Tamil Nadu

North Chennai

CC/142/2017

R.Premchander Manager M/s.National Insurance company Limited - Complainant(s)

Versus

The Chief Manager State Bank of India Earlier state bank Hyderabad The Duputy General Manager state - Opp.Party(s)

M/s.S.Senthil kumar M.Vijayaragavan

11 Mar 2022

ORDER

                                                                                    Complaint presented on :03.08.2017

                                                                                              Date of disposal : 03.02.2022

                                                                                                       

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT: THIRU. J. JUSTIN DAVID, M.A., M.L.        : PRESIDENT

THIRU: S. BALASUBRAMANIAN, M.A., M.L.           : MEMBER

 

C.C. No.142/2017

 

THURSDAY, THE 3^rd DAY OF FEBRUARY 2022

 

R.Premchander,

Manager,

M/s. National Insurance Company Limited,

“Regional Mansion”, 3^rd Floor,

No.46, Moore Street,

Chennai – 600 001.                                                                                                           

                                                                                             ……Complainant.  

..Vs..

 

 

1.The Chief Manager,

   State Bank of India,

   (Earlier State bank of Hyderabad),

   No.16, Ground Floor,

   BSNL Building, Greams Road,

   Chennai – 600 006.

 

2.The Deputy General Manager,

   State Bank of India,

   (Earlier State Bank of Hyderabad),

   Regional Office,

   No.45, First Floor, Second Line Beach,

   Chennai – 600 001.                                                      ..  Opposite parties.

 

 

Counsel for the complainant                  :   M/s. S. Senthilkumar                                                                  

 

Counsel for the opposite parties            : M/s. K. Kumaran

 

 

 

ORDER

THIRU. J. JUSTIN DAVID, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to direct the opposite parties to pay the electronic defrauded amount of Rs.40,000/- with 24% compound interest from 06.04.2015 to till the date of realization of the amount together with a sum of Rs.15,00,000/- towards the compensation for the mental agony, irreparable hardship and financial hardship caused to the complainant.

1.THE COMPLAINT IN BRIEF:

          The complainant is working as a Manager in National Insurance Company Limited and operating his Savings Bank Account with the Opposite Parties Bank at Thousand Lights Branch, Whites Road, Chennai for the past 26 years. The Complainant’s S.B A/c No.52098462750 and the Debit Card Number issued to him was 5044352109900000189. On 06.04.2015 at 8.45 p.m. when he used his Debit Card for withdrawing money from Bank of Baroda ATM, in the Said transaction, he was surprised to know that he has exceeded his daily withdrawal limit even though he has not used the said Debit Card for any other purpose on the particular day. Then, the complainant immediately approached the Branch and wants to know the reason for the same. To his surprise, it was revealed that Rs.40,000/- (Rs.20,000/- + Rs.20,000/-) was withdrawn from his account in State Bank of Hyderabad ATM at SVT Nagar, Thirupathi on 06.04.2015. Immediately, on the next day morning he has informed to Chief Manager about the fraud committed in his account and requested the Manager to block the usage of the said Debit Card with immediate effect.On 07.04.2015 itself, the complainant lodged a complaint with the opposite parties about the said electronic ATM defraud which was done at Thirupathi by unknown 3^rd parties and requested the opposite parties to take suitable action and also to reimburse the fraudulently withdrawn amount of Rs.40,000/- from his account. The Complainant also lodged a Complaint with the Commissioner of Police, Cyber Crime, Chennai regarding the fraudulent withdrawal of money from his account by unknown persons at Thirupathi on 06.04.2015.Even after so many reminders, there was no response from the Opposite Parties and hence the Complainant lodged a Complaint to the Ombudsman and the Ombudsman by accepting the Opposite Parties version.  The Complainant was forced to serve a Legal Notice to the Opposite Parties on 12.06.2017 and requested them to settle the defrauded amount forthwith. However, the Opposite Parties sent a reply notice through their Counsel on 19.06.2017 by denying their liabilities which is against the terms and conditions and the guidelines of the Reserve Bank of India.The ATM Debit Card was only in the possession of the Complainant on the date of electronic defraud committed at Tirupathy. The electronic defraud was committed by some unknown person by using a fake card and withdrawn a sum of Rs.40,000/- from his account at an ATM situated at Tirupathi, which is not within the Complainant’s control.Recently Reserve Bank of India issued a Notification and categorically instructed the Banks to make 0% liability on the part of the consumers who made complaints about the said ATM thefts within 3 days from the date of the said incident. In the present case, the Complainant herein lodged a Complaint within 24 hours of the said defraud, and also make a claim of refund of Rs.40,000/- which was stolen from his account. In case of any such defraud, failure on the part of the Opposite Parties, to reimburse the said defrauded amount to the consumer is unlawful trade practice. Hence this complaint filed.

