DATE OF FILING: 17.09.2012
DATE OF DISPOSAL: 16.01.2017
O R D E R
Dr. N. Tuna Sahu, Member:
The complainant has filed this consumer dispute under Section 12 of Consumer Protection Act 1986 against the Opposite Parties (for short O.Ps) alleging deficiency in banking service and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he is a customer of S.B.I. Main Branch, Berhampur vide Account No. 10859230998. The complainant had tried to withdraw Rs.4000/- (Rupees Four Thousand) on 13.06.2012 from Canara Bank ATM at Haridwar, Uttarakhand. The ATM did not dispense cash but account was debited. On 13.6.2012 at about 11.22 A.M. complainant had received message from State Bank of India. After receipt of the message, the complainant called the Head Office, Bhubaneswar over phone number 0674-2396580. The Head Office Bhubaneswar suggested to the complainant to lodge a complaint at his own bank for missing of Rs.4,000/- from Canara Bank ATM, but the SBI member of Head office, Bhubaneswar told that Canara Bank reported to SBI that Rs.4000/- was successful on 13th June. On 13th June 2012 while the complainant was at Haridwar, Uttarakhand used his SBI ATM card No. 4591510000214291 in Canara Blank ATM, at about 11 A.M. for withdrawing Rs.4,000/- but “No respond and sorry” receipt come out twice, he tried to know his balance at last but in vain, no answer in the screen. He pressed cancel and clear bottom and came back to Central Bank ATM when he tried of Rs.5,000/- but he received Rs.4000/-. The Central Bank ATM receipt served closing balance of Rs.15,997/-, which surprised him as the previous balance was Rs.24,997/-. So he lost total amount of Rs.5000/-( at Canara Bank ATM Rs.4000/- and secondly at Central Bank ATM Rs.1000/- respectively. It is also mentioned that on 14th June 2012 again lodged complaint and received ticket number as 1 AT: 42925162029 and 1 AT 42925157684. On 24th June 2012 again lodged a complaint and the Ticket number are 1 AT 42925271840 and 2 AT 42925254997 3 AT 42925271895 respectively. On 26th June 2012 again lodged complaint and he received a ticket number AT: 42925286996. Every time reply received “closed the complaint” contact Main Branch. However at last Rs.1000/- less drawn at Central Bank ATM at Haridwar was credited back to his account but still the missing of Rs.4,000/- from Canara Bank ATM is not credited back. The complainant is being an old aged person suffering from mental agony due to lack of positive response from the side of O.P. Bank. Alleging deficiency in service on the part of the O.Ps, the complainant prayed before this Forum to direct the O.Ps to return Rs.4,000/- with interest and to pay compensation of Rs.50,000/- towards mental agony to the complainant in the interest of justice.
3. Upon notice the O.P.No.1 filed written version and argument through his learned counsel Shri Y. Sriram Murty, Advocate, Berhampur. However, during the final hearing of the consumer dispute, Mr. A. Uma Maheswar Rao, Advocate, Berhampur was present was duly appeared for the O.P.No.1 along with Vakalatnama on 13.8.2013. It in the written version/ argument it is submitted that the complaint is entirely misconceived, baseless and untenable in law, facts, and circumstances of the case and is liable to be dismissed. The alleged occurrence happened is beyond the control of the O.P. to render service, hence it could not be constituted as deficiency in service and denied under the provisions of the Consumer Protection Act, 1986. The complainant and O.P. are bound by the terms and conditions as laid down in the user’s manual of State Bank cash Plus ATM-cum-Debt card and any deviation of procedure, terms and conditions committed by the ATM card holder and loss occurred to him due to such action Bank is not liable to pay the loss, compensation or damages. In the instant case the facts stated in the complaint clearly shows there is a deviation of terms and conditions committed by the complainant such as changing of Personal Identification Number (PIN) every quarter is not followed by the complainant, hence the O.P. is not liable to pay any of the amounts claimed by the complainant. This Forum has got no jurisdiction to entertain and adjudicate upon the alleged dispute involved in the complaint in since it is not a consumer dispute and does not fall within the provisions of Consumer Protection Act, 1986. The annual maintenance fees and regeneration fee of PIN can’t be considered as rendering service for consideration and as such the controversy involved in the complaint is not a consumer dispute and the complainant is not a consumer hired the services of this O.P. for consideration. The Bank is not charging any transaction commission or charge for the operations made by complainant. Hence the complaint is not maintainable and the provisions of the Consumer Protection Act are not applicable to instant case. The procedure to be followed by the ATM card holder for operating his account though ATM clearly shows that it is impossible to withdraw the amount without connivance of ATM card holder because without having access to Personal Identification Number, it is impossible to withdraw money from ATM, hence the burden of proof is on the complainant to prove his allegations beyond doubt to claim the reliefs against the O.P. The cash balance report as on 13.6.12 and ATM Log report dated 13.6.2012 clearly shows details which will enable the Honorable Forum to decide the issues involved in this case judiciously. Hence, the allegations made by the complainant in his complaint are absolutely false to his knowledge and the O.Ps are not liable to pay any of the amounts claimed by the complainant in his complaint, because Record No. 554 shows it is impossible to transact ATM with invalid PIN. The O.Ps are not liable to pay Rs.4000/- with interest and Rs.50,000/- towards mental agony as claimed by the complainant and the complaint is liable to be dismissed with costs.
