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

Wednesday, 30^th July 2010

 

G.V. Rami Reddy, S/o G. Nagi Reddy,                            

Aged about 39 years, Working as Network Administrator,

A.P. State Wide Area Network Project Maintained by

under United Telecoms Ltd., at Collectorate,

District Network Centre, Kadapa, R/at D.No. 7/337-7-4,

Bhagyanagar Colony, Kadapa, Kadapa District.                         ….. Complainant.

Vs.

 

1) The Chief Manager, State Bank of India,

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

                                                                                                                                     

 

This complaint coming on this day for final hearing on 26-7-2010 in the presence of Sri G. Trivikram Singh, Advocate, for complainant and Sri V. Srinivas, Advocate for R1 and R2 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 working as Networking Administrator to the A.P. Swan Project at Kadapa. He is having S.B. Joint Account bearing No. 10845003631 in the Bank of R1 at Kadapa. The complainant availed ATM card facility from 2009 from R1 bank. His ATM card No. is 62201800083000013702. He used to withdraw amounts through ATM card as and when required. On 7-4-2010 he went to the ATM for withdrawing the amount from his account. To his surprise he found that on 27-3-2010 an amount of          Rs. 6,476-80 Ps has been debited from his S.B. Account in five transactions towars ATM purchase.  Immediaely he went to R1 and enquired about misplacement of the amount from his account. The complainant also gave a written complaint to R1 on  7-4-2010 indicating withdrawal of amount from his account without his knowlddge by some wrong doers. Through the said letter he requested R1 to credit the misused amount to his account. R1 assured him to take suitable action and that they will credit the amount in the account of the complainant.   While so, on 9-4-2010 the complainant again observed through ATM Mini Statement that another similar wrong withdrawals by 3^rd person to the tune of Rs. 8,426/- in two transactions towards ATM purchase took place.   He approached the concern police station to give a complaint, but the police did not prefer to register the crime on the ground that they are not concern with the cyber crimes. On that the complainant again gave a comprehensive complaint on 9-4-2010 to R1 to credit an amount of Rs. 14,902/- which was debited towards ATM purchase without his knowledge from his account. He also requested to lodge a complaint with police for investigation and recovery of the amount. R1 gave a false assurance that within seven days they will enquire and investigage the matter and credit the amount  of Rs. 14,902/- into account fo the complainant.   But there is no response from R1. R2 is concerned with the ATM transactions. To avoid further fraud withdrawals from his account he issued a letter dt. 9-4-2010 to R1 to cancel his ATM card and on the same day. It is the bounded duty of R1 to refer the complaint of the complainant to R2 to settle his grievances. The said withdrawals are no way concerned to the complaint and due to the negligence of R1, the complainant’s amount was withdrawn by unknown persons. The respondents are responsible for the misuse of amount from the account of the complainant.   R1 did not make any enquiry in respect of illegal withdrawal from the account of the complainant.   The complainant requested several times to R1 to recredit the misused amount duly making enquiry. But R1 did not respond properly and thrown the entire burden on the complainant. The complainant does not know about the withdrawals of the amounts by some unknown offenders.   In fact the respondents are responsible for the misuse of amounts from the account of the complainant, which is in the custody of the respondents.   The complainant made all efforts for settlement of the issue amicably. But all his efforts proved futile due to the irresponsibility and negligent attitude of R1 and R2. On account of the negligence he suffered with mental agony and inconvenience. The attitude of the respondents clearly goes to show the deficiency of service and unfair trade practice on their part. Till date R1 has failed even to give reply with regard to investigation or enquiry about wrong withdrawal from the account of the complainant.   Due to loss of amount the complainant has put to mental agony and he is leading his life depending on his salary only. The respondents are liable to pay Rs. 14,902/- together with interest @ 24% p.a. to the complainant and also liable to pay compensation of Rs. 50,000/- for causing mental agony and Rs. 2,000/- towards costs. The complainant filed this complaint and requested to do justice.  

