Tripura

StateCommission

A/36/2019

Sri Shib Charan Jamatia - Complainant(s)

Versus

The Chie Manager, State Bank Of India - Opp.Party(s)

Mr. B.J. Bhaumik, Miss. S. Sil (Sharma)

07 Mar 2020

ORDER

Tripura State Consumer Disputes Redressal Commission: Agartala.

 

CASE NO.A.36.2019

 

In the matter of:-

 

1. Sri Shib Charan Jamatia,

S/o Lt. Shib Mohan Jamatia of Dewan Bari,

Pitra, P.S. Killa,

District – Gomati.

............. Appellant/Complainant.

 

Vs

 

1. The Chief Manager,

State Bank of India,

Udaipur Branch, District - Gomati.

.............Respondent/Opposite Party.

 

 

 

Present

Hon’ble Mr. Justice U.B. Saha

President,

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

Mr. Kamalendu Bikash Das,

Member,

State Commission

 

 

For the Appellant:                                    Mr. Braja Gopal Bhowmik, Ld. Adv.

For the Respondent:                                 Mr. Sakti Pada Chakraborty, Ld. Adv.

Date of Hearing:                                        24.02.2020

Date of Delivery of Judgment:                 07.03.2020

 

J U D G M E N T

 

U.B. Saha, J.

The instant appeal is filed by the appellant, Sri Shib Charan Jamatia, S/o Late Shib Mohan Jamatia of Dewan Bari, Pitra, P.S. Killa, Gomati District, Tripura against the judgment and order dated 06.11.2019 passed by learned District Consumer Disputes Redressal Forum, Gomati, Udaipur (hereinafter referred to as District Forum) in Case No.C.C.26 of 2016 whereby and whereunder the learned District Forum dismissed the complaint petition being devoid of merit.

2. Heard Mr. Braja Gopal Bhowmik, Ld. Counsel appearing for the appellant (hereinafter referred to as complainant) as well as Mr. Saktipada Chakraborty, Ld. Counsel appearing on behalf of the respondent (hereinafter referred to as opposite party/Bank).
3. The gist of the case as narrated in the complaint petition are as follows:-

The complainant is a customer of the State Bank of India, Udaipur Branch, Gomati District having S.B. Account No.10515546031. According to the complainant, on 18.04.2015, the cash balance in his said account was Rs.3,15,804.46. On 25.06.2015, Rs.5,729/-, on 25.12.2015, Rs.5,834/- and on 25.06.2016, Rs.1,692 were credited in his account as interest. On 27.07.2015, Rs.25,000/- was withdrawn by the complainant from the said account. On 09.10.2015, Rs.5,000/- was deposited by the complainant and on 28.10.2015, Rs.30,000/- was withdrawn by the complainant from the said account. It is the further case of the complainant that he did not make any application for getting ATM card to the Branch Manager, Udaipur Branch, State Bank of India. He is an illiterate tribal man and except putting his signature, he does not know how to read and write. On 02.12.2015, Rs.8,000/- and on 19.01.2016, Rs.48,000/- were withdrawn by the complainant from the said account. On 07.06.2016, he came to the Bank and submitted withdrawal slip in the counter for withdrawing money, but the cashier at the counter informed him that no balance amount is available in his account. He was shocked to learn this. According to him, he had deposited huge amount in his said account on different dates. Thereafter, the complainant updated his Pass Book. To his utter surprise, he found that on different dates, different amounts were withdrawn by using ATM card from his account.

According to the complainant, he never applied to State Bank of India for issuing any ATM card in his favour to operate the said account and he did not get any ATM card and PIN from the State Bank of India, Udaipur Branch. So, the question of withdrawing money by using ATM card does not arise.

