Date of filing : 24-05-2010 Date of order : 09- 09-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C. 122/2010 Dated this, the 9th day of September 2010 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER Faraj Anjillath, S/o. K.K. Abdulla, Thoufeeq Manzil, Naramkulam, } Complainant Cheruvathur.Po, Hosdurg Taluk, Kasaragod.Dt.
(Advs.P. Latheesh & Johny Scaria, Hosdurg) The Branch Manager, } Opposite party State Bank of Travancore, Kayyur branch, Po. Cheruvathur, Hosdurg Taluk. 671313. (Adv. T.M. Mathews, Hosdurg) O R D E R SRI.K.T.SIDHIQ, PRESIDENT Case of complainant Complainant is employed abroad in U.A.E since 2005. He opened a NRI Account with opposite party and he was issued with an ATM card bearing Reg.No.504993705738000638. That on 11-7-2009 when the complainant withdrawn an amount of 7000/- from opposite party’s Bank his credit show `247/- only as balance and on verifying his account he realized that an amount of `1,05,195/- is seen vanished from his account during the period 11-12-2008 to 14-03-2009. Thereafter complainant approached opposite party and obtained his statement of account on 14-07-2009 and it was told that the above amount of `1,05,195/- is seen withdrawn from his account from United Kingdom(U.K.). The said withdrawal was neither within his knowledge nor by any negotiable instrument drawn by him. The complainant could not file the complaint immediately on receipt of statement of account on14-07-2009 as he had to return to U.A.E. The complainant has suffered a lot of mental agony knowing that he lost the sum of `1,05,195/- from his account. The complainant who is working abroad lost faith on Banking transaction. Therefore the complaint praying for an order directing the opposite party to pay `1,05,195/- with interest and `25,000/- towards mental agony and sufferings. 2. Version of Opposite Party The complainant opened NRI account with opposite party’s bank and also availed ATM card on 2-11-2007 onwards. The averment that on 11-7-2007 complainant had withdrawn `7,000/- from the branch is not correct. The accounts extract clearly shows that the complainant withdrew the amount through ATM. It is correct that from the account of the complainant an amount of `1,05,298/- is withdrawn through ATM card during the period between 11-12-2008 to 14-03-2009. But it is not correct that the opposite party told that the amount is withdrawn from U.K The ATM card is issued with secret pin code and password. The secret pin code and password are not known to anybody except to the account holder. The ATM card can be used for withdrawing the money only by the person who is in possession of the card and know the pass word. The complainant obtained ATM card and left India. He used ATM card to withdraw the amount before and after the disputed transaction. The complainant has not informed or given any complaint to opposite party regarding withdrawal of amount from his account or loss of ATM card. The amount of `1,05,298/- is lost from his account is through ATM card which clearly shown in the statement. There is no negligence or deficiency in service on the part of the Bank that has resulted in the alleged loss. The Bank is not responsible for any alleged loss caused to the complainant. Therefore the opposite party is not liable and the opposite party has no responsibility in respect of the loss caused to the complainant while using ATM card. The opposite party is not aware of these transactions. These transactions might have done with the knowledge of the complainant only. The ATM card is with the complainant itself and there is no case that the same was lost or misplaced. Therefore the complaint is liable to be dismissed. 3. Complainant filed proof affidavit in support of his case. Exts A1 to A3 marked. Complainant is cross-examined by learned counsel for opposite party. On the part of opposite party Sri. Sunesh, Branch Manager of opposite party Bank filed affidavit and faced cross-examination by the learned counsel for complainant. Ext B1 marked. Both sides heard. Documents perused. 4. Ext.A1 is the statement of account of the complainant. On a casual look in to the statement itself an anomaly can be seen in the debited accounts on the dates 11-12-2008 and 28-01-09. None of the amounts withdrawn are ending in zero figures that the complainant used to withdraw earlier. Further on 11-12-2008 there are 4 transactions and on 28-01-09 there are 11 transactions. Clearly this is an indication of unauthorized use. The tendency of an unauthorized user will be always to do the entire transactions at the earliest possible time forseeing the blocking of the card in future. In this case realizing the fact that the ATM card is still in force after the first unauthorized use on 11-12-2008 the subsequent transaction on 28-01-09 is done by the illegal user till exhausting the account. 5. Further the definite case of the complainant is that the money is withdrawn from UK which opposite party denied. Complainant produced his passport copy, that is marked as Ext.A2 to show that he has never gone to UK and at the relevant time was in U.A.E. If so, it was the liability of the opposite party to produce the details of withdrawals of the said amounts with the destination of ATM’s through which amount is withdrawn on 11-12-2008 to 28-01-09. Because opposite party have access to the net work of ATM and through which they can easily find out the locations of ATM through which amount is withdrawn. It is true that opposite party is not liable if the transactions are taken place in case of loss or misplacing of ATM card. But neither the complainant nor the opposite party had a case that the ATM card is lost or misplaced. In such a situation no negligence can be attributed on the part of complainant. 6. Banks being a custodian of trust and faith reposed in it by the public at large is under an obligation to provide services to the consumers as a trustee. In this case it is seen that bank has breached that trust and faith thereby causing monetary loss and mental agony to the customer. So whenever they are introducing a new system of transaction it shall be fool proof in its security and any lapse eventhough it may not be intentional or within their knowledge that causing loss to the customer, even then it is the duty or liability of the Bank to compensate the loss suffered to the customer. 7. In the instant case the loss occurred to the complainant is akin to that of a loss on account of robbery or theft in the Bank. In such a case the Bank cannot plead that they are not liable to compensate the customers on account of the theft or robbery committed in the Bank since it is not due to their negligence or lapse or deficiency. So also in the instant case. 8. The misuse of credit cards have seen a dramatic rise in recent times. Therefore some Banks and Insurance companies now introduced schemes that offer protection against misuse of credit and debit cards. This introduction of Card Protection Services itself is an indication that the fraudulent transaction and misuse credit and debits cards are rampant. Therefore it is clear that the opposite party is liable to compensate the complainant for the loss sustained to him. 9. Ext.B1 is a copy of the user’s manual of ATM cards issued by opposite party. “Life mein no tension” is the slogan highlighted in that instruction manual. But it happened to be an irony in the case of complainant and the ATM provided him much tension. We can imagine the pain, pinch and mental sufferings caused to the complainant on account of the unauthorized withdrawal of money from his account without his knowledge and consent due to the security lapse in the ATM net work launched by opposite party. Instead of recompensing the loss sustained to the complainant on realising the fault the opposite party even hotly opposed his genuine complaint. Therefore the opposite party is also liable to compensate the complainant for the mental sufferings caused to him. In the result, complaint is allowed and opposite party is directed to pay a sum of `1,05,195/- to the complainant. Opposite party is further directed to pay `25,000/- as compensation towards the mental agony and suffering caused to the complainant together with a cost of `3,000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which opposite party shall be liable to pay interest @ 9% per annum for `1,05,195/- from the date of complaint till payment. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1. Statement of account of the complainant. A2. Photocopy of passport. A3.Photocopy of ATM card. B1.Users Mannual PW1. Faraj Anjillath DW1. Suneesh Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
| | HONORABLE P.P.Shymaladevi, Member | HONORABLE K.T.Sidhiq, PRESIDENT | HONORABLE P.Ramadevi, Member | | 
