DATE OF FILING: 19.12.2012.
DATE OF DISPOSAL: 25.11.2016.
Dr. N.Tuna Sahu, Member.
The complainant has filed this consumer complaint 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 her grievance.
2. Briefly stated the facts relevant for the disposal of this consumer complaint are that the present petitioner is a bona fide customer of the O.P.No.1 bearing account No.31786348486. The complain petition reveals that the O.P.No.1 issued her an ATM card for operating her account through ATM. On 29.8.2012, while the complainant was ill, she authorized her husband Sri Ganesh Sabat for withdrawing Rs.20,000/- from her account. So, her husband went to the State Bank of India, ATM counter at Gosaninuagaon, Berhampur at about 8.55 P.M. and checked the account balance. The mini statement showed that there was a balance of Rs.41,300/- and he withdrew Rs.20,000/- at 9.00 P.M. and the ATM released Rs.20,000/- along with a receipt of the complainant’s account showing Rs.1300/- as closing balance. As per her allegations, though her husband withdrew Rs.20,000/- but due to the defective ATM machine the bank wrongly debited Rs.20,000/- excess from the account of the complainant. The complainant contacted the O.P.No.1 and requested several times to credit the amount to her account but all went in vain. At last she lodged an FIR in the Gosaninuagaon Police Station complaining unlawful deduction of Rs.20,000/- from her account through ATM machine. But no action was taken by the Police station till filing this complaint. The complainant also served a legal notice on the O.Ps on 18.11.2012 through registered post to credit the amount of Rs.20,000/- to her account but the O.P.No.1 although received the legal notice but did not take any step to credit the amount to her account. She further alleged that due to wrong and illegal debit of Rs.20,000/- from her account, she suffered from mental agony and lost her mental balance. When the O.Ps did not give any heed to her grievance, she filed this consumer complaint against the O.Ps with a prayer to direct the O.Ps to credit Rs.20,000/- to her account and to pay Rs.4,00,000/- towards mental agony, physical pain and financial loss along with cost in the interest of justice.
3. On notice, the O.Ps appeared before this Forum through their learned counsel Sri Y.Sriram Murty, Advocate and Associate and filed their version. But after filing of version and arguments the O.Ps contested the case through their learned Counsel Sri Umamaheswar Rao by filing fresh Vakalatnama and proceeded with the case till final hearing and disposal of the case.
In the written version the O.Ps stated that the complaint is baseless and untenable in law, facts and circumstances and liable to be dismissed. The facts stated in the complaint shows the alleged occurrence happens beyond the control of O.Ps and there is no deficiency in service. The complainant and the O.Ps are bound by the terms and conditions as laid down in the user manual of the SBI Cash -Plus-ATM -cum-debit card and in the instant case the facts stated in the complaint clearly shows there is a deviation of terms and conditions committed by the complainant as she allowed her husband to use the ATM card unauthorizedly. Both the complainant and her husband played fraud on O.Ps and swindled the amount of Rs.20,000/- hence the O.Ps are not liable to credit Rs.20,000/- into the account of the complainant. The learned counsel also contended that since the ATM card used by a person other than the complainant, it is not a consumer disputes and it does not fall within the provision of Consumer Protection Act, 1986. The O.Ps also submitted that the Bank is not charging any transaction commissions for the operation by the complainant, so the complaint is not maintainable. It is further contended that the procedure clearly states it is impossible to withdraw the amount without connivance of ATM card holder because without personal identification number, it is impossible to withdraw money from ATM and the burden of proof is on the complainant to prove the allegations beyond doubt. In support of his arguments, the learned counsel also cited a decision of Hon’ble National Commission vide in Revision Petition No. 3182 of 2008 in the case of State Bank of India versus K.K. Bholla where it was held that without the ATM card and PIN, it is not possible to withdraw money by an unauthorized person from the ATM. The allegations made in the complaint shows that, the alleged ATM transactions are successful which is not possible without inserting a valid ATM card and entering the correct PIN, in which the burden of proof is shifted to the complainant to explain how this happened. It is also submitted that in these type of cases, merely because there is no security guard and the CCTV is not working and its footage is not available does not mean the money could be withdrawn fraudulently without using ATM card and PIN number. Hence, the O.Ps are not liable to credit Rs.20,000/- into the account of the complainant and the complainant has not given any details of loss of Rs.4,00,000/- towards mental agony, physical pain, loss of reputations and financial loss. For the submissions made above, the O.Ps are not liable to pay any of the amounts claimed by the complainant and the complaint is liable to be dismissed with cost.
4. On the date of hearing of the consumer complaint, we have heard the learned counsel for both parties and perused the materials on record.
