PRESENT SRI P.V. NAGESWARA RAO, M.A., LL.M., PRESIDENT

Monday, 30^th August 2010

 

Smt. Kummara Varalakshmi, W/o Raghuramudu,

aged 24 years, Hindu, Hosue Wife, R/at Korrapadu Village and Post,

Rajupalem Mandal, Kadapa District.                                           ….. Complainant.

Vs.

 

1) The Chief Manager, State Bank of India,

2) The Regional Manager, State Bank of India, Dwarakanagar,

3) The Asst. General Manager, ATM/Alternative Channel,

                                                                                                                                     

 

This complaint coming on this day for final hearing on 25-8-2010 in the presence of Sri G. Trivikram Singh, Advocate, for complainant and Sri M. Ramanjaneya Reddy, Advocate for R1 and R2 and R3 called absent and set exparte and upon perusing the material papers on record, the Forum made the following:-

 

 

 

1.                Complaint filed under section 12 of the Consumer Protection Act 1986.

 

2.                The brief facts of the complaint are as follows:- The complainant is having a joint S.B. Account No. 10558410010 since 23-8-2007 in the Bank of R1. Her husband is working in Military Service at Jalandar of  Punjab State in Military Service and he used to deposit the amount in the above account. the complainant also availed ATM card facility from R1 Bank since 21-8-2009 vide ATM card No. 6220180090100235374 with a secret code No. 9804. She used to withdraw the amounts as and when required from her joint account through ATM card issued by the Respondents.   On 5-10-2009, the credit balance in complainant’s account was Rs. 8,980/-. On 10-10-2009, her husband has deposited an amount of Rs. 30,000/- in the account and informed the complainant, as she was in need of money she went to ATM to withdraw an amount of Rs. 5,000/- from her account thinking that the credit balance might be Rs. 25,980/-  without observing the credit balance in the account.  On 16-11-2009 the complainant went to the ATM for the purpose of withdrawing the amount from her account. Surprisingly, the credit balance of her account was shown as Rs. 30/- only.  The complainant never withdrawn any amount from her credit balance of Rs. 25,980/-.   Immediately, she went to R1 and informed about misplacement of the amount from her account. R1 gave the entire particulars of the complainant’s account and said that the amount of Rs. 24,544/- was withdrawn at Nanded of Maharastra State by unknown persons towards the purchase of Railway Reservation tickets. The said withdrawal is nowhere concerned to the complainant. Due to the negligence of R1, the amount of the complainant was withdrawn by unknown persons. The Respondents are responsible for misplacement of the amount of the complainant. The complainant gave letter to R1 with regard to misplacement of amount and requested to recredit the misplaced amount into her account. R1, instead of recrediting the misplaced amount in the account of the complainant recklessly sent her account details and did not respond to the complainant properly. However, at the request of the complainant, R1 hold (blocked) her account on 16-11-2009. Even, then surprisingly, unknown persons were deposited some amounts in the account of the complainant and withdrawals were made till 11-12-2009. The R1 did not make any enquiry in respect of the illegal withdrawals from the account of the complainant by unknown persons. She requested several times to R1 to recrdit the misappropriated amount after making enquiry in the matter. But the R1 did not respond properly and thrown the entire burden on the complainant. The complainant does not know anything about withdrawals of the account by unknown offenders and in fact the Respondents are responsible for the misplacement of the amount from the account of the complainant.  Since there was no proper response from R1, the complainant submitted her grievance to R2 for initiating action against R1 for negligence. But R2 did not respond to the complainant in respect of all her oral complaint. The complainant made all out efforts and proved futile due to the negligent attitude of R1 and R2. The complainant suffered with mental agony and inconvenience due to the negligent attitude of the Respondents. The attitude of the Respondents clearly goes to show the deficiency of service and unfair trade practice on the part of the Respondents.    Having vexed with the negligent attitude of the Respondents, the complainant got issued legal notice dt. 15-2-2010 calling  upon R1 & R2 to recredit the misplaced amount by 3^rd parties along with Rs. 50,000/- towards compensation for causing mental agony. Though the Respondents 1 & 2 received legal notice, they even failed to give any reply. So the complainant filed this complaint before this Forum requesting to direct the Respondents to pay Rs. 26,344/- along with interest @ 24% from 31-12-2009 till the date of realization, to pay Rs. 50,000/- towards compensation for mental agony and Rs. 2,000/- towards costs of the complaint. 