4. The O.P. No.2 & 3 though received the notice from this Forum but did not prefer to appear and contest the case. Hence, they are declared ex-parte on 10.10.2013.
5. On the date of hearing of the consumer dispute the complainant is present personally and the advocate for the O.P. No.1 is also present. The O.P. No.2 & 3 are proceeded ex-parte since they did not prefer to contest the case. We heard the matter from both sides at length and have gone through the materials and have also perused the documents submitted by both parties in support of their case respectively which are placed on the case record.
During the course of hearing, the complainant submitted that on 13th June 2012 when he was at Haridwar, Uttarakhanda state he used his SBI ATM Card No.4591510000214291 in Canara Bank ATM at about 11.00 A.M. for withdrawal of Rs.4,000/- but no response and sorry receipt came out twice. He also tried his balance but went in vain. He then pressed cancel and clear bottom and came back to Central Bank ATM where he tried to withdraw Rs.5000/- but he received Rs.4000/- missing Rs.1000 only. The Central Bank ATM receipt showed closing balance of Rs.15,997/- which surprised him because previous balance was Rs.24,997/-. Hence, he lost a total sum of Rs.5,000/- i.e. at Canara Bank ATM Rs.4,000/- and at Central Bank ATM Rs.1000/-. He lodged a complaint on 14.6.2012, 24.6.2014 and 26.6.2014 respectively but every time reply came with a message ‘closed the complaint contact Main Branch’. However, at last, a sum of Rs.1000/- less drawn at Central Bank ATM Counter at Haridwar was credited back to his account but still the missing amount of Rs.4,000/- from Canara Bank ATM counter is yet to be refunded. He redressed his grievance before the Bank authorities but the Bank authorities did not give any heed to his grievance. Finally, he filed a complaint before Banking Ombudsman at Bhubaneswar but the complaint also closed under clause 13 (c ) of the Banking Ombudsman Scheme, 2006 with an advice to redress the grievance before any other grievance redressal authority since the complaint was fraudulent nature which requires elaborate documentary evidence and proceeding before Banking Ombudsman being summary in nature. Therefore, the complainant filed this consumer complaint in this Forum with a prayer to direct the O.Ps to refund Rs.4,000/- with interest and to pay Rs.50,000/- as compensation towards mental agony in the interest of justice.
On the contrary, the learned counsel for the O.P.No.1 submitted that in this case the complainant has alleged fraudulent withdrawn of money on his ATM card which is impossible. He also submitted that in the instant case Bank can’t be held liable and there is no deficiency in service since the factors beyond control of the Bank. He further submitted that no amount can be withdrawn without simultaneously use of card and personal four digit identification number (PIN) which is with customer and not with bank. For the ATM security, the customer was advised to retain his PIN secretly and card with careful. In this case the complainant has stated that the card and PIN is in his personal custody and no one is accesses to it. So there is no question of fraudulent withdrawal of money from his account. He also submitted that merely because there was no security guard and the CCTV was not working it does not mean money could be withdrawn fraudulently without using ATM card and four digits secret number. The allegations made in the complaint shows clearly that complainant had kept the card in his safe custody and no one had access to it and it was never missing. Hence, it is not possible for others to withdraw the money unauthorizedly and prayed before this Forum to dismiss the case against O.P.No.1 in the interest of justice. He also cited a citation of Hon’ble National Commission in support of his arguments decided in the case of State Bank of India versus K. K. Bhalla vide Revision petition No. 3182 of 2008 decided on 7.4.2011. He also filed some vital documents in support of his arguments such as letter from the office of Canara Bank, Bangalore, receipt of money withdrawn, ATM card transaction report for the day of 13th June 2012 and cash balance report etc to prove his case.