During the course of hearing, the learned counsel for the complainant submitted that on 29.8.2012, while her husband withdrawing Rs.20,000/- from the account of the complainant, Rs.20,000/- was wrongly debited from her account and the matter was informed to the O.P.No.1 but he did not taken any action. It is further submitted that when the O.P.No.1 did not give any heed to her grievance, she also informed the matter to the Gosaninuagaon Police Station by lodging an FIR but no action was taken till today. The complainant also issued a legal notice on 18.11.2012 to the O.Ps but no action was taken by the O.Ps to credit Rs.20,000/- to the account of the complainant. When, the O.Ps did not give any heed to her grievances to credit the amount, the complainant filed this consumer complain with a prayer to direct he O.Ps to credit Rs.20,000/- and to pay Rs.4,00,000/- towards mental agony, harassment, financial loss and costs of the litigation. He also cited a number of decisions passed by the Hon’ble National Commission and State Commissions like Rajsthan and West Bengal in support of her case which are placed in case record for reference.
On the contrary, the learned counsel for the O.Ps submitted that the complainant unauthorizedly allowed her husband to use the ATM and for withdrawal of money which is in violation of terms and conditions of the user’s manual of ATM card. The learned counsel for O.Ps further submitted that it is impossible to withdraw the amount of Rs.20,000/- without connivance of ATM card holder and personal identification number no money can be withdrawn from the ATM. He also relied on the decision of Hon’ble National Commission in the case of State Bank of India versus K.K.Bholla vide Revision Petition No. 3182 of 2008. It is vehemently argued that the O.Ps are not liable to credit Rs.20,000/- into the account of the complainant and not liable to pay Rs.4,00,000/- towards mental agony, harassment, financial loss and costs of litigation since the complainant has unauthorizedly allowed her husband to withdraw money from the ATM. For the submissions made through, written version and written argument, the O.Ps are not liable to pay any of the amounts claimed by the complainant and complaint is liable to be dismissed in the interest of justice.
5. We have also carefully perused the pleadings of both parties and have given thoughtful consideration to the contentions submitted by both parties before us.
It is not a dispute that the complainant is a consumer of the O.Ps, vide her Savings Bank A/c No.31786348486 as is revealed from her account passbook placed on the case as an Annexure. It is also beyond doubt that the O.Ps have issued her an ATM-cum-Debit Card issued in favour of the complainant during June in the year 2011. It is also not in dispute that on 29.08.2012 the husband of complainant had withdrawn Rs.20,000/- from the account of the complainant at 21.00 hours as is revealed from the money withdrawn slip placed on the case record as an Annexure. However, the complainant has alleged that while withdrawn of Rs.20,000/- from her account an additional amount of Rs.20,000/- was wrongly debited from her account on the same day leaving Rs.1300/- as balance in the account of the complainant. However, the O.Ps denied incident that it is not possible to withdraw money from an account without simultaneously using ATM Card and PIN number and since the husband of the complainant has used the ATM Card of the complainant unauthorizedly, the O.Ps are not liable to refund or credit the said amount to the account of the complainant. In the afore said fact and circumstance of the case, the only point of dispute to be decided by this Forum whether there was wrongful withdrawal of Rs.20,000/- from the account of the present complainant and it was so are they liable to credit the amount to the account of the complainant immediately?
6. To decide the above only point of dispute, we have carefully gone through the complaint of the complainant, written version and arguments filed by the O.Ps and also perused the pleadings and documents filed by the complainant as well as by the O.Ps.