4. On 27.06.2016, the complainant made an application to the Branch Manager, SBI, Udaipur Branch, informing the fact and demanding the money withdrawn by using ATM card by other person from his Account No.10515546031. But the Branch Manager refused to refund the amount. Thereafter, on 05.08.2016, the complainant served Advocate’s Notice to the Chief Branch Manager of State Bank of India, Udaipur Branch,Gomati District demanding refund of Rs.2,21,000/- to him, which were withdrawn by using ATM card by some other person from the said account.
5. In the long run, under the aforesaid facts and circumstances, the complainant approached the learned District Forum by filing a petition praying for passing an order directing the Chief Branch Manager, State Bank of India, Udaipur Branch for refund of Rs.2,21,000/- with interest which were withdrawn by using ATM card by other person.
6. The opposite Party-Bank contested the case by filing written statement and denying the allegations of the complainant. It is the case of the opposite party that on 13.10.2015, the complainant applied to the State Bank of India, Udaipur Branch for ATM card in his favour in the prescribed form of State Bank of India against his savings bank A/C No.10515546031. Accordingly, after due process, the competent authority of opposite party issued ATM card in the name of the complainant. As per bank norms, ATM card was sent to the complainant through Postal Department. The complainant received the ATM card from Postal Department. Thereafter, on 26.11.2015, he came to the State Bank of India, Udaipur Branch and received PIN of ATM card and also put his signature in the Register Book of the State Bank of India, Udaipur Branch. It has further been stated by the opposite party that the complainant on several occasions along with other villagers came to the State Bank of India, Udaipur Branch. The Bank Authority also showed him the video footage of the ATM counter, in which a lady was clearly seen drawing cash by using ATM card and the complainant and his companions identified that the said lady was none but the wife of the son of the complainant.
7. The learned District Forum heard arguments of both sides and after perusal of the pleadings as well as the documentary evidence on record has observed that – “It is an admitted position that the complainant Shib Charan Jamatia is the holder of S/B Account No.10515546031 of SBI, Udaipur Branch. From the said pass book it also appears that on different dates different amounts were withdrawn from the account of the complainant. According to the complainant, he did not apply for any ATM Card nor did he possess any ATM Card at any point of time to operate the said account. But, according to the Bank, the complainant applied for ATM Card by application dated 13.10.2015 (Ext.C) containing the signature of the complainant in Bengali. The said application form was duly proved as Ext.C from side of the Bank. Since the complainant denied having made any application for ATM Card and since the Bank contended that the complainant applied for ATM Card, this Forum by order dated 26.02.2019 directed to send the specimen signature of Shib Charan Jamatia to the Director, State FSL, Agartala along with the application form for ATM Card containing the signature of Shib Charan Jamatia for examination and opinion as to whether the specimen signature and the signature on the ATM application form belong to Shib Charan Jamatia and to submit the report within seven days. Accordingly, the report of the Handwriting Expert vide No.DOC/12/19 dated 02.04.2019 (Ext.C/1) was received with opinion of the Handwriting Expert to the effect that the signature in the ATM application form did not match with the specimen signatures of Shib Charan Jamatia. Subsequently, on the prayer of learned counsel for the Bank, the specimen signatures of the complainant and the ATM Pin delivery register of the Bank were sent to the State FSL for examination of the signature of the complainant in the ATM PIN Delivery Register by Handwriting Expert so as to determine whether the complainant received the ATM PIN by putting his signature in the  ATM PIN Delivery Register personally. Accordingly, the Handwriting Expert Mr. S. Choudhury gave his report dated 13.05.2019 (Ext.C/2) to the following effect:-

‘On interse comparison of the documents, it has been revealed that the person who wrote the blue enclosed specimen Bengali signatures stamped and marked S-1 to S-3 purporting to be of the person called Shib Charan Jamatia also wrote the red enclosed disputed Bengali signature on the ATM Pin delivery register of the SBI, Udaipur Branch, similarly stamped and marked Q-1.’

As such from Ext.C/2 it is clear that the complainant Shib Charan Jamatia personally received the ATM PIN from the Bank by putting his signature in the ATM PIN Delivery Register. The Handwriting Expert was duly cross-examined by the counsel of the complainant but nothing striking has come out in his cross-examination to disbelieve his opinion in regard to the Ext.C/1 and Ext.C/2. In the face of this evidence there remains no doubt that the complainant himself received the ATM PIN personally from the Bank. That being the position, the entire liability of withdrawal of cash from the said account of the Bank by ATM card stood with the complainant irrespective of whether he himself operated the ATMCard or somebody else did so. Even if somebody else made the withdrawal he or she must have been in possession of the ATM Card and that responsibility was also of the complainant as to whom he handed over the ATM Card sharing the PIN etc.”

