IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/31/2016.
Date of Filing: 01.03.2016. Date of Final Order: 23.02.2017
Complainant: 1. Smt. Niva Majumdar, W/O Shri Chhabiranjan Majumdar,
2. Shri Chhabiranjan Majumdar, W/O late Chittaranjan Majumdar,
both residing at Roddoor, 2A, Madhupur Road, P.O.&P.S. Berhampore,
Dist. Murshidabad, Pin 742101.
-Vs-
Opposite Party: The Chief Manager, IDBI Bank, Berhampore Branch, Berhampore Shopping
Plaza(Ground Floor), 34, S.N. Battacharyy Road, Kadai, P.O.& P.S. Berhampore,
Dist. Murshidabad. Pin 742101.
Present: Sri Anupam Bhattacharyya …………………. President.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for payment of Rs. 52,867.58 the unauthorized withdrawal on 13.12.14 at Dubai through ATM along with interest and compensation of Rs.50,000/-.
The complainant’s case, in brief, is that the complainants have joint savings A/c with OP-Bank. They went for a tour at Dubai and stayed there for the period from 16.11.2014 to 15.12.2014. They used their ATM card there up to 12.12.2014 but never on 13.12.2014 neither in Dubai nor in India. Returning in India while updating the Pass Book, it is found that a large sum of amount of Rs.52, 867.58 has been withdrawn by some unauthorized person on 13.12.2014. The complainants immediately lodged a complaint to the Manager, IDBI Bank, Berhampore Branch with a request to repay the said unauthorized withdrawn amount. Then the bank authority requested them verbally to wait for 45 days but no result. As a result of representation dt. 28.8.15 the Zonal Officer of OP-Bank denied their responsibility and forwarded the complaint to concerned Bank in Dubai. The OP-Bank forced to lodge FIR with the Berhampore PS. on 29.01.15. The Bank authority also pulled out the “Insurance Company” in the spot although the complainants are not involved with the Insurance Company in any w ay. Mr. Vikash Gandhi, AGM, Zonal Officer clearly stated that the ATM card was hot listed on 30.12.2014. But the complainants informed the matter on 13.12.2014 . So, the cause of ‘Hot Listed” is nothing but a lame-execute on the part of the Bank. The Bank authority issued ATM card to the complainants. So, it is the duty of the Bank to give protection and security to the ATM card holder. The Bank Authority cannot deny the responsibility in respect of ATM card. It is the act of negligence on the part of the Bank. Having no relief the complaints have compelled to file the instant complaint. Hence, the instant complainant’s case.
The written version filed by OP, in brief, is that the OP has denied the allegation of the complainant categorically. On enquiry the OP found that the amount was withdrawn successfully. Any withdrawal through ATM cannot be made without ATM Card and PIN. An ATM card only be used if the customer inputs his personal 4 digits identification number which is selected by the customer. Unless a person is in possession of the relevant ATM card and knows, the 4 digits PIN, the ATM card cannot be used and operated. The complainants have access to use it. The contention of the complaint that the ATM Card was fraudulently used by someone else has no basis. So, the OP submits that there is no negligence or deficiency in service from the part of the OP and for that the complaint is liable to be dismissed. Hence, the instant written version.
Considering the pleadings of both sides the following points have been made for the disposal of the case.
Points for Consideration.
- Whether the complaint is maintainable in its present form and in law?
- Whether the complainant has cause of action to file the present case?
- Whether the complaint is barred by law of limitation?
- Whether the complaint is bad for defect of parties?
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get?
Decision with Reasons.
Point Nos. 1 to 6.
All the points are taken up together for the sake of convenience.
The instant complaint has been filed by the complainant for payment of Rs.52, 867.58 by the Bank along with interest and compensation. .
The complainant’s case is that the complainant never withdrew any amount through ATM in Dubai on 13.12.14 but it is found that Rs.52867.58 was withdrawn by unauthorized person. The OP-Bank cannot deny their responsibility.
