Order No. -25 Dt.-23/06/2014
The record is put up today for passing final order.
The hearing arises out of an application filed by Jyotirmoy Roy(complainant) on 11/04/13 against The Branch Manager,S.B.I. Dhupguri, Branch, Dist.- Jalpaiguri. (Opposite Party) which is registered as CC 24/2013.
Brief fact of the case is that the complainant Jyotirmoy Roy has been maintaining SB A/c No.00000011383403263 with ATM facility with the O.P. SBI, Dhupguri Branch Jalpaiguri. On 30/08/12 and on 31/08/12 he received two messages on his mobile phone wherefrom he came to know that Rs.20000/- in four times, totaling Rs.80,000/- was withdrawn from his said A/C from ATM counter, Rashbehari Avenue Kolkata although the ATM Card was lying with him at Dhupguri and he had not withdrawn the said money. On 31/08/12 he reported that matter to the O.P.(The Branch Manager,S.B.I., Dhupguri Branch) and to the I.C., Dhupguri Police Station but the O.P. gave no response. Hence the complainant has filed this case and prayed for the reliefs stated therein alleging deficiency in service on the part of the O.P., The Branch Manager,S.B.I. Dhupguri, Branch.
The O.P. has contested the case by filing a Written Version/ Statement denying and disputing the allegation as made against him by the complainant with prayer for dismissal of the case with cost.
Specific stand of the O.P. is that the complainant didn’t produce/ surrender his ATM Card for proper investigation of the matter despite bank’s request and that the ATM Card was kept in the custody of the complainant and without ATM Card and the PIN number allotted to that card transaction cannot be successful. So there was no deficiency in service on the part of the O.P.Bank.
POINTS FOR CONSIDERATION.
- Is the case maintainable as alleged?
- Is the complainant a consumer as per provision of Consumer Protection Act.1986?
- Is the O.P. guilty for deficiency of service as alleged?
- Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All four points are taken up together for consideration and decision for the sake of convenience.
Seen and perused the petition of complaint, the W.V. and all other relevant documents and materials on record including the ATM card. Also seen the CD of the CCTV footage of the Rashbehari Avenue ATM counter filed by the parties.
We have heard the arguments advanced by the Ld.Lawyer of both sides at a length in full on the previous date.
Ld.Lawyer for the complainant has refered two decisions of the Honorable West Bengal State Consumer Disputes REdressal Commission Kolkata in SBI versus Hariom Tiwary and another case reported in IV(2010) CPJ 275, Paragraph 9 and Rajasthan, State Consumer Disputes Redressal Commission in Dena Bank versus Radharaman Sharma case reported in III(2010)CPJ 290. Ld.Lawyer for the O.P. Bank has placed his reliance on a decision of Honorable National Consumer Disputes Redressal Commission New Delhi in SBI versus K.K.Bhalla case reported in II(2011)CPJ106(NC) and on the user’s manual of State Bank Cash Plus ATM cum Debit Card in support of the case of the O.P. Bank. Seen and perused the aforesaid reported decisions and the user’s manual.
Now after due consideration of the materials on record and argument of Ld. Lawyers of both sides we find that although the O.P. has challenged the maintainability of the case in its W/V but this point was not pressed at the time of final hearing of this case. On perusal of the case record we donot find anything adverse against the maintainability of this case. Therefore we find and hold that this case is maintainable.
Admittedly the complainant is a customer of O.P. Bank as he has been maintaining SB A/C No.00000011383403263 with the O.P. SBI. Therefore we can safely come to this conclusion that the complainant is a consumer of the O.P. SBI as per provision of Consumer Protection Act.1986.
It was argued by the Ld.Lawyer of the complainant that the complainant has reported the incident to the O.P. on 31/08/12 in writing but the O.P. bank took no step and even no enquiry or investigation was done by the O.P. bank to trace out the miscreants fraudulently withdrawn the money from the complainant’s account and the O.P. has intimated nothing to the complainant regarding the fate of his written information and that inaction on the part of the O.P. bank suggest deficiency in service on the part of the O.P.Bank.
