DATE OF FILING: 15.04.2013
DATE OF DISPOSAL:04.04.2016
Dr. N.Tuna Sahu:
The complainant has filed this consumer dispute alleging deficiency in banking service against the Opposite Parties (for short O.Ps) to redress his grievance before this Forum.
2. Briefly stated the case of the complainant is that the complainant is a senior citizen and bonafide customer of O.P.No.1 bearing account No. 30354703508 since long. The complainant also availed the ATM facility from the O.P.No.1 for day to day transactions. As per the complaint, he went to twin ATM centre situated at one-way Traffic Road, Bhapur Bazar, Berhampur on 10.11.2012 to check his account balance for which he used his ATM card bearing No.6220180003300336520 at one of the two ATM machines at about 19.59 hrs and collected ATM customer advice slip. The said advice slip disclosed that the complainant having available balance of Rs.32975.98 paisa in his account vide TXN No. 7560 at Sanabazar, Berhampur ATM machine bearing Term No. S108000033010. Thereafter, the complainant came out of the said twin ATM centre. Due to doubt on activities going on inside the said twin ATM centre, the complainant again go there and checked his account balance at the same machine of the said twin ATM centre at 20.07 hrs the Customer advice vide TXN no. 7570 Term No: S10A000033010 displayed that a sum of Rs.32,000/- was withdrawn from his ATM on 10th November 2012 leaving balance of Rs. 975.98 p. Due to holiday of bank, the complainant rushed to the O.P.No.1 on Monday i.e. on 12th November 2012 after one day of said incident to file a complaint. He approached O.P.No.1 and updated the passbook and the balance comes to Rs.975.78 paisa. For further course of action, he was advised on the same day to meet the ATM Officer Mr. Kishan i.e. O.P.No.2. The O.P.No.2 gave 7 days time to provide details on the complaint submitted by the complainant after several approaches. On 19th November 2012, the O.P.No.2 issued some printed data in the evening but taken back by taking some plea. On 20th November 2012 he came to know that ‘the statement of ATM machine submitted by O.P.No.2 discloses that an amount of Rs.32,000/- was withdrawn at 20.03 hrs on 10th November 2012 vide TXN No. 5925 and ATM ID No: S10B000033026 from the card Number 6220180003300336520 . But as per his claim, at the time of the above withdrawal at the specific ATM machine, the complainant was outside of the said twin ATM centre. Due to issue of wrong information, the complainant on 21.11.2012 submitted a written complaint before O.P.No.1 which was duly acknowledged and advised the complainant to meet the O.P.No.2 again. The O.P.No.2 also gave deaf ear to the complaint of complainant on 21st November 2012 and also replied that he has no time to listen the complaint. The complainant has filed a complaint with O.P.No.3 in the first week of December 2012 to redress the grievance. The complainant sent complaint to the O.P.No.4 also. After receipt of the complaint, O.P. No.3 advised the complainant to file a written complaint to the O.P.No.1. In obedience to the advice of the O.P.No.3, the complainant filed another complaint before the O.P.No.1 on 22.12.2012. The O.P.No.1 duly acknowledging the complaint but did not take any action. The O.P.No.1 sent a letter bearing No. ATM/Gen/361 dated 20.12.2012 on behalf of the O.P.No.4 to the complainant that the transaction was successful vide O.P.No.1 letter No. PBD/ATM/12/13-47 dated 20.11.2012. But the complainant not received such type of letter from the O.P.No.1. When no satisfactory action was taken by the O.P.No.1, 2 & 4, the complainant again filed another written complaint before the O.P.No.4 sometime around in the month of January 2013. After going through the documents supplied by the O.P.No.3, a reasonable doubt is being created in the minds of the complainant that, ‘either the O.P.No.1 and 2 or having nexus with some stranger, might have withdrawn the amount of Rs.32,000/- from the complainant’s account on 10th November 2012. The said transaction was approved by the O.Ps without implicit consent of the complainant. Accordingly, the complainant lodged an FIR on 6th January 2013 before O.P.No.4. He also alleges that O.P.No.1 did not resolve the complaint within the stipulated period as provided under the Payment and Settlement System Act, 2007 and RBI guideline. The O.P.No.5 also so far has taken no action in this matter. The O.P.No.1 is taking annual fees for using the ATM card and the complainant is not a defaulter in paying the annual fees for the ATM card used by him. But the O.P.No.1 failed to provide safe, secure and assured service to the complainant which speaks volumes against deficiency in service of O.P.No.1. The O.P. Nos. 1 to 4 are rendering of deficient services to its consumers and having nexus with “strangers” and due to soft corner, leaking out the PIN number of ATM card of the complainant to them. He has further alleged that O.P.No.1 to 3 are using pirated software and defective machines namely Sanabazar, Berhampur twin ATM centre installed at one way Traffic Road. He has also pointed out that the O.P.No.1 to 3 are aware that an ATM holder is not entitled to withdraw exceeding Rs.20000/- per transaction through ATM Center but in the instant case an amount of Rs.32,000/- was withdrawn on 10.11.2012 at once which speaks volumes against the service and conduct of the O.Ps as they failed to prevent such fraudulent withdrawals through ATM. Alleging deficiency in banking service on the part of the O.Ps the complainant prayed to direct the O.Ps to re-credit the amount of Rs.32,000/- in the account of the complainant with 18% interest since the date of debit, Rs. 68,000/- towards compensation for physically, mentally and financially in the best interest of justice.