On perusal of the documents placed on the case record, it reveals that on 29.08.2012 at about 20.55 hours the husband of complainant checked the balance of her account through ATM Card and got a receipt which states Rs.41,300/- as available balance in the account of the complainant vide TXN No.6483 dated 29.08.2012. Similarly, at about 21.00 hours, an amount of Rs.20,000/- was withdrawn from the account of complainant vide TXN No.6490 dated 29.08.2012 leaving an amount of Rs.1300/- as available balance in the account of the complainant. In this context, we are surprised to note that when Rs.20,000/- was withdrawn from the account of the complainant how Rs.1,300/ was remained as available balance in the account of the complainant out of Rs.41,000/-. On careful perusal of the withdrawal receipts placed on the case record, it reveals that the first receipt shows that Rs.41,300/- was available balance in the account of the complainant but on the second withdrawal vide TXN No.6490 on the same day at about 21.00 hours, a sum of Rs.20,000/- was withdrawn leaving Rs.1300/- as balance in the account of the complainant. It further discloses that on the third attempt at about 21.02 hours vide receipt TXN No.6494, it was found that the ATM machine displayed a message as ‘unable to process’. From the aforesaid discussion, it is clear that within the period of five minutes, the transaction was took place and from the receipt bearing TXN No.6490 it shows that though a sum of Rs.20,000/- was withdrawn from the account of complainant as contended by her but in fact an amount of Rs.20,000/- was wrongfully debited from her account since the available balance amount in the account of the complainant was Rs.1300/- as mentioned in the receipt vide TXN No.6490 transacted at about 21.00 hours on 29.08.2012. From the aforesaid discussion, it is corroborated that while an amount of Rs.20,000/- was withdrawn from the account of the complainant, a sum of Rs.20,000/- was wrongfully debited from the account of the complainant. The up to dated savings bank passbook of complainant also reveals that on 29.08.2012 there was a balance of Rs.41,000/- in the account of the complainant and on the same day a sum of Rs.20,000/- was withdrawn from the ATM 941 of State Bank of India located at Gosaninuagaon-I, Berhampur leaving Rs.21,300 as available balance in the account of the complainant. Similarly, the up to dated savings bank passbook account shows that on 29.08.2012 vide ATM 6490 at SBI Gosaninuagoan, Bhubaneswar, a sum of Rs.20,000/- was withdrawn. In this context, we are convinced that a sum of Rs.20,000/- was wrongly debited as alleged by the complainant from her account and though the matter was informed to the O.Ps for redressal of her grievance in respect of non-receipt and non-withdrawal of said amount of Rs.20,000/-, but the O.Ps did not take any steps to credit the amount to the account of the complainant. The O.Ps even did not feel to make an enquiry into the matter even after receipt of the notice from this Forum and no reliable documents filed to convince us that no third person has manipulated the ATM. Moreover, the O.Ps failed to submit the CCTV footage of the ATM transactions and have admitted in their version that the CCTV was not working and there was no security guard in the ATM counter and pleaded that even if there is no security guard and CCTV was not working or mal functioning of ATM does not mean that the money could be withdrawn fraudulently without using the ATM Card and PIN number. In this context, we would like to say that in the absence of CCTV camera, the O.P bank failed to provide the CCTV footage in respect of person who actually operated the machine and withdrew the money from her account through ATM. In view of this important aspect and the peculiar facts and circumstances of the case, it proves beyond doubt that the O.Ps have failed to protect of the account of the complainant due to which an amount of Rs.20,000/- was wrongfully debited from the account of the complainant. That being the case, it is clear that some third person by foul play has manipulated the ATM machine and unauthorizedly withdrawn the amount from the account of the complainant. As the money has been wrongly withdrawn from the account of the complainant, the O.Ps are liable to refund the same to the complainant since the O.Ps are custodian of her money and liable to make good of her loss. The learned counsel for the O.Ps has contended that in view of the decision of Hon’ble National Commission in the case of State Bank of India Vs. K.K. Bholla vide Revision Petition NO.3182 of 2008 where it was held that “in view of the elaborate procedure evolved by petitioner / bank to ensure that without the ATM Card and knowledge of the PIN it is not possible for money to be withdrawn by an unauthorized person from the ATM”. In this regard we would like to say that in the present facts and circumstance of the case, the aforesaid decision is not applicable to this instant case due to factual differences. In a sequel to the aforesaid discussion, in our considered view the O.Ps are responsible to credit the aforesaid amount of Rs.20,000/- to the account of complaint due to wrongly debited the amount from her account. Our finding is fortified with the decision of the Hon’ble National Commission reported in 2012 CJ 177 (NC) where it was held that “Bank is responsible for any fraudulent withdrawal from ATM”.
On the point of compensation:
7. In this consumer dispute, the complainant has prayed for compensation of Rs.4,00,000/- to be paid by the O.Ps towards mental agony, physical pain, loss of reputation and financial loss of the complainant. In this regard we would like to point out that the complainant has not proved the loss of Rs.4,00,000/- and no cogent and convincing documents filed by her to substantiate her claim. We, are, therefore, not inclined to award such huge compensation in favour of the complainant rather hold that the O.Ps shall return the amount of Rs.20,000/- to the complainant wrongly debited from her account due to negligence of the O.Ps.
8. In the result, we partially allowed the case of the complainant against all O.Ps and the O.Ps who are jointly and severally liable to refund the amount of Rs.20,000/- to the account of the complainant which was wrongly debited from her account as discussed above. The O.Ps are also directed to pay Rs.1,000/- towards litigation cost however there shall be no order as to compensation. The order shall be complied by the O.Ps within two months from the date of receipt of this order failing which the amount shall carry simple bank interest and to be recovered from the O.Ps through execution process under relevant Sections of Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
9. The order is pronounced on this 25th day of November 2016 under the signature and seal of this Forum. The office is directed to supply copies of the order to the parties free of cost as per rules.