6. We have heard the pleadings of parties at length and have given thoughtful consideration to it. We have also carefully perused the materials filed by both parties placed on the case record. On perusal of the case record, it is found that there is no dispute or doubt that the present complainant is a bonafide customer under O.P.No.1 vide his S.B. Account No.10859230998 and he was also allotted a SBI ATM card bearing No.4591510000214291. From the argument it reveals that the complainant on 13.6.2012 when he was at Haridwar tried to withdraw money from his savings bank account through ATM card at Central Bank ATM counter and a sum of Rs.5,000/- was unauthorizedly debited from his account but a sum of Rs.1,000/- was credited to his account after lodging a complaint before the concerned authorities. However, a sum of Rs.4,000/- is yet to be credited to his account which was unauthorizedly debited from his savings bank account. For this, the complainant lodged a complaint on 14.6.2012 vide ticket No.AT 42925162029 and AT 42925157684 respectively for redressal of his grievances. Similarly, on 24.6.2012 the complainant again lodged complaint vide ticket No.AT42925271840, AT 42925254997 and AT 429252271895 respectively but no fruitful action was taken. Finally, the complainant once again on 26.6.2012 filed a complaint vide ticket No. 42925286996 for redressal of his grievances before the O.P.No.1 but the O.P.No.1 did not take any effective steps to credit the alleged sum of Rs.4,000/- to his account. Finally, the complainant filed a case before Banking Ombudsman at Bhubaneswar but that case was also closed on 29.8.2012 with an advice to redress his grievance before any appropriate authority in accordance with law.
7. On perusal of the letter No.PBD/ATM/12/13-17 dated 10.7.2012 of the O.P.No.1 it reveals that as per the report of Canara Bank, Haridwar with reference to complain dated 14.6.2012, the O.P.No.1 informed the complainant that the ATM transaction in dispute was successful. However, the learned counsel for the complainant on 17.10.2012 filed a petition to call for the four facts of his transactions i.e. (i) Eg Log (transaction details), (ii) ATM log detail of total transaction made on 13.6.2012, (iii) Excess Cash Report (closing cash in the ATM ) and (v) the CCTV footage which are essential to adjudicate the disputed transactions. Accordingly, the learned counsel for the O.P.No.1 on 17.10.2013 filed the aforesaid documents before this Forum to ascertain the alleged unauthorized debit of Rs.4,000/- from his savings bank account.