02.WRITTENVERSION FILED BY THE  OPPOSITE PARTIES IN BRIEF:

At the outset the above complaint is barred by limitation and in this regard it is submitted that even according to the complainant the cause of action that is the disputed transaction took place on 06.04.2015 and as such the complainant ought to have filed the complaint for his grievances if any within two years from thereon and as such he ought to have filed the complaint on or before 05.04.2017, but the present complaint has been filed only on 03.08.2017, hence the above complaint is clearly barred by limitation and as such the same is liable to be dismissed on this ground alone.The Complainant is having a Savings Bank Account bearing No.52098462750 at the Greams Road Branch, the First Opposite Party. On 07.04.2015, the complainant lodged a complaint stating that somebody has withdrawn Rs.40,000/- from his account unauthorisedly by way of withdrawl in ATM. His debit card No.5044352109900000189. When the complainant contact the opposite party, he was informed that Rs.40,000/- was withdrawn from an ATM located in Thirupathi. The complainant has requested us to provide information who had withdrawn and arrange the copy of CCTV footage. The complainant also lodged a complaint with City Police Commissioner and the police have registered the case C.No.678/DC-CCBI-PE-2015-RC No.354/AC-BF/CCB/PE/2015. As requested by the police authorities in their letter dated 08.05.2015, the opposite parties immediately on 13.05.2015 has provided to them the CD on CCTV footage of the disputed transactions along with statement of account of the complainant to the Sub-Inspector of Police, Central Crime Branch, Bank Fraud Investigation Wing, Veppery, Chennai – 600 007.On 16.10.2015, we had represented before the banking ombudsman, Chennai that the CCTV footage is provided to the police authorities. The opposite party also stated that the complainant has been provided with a unique PIN number along with debt card, which would be private and confidential to be used only by the card holder. In the above case, the amount was withdrawn by using the PIN number. The learned Banking Ombudsman, after going through the documents put forth before him, by his order dated 28.12.2015, has come to a conclusion that it is difficult to make out a case of deficiency in service on the part of the bank based on complaint of the complainant and the clarifications submitted by the opposite parties and closed the complaint under sec.13  ( c ) of the Banking Ombudsman Scheme 2006.State Bank of India, is taking all necessary steps to prevent the misuse of fraudulent use of the cards issued by it and at the same time, the customers should also take necessary care. In this regard as admitted by the complainant, he has allowed the third parties to know his PIN number and even after that he has failed to change his PIN number, as such there is a clear negligence on the part of the complainant and as such, for his own fault. The Opposite Parties have not committed any negligence or deficiency in rendering service as alleged. The Opposite Party is fully justified in its contention that the complainant is not entitled for refund of Rs.40,000/- with interest and compensation as claimed by him.

03. POINTS FOR CONSIDERATION:

1. Whether there is deficiency in service on the part of the opposite Parties?
2. Whether the opposite parties are liable to pay Rs.40,000/- to the complainant?
3. Whether the complainant is entitled for compensation and cost?
4. To what other reliefs the complainant is entitled to?

04. POINT NO. 1 TO 3

          The case of the complainant is that the complainant is having the Saving Bank Account No.52098462750 with the 1^st Opposite Party  Branch for the past 26 years. The complainant also having a Debit Card for withdrawal of money from ATM. The complainant on 06.04.2015 at 8.45 p.m when he used his Debit Card for withdrawing money from Bank of Baroda  ATM, he was surprised to know that he has exceeded his daily withdrawal limit, even though the complainant is not used the Debit Card for any other purpose on a particular day. The complainant immediately approached the Bank and it was revealed that a sum of Rs.40,000/- was withdrawn from his account in State Bank of Hyderabad ATM at SVT Nagar, Thirupathi on 06.04.2015. The complainant intimated the same to the bank and also lodged a Police Complaint to the Cyber Crime, Chennai and the Police collected the CCTV footage from the opposite party. Accordingly, RBI Notification, liability on the part of the Consumer who made the complaint about the ATM thefts within 3 days from the date of incidents the Consumer is 0% liable. Therefore the opposite party is liable to pay Rs.40,000/- with compensation and cost.

