A. K. BHATTACHARYYA, PRESIDENT
Case of the complainant, in brief, is that the complainant is holding a savings account being no. 11111943347 with SBI, Mechada branch. On 24-10-2011 at about 6.08 a.m. he went to the ATM room of the said bank situated at Mechada to withdraw money from his savings account. Before entering into the said ATM outlet, he observed that two unknown persons were already present inside the ATM Outlet. It is stated by the complainant that when he tried to withdraw money by using his ATM card, a transaction slip came out from the said ATM machine with the remark ‘sorry unable to process’. On the next day i.e. on 25-10-2011, he again went to the said ATM outlet to withdraw money and after withdrawal of Rs. 10,000/- when he checked his account balance, he detected a mismatch of Rs. 50,000/- in his account balance. Taken completely aback, the complainant immediately brought the matter of such disparity in his account to the notice of the Branch Manager. Later on, he came to know from the OP Branch Manager that one Mr. Pintu Karmakar, in connivance with his associates, transferred the said sum of Rs. 50,000/- from the account of the complainant to his own account at SBI, Pandua (A/c No. 31642350885) on 24-10-2011 and also withdrew the same from the said account in several parts through different ATMs on the very same day i.e. on 24-10-2011. Therefore, he lodged an FIR with Kolaghat P.S. on 26-10-2011 against such fraudulent transfer of money from his account and also informed DIG (Operation), CID, Kolkata about the same. However, as the OP did not take necessary steps to return the money to his account, the complainant lodged the instant case seeking relief as per prayer of the complaint.
In support of his contention, the complainant filed original pass book, copies of complaint lodged with police authorities as well as OP bank, FIR, Deposit Transaction Enquiry statements etc.
The OP contested the case by filing written version denying all the material allegations, made in the instant complaint. It is stated inter alia by the OP that they have no liability to compensate the petitioner since the alleged fraudulent transaction took place due to negligence of the complainant, who did not follow the basic norm of ATM operation, thereby compromised the security of his ATM card. Accordingly, they prayed for dismissal of the instant case.
Points for determination
- Whether there is any deficiency in service on the part of OP as alleged?
- Whether the complainant is entitled to any relief and/or reliefs as prayed for?
Decisions with reasons
Point nos. 1 & 2:
Both these points are taken up together for the convenience of discussion.
The OP squarely hold the complainant responsible for the fraudulent transfer of money from his savings account on the ground that the complainant did not take recourse to precautionary measures while withdrawing money through ATM Card. It is stated by the OP that the complainant himself admitted that two unknown persons were already present inside the ATM room when he went there to withdraw money. Therefore, instead of entering the ATM room, he should have stayed outside for the strangers to come out of the ATM room. It is alleged by the OP that the complainant, instead of going by the rulebook, entered the ATM room and used his ATM Card in presence of strangers for the purpose of withdrawing money from his account; thereby, compromised the security of the PIN no. of his ATM card. It, however, transpired from the argument, as advanced by the ld. lawyer on behalf of the OP that the said ATM room has two ATM machines installed side by side. Therefore, presence of other persons inside such an ATM room is quite natural. Accordingly, we do not find any merit in the contention of the OP bank that the complainant compromised the security of his Debit Card PIN no. by operating it in presence of strangers/other persons leading to such fraudulent transfer of money from his savings account. It is further alleged by the OP that the complainant left the ATM room without completing the transaction process. However, the OP has not produced any credible evidence in support of such contention. On the contrary complainant has submitted a transaction slip with the remark ‘sorry unable to process’ to nullify the allegation of the OP in this regard. In absence of any plausible evidence we are constrained to hold that the OP has miserably failed to bring home their charge of negligence on the part of the complainant in the matter of using his ATM card.
It is noteworthy that transaction through an ATM machine matures subject to the 4-digit secret pin no. matches with card no., card holder’s signature on the signature panel, encoded information preserved in the magnetic strip of the card. There is no dispute that on 24-10-2011 the complainant used his ATM card for the purpose of withdrawing money from his savings account which does not allow a card holder to withdraw more than Rs. 20,000/- per stroke. However, in this case Rs. 50,000/- was transferred from the account of the complainant to one Mr. Pintu Karmakar’s account. It, thus, goes to show that the miscreants not only changed the nature of operation (from cash withdrawal’ to ‘transfer’), but also they changed the quantum of money without using the ATM Debit Card of the complainant. There is no dispute that the ATM card had all along been with the complainant on 24-10-2011. Therefore, even for the sake of argument if it is assumed that the miscreants indeed came to know the secret PIN no. of the complainant’s ATM card when the complainant tried to withdraw money from his account in their presence, the OP could not come up with any satisfactory explanation as to how the miscreants got hold of other information about the ATM card of the complainant which were indispensable to transfer money from the account of the complainant.
In any case, it is the sacrosanct responsibility of a banker to provide security to a card/account holder inside an ATM room/bank premises so that one does not fall prey to the sinister designs of mischief makers. If any fraud takes place inside an ATM room/bank premises and a card holder/account holder gets cheated by miscreants, the banker cannot abdicate its responsibility merely by displaying word of warning; rather they are expected to make adequate security measures to thwart such possibility. Admittedly no security man was present at the ATM room at that relevant point of time. There is no denying the fact that deployment of security personnel at ATMs, particularly where multiple ATM machines are installed in the same premises, can foil such incidents to a large extent. Since the concerned ATM room is maintained by the OP banker, they cannot be absolved of the responsibility of securing the interest of account holders inside the ATM outlet and for any lapses on this score, the banker is liable to make good the loss to the account holder.
Having considered the matter from different perspectives as aforesaid and having given our thoughtful consideration to the submissions made by the learned counsels for the parties and also on careful perusal of the materials on record, we are of view that the OP has failed to render proper service to the complainant which tantamount to deficiency in service and accordingly, the OP is liable to reimburse Rs. 50,000/- to the account of the complainant. Further, taking into consideration the mental stress/pain and agony of the complainant we hold the OP liable for paying a further sum of Rs. 5,000/- to the complainant towards compensation together with litigation cost Rs. 2,000/-.
These two points are thus disposed of in favour of the complainant.
Hence, it is,
O R D E R E D
that the instant Consumer Case no. 27/2012 be and the same is allowed on contest against the OP. The OP is directed to credit the sum of Rs. 50,000/- to the savings account of the complainant together with Rs. 5,000/- as compensation and Rs. 2,000/- as litigation cost within 45 days from the date of communication of this order i.d. the complainant is at liberty to execute the order in accordance with law in which case, the OP shall be liable to pay interest @ 8% p.a. over the abovementioned total awarded amount from the date of this order till full and final settlement.
S.S. Ali Dr. S. Dutta A.K. Bhattacharyya
Member Member President