 

3.                The R1 filed a counter stating that the complaint is not maintainable either in law or on facts of the case. The complainant has to prove all the averments made in the complaint which are not expressly admitted herein.   It is true that the complainant and his wife are having S.B. Account holders of R1 bank. The complainant is having ATM Card facility since 2009.   It is also true that the complainant has reported about withdrawal of the amount by a unconnected 3^rd party Rs. 6,478-80Ps on 9-4-2010 from his S.B. Account.   It is false to state that the respondent bank assured to settle the matter within seven days. It is also false to say that due to negligence of respondents bank the amount of Rs. 14,092/- was wrongly withdrawn by unknown persons from the account of the complainant. The ATM card and PIN No. are with the complainant only and his account hacked by some unknown persons and used the amount at point of sales and it comes under cyber crime and there is no negligence of the respondent bank about wrong withdrawals of the amount from his account, the same has been informed to him and advised to lodge a police complaint about the matter and the bank will also take proper steps to trace the offenders.   It is to state that now a days this type of cyber crims are commonly noticing by the state and central Government and they are finding the ways to over come the issue in other words to curtail this type of offences. The respondent bank is not at all responsible for the wrong withdrawal of the amount from the account of the complainant as the ATM card and PIN No. are with him only. For every withdrawal of the amount from the ATM a mini statement will be released from the ATM machine where the card No. and account No. will be displayed. So it is the prime duty of the complainant to maintain secrecy about the ATM accont No. and PIN No.   It is obvious that the negligence is with the complainant only.  The respondent bank requested the complainant to lodge a police complaint and send the FIR to take further action but the complainant never took steps on this direction.  It is false to state that the irresponsibility and negligence attitude of the respondent bank. The complainant efforts proved futail and he suffered with mental agony. But the respondent bank also reported constantly to his higher authorities about this type of fraudulent transactions and basing on the complaints on the various bank branches, R2 approached the Director General of Police, A.P. Hyderabad about this type of transactions and the Director Genral of Police under letter RC 1858/Compts – 4/2010, dt. 3-6-2010 informed to lodge the complaints in the concerned police stations about fraudulent transactions using ATM card, debit cards over internet duly marking a copy to the Commissioners of police and Superintendents of Police and the respondent bank is going to take suitable steps in this regard. Hence, there is no deficiency of service on the part of the respondent bank as it is detectable instantaneously by the respondent bank due to that it is a cyber crime. The cause of action for filing this complaint and the one mentioned is invented for the purpoe of this complaint.   R1 requested to dismiss the complaint in the interest of justice. 

 

4.                R2 called absent and set exparte on 21-7-2010.

5.                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?

 

6.                On behalf of the complainant Ex. A1 to A4 were marked and on behalf of the respondents Ex. B1 to B3 were marked.  Oral arguments were heard from both sides.

 

7.                Point No. 1& 2.  Ex. A1 is the Photostat copy of S.B. Joint account passbook bearing No. 10845003631 pertaining to the complainant and his wife issued by R1 bank. Ex. A2 is the Photostat copy of complaint dt. 7-4-2010 of the complainant  addressed to the Chief manager, S.B.I. Main Branch, Kadapa. Ex. A3 is the Photostat copy of letter dt. 9-4-2010 of the complainant addressed to the Chief Manager, S.B.I. Main branch, Kadapa. Ex. A4 is the Photostat copy of another letter dt. 9-4-2010 of the complainant addressed to the Chief Manager, S.B.I. Main branch, Kadapa. Ex. B1 is the Photostat copy of letter of the Asst. General Manager, SBI Main Branch, Kadapa, dt. 25-6-2010 addressed to the complainant. Ex. B2 is the Photostat copy of letter dt. 16-6-2010 of the Asst. General Manager (Alternate Advisor) SBI, Hyderabad addressed to Aasst. General Manager, SBI, Tirupati. Ex. B3 is the Photostat copy of letter dt. 3-6-2010 from the Director General of Police, A.P. Hyderabad addressed to the Asst. General Manager, S.B.I., local head office, Koti, Hyderabad. 