8. During the course of hearing, we perused the aforesaid documents filed by O.P.No.1 placed on the case record. On careful perusal of the ATM cash transaction report it reveals that there was a transaction vide ATM card No. 4591510000214291 and A/c No. 8888122422532 on 13.6.2016 at 11:20:35 for an amount of Rs.4,000/-. In this regard we would like to say that though the ATM card, date of transaction and amount withdrawn are matched with the allegation of the complainant but the account number does not tally. In the complaint, the complainant has mentioned that his Savings Bank Account Number is 10859230998 but in the ATM cash transaction report dated 13.6.2012 it is mentioned that the amount was debited from Account No.888812242250. It is also a fact that the complainant had lodged a complaint on 14.6.2013 for non-disbursement of Rs.4,000/- from the ATM of Canara Bank at Haridwar. However, on repeated complaint to the Main Branch, the O.P. Bank refunded a sum of Rs.1,000/- that was wrongly credited from his account. In the aforesaid fact and circumstance of the case, in our considered view we would like to say that what forced the O.P. Bank not to refund the rest amount of Rs.4,000/- that was unauthorizedly debited from his savings bank account. In this case the O.P. Bank has admittedly refunded Rs.1,000/- that was missed from Central Bank ATM counter but the O.P. Bank is yet to refund an amount of Rs.4,000/- that was missed from the Canara Bank ATM Counter. The argument of O.P.No.1 that he ATM card and PIN with the complainant and in absence of both no amount can be withdrawn is not acceptable to this Forum since on 13.6.2012 while the complainant was trying to withdraw money from Canara Bank ATM at Haridwar, an amount of Rs.4000/- was wrongly debited from his Savings Bank passbook and for that he has lodged complaint before O.P.No.1 i.e. Main Branch, SBI, Berhampur as has already been discussed above. In this case, the O.P.No.1 has also not filed any CCTV footage to prove that the complainant had duly received the disputed amount of Rs.4,000/- that was wrongly credited from his savings bank account. In the absence of any cogent and convincing documentary evidence, we are unable to accept that the complainant has received the disputed amount of Rs.4,000/- that was wrongly credited from his bank account. In this regard we would like to view that the O.P. No.1 is the custodian of funds of complainant and bank is liable for any unauthorized withdrawn of money from his account. In the aforesaid fact and circumstances of the case, the citation of Hon’ble National Commission in the case of State Bank of India Vs. K. K. Bhalla as cited in support the case of O.P.No.1 is also not applicable due to factual difference of the present case.
9. From the aforesaid discussion, it is amply clear that a sum of Rs.4,000/- was wrongly debited from the account of the complainant while the complainant was transacting at Canara Bank ATM Counter, Haridwar and on receipt of the complaint from the complainant the O.P.No.1 had refunded Rs.1,000/- that was wrongly credited from Central Bank by crediting the same to the account of the complainant but the O.P.No.1 is yet to refund the disputed amount of Rs.4,000/- to the account of the complainant. We also know that the complainant was at Haridwar on the date of incident and he might have faced inconvenience due to wrong credit of Rs.5,000/- from his savings bank account which could have affected his mental health which can’t be compensated in shape of money. But the O.P. Bank is to refund the amount of Rs.4,000/- which was wrongly debited from his account at least on humanitarian ground. It is also a fact that in the meantime a long period of five years have already been passed and the complainant is to get back his hard earned money from the O.P. Bank due to their deficiency in service. Hence, we feel that the complainant is entitled for interest as per savings bank interest rate from the O.P.No.1 on the detained amount of Rs.4000/-. In this case we do not find any case against O.P.No.3 since it is also an adjudicating agency as there is no specific relief claimed against O.P.No.3 by the complainant.
10. In a sequel to the above discussion and in view of the fact and circumstance of the case, we partly allowed the case of the complainant against O.P.No.1 and 2 who are jointly and severally liable to refund the amount of Rs.4,000/- to the complainant along with savings bank rate of interest from the date of unauthorized credit to till actual payment is made. However, we are not inclined to award a sum of Rs.50,000/- as compensation as prayed by the complainant, since the complainant has not filed any convincing documentary evidence in support of his assessed loss and claim of compensation. However, we are interested to direct the O.P.No.1 and 2 to pay a modest amount of Rs.500/- towards cost of litigation since the complainant has hired the services of an advocate for filing this consumer complaint in this Forum.
11. In the result, we allowed the case of the complainant against O.P.No.1 &2 who are jointly and severally liable to refund a sum of Rs.4,000/- to the complainant along with interest as per savings bank rate of interest from the date of unauthorized debit of aforesaid amount till actual refund is made. We also allowed a sum of Rs.500/- towards cost of litigation to be paid by the O.P. No.1& 2 at the same time. Similarly, the case is dismissed against O.P.No.3 as discussed above as there is no specific claim of loss against O.P.No.3. The aforesaid order shall be complied by the O.P.No.1 &2 within 45 days from the date of receipt of this order failing which the complainant is at liberty to recover the same as per relevant Sections of the Consumer Protection 1986. However, there is no order as to compensation. The case of complainant is disposed of accordingly.
12. The order is dictated and corrected by me and pronounced on this 16th day of January 2017 under the signature and seal of this Forum. The office is directed to furnish copy of this order to the parties free of cost as per rules. A copy of the order be sent to the server of