8. During trial before the learned District Forum, the opposite party-Bank produced the CC TV footage of the ATM Counter and the same was played in the Court by means of laptop during examination of O.P.W. Gourab Saha, Field Officer, Credit of SBI, Udaipur Branch. In the CC TV Footage, one tribal lady was seen entering the ATM counter and drawing money by using ATM card and the OPW asserted that the said very lady is the daughter-in-law of the complainant Shib Charan Jamatia. This assertion of the O.P.W. was not denied by the counsel of the complainant during cross-examination, although there were other denials which means that the complainant, though not expressly, but by implication, admitted that the lady drawing money from the ATM counter was the daughter-in-law of the complainant. Further, the complainant did not take any step to dispute the identity of the said lady either by producing himself or any other witnesses including the son of the complainant. Further, no criminal case was also lodged by the complainant in this regard alleging fraudulent withdrawal of cash from his account by using ATM Card.
9. The learned District Forum has further observed that – “As regards the non-matching of the specimen signatures of the complainant with that of the signature in the ATM Application form as stated by the Handwriting Expert, it is argued by learned counsel for the OP that while making application for ATM Card the account holder need not appear personally and he may submit application through somebody else after putting his signature in the application form. But while receiving the PIN number the applicant has to personally appear in the Bank and put his signature in the ATM PIN Delivery Register. According to learned counsel of the OP, in the instant case, may be, that taking advantage of the fiduciary relationship with the complainant, some of his close relatives might have filed the ATM application form by putting signature of the complainant therein. Since the Bank does not strictly insist personal appearance while filing the ATM application form the said application must have been processed in the routine manner. But while giving delivery of the PIN number the complainant had appeared for receiving the PIN by putting his signature. That is why; argued learned counsel for the OP, the signature in the ATM application form did not match the specimen signatures of the complainant. On the other hand, the learned counsel for the complainant could not give effective counter to the said submission of learned counsel for the OP in so far as he has explained the non-matching of the signature of the complainant in the ATM application form.”
10. Relying on the above facts and circumstances and on perusal of the evidences on record, the learned District Forum passed the impugned judgment dismissing the complaint petition which reads as under:-
    •  

No order as to cost.

The case is disposed of on contest

Enter the result in the relevant register”.

11. Aggrieved by and dissatisfied with the findings of the learned District Forum in the impugned judgment, the complainant, Shib Charan Jamatia has preferred the instant appeal.
12. Mr. Bhaumik, Learned Counsel while urging for setting aside the impugned judgment would contend that the learned District Forum relying upon the opinion of the Handwriting Expert committed error, as the said opinion is a doubtful one. He further submits that the complainant did never receive the PIN of ATM card from the opposite party, Bank.
13. On the other hand, Mr. Chakraborty, Learned Counsel appearing on behalf of the respondent-opposite party, Bank while supporting the impugned judgment submitted that the learned District Forum rightly relied upon the opinion of the Handwriting Expert so far as the signature of the complainant is concerned while receiving the PIN for using the ATM card from the opposite party-Bank. He has again contended that the Handwriting Expert had specifically submitted that the signature of the complainant in the application form for issuing of ATM card though doubtful, but the signature in the PIN Delivery Register of Bank while receiving the PIN of the ATM card is the signature of the complainant. Therefore, it cannot be said that the complainant did not have the ATM card and the PIN thereof. He further submits that the CC TV footage of the ATM counter has proved that one tribal lady entered into the ATM counter and by using the ATM card withdrew money from the account of the complainant and the said lady is the daughter-in-law of the complainant. He has finally contended that ATM card can be used by any person having secret PIN from the account holder. In the instant case, it is admitted position that the money was withdrawn through ATM card from the ATM counter using secret PIN. Thus, there was no negligence on the part of the opposite party-Bank so far as the transactions in question are concerned.
14. We have gone through the impugned judgment of the learned District Forum as well as the evidence on record. We are of the view that the evidence being very clear that the complainant himself took delivery of the ATM PIN from the Bank by putting his signature in the PIN Delivery Register of the Bank and his signature being proved by the Handwriting Expert. Moreover, the complainant being unable to dispute the CCTV footage of the ATM counter showing his daughter-in-law drawing cash by using ATM card and that the complainant having not lodged any criminal case on the matter. According to us, the learned District Forum has rightly held that there is lack of transparency in the approach of the complainant and the evidence on the side of the complainant is not strong and convincing enough to make out a case of compensation for deficiency in service by the opposite party-Bank. Learned Counsel for the appellant-complainant in course of hearing before this Commission could not focus any further light, thereby disputing the findings of the learned District Forum in the impugned judgment.

Thus, according to us, the learned District Forum did not commit any error while passing the impugned judgment. Hence, no interference is called for.

          In the result, the appeal is dismissed being devoid of merit. No order as to costs.

          Send down the records to the learned District Forum, Udaipur, Gomati, Tripura.