Tamil Nadu

North Chennai

211/2013

Mr.E.Adikesavan,S/o.Late R.Ethirajulu - Complainant(s)

Versus

The Branch Manager,SBI - Opp.Party(s)

R.Krishnan

23 Aug 2016

ORDER

                                                              Complaint presented on  :  30.10.2013

                                                                   Order pronounced on  :  16.09.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

 

FRIDAY THE 16^th  DAY OF SEPTEMBER 2016

 

C.C.NO.211/2013

 

 

Mr.E.Adikesavan,

S/o.Late  R.Ethirajulu,

No.10/1056, Mugappair East,

Chennai – 600 037.

                                                                             ..... Complainant

 

..Vs..

The Branch Manager,

State Bank of India,

No.171, Sowcarpet Branch,

Govindappa Street,

Chennai – 600 001.

	...Opposite Party

Date of complaint                                   : 04.11.2013

Counsel for Complainant                       : R.Krishnan

Counsel for   Opposite party                     :M/S. N.Chandra Raj

 

 

 

 

 

           

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1. THE COMPLAINT IN BRIEF:

          The Complainant gave an application for opening a saving bank account with the opposite party. The opposite party issued the ATM card bearing No.4591500003998677 and also gave a secret number for using/ to operate the said ATM card. The Complainant lost the said card on 01.07.2011.  Immediately, the Complainant rushed to the opposite party and gave a letter about loss of said ATM card and also requested them to block the said ATM card to avoid illegal withdrawal.  The opposite party issued a new ATM card bearing No.5196200001950871 on 10.08.2011 to the Complainant. The said ATM card is in use from the date of issuance to till date without any problem.  On 21.02.2012 the Complainant deposited a sum of Rs.30,000/- into his savings account and also got entry in his passbook.  To the Shock and surprise of the Complainant, he found that an unknown person withdrew a sum of Rs.1300/-(Rupees one thousand three hundred) from the ATM at Mithapur, Patna.  Immediately the Complainant withdrew the entire amount from the subject account.   Further he lodged the complaint before the opposite party about the illegal/unauthorized usage of the Complainant and no action was taken.  A year rolled down, on 24.04.2013 a sum of Rs.5000/- (Rupees thousand+four thousand) was withdrawn from SBI ATM at Sitamarh and same was not known to him and the very next day, the Complainant deposited a sum of Rs.28,000/- in to the subject account and within some minutes a sum of Rs.1000/- was withdrawn through ATM even though the ATM card is in the custody of Complainant.  Immediately, the Complainant rushed to the ATM centre and withdrew the entire amount in the subject account.  Thereafter he had verified and came to know that the amount was withdrawn by using blocked ATM card.  He gave a letter dated 06.05.2013 intimating about the deficiency service and thereafter gave several letters to take action against the unauthorized/unknown person.  All the letters were received but no reply was given.   On 27.06.2013, some unknown person introduced himself as a bank staff and threatened him that the bank shall not answer request. He is residing at Nerkundram and hence he is inclined to change his saving account from Sowcarpet branch to Nerkundram  branch.  On receipt of his request, the said saving account was transferred to Nerkundram branch. The Complainant further states that his life is depending on his pension alone and no other source to survive.  Hence the Complainant issued a notice dated 29.08.2013 to the opposite party for deficiency in service.  The act of the opposite party would clearly demonstrate that the said wrongful act was happened only due to negligent /carelessness of the opposite party. Hence the Complainant filed this Complaint.

2. WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

        The Complainant is a customer of the opposite party as he holds and operates Savings Bank Account No.10108123835. The Complainant requested for and availed the facility of ATM/debit card vide debit card number 4591500003998677. The said debit card is attached to his savings bank account. The debit card is linked to the balance maintained by the Complainant in the savings bank account and the same can be directly used at point of sale (shops) to directly purchase goods or Automated Teller Machine (ATM) to withdraw cash. Every debit card is accompanied with a computer generated Personal Identification Number (PIN), which is personal to the account holder. For any transaction to be carried out with a debit card, the information embedded in the magnetic strip has to be necessarily activated with the PIN number. In other words, like a regular signed cheque, which is unique to the customer, a debit card along with the PIN is unique to every customer,. The debit card cannot be used in the ATM to withdraw cash without disclosing the PIN number at the Automated Teller Machine. The debit card is also a form of Negotiable Instrument which is personal property of the holder by name. The bank has given to all their customers a User Guide which provides the terms and conditions and mode of usage of the debit card including the safe preservation and usage of the PIN. In the present case the Complainant could have shared his PIN number with 3^rd parties and the same was misused by someone who has got a personal knowledge about the same taken money from the ATM. The Complainant has not given any proof to this form to establish that he has not used the ATM and withdrawn the money by himself. The contention of the Complainant that somebody has misused this card and withdrawn money from the ATM at Mithapur, Patna on 21.02.2012 and at Sitamarh on 24.03.2013 without his knowledge is not acceptable. The withdrawal should have been by the Complainant or by a person who is well known to the Complainant, who is aware of the details of the ATM PIN and his deposit of money in bank. The further contention of the Complainant that the money was withdrawn from the ATM using the lost ATM Card is also not acceptable, because the ATM card had already been blocked and the new card has been issued for that particular Savings Bank Account of the Complainant. Once a new ATM Card is issued on the complaint of lost card the old card gets automatically cancelled and blocked and it is not possible to use the blocked card. The card issued on the condition that the bank bears no liability for the unauthorized use of the card. This responsibility is wholly that of the Cardholder. Further the bank will not be responsible for any loss either direct on account of the ATM failure or malfunctioning.” The alleged loss caused to the Complainant is said to be the outcome of some novel crime committed by someone. However, it is not known if the Complainant had shared the details of his debit/ATM card with some other person. It is likely that the Complainant has shared the information with some third party and the third party could have used the information to withdraw the money. In many cases of similar nature the persons who have drawn money from such ATM’s are either the family member of the card holder or their friends. The opposite party is not liable to pay any compensation to the Complainant and prays to dismiss the complaint.