 

3.                The R1 filed a counter and denied all the allegations. The complainant is put to strict proof of all the allegations made against the Respondent, except those which are specifically admitted by R1. Any allegations in the complaint adverse to R1 is hereby denied as false and invented for the purpose of this case.  It is true that the complainant and her husband have a Joint S.B. A/c in the bank of R1. R1 is not aware of her husband working in Military service at Jalandhar of Punjab state.   It is true that the complainant availed ATM card but R1 is not aware of PIN No.   The allegations of the complaint does not invoke the jurisdiction of this Hon’ble Forum since there is no deficiency of service. Hence, the complaint is liable to be dismissed in limine. It is the duty of the ATM card   holder i.e. the complainant to maintain secrecy inrespect of code No. given to her, and if once it goes to the knowledge of any other person, there is every likelihood of withdrawing the money. The ATM card and its PIN are absolutely in the possession and knowledge of the complainant and R1 has no duty or control on that aspect. It is the duty of the complainant to take extreme care in not giving access to the PIN No. to others, if anybody gains such access to the PIN No. such unauthorized withdrawals may happened. Hence, there is no deficiency of service on the part of R1 as unauthorized withdrawals took place due to leakage of PIN No. to others negligently by the complainant only.  Withdrawal of money from account by using ATM card is not in the control of R1. The complainant is the custodian of the ATM card, original is filed for perusal of the Hon’ble Forum.  In the event of loss of card the card holder should be immediately notify ATM branch from where he / she has obtained the card. If the card is loss / stolen or the PIN No. is accidentally divulged, the card holder should also forward a copy of the FIR lodged with the police.   Any financial loss arising out of unauthorized use of the card till such time, the bank records the notice of the loss card will be to the card holders account.  The bank has the express authority to debit the designated account of the card holder for all withdrawals / transfers effected using the card as evidenced by bank records which will be conclusive and binding on the card holders.  The card holder expressly authorizes the bank to debit the designated account with service charges from time to time.

 

4.                The allegations in para – 2 of the complaint that the amount of  Rs. 24,544/- was   withdrawn at Nanded, Maharastra state by some unknown persons towards purchase of Railway Reservation tickets is no way concerned to R1. There is no truth in the allegations of the complainant that due to the negligence of R1 amount was withdrawn by some unknown persons. There is no negligence on the part of R1 and bears no liability and need not recredit the alleged amount withdrawn by unauthorized persons.   It is entire lookout of the complainant, once she obtains ATM card and its PIN No. to maintain secrecy and avoid access to the number. 

 

5.                The terms and conditions entered in between the complainant and the bank, keeps entire responsibility on the shoulders of the complainant in maintaining secrecy of the PIN No. and for any unauthorized withdrawals from her account. R1 does not under took any responsibility for unauthorized withdrawals by anybody due to access to the PIN.   The facts of the complaint discloses that due to the negligence of the complainant only, this unhappy incident occurred.   It is true that R1 at the request of the complainant blocked her account on 16-11-2009. The other allegations that some unknown persons were deposited some amounts in the account of the complainant is false and invented with oblique motive.   This allegation is quite against to the normal circumstances prevailing in the society that depositing money in the complainant’s account by unknown persons. This is created one. The allegations of R1 did not make any enquiry with respect to the illegal withdrawals from the account of the complainant is not correct. The question of recreding the amount withdrawn unauthorized from the account of the complainant is far beyond the terms of the contract. The word misappropriated used in the complainant is highly objectionable. The law does not permit R1 to recredit the amount lost by the complainant, because the ATM card and its PIN No. are absolutely in possession and knowledge of the complainant and it is only on account of her negligence, the alleged unauthorized withdrawals took place. This is not a case, as if some unknown persons committed docoity and took away the whole cash from the bank, to own a responsibility by the bank. 