3. Upon notice the O.P.No.1 & 2 entered its appearance through learned their learned counsel and filed written version resisting the claim of the complainant. It is stated that the ATM can only be used if the customer inputs his/her personal four digit identification number which is selected by the customer and not by the Bank. In the internet of security the customer is advised to retain this PIN in his memory so that no one else is privy to this information. The reverse of the ATM has a magnetic strip and whites strip for signature of the card holder. The magnetic strip contains the card holder’s details. This card can be used to gain entry into ATM enclosure by swiping it in the access lodge. In other words unless a person is in possession of the relevant ATM card and knows the four digit PIN, the ATM card cannot be used and opened. As a matter of further precaution in case the PIN number is entered wrongly trice in succession the ATM will swallow the card itself or cancel the card permanently. The complainant with the connivance of his confiderator played fraud on the Bank and drew Rs.32,000/- because it is impossible to operate an ATM machine without ATM card and PIN. Hence the burden is on complainant to prove all the allegations made against the O.P. Nos. 1 & 2 because of the facts stated in the complaint by complainant. These type of cases merely because there is no security guard, the CC TV was not working on those dates and its footage was thus not available does not mean that the money could be withdrawn frequently without using the ATM card and PIN number. The complainant nowhere in his complaint has stated that his ATM card had been stolen or the PIN number had become known to persons other than himself then the CC TV coverage is helpful on the other hand the complainant has stated that the ATM card and PIN remained in the self custody and knowledge of the complainant, hence the complaint is liable to be dismissed with cost. These type of cases the CCTV footage is of no use or relevant or mal functioning of the ATM machine does not mean that the money could be withdrawn fraudulently without using the ATM card and PIN number. The complainant has not given any details or particulars to show how he is claiming Rs. 68,000/- towards compensation from O.Ps. The provisions of payment and settlement system Act, 2007 coupled with RBI guidelines area not applicable to instant case. Hence they prayed to dismiss the complaint with costs.
4. Upon notice the O.P.No.4 filed version. It is stated that the complaint is not maintainable either on law or on facts and hence liable to be dismissed as against this O.P. with costs. The complainant is neither a “Consumer” of this O.P. as defined in Section 2(1)(d) of the Consumer Protection Act, 1986 , nor this O.P. has provided any ‘service’ in connection with banking or financing or any other service referred to in Section 2(1) (o)the Act. As such this O.P. is neither is proper nor a necessary party to this complaint and the compliant is therefore liable to be dismissed against this O.P. The Reserve Bank of India in exercise of power conferred upon it by Section 35 A of the Banking Regulation Act, 1949 introduced a Scheme in the year 1995, known as Banking Ombudsman Scheme 1995. The Scheme has been modified from time to time. It is submitted that the fourth O.P. is an Authority appointed under the Banking Ombudsman Scheme, 2006 framed and introduced by the Reserve Bank of India with the object of enabling resolution of complaints relating to certain identified services rendered by Banks and to facilitate the satisfaction or settlement of such complaints. It has been provided under the scheme that the Banking Ombudsman shall receive and consider complaints relating to the deficiencies in banking or other services filed on the grounds mentioned in clause 8 of the BOS 2006 and facilitate their satisfaction or settlement by agreement or through conciliation and mediation between the bank concerned and the aggrieved parties or by passing an award in accordance with the BOS 2006. The complainant had approached this party vide complaint dated nil received at office of BO on 31.12.2012. The complaint was sent to State Bank of India for their comments vide letter dated 17.1.2013. The SBI advised us vide its letter dated 7.3.2013 that the transaction in dispute was successful transaction as per ATM log and no excess cash was found in the ATM on the material date. There was no report of hardware error in respect of the disputed transaction at the ATM on the day as stated by SDBI. Keeping in view the allegations made by the complainant that he has not carried out the disputed ATM transaction and the evidence submitted by the bank that the transaction were successful, the O.P.No.4 advised the complainant on April 17, 2013 that since the complaint required consideration of elaborate documentary and oral evidence and the proceedings before the Banking Ombudsman are not appropriate for adjudication of the complaint. The complainant was advised that he was at liberty to approach any other grievance redressal authority in accordance with the law. Therefore, there was no deficiency of whatever nature in the adjudication of the complaint by the O.P.No.4, hence prayed to dismiss the case.