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what relief?

4. POINT NO :1

          The admitted facts are that the Complainant was having a Savings Bank Account No.10108123835 with the opposite party with ATM Card facility and the ATM Card issued to the Complainant bearing No.4591500003998677 and he lost the said ATM card on 01.07.2011 and immediately he gave a letter to the opposite party about the loss of ATM Card and the opposite party issued a new ATM Card bearing No.5196200001950871 on 10.08.2011 and the Complainant lodged deficiency against the opposite party that on 21.02.2012 that he deposited a sum of Rs.30,000/- into his account and however an unknown person withdrawn a sum of Rs.1,300/- at the ATM, Mithapur, Patna and immediately he withdrew entire amount and lodged a complaint with opposite party and after that  on 24.04.2013 a sum of Rs.5,000/- withdrew  from SBI ATM at Sitamarh by unknown person and the very next day the Complainant deposited a sum of Rs.28,000/-  and within  few minutes another sum of Rs.1,000/- was withdrawn from SBI ATM Sitamarh and thereafter the Complainant withdrew the entire amount through ATM and gave a letter to the opposite party on 06.05.2013 about this deficiencies.

          5. The Complainant filed Ex.A10 is the statement of account pertaining to his account. The statement of account proves the withdrawal money through ATM at Mithapur, Patna and Sitamarh. No proof filed by the Complainant to show that he preferred compliant in respect of transaction at ATM Mithapur. However Ex.A1 letter dated 06.05.2013 issued to the opposite party for the withdrawal of the money on 24.04.2013 at Sitamarh.

          6. The Complainant specifically alleged deficiency against the opposite party that his earlier ATM Card which has been lost by him has been misused by the unknown person withdrawing the amount through ATM  as stated above  and therefore the opposite party is liable. After lost of the ATM card by the Complainant, the Complainant account was blocked to avoid illegal withdrawal and therefore at request of the Complainant a new ATM Card is issued. The   new ATM card is being used by the Complainant and the above withdrawal was done in another state. Though the Complainant alleged that for withdrawal of amount Rs.1,300/- (300+1000) he preferred a complaint  to the opposite party, copy of the same is not filed. An another withdrawal of Rs.5,000/- ((1000+4000) was done on 24.04.2013 at Sitamarh. However for the said transaction after clearly 11 days the Complainant preferred Ex.A1 complaint to the opposite party. Why the Complainant had not intimated such withdrawal to the opposite party immediately. Absolutely there is no explanation on his part. The opposite party would contend that the ATM Card can be operated only  by the person who knows the secret PIN NUMBER and either the Complainant or his men who knows the PIN NUMBER alone could have done such transactions  as alleged by him. Further though the above said transaction done in the other state the delay in preferring complaint  only shows it could have been possible that the Complainant might have done the above said transaction as contended by the Opposite Party . If really the amount could have been withdrawn by other persons other than the ATM Card holder, it would be a case of fraud and in such circumstances why the Complainant has not chosen to prefer a police complaint in respect of the above transactions. Absolutely there is no explanation for not preferring the complaint before the police. Therefore, the delay in preferring complaint  to the opposite party after 11 days and not preferring complaint  to police to find out the real culprit all leads to an  irresistible   conclusion that the opposite party has not committed any deficiency in service.

7. POINT NO :2

          Since the Opposite Party has not committed any deficiency in service, the Complainant is not entitled for any relief in this Complaint and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 16^th day of September 2016.

 

MEMBER – II                                                               PRESIDENT

 

 

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 06.05.2013                   Letter dated from the Complainant to the Opposite

                                                  Party and acknowledgment card

Ex.A2 dated 24.05.2013                   Letter dated from the Complainant to the Opposite

                                                  Party

Ex.A3 dated 24.06.2013                   Letter dated from the Complainant to the Opposite     

                                                  Party

Ex.A4 dated 10.07.2013                   Letter dated from the Complainant to the Opposite

                                                  Party and Acknowledgment card

Ex.A5 dated 31.07.2013                   Letter dated from the Complainant to the Opposite

                                                  Party

Ex.A6 dated NIL                    Details of ATM Card

Ex.A7 dated 08.08.2013                   Letter dated from the Complainant to the Opposite

                                                  Party and Acknowledgement Card.

Ex.A8 dated 29.08.2013                   Notice dated issued by rotary consumer guidance 

                                                  cell to the Opposite Party

Ex.A9 dated NIL                     Acknowledgment Cards

Ex.A10 dated NIL                             Bank Pass Books

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:

                                      …..NIL…..

 

MEMBER – II                                                               PRESIDENT