DATE OF FILING: 04.09.2012
DATE OF DISPOSAL: 02.01.2018
Dr. Alaka Mishra, Member (W)
The complainant has filed this consumer complaint under Section 12 of Consumer Protection Act, 1986 alleging deficiency in banking service against the Opposite Parties (for short, the O.Ps) and redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he is working as a tradesman in the IRE Ltd. Matikhalo, Chhatrapur. As such, he has opened a S.B. Account with the Branch of O.P.No.1 vide A/c No.10546949781hence the complainant is a bonafide consumer of O.P.No.1. The O.P.No.2 is the Main Branch dealing with the operations of the ATM counter of the State Bank of India in Berhampur City. The O.P.No.3 is the Regional Manager of SBI under whose control the O.P.No.1 &2 functions. The O.P.No.1 has issued an ATM card in favour of the complainant to avail the ATM facilities for operating of his account with the O.P.No.1 vide ATM card No. 6220180608600013429 for which the complainant is paying service charges to bank of the O.Ps. As such, the O.Ps are legally bound to provide proper services to the complainant while operating his ATM card for transactions as and when required. On 12.08.2012 at about 9.58 AM the complainant used his ATM card issued by O.P.No.1 in the ATM machine of the SBI installed at Gosaninugaon Main Road to get a mini statement of his account. The ATM machine released printed mini statement of the account of the complainant showing the available balance in the account as Rs.1,77,126.39 only. Thereafter at 10 A.M. i.e. just after two minutes of printing of mini statement from the ATM machine the complainant again swapped his ATM card in the ATM machine for withdrawal of Rs.6000/- from ATM machine from his account, along with the printed receipt of his account showing available balance in his account as Rs.1,51,126/- after withdrawal of Rs.6000/- . The complainant was stunned at such event and was shocked. Because the complainant has only drawn an amount of Rs.6,000/- but a sum of Rs.26,000/- was debited wrongfully from his account. The complainant has contacted the SBI Branch of the Berhampur City complained them about such unlawful and illegal debit of amounts from his accounts through ATM machine. But they did not give any heed to his grievances and advised him to take the matter to the O.P.No.1. Thereafter the complainant contacted office of O.P.No.1 on 14.8.2012 with the hope that O.P.No.1 will credit the said amount of Rs.20,000/- to the complainant’s account. The O.P.No.1 assured the complainant to provide all necessary help for crediting the said amount to his account but did not do so. On 25.8.2012 the O.P.No.1 slapped with a letter to the complainant stating that the so called transaction No. 6246 was successful as per the EJ LOG. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to credit Rs.20,000/- to the account of the complainant, compensation of Rs.4,00,000/- towards mental agony, physical pain, for loss of reputation and financial losses, etc. to the complainant for not providing proper services to the complainant and his account. The complainant time and again ran after the O.Ps to credit said amount his account but all went in vain. When the O.Ps did not give any heed to his grievances, the complainant has filed this consumer dispute alleging deficiency in service and prayed before this Forum to direct the O.Ps to credit Rs.20,000/- to the account of the complainant and to pay Rs.4,00,000/- as compensation for mental agony, physical pain and financial loss along with cost of litigation in the interest of justice.
3. Upon notice the O.Ps appeared through learned counsel Sri B.K. Mohanty, Advocate and filed written version/argument. It is stated the O.P.No.1 is the Deputy Manager of the Bank and to his official capacity is representing all the O.Ps and filing this written version. Being the principal officer of the Bank, he is looking after the management of the branch and opposite party No.2 and 3 have no direct role in this case. Hence the O.P.No.2 & 3 are not a necessary party in this case and their name should be deleted from the case. The allegations made in the complaint petition are not all true and correct and the complainant is put to the strict proof of such of those allegations, which are not specifically admitted therein. The averments made in para-1 that, the complainant is working as a tradesman in the IRE Ltd. Matikhalo, Chhatrapur. As such he has opened a S.B. Account with the Branch of O.P.No.1 vide No. 1 vide No. 10546949781 and thus the complainant is a bonafide consumer of O.P.No.1 and the O.P.No.2 is the Main Branch dealing with operations of the ATM counters of the State Bank of India in Berhampur city. The O.P.No.3 is the Regional Manager of SBI under whose control the OP No.1 and 2 functions etc. are not relevant to this case. As the complainant is having his account with O.P.No.1, all other parties have no direct role/business with this dispute and this case is not maintainable against them due to mis-joinder of parties. The rest of the averments made in the said Paras are not at all true, correct and the same are denied in toto by this O.P. and the complainant is put to strict proof of the same. Moreover, some other averments made in that Para are irrelevant to this case and needs no comments. The State Bank of India is the largest public sector Bank of the nation having wide ATM network throughout the country. It issues the ATM card subject to certain terms and conditions and the applicant/account holder has to enter into a contract accepting the same