DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 316 of 07.11.2007<br /> Decided on : 18-03-2008 <br /> <br /> 1.Rakesh Goyal S/o Sh. Mohan Lal<br /> 2.Miss Divya Goyal D/o Sh. Rakesh Kumar<br /> both residents of H. No. 16847, Street No. 5/1, Basant Vihar, Bathinda.<br /> ... Complainants<br /> Versus<br /> <br /> 1.The Branch Manager, State Bank of India, Kikar Bazar Branch, Bathinda.<br /> 2.Zonal Manager, State Bank of India, Sector 17-B, Chandgarh.<br /> ...Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh.Harphool Singh, Advocate.<br /> For the Opposite parties : Sh. Jai Gopal Goyal, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. Complainant No. 1 had taken education loan for his minor daughter i.e. complainant No. 2 from opposite party No. 1. Joint A/c No. 10526865588 was opened with opposite party No. 2. Opposite parties had issued an ATM Card No. 6220180154000027784 in favour of complainant No. 1. Assurance was given that second ATM card would be issued in the name of complainant No. 2 as and when she attains majority. After she attained majority, opposite parties had issued ATM card in her favour bearing No. 6220180154000030580 on 9.5.06. Attempt was made by her to operate the ATM card in her name after getting the PIN from the bank, but card did not work. Complainant No. 2 had informed Mrs. Satinder Sehgal about this fact. She had also tried to operate it, but it did not work. Thereafter they (complainants) deposited the ATM card alongwith PIN with Mr. Manmohan Singh, an employee of opposite party No. 1 alongwith application for cancellation of this ATM card which was not working. Request was also made on 9.5.06 to issue new ATM card in its place. Accordingly, new ATM card was issued bearing No. 6220180154000030754 on 22.5.06. Since then, they (complainants) are using ATM cards bearing No. 6220180154000027784 and 62200180154000030754. On 12.3.07, they were shocked to know that balance in their account with opposite party No. 1 was too less. Accordingly statement of account was obtained from the bank. They were further astonished to know that old ATM card of complainant No. 2 bearing No. 6220180154000030580 which was not working and which was deposited alongwith PIN with opposite party No. 1 on 9.5.06 alongwith application for cancellation of this ATM card was not cancelled/blocked by opposite party No. 1. The same was used by some unknown person who withdrew an amount of Rs. 19,200/- from their account w.e.f. 5.6.06 to 9.3.07. Details of this amount which has been withdrawn are as under :<br /> Date of Withdrawl Amount withdrawn( in Rs.)<br /> 5.6.06 2,000<br /> 25.6.06 400<br /> 16.8.06 300<br /> 25.8.06 300 <br /> 8.9.06 400<br /> 4.11.06 100<br /> 18.12.06 100<br /> 23.12.06 900<br /> 19.1.07 100<br /> 6.2.07 100<br /> 19.2.07 1000<br /> 27.2.07 100<br /> 7.3.07 100<br /> 9.3.07 1000<br /> 9.3.07 12000<br /> <br /> Old ATM card was still functioning and was being misused They have suffered huge loss due to the gross deficiency in service and latches in performing official duties on the part of the opposite parties. Opposite parties were requested to pay the amount of Rs. 19,200/- and to cancel the old ATM card No. 62201800154000030580. Applications dated 13.3.07 and 14.3.07 were also moved to the opposite parties. Card was blocked on 6.4.07. It is alleged that opposite parties were bound to cancel/block the card immediately. They got served legal notice upon the opposite parties through their counsel. They (Opposite parties) did not deem it fit to send reply of the same. It is further alleged that conduct of the opposite parties has caused them great mental tension, agony, botheration, harassment and humiliation. In these circumstances, instant complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as Act) has been preferred seeking direction from this Forum to the opposite parties to pay them Rs. 19,200/- alongwith interest @ 18% P.A.; Rs. 50,000/- as compensation for mental tension, agony, botheration and harassment and Rs. 5500/- as cost of the complaint.<br /> 2. On being put to notice, opposite parties filed their version taking legal objections that this Forum has got no jurisdiction to entertain and try the complaint; complaint is not maintainable in the present form; complainant is No. 1 is estopped from filing the complaint by his act and conduct; complaint is false and frivolous and complainants have got no locus standi and cause of action to file the complaint. They do not deny the opening of the joint account by the complainants and issuance of ATM Card No. 6220180154000027784 in favour of complainant No. 1. Similarly there is no specific denial about the issuance of ATM Card No. 6220180154000030580 on 9.5.06 in favour of complainant No. 2. They deny that Smt. Satinder Sehgal was informed by the complainant No. 2 that ATM card issued in her favour was not working. No one can operate ATM card without secret operational code which is known only by the ATM card holder. If ATM card holder hands over the ATM card by disclosing the secret operational code to a person, then he is at fault and would be responsible for it. They admit that an application was moved for issuing new ATM card inplace of card No. 62200180154000030580 on 9.5.06. Non-operational ATM card No. 62200180154000030580 was not deposited with the bank alongwith application for issuance of new ATM card. New ATM card in the name of complainant Divya Goyal was issued in good faith as her father is an ex-employee of State Bank of India. Old ATM card was also retained by the complainants. They were using all the three cards with users code/secrete operational code which is known