 

8.                It is an admitted fact that the complainant is having Joint S.B. Acount on his name along with the name of his wife in the bank of R1 since 1999. The R1 provided ATM card facility to the complainant for withdrawal of money from his account as and when required from the ATM.   The contention of the R1, that the ATM card along with its Pin No. needs to be safeguarded by the complainant and the PIN code No. is not suppose to be disclosed to others.  The present case is not the case of loss of ATM card and its pin No. The case of the complainant is that the ATM card is with him only under his custody and that the PIN No. of the ATM card is with the complainant only.   Even then there are withdrawals from his S.B. Account by way of “POS ATM PURCH”. Even after making complaints to the respondent bank withregards to mischievously withdrawing of money from his account by way of purchase R1 bank has not taken steps to protect the interest of the complainant in not withdrawing the amount from his account by unknown 3^rd party in the name of ATM purchase. 

 

9.                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 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 happened 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.   Ex. B3 is the letter of the Director General of Police, A.P. Hyerabad addressed to the R2 in which he advised to file complaints in the concerned police station and a copy of the ocmpalint to be marked to the concerned Commissioners of Police and Superintendents of Police. So this document is very clear that the respondent bank should file this complaint with the concerned police. This document does not speak that the complainant should file a complaint before the police. The contention of the R1 that the complainant failed to act in that directions and not got the case registered in the police station and also no copy of FIR is furnished to the R1 by the complainant is not the relevant answers to the loss of money of the complainant from his account through ATM by dubious means. When 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 – Intimatiion given to bank to inactive it – Money withdrawan 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”. The facts of the above citation more or less suits the facts and circumstances of the present case. Another important feature which is visible in Ex. A1 is that whenever the complainant used ATM card and withdrawn money from his account the number of the ATM card is printed in the passbook. This must be reflected in the Bank records also.  Five withdrawals on 27-3-2010, and two withdrawals on 9-4-2010 indicates “POS ATM PURCH” and the ATM card No. is not reflected on these transactions. So it is evident that some 3^rd party purchased some where by dubious means connecting to the account of the complainant, as a result on seven occasions as much as Rs. 14,902/- was withdrawn. For this type of documentary evidence there is no proper explanation from the respondent bank, how one can withdraw the money by way of ATM purchase from the account of he complainant?.   Heavy responsibility lies with the respondent bank only to protect the money of the complainant as R1 is the custodian for the money deposited by the complainant in his Bank.   If the R1 bank 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 instead they can keep the money in their own houses. By all means the R1 bank thoroughly failed to safeguard the money of the complainant and the loss sustained by the complainant is bound to be recouped by the R1 alone. The complainant deserves consideration in his favour from all angles. 

 

10.              Point No. 3 In the result, the complaint is allowed, directing the Respondents jointly and severally liable to pay Rs. 14,902/- (Rupees Fourteen Thousand nine hundred and two 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 9-4-2010 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 July 2010

 

 

 

Witnesses examined.

For Complainant    NIL                                                  For Respondent :     NIL

Exhibits marked for Complainant : -  

 

 

Ex. A1         P/c of S.B. Joint account passbook bearing No. 10845003631 pertaining to the complainant and his wife issued by R1 bank. 

Ex. A2         P/c of complaint dt. 7-4-2010 of the ocm addressed to the Chief manager, S.B.I. Main Branch, Kadapa. 

Ex. A3         P/c of letter dt. 9-4-2010 of the complainant addressed to the Chief Manager, S.B.I. Main branch, Kadapa. 

Ex. A4         P/c of another letter dt. 9-4-2010 of the complainant addressed to the Chief Manager, S.B.I. Main branch, Kadapa. 

 

Exhibits marked for Respondent: -  

 

Ex. B1         P/c of letter of the Asst. General Manager, SBI Main Branch, Kadapa,

Ex. B2         P/c of letter dt. 16-6-2010 of the Asst. General Manager, SBI,

Ex. B3         P/c of letter dt. 3-6-2010 from the Director General of Police, A.P.

 

 

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

2)     Sri V. Srinivas, Advocate for R1.

2) Copy was dispatched on      :

3) Copy of delivered to parties :