 

6.                The allegations in para -4 of the complainant that R1 did not respond to the grievance of the complainant is false. It is false to say that the complainant gave oral complaint to R2 to take action against R1 and the complainant is put to strict proof of the same.  R1 requested this forum to dismiss the complaint with exemplary costs in the interest of justice. 

 

7.                R2 filed adoption memo adopting the same facts and circumstances narrated by R1 in his counter. 

 

8.                R3 called absent and set exparte on 24-6-2010.

 

9.                On the basis of the above pleadings the following points are settled for determination. 

 

i.                   Whether the complainant is entitled to the relief as prayed for?

ii.                 To what relief?

 

10.              On behalf of the complainant Ex. A1 to A7 were marked and on behalf of the respondents Ex. B1 & B2 were marked.  Oral arguments were heard from both sides.

 

11.              Point No. 1.  Ex. A1 is the Photostat copy of passbook in the name of the complainant and her husband jointly bearing No. 10558410010 issued by R1.   Ex. A2 is the office copy of legal notice dt. 15-2-2010 issued by the complainant and sent to R1 and R2. Ex. A3 are two postal receipt Nos. 4302 & 4304, one speed post receipt and two postal acknowledgement cards, received from R1 and R2. Ex. A4 is the Photostat copy of statement of details furnished by R1. Ex. A5 is the Photostat copy of ATM card bearing No. 6220180090100235374 issued by the Respondents. Ex. A6 is the Photostat copy of complaint, dt. 7-4-2010 of the husband of the complainant addressed to the District Collector, Kadapa. Ex. A7 is the Photostat copy of another complaint, dt. 7-4-2010 of the husband of the complainant addressed to the Superintendent of Police, Kadapa. Ex. B1 is the original State Bank of India terms and conditions for ATM cards. Ex. B2 is the statement of account of the complainant’s husband from 1-8-2009 to 31-12-2009. 

 

12.              Additional counter filed by R1 along with an affidavit and petition under section 151 of C.P.C.   The complainant filed a counter against the additional counter filed by R1 vide I.A. No. 90/2010, after hearing both sides the petition of the complainant was allowed on costs of Rs. 500/- payable to the complainant on                6-8-2010. 

 