only to the ATM card holders. It could not be operated by any other person. Complainants have made up false story regarding the misuse of ATM card since 5.6.06 to 9.3.07 although both the cards 6220180154000027784 and 6220180154000030754 held by them are being operated for deposits and withdrawl of the amount regularly. Facilities of balance check and getting ATM account statement are also there on the ATM and the same is within their knowledge. When complaint was lodged regarding misuse of card No. 6220180154000030580 , it was immediately hotlisted for stopping its operation. Complainant No. 1 is dismissed employee of the bank in a fraud case committed by him. They apprehend that he might have concocted false story regarding misuse of the ATM after getting new card issued inplace of old one alleging it to be non-operational by way of not depositing the non-operational old card with them by using his influence being ex-employee with the then staff/officials. They admit that the amount mentioned by the complainant has been withdrawn w.e.f 5.6.06 to 9.3.07. Receipt of the notice is admitted by them. Remaining averments in the complaint are denied.<br /> 3. In support of their averments contained in the complaint, complainants have produced in evidence their affidavits (Ex. C-1 & Ex. C-21), photocopies of letters dated 2.5.4.07, 14.6.07, 23.4.07 and 15.5.07 (Ex. C-2 to Ex. C-5 respectively ), photocopy of application dated 9.6.07 (Ex. C-6), photocopy of letter dated 30.6.07 (Ex. C-7), photocopies of ATM Cards (Ex. C-8 & Ex. C-9), copies of letters dated 14.3.07 & 13.3.07 (Ex. C-10 & Ex. C-11 respectively), copy of legal notice (Ex. C-12), postal receipts ( Ex. C-13 to Ex. C-14), photocopy of letter ( Ex. C-15), photocopies of register (Ex. C-16 & Ex. C-17), copy of terms and conditions (Ex. C-18), User's Manual (Ex. C-19) and copy of account statement (Ex. C-20)<br /> 4. In rebuttal, on behalf of the opposite parties, two affidavits of S/Sh. B D Singla, Chief Manager and Satinder Sehgal, Officer (Ex. R-1 & Ex. R-2 respectively)have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides, this we have gone through the record.<br /> 6. Some facts are not in dispute in this case. They are that complainants have opened joint A/c No. 10526865588 with opposite party No. 1. ATM Card No. 6220180154000027784 was issued in favour of complainant No. 1 copy of which is Ex. C-9. After complainant No. 2 attained majority, ATM card No. 6220180154000030580 was issued in her favour on 9.5.06. Since it did not work, application was moved for getting issued new ATM card in favour of complainant No. 2 inplace of card No. 6220180154000030580. New ATM card No. 6220180154000030754 was issued in the name of complainant No. 2 , copy of which is Ex. C-8. A sum of Rs. 19,200/- has been withdrawn from the account of the complainants during the period 5.6.06 to 9.3.07 at different intervals as is evident from copy of the statement of account Ex. C-20 with ATM Card No. 6220180154000030580. <br /> 7. Allegations of the complainants are that ATM card No. 6220180154000030580 alongwith PIN was deposited with Manmohan Singh employee of opposite party No. 1 alongwith application dated 9.5.06 for blocking this ATM card which was not working and for issuing new ATM Card in its place. Despite this, this ATM card was not cancelled/blocked by opposite party No. 1 and the same has been misused by some unknown person and a sum of Rs. 19,200/- has been withdrawn.<br /> 8. Plea of the opposite parties is that old card No. 6220180154000030580 and PIN were not deposited with any official of the bank for getting new ATM card in the name of Divya Goyal, complainant. Both the ATM cards i.e. old and new one were retained by the complainants. New ATM card was issued in good faith as complainant No. 1 was an employee of State Bank of India. They were using all the three cards under user's code/secret operational code which is known only to the ATM card holders i.e. complainants. Story manufactured by the complainants regarding the misuse of the ATM cards w.e.f. 5.6.07 to 9.3.07 is a made up one. Both the complainants were operating the account and depositing and withdrawing the amount regularly. Facilities of balance check and getting ATM account statement are also there on the ATM and this was within their knowledge.<br /> 9. Mr.Harphool Singh, learned counsel for the complainants argued that deficiency in service on the part of the opposite parties stands proved from the evidence on the record. To the contrary, Mr. Goyal, learned counsel for the opposite parties argued that complainants are taking benefit of their own wrong. There is no deficiency in service on the part of the opposite parties. He also drew our attention to the copy of the terms and conditions according to which card is issued on the condition that bank bears no liability for the unauthorised use of the card and this responsibility is fully that of the card holder. He also referred to the affidavits of Sh. B D Singla, Chief Manager of State Bank of India, Branch Kikar Bazar,. Bathinda and Satinder Sehgal, Officer, State Bank of India, Branch Kikar Bazar, Bathinda, which are Ex. R-1 & Ex. R-2 respectively. Satinder Sehgal has stated that ATM card with PIN were never handed to him to verify the operation of ATM Card. <br /> 10. We have considered the respective arguments.