the ATM transactions and date of loss and location of ATM where the transactions took place. The statement of account shows the alleged withdrawals. Ex:B3 is letter addressed by opposite party bank manager to the complainant stating that, they received legal notice issued by her and that they require FIR copy and acknowledgment from the police authorities and that the complainant failed to produce the same, despite repeated requests and as such they are helpless in claiming the amount from the insurance company and further mentioned that, it is purely cyber crime as the transaction took place at Chennai SBI ATM. Ex:B4 is postal acknowledgment of the complainant.

           9. From the documentary evidence it is clear that, certain ATM transactions took place at Chennai ATM and total sum of Rs.33,000/- have been withdrawn from the account of complainant. The complainant has to explain how it happened. Since ATM card was not lost by her and somebody came in to possession of it. Unless PIN number is disclosed, it is not possible to withdraw the amounts from ATM by using ATM card by any unauthorized person.  It is relevant to extract at this juncture, Para No.8 of the citation relied upon by the complainant.

           “We hold that the transfer of money has been done through internet banking system in this case. There is categorical version of the complainant that he has not taken any such facility of net banking from opposite party. The money was transferred from complainant’s saving bank account to some unidentified person. The stand of the opposite party bank is that this was possible only through two password which was delivered by bank to complainant, as per his own instructions. We find force in the submission of counsel for the complainant that complainant has not moved any request duly signed by him for getting any password for internet banking from opposite party bank. The amount of Rs.40,000/- was withdrawn each twice through IMPS, vide Ex:C-7, the statement of account. The customer can transfer and receive fund via IMPS by means of their registered mobile and mobile money identifier (MMID). The complainant has not been enjoying the facility of internet banking and this fact is proved on the record. Thus, there is no question of transfer of funds through IMPS by the complainant. It is possible through an MMID, which is seven digit number issued by the bank upon due registration. The person who wants to send money and person, who wants to receive the money through IMPS using mobile number an MMID should have them for indulging in internet banking funds transfer. We find force in the submission of counsel for the complainant that complainant has not requested for availing the facility of internet banking in this case from opposite party. No MMID was provided to complainant and hence question of transfer of money through IMPS is out of consideration. As per statement of account Ex:C-7, the transaction has been done through IMPS and not through ATM card. There is no document on the file proved by opposite party bank to substantiate this fact that they issued the password of seven digit to complainant. The complainant already applied for deactivation of ATM Card on 24.03.2014 through application Ex:C-3 to opposite party. The complainant wanted to protect his money from undue phishing. There is nothing on the record when the opposite party bank actually deactivated the ATM card. The document to this effect is missing by the opposite party, when it deactivated the ATM card of the complainant to protect his money. We find opposite party bank negligent in not taking the proper precaution to save the amount of the complainant. We hold that law relied upon by opposite party bank in “Punjab National Bank v. Lt. Col. Jagdeep Gahlot” decided on 16.05.2014 in RP No.2139 of 2013 decided by the National Commission would not be applicable in this factual controversy of the cited case and is not pari material with the facts of the case in hand. In the circumstances of the case, we uphold the order passed by the majority view of the Members of the District Forum in accepting the complaint of the complainant by directing the appellant to credit Rs.80,000/- in the account of complainant within 30 days, failing which this amount will carry interest @ 9% p.a. till final realization and to pay the cost of litigation of Rs.2500/-. The minority view of the President of District Forum is not a correct one”.

 

          The facts of the case referred in the judgment above shows that, the transfer of money has been done through internet banking system that the complainant applied for deactivation of ATM Card through application to opposite party bank and no material is produced by the opposite party bank to prove that, they actually deactivated the ATM card. Hence the citation is not applicable to the facts of the present case on hand. The facts of the case referred in the judgment of NCDRC in R.P. No. 3973 of 2014 are similar to the facts of the present on hand. Similarly the citation referred by opposite party that the judgment by NCDRC in RP. No.3182 of 2008, State Bank of India Vs. K.K.Bhalla is more or less on the same facts arising out of this case. The NCDRC rejected the contention of the complainant and set aside the orders of the learned fora below and accepted the contention of the revision petitioner i.e. State Bank of India and allowed the revision petition.

          10. On considering the documentary evidence, legal position, we are of the  considered view that, firstly the complainant failed to explain how ATM transaction took place at Chennai by using ATM card, when admittedly she is in possession of ATM card and the PIN number not disclosed to anyone. Further we are of the view that, the consumer is also duty bound to help the bank by following Ex:B2 circular in getting back the amount from the insurance company. The opposite party bank counsel also fairly submitted that even now the complainant may file complaint before cybercrime police station in Tirupati and submit copy of the same in the bank so that, the bank can take necessary action to get back the money. The contention of counsel for the complainant that, it is the duty of the bank to give complaint on behalf of the complainant cannot not be accepted. Hence we hold that the complaint lacks merit as there is no deficiency of service on the part of opposite party bank, complaint is therefore dismissed with observation.

          In the result, complaint is dismissed with observation that the complainant may approach cyber crime police and lodge complaint and file copy of complaint in the opposite party bank and on receiving the copy of FIR, the opposite party bank is directed to take necessary action. No Costs.

                Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 05^th day of December, 2019.

            Sd/-                                                                                                   Sd/-      

   Lady Member                                                                                   President (FAC)

 

APPENDIX OF EVIDENCE

Witnesses Examined on behalf of Complainant/s.

PW-1: Manohar Revathi (Chief affidavit filed).

Witnesses Examined on behalf of Opposite PartY/S.

RW-1: C.K. Gopinath (Chief affidavit filed).

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

Exhibits (Ex.A)	Description of Documents
	Photo copy of Canara Bank Pass Book of Complainant M. Revathi D/o. K. Manohar.
	Office copy of Legal Notice issued to opposite party, Dt: 06.03.2019.
	Reply by opposite party, Dt: 22.03.2019.
	Wedding Invitation along with photograph in original of complainant.
	Photo copy of Acknowledgement issued by Station House Officer, East Police Station, Tirupati Town.
	Photo copy of Aadhaar Card (Bearing No.8752 7211 7866) of the Complainant.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

Exhibits (Ex.B)	Description of Documents
	Photo copy of Circular No.50 of 2019, Dated: 01.02.2019 filed by the opposite party regarding Guidelines for Reporting of Unauthorized Electronic Banking Transactions (EBT).
	Photo copy of ANNEXURE I and II filed by the Opposite Party. Dt: 08.03.2019.
	True copy of Letter (Regarding “Your Unauthorized Debit Transactions”) sent to the complainant Dt: 02.08.2019 filed by the opposite party.
	Postal Acknowledgement in original Dt: 09.08.2019 filed by the opposite party.

 

 

                                                                                                                           Sd/-

                                                     President (FAC)

 

// TRUE COPY //

// BY ORDER //

 

 

 

Head Clerk/Sheristadar,

Dist. Consumer Forum-II, Tirupati.

 

Copies to:  1) The Complainant, 

                   2) The Opposite party.