However, the O.P. No.2 appeared through his learned counsel Y.Srirammurti but left the case after filing the version and did not remain present during the course of hearing. The O.P. No.3 and 5 did not prefer to appear in this case despite receipt of notice from this Forum hence the O.P.No.3 & 5 was set as ex-parte on 25.11.2013 respectively. The learned advocate for the complainant filed his written memo of argument on 2.4.2016.
5. On the date of final hearing, we heard the arguments at length from the learned advocate for the complainant as well as learned counsel for the O.P. No.1 and other O.Ps were found absent on repeated call. During the course of hearing of the dispute, we have also gone through the materials placed on the case record and also verified the CC TV footage on 09.02.2016 and recorded the facts on the case record. The learned advocate for the complainant during oral arguments contended that on 10.11.2012 in the ATM counter at Sanabazar while checking his account found that a sum of Rs.32,000/- was unauthorized withdrawn from his account and prior to that his balance was Rs.32,975.98 as ensured by the complainant on the same day. This fact was intimated to the O.P. No.1&2 and other O.Ps on different occasions but did not provide any relief and as a result he filed this consumer dispute to redress his grievance and prayed to direct the O.Ps to credit the amount to the account of the complainant. Hence, the complainant prayed before this Forum to direct the O.Ps to credit Rs.32,000/- in the account of the complainant along with interest @ 18% from the date of debit, to pay a sum of Rs.68,000/- towards compensation and directing the O.P.No.1 to pay Rs.100/- as compensation per day for non redressal of the grievance of the complainant as per the Payment and Settlement System Act, 2007 and other relief as deemed proper in the facts and circumstances of the case.
Per contra, the O.P. No.1 submitted orally that the complainant has stated clearly that a fraud is committed at the said ATM counter and somebody withdrew the money on his ATM card which is impossible as decided by National Commission in the case of State Bank of India Vs. K.K. Bhalla and the copy of the order enclosed hereto for proper appreciation and adjudication of the issues involved in the case because the alleged fraud committed in the instant case is due to factors beyond the control of the bank and as such the bank can’t be held responsible for deficiency in service and it is not liable to pay any of the reliefs claimed by the complainant. He also contended that ATM can only be used if the customer inputs his / her personal four digit secret number which is selected by the customer and not by the bank. The internet security is maintained by the bank and the customer is advised to keep his secret PIN in his memory so that no one can access his privacy. The reverse side of the ATM cards has got a magnetic strip and white strip for signature of the card holder where it contains the details of the customer. The learned counsel for the O.P.No.1 also contended that the complainant with the connivance of his confiderator played fraud on the bank and withdrew Rs.32,000/- because it is impossible to operate an ATM machine without ATM card and PIN, hence the burden is on the complainant to prove all the allegations made against O.P.No.1. He further submitted that in these type of cases merely because there is no security guard, the CC TV was not working on those dates and its footage was thus not available does not mean that the money could be withdrawn fraudulently without using the ATM card and PIN number. It is also contended that the complainant in his complaint nowhere stated that his ATM card has been stolen and his PIN was disclosed to persons other than himself then the CC TV coverage is helpful and it is an admitted fact that the complainant has stated that the ATM card and PIN remained in his self custody and knowledge. Hence, the learned counsel for the O.P.No.1 submitted that O.Ps are not liable to pay any of the amounts claimed by the complainant and the complaint is liable to be dismissed.