<br /> 11. Complainants Rakesh Goyal and Divya Goyal reiterate their version in the complaint in their affidavits Ex. C-1 & Ex. C-21 respectively. They have stated in so many words that they had deposited ATM No. 6220180154000030580 alongwith PIN with Mr. Manmohan Singh employee of opposite party No. 1. Plea of the opposite parties is that there is no employee in the name of Manmohan Singh. They do not deem it fit to place on record the attendance register or their record to support their version. Ex. C-16 and Ex. C-17 are the copies of the register of employees namely Mrs. Satinder Kaur and S. Sehgal respectively. They do not wash out the contention of the complainants regarding the fact that Manmohan Singh was an employee of opposite party bank.<br /> 12. Admittedly application for getting new ATM card was moved on 9.5.06 inplace of old one. Complainant No. 1 sought information from Public Information Officer, Senior Manager State Bank of India, Kikar Bazar, Bathinda, under the right to Information Act and copy of the application is Ex. C-4. Reply of the same was submitted by the opposite parties, copy of which is Ex. C-7. In the reply, it has been admitted that application form for lost/damaged card is forwarded to ATM Switch Centre, Mumbai. ATM is hotlisted/blocked and its working is immediately stopped to avoid misuse. When application was moved by the complainants for cancelling ATM card No. 6220180154000030580 on 9.5.06 and for issuing new ATM card in its place on the ground that it was not working, it was the duty of the concerned bank official to hotlist/cancel and stop the working of ATM card No. 6220180154000030580 immediately in order to avoid misuse. It may be correct that complainant No. 1 remained as employee of State Bank of India, but this is no ground on the basis of which the officials of the opposite parties could go against the rules of the Bank in not collecting the ATM card alongwith PIN from him or his daughter on 9.5.06. This old card should have been hotlisted/cancelled immediately on 9.5.06. Story of the opposite parties that complainant No. 1 remained employee of State Bank of India and new ATM card was issued in the name of his daughter in good faith and that old ATM card was also retained by them, does not appeal to logic at all. Opposite parties themselves allege that complainant No. 1 is a dismissed employee of State Bank of India in a draft fraud case committed by him. In such a situation, how can it be believed that employees of the opposite parties could repose faith in him and could allow him and his daughter to retain the old ATM card and PIN functioning of which was required to be stopped immediately in order to avoid misuse. Complainant No. 1 moved applications dated 13.3.07 and 14.3.07 to the Branch Manager, State Bank of India, Kikar Bazar, Bathinda, copies of which are Ex, C-11 & Ex. C-10 respectively. Despite this, opposite parties did not block/stop the functioning of ATM card No. 6220180154000030580. They hotlisted/blocked it on 6.4.07. This is further suggestive of the fact that concerned employees of State Bank of India were not acting carefully and diligently. Their this act further gives a boost to the plea of the complainants. If they were negligent and deficient in rendering service on one aspect of the matter it has to be inferred that they were deficient in the other on the same subject. It is also worth mentioning that when new ATM card was issued in favour of complainant No. 2 inplace of old one, then what could be necessity for the complainants to retain ATM card No. 6220180154000030580 for operation of their joint account. Opposite parties cannot wriggle out of the situation merely on the ground that facilities of balance check and getting statement of account is there on the ATM particularly when by no stretch of imagination retention of the old ATM card with PIN by the complainants is not appealing to the reason nor does it stand established. To the contrary facts, circumstances and the evidence proves that ATM card No. 6220180154000030580 was deposited with the opposite parties for getting a new ATM card. Functioning of the old card was not stopped then and there and it has been stopped only on 6.4.07. In the circumstances, deficiency in rendering service on the of the opposite parties has led to the withdrawl of Rs. 19200/- from the joint account of the complainants by way of misusing ATM card and PIN by some unknown person.<br /> 13. Now question arises as to which relief should be accorded to the complainants. In view of our foregoing discussion, direction deserves to be given to the opposite parties to pay to the complainants Rs. 19,200/- alongwith interest @ 9% P.A. from the dates of respective withdrawls till the date of payment. Complainants are also craving for compensation of Rs. 50,000/- on account of mental tension, agony, botheration and harassment. Act and conduct of the opposite parties proves deficiency in service and unfair trade practice on the part of the opposite parties. It being so, complainants deserve some compensation which we assess as Rs. 2,000/-.<br /> 14. In the premises written above, complaint is allowed against the opposite parties with cost of Rs. 1,000/-. Opposite parties are directed to do as under :<br /> i) Pay Rs. 19,200/- to the complainants alongwith interest @ 9% P.A. from the dates of its respective withdrawls from the joint account of the complainants bearing A/c No. 10526865588 till payment.<br /> ii) Pay Rs. 2,000/- to the complainants as compensation under Section 14 (1) (d) of the Act.<br /> Compliance of this order be made within 30 days from the date of its receipt failing which the amount of compensation under section 14(1)(d) of the Act would carry interest @9% P.A. till payment.<br /> Copy of this order be sent to the parties concerned and file be consigned to record room. <br /> Pronounced :<br /> 18-03-2008 (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> <br />