In reply Ld.Lawyer for the O.P.SBI argued that the ATM cards were supplied to the customers of the bank to facilitate the customer to operate account and that the ATM card can only be used if the customer inputs his personal 4 digit PIN number and it is advised by the bank to all its customers to retain his PIN number in his memory to avoid leakage of PIN number and unless the person in possession of the ATM Card and knows the PIN number, the ATM Card cannot be heed and operated. In the present case the complainant had not deposited and surrendered his ATM Card in the bank despite Bank’s request and the ATM Card all along in his custody as claimed by him and as such no one else could have access to use it and as the four digit PIN number was only known to the complainant, it was/ is not possible for an unknown person to successfully withdrawn money from the A/C of the complainant from any ATM counter of the Bank. So there was no deficiency in service on the part of the O.P. Bank as alleged by the complainant.
Now after due consideration of above argument of the Ld.Lawyers of both sides, the materials on record and after going through the decisions referred to above by both sides we find that admittedly the complainant informed about the incident to O.P. SBI on 31/08/12 at 01:45pm in writing. Prior to that he has informed about the incident to the Inspector-in-charge Dhupguri Police Station in writing as per advice of the officers of the O.P. SBI. Admittedly the O.P.Bank closed the A/C of the complainant on 31/08/12 and took step to collect the CCTV footage of the ATM counter wherefrom the money of the complainant was fraudulently withdrawn. Admittedly the ATM Card is lying in the custody of the complainant all through and he had neither surrendered nor deposited his ATM Card with the O.P.Bank and inspite of that the Bank has closed his A/C immediately after receiving information from the complainant. The complainant couldn’t produce any document/ paper to show that he ever asked the O.P.Bank or P.S. or made any correspondence with the O.P. and the Inspector-in-charge Dhupguri Police Station to know the fate of his informations. It is not the case of the complainant that due to technical mistake in the operation of the ATM machine no entry was in time.
In this view of the matter we find and hold that the decisions referred by the side of the complainant have no bearing with facts and circumstances of this case and as such those decisions are not applicable in our present case. On the contrary the decision of the Honorable National Commission New Delhi referred to above by the side of the O.P.SBI is well applicable in our present case.
In view of the said decision of Honorable National Commission New Delhi and from the facts and circumstances of our present case and from the material on record we find that the complainant was all along in possession of his ATM Card and only he knew his 4digit PIN number. It is not the case of the complainant that his ATM Card was lost or stolen away or he has disclosed his secret PIN number to anybody. Therefore it is not possible by any unauthorized person to withdraw money from the A/C of the complainant from the ATM counter at Rashbehari Avenue Kolkata. In such circumstances it is very much probable that the aforesaid fraudulent withdrawals of Rs.80,000/- in total from the A/C of the complainant occurred either because the ATM card and the PIN number fell in the hand of the wrong person. We further find that the O.P.SBI took all possible steps after receiving information from the complainant and that the complainant also reported the incident to Inspector-in-charge Dhupguri Police Station in writing as per advice of officers of O.P.SBI. So it is/was the duty of the Police to investigate the case and to arrest the miscreant/ culprit behind the curtain.
Therefore we find and hold that the O.P.SBI is not guilty for deficiency in service as alleged by the complainant.
In view of our discussions made herein before we find and hold that the complainant has failed to prove his case and as such the complainant is not entitled to get any reliefs in this case.
All points are disposed of.
In the result the case/application fails.
Hence, it is
O R D E R E D
that the case stands dismissed on contest but in the circumstances we make no order as to cost.
Let the ATM Card bearing no.-6220180129600027491 be returned to the complainant forthwith on proper receipt. Let the CD of CCTV footage of ATM counter of Rashbehari Avenue alongwith its printout be returned to the O.P.Bank forthwith on proper receipt.
Let copy of this final order be supplied to the parties free of cost forthwith in terms of Sec.5(10) of West Bengal Consumer Protection Act 1987.