On the other hand OP’s case is that on 13.12.14 the amount was withdrawn successfully. Unless a person is in possession of the relevant ATM card and knows, the 4 digits PIN, the ATM card cannot be used and operated. The complainants have access to use it. The contention of the complainant that the ATM Card was fraudulently used by someone else has no basis and for that the complaint is liable to be dismissed.
In this case both the complainant and the OP have filed separate evidence by affidavit along with relevant documents in support of their respective cases.
The OP has also filed written argument but the complainant has not filed any written argument.
Be that as it may the complainant has advanced argument althrough strongly with the plea that the OP is to prove that the complainant was present at the ATM centre in Dubai at the relevant time and they have withdrawn money from that ATM, particularly by adducing evidence of CCTV footage.
In this regard the complainant himself has advanced argument that if his footage is found in the CCTV, he will not claim anything from the OP-Insurance Company.
In reply the Ld. Lawyer for the OP-Insurance Company has advanced argument that footage is durable only for 180 days and for that the same is not available. He has further argued that this is not mandatory.
He has also advanced argument in his written argument that any withdrawal through ATM cannot be made without ATM Card and PIN number. An ATM Card can only be used if the customer inputs his personal 4 digits identification number which is selected by the customer. Unless a person is in possession of the relevant ATM Card and knows, the 4 digits PIN, the ATM Card cannot be used and operated where the complainant stated in his complaint petition that the ATM card had never been left their personal custody and for that the allegation of the complainant that the ATM card was fraudulently used by some miscreants has no basis.
This is a case of fraudulent transaction through ATM in Dubai.
This is not a case of technical defect in the ATM for non-supply of money using the ATM card.
The complainant stayed in Dubai for the period from 16.11.2014 to 15.12.2014 and used ATM up to 12.12.2014 but on 13.12.2014 neither in Dubai nor in India.
Returning to India while updating the pass Book the complainant came to know about the fraudulent withdrawal and immediately lodged complaint with the OP-Bank requesting to repay the said amount when the bank requested the complainant to wait for 45 days for getting return of the said amount. The complainant applied in writing on 26.12.14 for correction of wrong transaction of Rs.52, 867.58 on 13.12.14 and the complaint was forced to lodge FIR on 29.01.15 with Berhampore P.S.
From the letter of OP-Bank dt. 30.9.15 it appears that in response to the alleged fraudulent transaction raised by OP-Bank immediate after getting written complaint from the complainant on 26.12.14 the concerned OP-Bank in Dubai rejected the dispute as the transaction was successful.
But the OP-Bank has not produce the CCTV-footage of the concerned ATM center in Dubai.
Mere, reply that the transaction was successful is not sufficient where the allegation is fraudulent with drawl by some miscreants.
The allegation is not that for technical defect the money was not come out from the machine inspite of swiping the card by the complainant.
Where the allegation of the complainant is that on 13.12.2014 the complainant No.1 did not withdraw any money using the ATM card neither in Dubai nor in India and they stayed in Dubai up to 15.12.2014.
Admittedly, on 26.12.2014 the complainant lodged complaint before the OP-No.2 Bank in writing about the incident.
Regarding non-availability of CCTV footage of ATM Centre for the date of incident on 13.12.2014 the ld. lawyer for the OP-Bank has advanced argument that footage is durable only for 180 days where they got written information about the incident within thirteen days much before 180 days.
Thus, the ground of non-availability of CCTV footage as advanced by the Ld. Lawyer for the OP-Bank during argument has no legs to stand upon.
In this case the OP-Bank has denied their responsibility as to the fraudulent withdrawal using the ATM Card at the ATM Centre in Dubai from the A/c of the complainant relying upon reply of the concerned Bank in Dubai against the request for enquiry sent by the OP-Bank on the basis of written complaint of the complainant on 26.12.14.
The concerned Bank in Dubai replied rejecting the request on the ground that the amount was withdrawn successfully.
In this case withdrawal of the amount from the concerned ATM in Dubai is not disputed. The only dispute is that the same was withdrawn fraudulently by some miscreant on 13.12.14 from that ATM Centre in Dubai.
It is true that there is no averment in the complaint petition that at the relevant time the concerned ATM card was not in the custody of the complaint or in other words the ATM card was missing.