          05. The opposite party contended that  the complainant is having Saving Bank Account with the 1^st Opposite party  branch and on 07.04.2015 the complainant made a complaint and requested to provide CCTV Footages. The opposite party provided CCTV Footage to the Police Authorities and the case is pending for investigation. The complainant has been provided with a unique Pin Number along with Debit Card, it would be private  and confidential to be used only by the Card Holder. In the above case, the amount was withdrawn by using the PIN Number and there is a clear negligence on the part of the complainant. Therefore,  the opposite parties are not liable to pay any amount.

          06. There is no dispute between both the parties that the complainant is having a Saving Bank Account with the 1^st Opposite party Bank in A/c No.52098462750  and also having a Debit Card issued by the Opposite parties. Further, there is also no dispute between both the parties and a total amount of Rs.40,000/- (20,000+20,000) was withdrawn from the complainant’s account from State Bank of Hyderabad, ATM at STV Nagar, Tirupathi 06.04.2015. Hence this Commission has to decide,  whether the said amount of  Rs.40,000/- was withdrawn by  the complainant  or  some other 3^rd party without the knowledge of  the complainant.

07. On 06.04.2015 a sum of Rs.40,000/- was withdrawn from the account of complainant if State Bank of Hyderabad, ATM at STV Nagar, Thirupathi.  The complainant is having  a Debit Card with him and he is working as a Manager in National Insurance Company Limited, Chennai. Further,  the complainant attended his office on 06.04.2015. To prove the same Regional Manager of National Insurance Company Limited, Chennai Region issued a certificate dated 15.02.2019 stating that R.Premchander presently serving as a Manager in Motor Third Party Claims Hub, Chennai had attended the office on 06.04.2015 and he was present in the office as per Employees Attendance Register maintained in Aminijkarai Branch office, Chennai and Ex.A10 is the Attendance Certificate dated 15.02.2019.  On 06.04.2015 amount of Rs.40,000/- was withdrawn from the complainant’s account in ATM at Thirupathi, but the complainant on 06.4.2015 attended the office at Chennai . Hence it is not possible for the complainant to withdraw the amount at Thirupathi on 06.04.2015 and some 3^rd party might withdraw the amount by using a  fake ATM Card.

          08. The complainant on 07.04.2015 made a complaint with the opposite party and also lodged a complaint to the Commissioner of Police , Ciber Crime, Chennai. Ex.A1 and Ex.A2 are the copies of the complaint made to opposite parties and police.  The Police Registered the case and call for CC TV Footage from the  1^st opposite party. Ex.B1 is the letter written  by Sub Inspector of Police to the Branch Manager State Bank of Hyderabad, Whites Road Branch and requested the Branch Manager to furnish the details of disputed transactions on 06.04.2015 and CCTV Footages concerned. The Branch Manage provided DVD containing the  CCTV footages for the disputed transactions. On 06.04.2015 pertaining to  R.Premchander.  Ex.B2 is the copy of letter dated 13.05.2015. The complainant also filed a complaint before the Banking Ombudsman on 19.10.2015 and Ex.A4 is the copy of complaint. The Banking Ombudsman on 28.12.2015 passed the following order “ further an order that a verification of the CCTV Footages in respect of the disputed transaction a masked person made 2 withdrawals from ATM and hence they could not identify the person”. Ex.A5 is the copy of the order passed by the Banking Ombudsman. From the above order it is very clear that the complainant has not made any withdrawal from his account at Thirupathi ATM and on the other hand a masked person made two transactions from ATM and the person could not be identified.

          09. In this case, the complainant is in Chennai and the ATM Card is with him at Chennai and he is not disclosed the PIN Number  to anybody. On the other hand, some 3^rd party might have stolen the PIN No and used fake ATM Card to withdraw the amount. There is 0% liability on the part of the complainant.