6. We perused the above pleadings of learned counsel for the complainant as well as for O.P. No.1, verified all documentary evidence and gave thoughtful consideration to the fact and circumstance of the case. After going through the above oral submissions and written arguments and careful verification of documents of CC TV footage, it appears that there was in fact unauthorized withdrawn of Rs.32,000/- from the account of the complainant on 10.11.2012 from the twin ATM counter installed at Sanabazar, Berhampur. For the better adjudication of this consumer dispute, the learned advocate for the complaint through a petition on 20.01.2014 under Section 13(4)(ii) of the Consumer Protection Act, 1986 read with Rule 10(1) (a) of the Consumer Protection Rules, 1987 prayed before this Forum to call for original CC TV footage of Sanabazar twin ATM counter and other vital documents of ATM transactions. In response to the aforesaid petition, the O.P.No.1 through a memo dated 27.3.2014 filed two CDs, No Excess Cash Certificates, ATM Log, Cash Balance Report, ej Log etc before this Forum for necessary perusal. After going through the aforesaid documents, the Forum decided to verify the CC TV footage of the ATM transaction in the presence of learned counsel for the complainant as well as for the O.Ps to ascertain the unauthorized withdrawal of the said amount. The Forum directed the learned advocate for the complainant as well as for learned counsel for the O.P. to remain present on 09.02.2016 for verification of the CC TV footage. On the day of verification of CC TV footage, we found that the complainant entered into the said ATM counter on 10.11.2012 at 19:57:41 PM and left the counter at 19:58:02PM after a short while. At the same time we also verified that on 10.11.2012 at 20:02:17 PM (at approximately 20:03 PM) from the ATM Card No. 6220180003300336520 a sum of Rs.32,000/- was withdrawn leaving a balance amount of Rs.975.98 in account No.00000030354703508 of the complainant. This fact is corroborated with the complaint and arguments of the complainant that the complainant after leaving the said ATM, the amount was unauthorizedly withdrawn from his account. After going through the CC TV footage, we are not convinced with the contention of learned counsel for the O.Ps that without ATM card and secret PIN number, no money can be withdrawn from ATM counter. In the instant case during the time of review of CC TV footage, we did not find any security arrangement that could prevent unauthorized persons to get into the said ATM counter. During review of CC TV footage, we have observed that an unauthorized person was remained in the ATM counter for a longer period and there were no security personnel present to drive him out from the said ATM counter. This proves the security lapses on part of the O.P. bank and as a result the hard earned money of the present complainant was unauthorizedly withdrawn by some unknown person. It is also a fact that the O.P. bank nowhere contended that a sum of Rs.32,000/- was not withdrawn from the account of the present complainant. In our view, bank is the custodian of customers’ money and O.P. bank can’t escape from his liability by taking plea of ATM card and PIN with the complainant and no amount can be withdrawn without ATM card and secret PIN number. In the present case, we observed that an amount of Rs.32,000/- was withdrawn unauthorizedly even in the absence of account holder, ATM Card and secret PIN number. In our considered view, the O.P. Bank failed to establish the negligence of complainant and the allegation of in connivance of the complainant with confiderator who played fraud on the bank to withdraw the said amount is also baseless and concocted as there is no cogent and convincing evidence on record to prove the same. Hence, it is the duty of the bank to refund the amount to the complainant which has been unauthorizedly withdrawn from the savings bank account of the present complainant. However, the O.P. No.1 is at liberty to recover the said amount from the culprit if arrested by the police in connection with the fraudulent withdrawn of money. The O.P. Bank can’t escape from his liability as nothing has been placed before us as to the security measures taken by the O.P. bank with regard to protection of the public money in the twin ATM counters established at Sanabazar. That apart, we have also observed from the case record that the poor complainant time and again redressed his grievances before the O.Ps but all went in vain and the O.Ps did not give any heed to his grievance as a result as a bona fide customer of the said bank he has been harassed physically and mentally with financial loss and he was also forced to file this consumer dispute himself and after sometime with the help of an advocate which is also expensive. Though he approached the O.P. No.1 & 2 for refund of his amount but he was not helped by anyone. Considering the fact and circumstance of the case, in our considered view, the complainant is also entitled for cost of litigation. Our finds are also fortified with the decision of the Hon’ble National Commission, New Delhi reported in 2015 CJ 838 (NC) in the case of Vidyawanti Vs. State Bank of India and Others, where it was held that “unauthorized withdrawal from ATM constitutes deficiency in service on part of bank”. However, after going through the citation of Hon’ble National Commission in Revision Petition No.3182 of 2008 decided on 7th April 2011 filed by the learned counsel for the O.P.No.1 in support of his case, we felt that the said citation is not applicable to this present case in view of the facts and circumstance explained and discussed herein above.
7. In the light of the above discussion and citation, we arrived at a decision that due to the negligence of the O.P No.1 & 2 some unauthorized person withdrew a sum of Rs.32,000/- from the savings bank account of the present complainant through the said ATM counter which amounts to deficiency in banking service. The O.P. No.1 &2 are now liable to pay interest on the aforesaid amount as per the rule for payment of interest on savings bank account. After going through the complain petition and on perusal of the pleadings of learned advocate for the complainant, we also found that there is no relief claimed against O.P.No.3, 4 and 5 in this case hence we would like to dismiss the case against the said O.Ps in this dispute.
8. In the result, the O.P.No.1&2 are directed to refund a sum of Rs.32,000/- to the savings bank account of the present complainant along with interest at the rate as applicable to savings bank account holders from the date of unauthorized withdrawal of the amount till on the date of refund of the same within a period of 2 months from the date of receipt of this order. The O.P.No.1&2 are also directed to pay a modest amount of Rs.2,000/- towards cost of litigation to the complainant within the same period failing which the complainant is at liberty to recover the entire amount under Section 25/27 of the Consumer Protection Act 1986. Since, in this dispute as discussed above, there is no specific prayer of the complainant against O.P. No.3, 4 &5, the case is dismissed against them. The consumer dispute is disposed of accordingly.
9. The order is pronounced on this day of 4th April 2016. The office is directed to supply copies of the order to parties free of cost.