Rather, from the bank statement as to transaction Inquiry filed by the OP-Bank it appears that the complainant withdrew money on 16.12.14 from Jadavpur, Kolkata immediate after return from Dubai on 15.12.14.
Thus, it is clear that the Card was always in the custody of the complainant.
But, the main case of the complainant is that the complainant herself did not use the card on 13.12.14 and that the amount of Rs.52, 867.58 was withdrawn fraudulently and to that effect the complainant on 13.12.14 informed OP-Bank verbally but the same has been categorically denied by the OP-Bank.
Be that as it may the complainant deposed on oath by affidavit as to verbal intimation. Also, informed in writing.
From the documents as to transaction Inquiry it appears that immediate after return from Dubai on 15.12.14 the complainant withdrew money in Kolkata on 16.12., 17.12, 19.12, 20.12 and 24.12 and the said ATM card was hot listed on 30.12.14 and from the above withdrawal immediate after return from Dubai it is quite natural that the complainant informed the OP-Bank about the incident of fraudulent withdrawal in Dubai verbally.
Even if this oral evidence including the circumstantial evidence as to transaction in India after return is not admitted, there is clear written information as to the incident with 13 days delay on 26.12.14.
The said delay cannot discharge the onus of the OP from adducing CCTV footage to establish that the complainant was present and withdrew money on the relevant day.
The OP-Bank issued ATM card and cannot avoid responsibility to give protection and security to the ATM Card holder.
The OP Bank replied by letter dt. 30.9.15 that the Branch had also lodged a claim to the Insurance Company for the said transaction on the basis of the FIR lodged by the complainant and the Insurance Co. repudiated the claim for delayed intimation at all the stages e.g intimation of the incident, hot listing of ATM card, lodging FIR for 13 days, 17 days and 47 days respectively.
The Bank authority also pulled out the “Insurance Company” in the spot although the complainants are not involved with the Insurance Company in any way.
In this case, Insurance Company has not even impleaded and for that the said repudiation can in no way stand on the w ay as to responsibility of the OP Bank to provides compensation for the loss suffered and security in using the ATM Card.
The Hon’ble National Commission held in State Bank of India Vs. K.K. Valla in Revision Petition No. 3182 of 2008 against Order dt. 30.05.2008 in Appeal No. 364/2008 of State Commission Delhi referred by the OP-Bank in their written argument that in case the ATM Card had been stolen or the PIN number become known to persons other than ATM Card holder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card.
In this case it is t rue that there is no case of the complaint that her ATM Card was stolen but her specific case is that on 13.12.14 she did not use the ATM Card and there was fraudulent withdrawal of Rs.52,867.58.
To our mind the a foresaid decision of Hon’ble National Commission will go in favour of the complainant as there is specific case of fraudulent withdrawal and for that CCTV footage is very much essential to prove the OP’s case as to successful transaction by the complainant.
Considering the above discussions we can safely conclude that the OP-Bank has failed to prove their case and there is no iota of evidence to disbelieve the oral testimony of the complaint considering the entire facts and circumstances and also find that the OP-Bank has no scope to avoid their responsibility and for that we find that the OP-Bank is to compensate the loss suffered by the complainant for the impugned fraudulent withdrawal of Rs.52,867.58 along with interest @7% p.a from the date of incident on 13.12.14 till realization.
According to settled principle interest being allowed the complainant is not entitled to get any further compensation as prayed for.
On the basis of above discussions as a while we find that all the points are disposed of in part and as such the complainant is entitled to get Rs.52,867.58 along with interest @ 7% p.a. from the date of incident on 13.12.14 till date of realization, there will be no order as to cost.
Hence,
Ordered
that the Consumer Complaint No. 31/2016 be and the same is hereby allowed on contest in part without any order as to cost.
The complainant is entitled to get rs.52, 867.58 along with interest @ 7% p.a. from the date of incident on 13.12.14 till realization.
The OP-Bank is directed to pay Rs.52, 867.58 along with interest @7% p.a. from the date of incident on 13.12.14 till realization to the complainant within two months from the date of this order, failing which the OP is to pay Rs.50/- as fine for day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