by signing on the application form. As per Clause –C (2) of the terms and conditions for ATM cards, which reads that, “please remember that an unauthorized person can access the ATM service on card holder’s account if he gains the card and the PIN. The card, there, should remain in Card Holder’s possession and should not be handed over to anyone else. The card is issued on the condition that the Bank bears no liability for the unauthorized use of the card. This responsibility is fully that of the card Holder” and as per Clause-D (2) of the terms and condition for ATM cards, which reads that, “Any financial loss arising out to unauthorized use of the card till such time the Bank records the notice of loss of card will be to the card Holder’s account” and as per Clause-E (1) of the terms and condition for ATM cards, which reads that, “The Bank has the express authority o debit the designated account of the card holder for all withdrawals/transfers effected using the card as evidenced by Bank’s records which will be conclusive and binding on the card holder”. The ATM card was issued to the complainant on his accepting the terms and conditions for ATM cards for all its customers. The customers should take adequate precaution to protect their own interest and money while operating their ATM cards with the existing facilities/systems. No ATM transaction is possible without simultaneous use of card and PIN number. The PIN number is most confidential number which, must not be disclose or displayed to any other person. In the instant case, when the PIN number and card is with the complainant, it is not possible to operate the ATM without of his conveyance and knowledge. Moreover, as per records the ATM transaction is successful. Successful ATM transactions are not possible without inserting a valid ATM card and entering the correct PIN. Hence, it is imperative for the customer to ensure safe keeping of card and PIN. In view of the above, these O.Ps are neither liable for the loss of Rs.20,000/-, nor responsible to pay any compensation for mental agony, physical pain, for loss of reputation and financial losses etc as claimed. This O.P. has also provided all necessary information and extended full cooperation to the complainant. Hence, there is no deficiency in service. This case involves complex question of facts, evidence and law. Hence this Forum has no jurisdiction to admit he case, and try the same and the matter can be properly adjudicated in the Civil and Criminal Court. Due to the above facts, this does not come within the scope and ambit of the consumer forum and there is no deficiency in service provided by this O.P. This O.P. i.e. the State Bank of India is not liable to pay anything or responsible for the alleged misuse of the ATM card as per the terms and conditions of the contract entered at the time of issue of the ATM card. The petition is barred by limitation and the same has not been properly valued. Hence, the O.Ps prayed to dismiss the complaint with exemplary cost in the interest of justice.
4. On the date of hearing of the consumer dispute both learned counsels for the complainant as well as for O.Ps are present. We heard argument from both sides at length and perused the complaint, written version, written arguments and materials placed on the case record. The learned counsel for the complainant in his argument contended that the complainant is a consumer of O.P. No. 1, vide his SBI Account No.10546949781with Matikhalao Braanch having ATM card bearing No.6220180608600013429. On the date of incident i.e. on 12.08.2012 at about 9.58 AM the complainant swapped his ATM card in the SBI ATM Counter located at Gosaninuagaon, Berhampur to get a mini statement from his account and found that an amount of Rs.1,77,126.39 paisa was his balance amount in the account. Thereafter, at about 10 A.M. the complainant swapped the ATM for withdrawal of Rs.6,000/- from his account. The complainant received the amount but he found that the available balance in his account was Rs.1,51,126.39. Then he filed a complaint before O.P.No.1 to credit the amount of Rs.20,000/- wrongly debited from his account but he did not give any heed to his grievance despite repeated requests. Hence, the complainant filed this complaint with a prayer to direct the O.Ps to credit Rs.20,000/- in his account and to pay compensation of Rs.4,00,000/- towards harassment, mental agony and financial loss and cost of litigation in the interest of justice.
5. On the contrary, the learned counsel for the O.Ps in his submissions contended that in the instant case the complainant alleged that an amount of Rs.20,000/- was unauthorizedly withdrawn from his account which is not possible without inserting simultaneously the ATM Card and four digit PIN number. No ATM transaction is possible without simultaneous use of card and PIN number. The PIN number is the most confidential number which must not disclose or displayed to any other person. In the instant case when the PIN number and card is with the complainant it is not possible to operate the ATM without his conveyance and knowledge. Moreover, as per the records, the ATM transaction is successful and a successful transaction is not possible without inserting card and PIN number. Hence, it is imperative for the customer to ensure safe keeping of card and PIN number. In view of the above, the O.Ps are not liable to credit Rs.20,000/- in the account of the complainant nor responsible to pay compensation and cost as claimed by the complainant. Hence, prayed to dismiss the case with cost.