13.              As could be seen from the documentary evidence on record it is a fact that the complainant and her husband are having joint S.B. A/c in the bank of R1. The husband of the complainant is working in Military Service at Jalandhar of Punjab State. He used to credit money to this account and the complainant used to withdraw the money as and when required through ATM by suing ATM card provided by R1 bank. As on 5-10-2009 there was a balance of Rs. 8,980/- in the account of the complainant as reflected in Ex. A1. On 10-10-2009 an amount of Rs. 30,000/- was credited to this account online.   According to the complainant this amount was debited by her husband and this entry is reflected in Ex. A1.   As per Ex. A1 there are five entries on 6-10-2009, three entries on 8-10-2009, three entries on  10-10-2009 one entry on 10-10-2009, 19 entries on 16-11-2009, three more entries on 18-11-2009.    All the entries indicates “POS ATM PURCH” means purchase at the point of sale. According to the complainant and Ex. A1 an amount of Rs. 8,980/- was balance as on 5-10-2009 and an amount of Rs. 30,000/- was credited on  10-10-2009 that comes to Rs. 38,980/- and the complainant withdrawn an amount of Rs. 5,000/- and the total comes to Rs. 33,980/-. But as per calculation of the Bank authorities there is a balance of Rs. 7,636/- as on 31-12-2009.    It is clear that a sum of Rs. 26,344/- pertaining to the complainant has been misused / misappropriated by wrong doers. Ex. A1 issued by R1 clearly indicates the withdrawal by wrong doers thereby the complainant entitled to receive Rs. 26,344/- from the Respondents which was wrongly withdrawn by unknown persons. It is pertinent to mention that on the request of the complainant the account was withhold on 16-11-2009 by R1 still on 18-11-2009 there were three entries pertains “POS ATM PURCH” by the wrong doers.  Ex. A4 details of statement issued by R1 indicates the details of withdrawals, unauthorizedly by wrong doers from the account of the complainant. The details such as name, sex, age railway ticket No. Coach No. seat No. and type of ticket etc., with I.D. address and mobile No. are very much available and Ex. A4 indicates that the withdrawals from the account of the complainant on various dates by way of POS ATM PURCH that took place are very much available on record with Respondents bank.  In the cross examination, R1 admitted that there was a oral complaint from the complainant with regard to debt transactions in her account by somebody at Nanded. He also admitted having received similar complaint from 7 to 8 persons and R1 has not takenup this matter with the concern police and not forwarded this fact in wiring to his superiors and he also admitted that no specific police complaint was lodged because the Responsibility lies only with the complainant.   R1 repeatedly stressing that for loss of money by way of POS ATM withdrawals by unknown persons the bank authorities are not concerned and it might have happened only by exposing the ATM Card and its PIN No.  by the complainant.   Ex. B1 terms and conditions for ATM cards in clause – 3 it is mentioned the card 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.  The respondent in his counter as well as in his cross examination and arguments advanced on his behalf repeatedly stressing on this clause.   In the facts and circumstances it is not the case of the complainant that she lost ATM card. The ATM card and its PIN No. are very much in the safe custody of the complainant. For all POS ATM transactions the No. of the ATM card is not reflected in Ex. A1 towards POS ATM PURCH. Whereas, Ex. B2 contains the ATM card No. of the complainant for all the POS ATM PURCH that took place on various days. In which the money of the complainant was withdrawn towards the purchase of Railway Reservation ticket etc.,   This is a very glaring omission on the part of the Bank of R1 and it gives an impression that to cover up the latches of the respondent bank. Ex. B2 was created by R1 bank,  For this glaring omission and commission there is no proper explanation from RW1 in his cross examination. In the cross examination, RW1 admitted that the bank of R1 collects fee towards the maintenance of the ATM facility from the complainant and other ATM card holders that means the complainant is availing the services of the Respondent bank through ATM card along with its PIN No. are with her only. They are not exposed as alleged by the R1. Even then there were withdrawals from her account by way of POS ATM PURCH. It is very interesting to mention here that even after making a complaint to the respondent bank (R1) with regards to mischievously withdrawing of money from her account by way of POS ATM PURCH,. R1 bank has not taken any steps to protect the interest of the complainant in not withdrawing the amount from her account by unknown 3^rd parties in the name of the POS ATM PURCH. 

 