          10. The Learned Counsel for the complainant argued that there is no negligence on the part of the complainant and complainant and as per the circular issued by  the Reserve Bank of India, the Bank is liable to pay the amount if the  Consumer intimated  the unauthorized withdrawal within 3 days. Here in this case the complainant intimated the unauthorized withdrawal to the 1^st opposite party on the next day of unauthorized withdrawal. Therefore the opposite party is liable to pay the entire unauthorized withdrawal amount of Rs.40,000/- to the complainant. The complainant had written letters to the opposite parties to pay the said Rs.40,000/- to him but the opposite party failed to pay the sum and therefore the complainant issued a legal notice to the Opposite Party. Even after the receipt  the Opposite party failed to pay the amount and  some might be  caused mental agony to the complainant. Further, it is the duty of the opposite party to pay the amount to the complainant as per the Reserve Bank of India Circular. But the Opposite patty failed to comply the Reserve Bank of India Circular and the same amounts to deficiency in Service. Under  these circumstances there is a deficiency in service on the part of the opposite parties and the complainant is entitled for Rs.40,000/- and compensation and cost.

          11. The opposite party contended that the complainant is not filed this complaint within 2 years from the date of cause of action and therefore this complaint is barred by limitation under Section 24 A of the Consumer Protection Act 1986. On perusal of records, this Commission finds that the Ombudsman rejected the claim of the complainant on 28.12.2015. Therefore the cause of action for filing the complaint arose on 28.12.2015.  The complainant filed this complaint before this Commission on 18.08.2017 which is within 2 years from the date of cause of action. Therefore the contentions of the opposite parties that this complaint  is barred by limitation is unsustainable.       The 1^st opposite party is the Branch Manager. The 2^nd opposite party is the Regional Manager who is the superior of the 1^st Opposite Party. Therefore, the 1^st& 2^nd  Opposite Parties are jointly and severally liable to pay the amount and compensation.

12.POINT NO:4

          In the result, this complaint is allowed in part. The opposite party 1 & 2 jointly and severally ordered to pay a sum of Rs.40,000/-(Rupees forty thousand only) being amount withdrawn  unauthorizedly  from the account of the complainant and to pay a sum of Rs.10,000/-(Rupees ten thousand only) towards compensation for causing mental agony to the complainant besides a sum of Rs.5,000/-(Rupees five thousand only) towards cost of this proceedings.

          The above amount shall be paid to the complainant within 2 months from the date of receipt of the copy of this order, failing which the above said amount shall carry 9% interest from the date of this order to till the date of payment.    

Dictated  by the President to the Assistant taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission  on this the 03^rd  day of February 2022.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT:

Ex.A1 dated 07.04.2015                   Copy of the complaint given by the complainant

To the Branch Manager along with MiniStatement

 

Ex.A2 dated 07.04.2015          Copy of the Complaint given by the Complainant to the Commissioner of Police, Cyber Crime Wing.

Ex.A3 dated 14.08.2015          Copy of the representation of the Complainant to the Deputy General Manager of the Opp. Parties Bank along with Acknowledgement.        

Ex.A4 dated 19.10.2015          Copy of the Application Form –ATM transaction dispute given by the Complainant

Ex.A5 dated 28.12.2015          Copy of the Order Passed by the Banking Ombudsman in complaint No.CC-001213 given by the Complainant.

Ex.A6 dated 13.11.2016          Copy of the Request Letter sent by the Complainant

Ex.A7 dated 12.06.2017          Copy of the Legal Notice issued by the Complainant

Ex.A8 dated 19.06.2017          Copy of the Reply Notice  sent by the Opposite Parties.

Ex.A9 dated 11.08.2016          Draft Circular issued by the Reserve Bank of India

Ex.A10 dated 15.02.2019        Attendance Certificate

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES:

Ex.B1 dated 08-05.2015          Copy of letter sent by the Police authorities       requesting CC TV Footage.

Ex.B2 dated 13-05-2015         Copy of letter sent by the Opposite Parties to the Police.

Ex.A3 dated 09-10.2015         Copy of  Letter sent by the Complainant

Ex.A4 dated 19-10-2015         Copy of letter sent by the Complainant

Ex.A5 dated      NIL                Form B Submitted by the Complainant

Ex.A6 dated      NIL                Form C Submitted by the Complainant      

Ex.A7 dated 28-12-2015         Copy of Order passed by the Banking Ombudsman

Ex.A8 dated       NIL               Copy of Statement of account of the complainant pertaining to his account with the opposite  parties.

 

 

MEMBER – I                                                               PRESIDENT