6. We perused the pleadings of both parties and verified the documents placed on case record. On perusal of materials it appears that it is not in dispute that the complainant is a bonafide customer of O.P.No.1 who has provided ATM facilities to him for transaction. It is also a fact on record that the complainant swapped the ATM machine at about 9.58 A.M on 12.08.2012 to know his account balance. It is also a fact beyond dispute or doubt that at about to 10 A.M on the said date an amount of Rs.6,000/- was withdrawn from Gosaninuagaom ATM Counter vide TXN No.8635. On a careful verification of ATM Log and passbook particulars of the ATM transactions, it reveals that at about 10.00 A.M on 12.08.2012 an amount of Rs.20,000/- was also unauthorizedly withdrawn from the account of the present complainant vide ATM ID S10B000033027 and TXN No. 6246 from the ATM Counter-II of Gasaninuagaon. In the foregoing fact and circumstances, we would like to point out that in the instant dispute there were two transactions made and completed at the same time in two different ATM Counters at Gosaninuagoan. In our considered view we would like to state that in between two ATM transactions there must be a gap of time for second transaction after completion of first transaction even though in two adjacent ATM Counters. But in the instant case two transactions were made and completed in two different ATM counters at the same of time i.e. at about 10.00 AM which practically not possible and point finger towards defective ATM machine and its transaction system. On further examination of the CC TV footage it also reveals that an unauthorized person was remained inside the said ATM counter who was contemplating to withdraw money from the ATM counter in absence of any security personnel. Hence, in our considered view we would like to opine that in this case an amount of Rs.20,000/- was unauthorizedly debited from the account of the present complainant during the first transaction which though found successful but in fact the complainant has not withdrawn and received the said amount and during the second transaction a sum of Rs.6,000/- was withdrawn which the complainant admittedly to have received. Since, a sum of Rs.20,000/- was wrongly debited from the savings bank account of the present complaint on account of operational fault of the ATM machine or by any misdeed of some miscreants, the O.Ps being the custodian of the funds of customer who is in the banking business is liable to make good of the same. Our finding is supported by the decision of the Hon’ble National Commission in the case of Vidyawanti Vs. State Bank of India & Others reported in 2015 CJ 838 (NC) and in the case of Bhadra N. Dalal Vs. Bank of India reported in 2012 CJ 177(NC). The O.P.s have relied on a decision of Hon’ble National Commission in support of his case in the case of State Bank of India Vs. K.K. Bhalla which is not at all applicable to the instant case in view of the factual difference of the both cases hence we are not inclined to accept the same and rejected . In view of the above, the O.Ps are deficient in service who are jointly and severally liable to credit the amount to the account of the present complainant with savings bank interest i.e. 4% interest per annum from the date of unauthorized debit till the amount actual paid to the complainant. Due to the technical fault on part of the ATM Machine or any misdeed of some other persons, the complainant faced some inconveniences and for that he has also filed a consumer dispute in this Forum so the O.Ps are liable to pay cost of litigation since the complainant was forced to file a consumer complaint to assert his right due to the negligence of the O.Ps. We are, therefore, convinced to direct the O.Ps to pay cost of litigation. As far as the cost of litigation is concerned, we feel that it will be just and proper to direct the O.Ps to pay a sum of Rs.3,000/- towards cost of litigation to meet the legal expenses since the complainant has hired the services of an Advocate and has also paid the court fees for admission and adjudication of the consumer dispute. Since, in this dispute we have already directed the O.Ps to pay savings bank interest on the amount of Rs.20,000/- wrongly debited from the account of the of the complainant, we are not inclined to award any compensation as interest and compensation both can’t be awarded simultaneously in a consumer dispute. Hence, the O.Ps are not liable to pay any compensation to the complainant and accordingly the prayer of complainant for compensation deserves no consideration.
7. In the sequel of above discussions, deliberation and decision of law and considering the peculiar fact and circumstances of the case, we allowed the case of the complainant against the O.Ps who are jointly and severally liable to credit the amount of Rs.20,000/- in the account of the complainant along with interest at the rate of 4% per annum from the date of unauthorized withdrawn till actual payment is made to the complainant. Similarly, as discussed above, the O.Ps are also liable to pay Rs.3,000/- as cost of litigation to the complainant to meet the legal expenses.
8. In the result, we allowed the case of the complainant against all O.Ps who are jointly and severally liable to refund an amount of Rs.20,000/- (Rupees Twenty Thousand) only with interest at the rate of 4% per annum to the complainant from the date of unauthorized withdrawn i.e. from 12.08.2012 to till its actual refund is made to the complainant. The O.Ps are also directed to pay a sum of Rs.3,000/- (Rupees Three Thousand) only to the complainant towards cost of litigation to meet the legal expenses. The aforesaid amounts shall be paid by the O.Ps to the complainant within 45 days from the date of receipt of this order failing which the complainant is at liberty to recover the same under Section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly. No order as to compensation.
9. The order is pronounced on this day of 2nd January 2018 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and be sent to the server