14.              ATM i.e. Automatic Teller Machine were introduced by the banks on their own accord with a view to make easy withdrawals of money by the customers by simply inserting the ATM card and drawing the money from ATM without coming to the bank. It is a new concept introduced by the banker. Though it is meant for the benefit of the customer, prime responsibility lies with the banks to protect the interest of customers and their money deposited in the respective banks. If somebody withdraws the money from the account of X, Y, Z without the consent of the respective customers the respondent bank (R1) can not simply through the blame on the complainant that such offences are named as cyber crime and now a days this type of cyber crimes are being occurred in many places and the complainant has to file a complaint before the police and FIR needs to be given to the respondent bank for further action.   The New concept was introduced by the bank i.e. ATM for withdrawals of money by using ATM card which is not properly maintained even after collecting annual maintenance fee by the banks hardly there is any need for the customers to have the ATMs as the customers are not willing to loose their money by 3^rd party from their accounts.   “The learned counsel for the complainant relied upon III (2009) CPJ 334 a case between Tek Chand Vs. State bank of India in which the Hon’ble State Commission of Himachal Pradesh State at Shimla observed that C.P. Act 1986 – Section 15 – Banking and Financial Services – ATM – non-inactivation of – ATM card lost – Intimation given to bank to inactive it – Money withdrawn using that card – Contention, card inactivated by Bank, money withdrawn due to divulgence of secret Pin code by complainant – contention not acceptable – Amount withdrawn only due to non-activation of ATM card by Bank proved – Relief entitled.   In the result, appeal was allowed in the above case”. I (2010) CPJ 576 Satish Bansal Vs. ICICI Bank it was held that the Consumer Protection Act, 1986 – Section 2 (1) (g) and 14 (1) (d) – Banking and Financial Services – ATM Transaction – Amount not came out of ATM – Same debited from account – Matter delayed – Deficiency in services alleged – Complainant allowed – No compensation awarded – Hence appeal – Contention, amount not disbursed due to technical eroor, rejected – Period of one month taken by Bank to reverse the wrong entry – Complainant suffered due to delay on part of Bank – Deficiency in services proved – Compensation awarded – Order modified – Relief entitled result appeal allowed. The facts of the above citations more or less suit the facts and circumstances of the present case. Another important point is that in Ex. A1 whenever the complainant used ATM Card and withdrawn the money, the card No. is not reflected, even for POS ATM PURCH by 3^rd parties.   But in Ex. B2 details of statement furnished by R1, ATM No. is reflected for all POS ATM PURCH transactions.  So it is evident that some 3^rd party purchase by somebody and connecting to the account of the complainant, as a result there are several POS ATM PURCH withdrawals from the account of the complainant. Heavy responsibility lies with the Respondents bank to protect the money of he complainant / customers as the Respondent bank (R1) is the custodian for the money deposited by the complainant in the bank. The Respondent bank also collecting maintaining charges of ATM. So the Responsibility fully rest on the shoulders of the Respondent bank (R1). If the Respondent bank (R1) is not in a position to safeguard the money of the complainant or any other customers there is no need for them to deposit money in the bank of the respondent (R1) instead they can keep the money in their house and by all means the R1 bank thoroughly failed to safeguard the money of the complainant and the loss sustained by the complainant which is bound to be recouped by the Respondent bank. The complainant deserves consideration in her favour from all angles and the Respondents failed to prove their defense at any point of time.

 

15.              Point No. 3 In the result, the complaint is allowed, directing the Respondents jointly and severally liable to pay Rs. 26,344/- (Rupees Twenty Six  Thousand Three Hundred and Forty Four Only) without costs and compensation, within 30 days from the date of receipt of this order, failing which the complainant is entitled for interest @ 9% p.a. from 31-12-2009 till the date of realization.  

                   Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 30^th August 2010

 

 

 

Witnesses examined.

For Complainant    NIL                                                 

For Respondent :   

RW1            M.V. Rama Rao, dt. 16-8-2010.  

Exhibits marked for Complainant : -  

 

Ex. A1         P/c of passbook of the complainant and in the name of her husband

Ex. A2         Office copy of legal notice dt. 15-2-2010 issued by the complainant and

Ex. A3         Two postal receipt Nos. 4302 & 4304, one speed post receipt and two

Ex. A4         P/c of statement of details furnished by R1. 

Ex. A5         P/c of ATM card bearing No. 6220180090100235374 issued by the

Ex. A6         P/c of complaint, dt. 7-4-2010 of the husband of the complainant

Ex. A7         P/c of another complaint, dt. 7-4-2010 of the husband of the

 

 

Ex. B1         Original State Bank of India terms and conditions for ATM cards. 

Ex. B2         Statement of account of the complainant’s husband from

 

1)     Sri G. Trivikram Singh, Advocate, for complainant.

2)     Sri M. Ramanjaneya Reddy, Advocate for R1 & R2.

 

2) Copy was dispatched on      :

3) Copy of delivered to parties :