Kerala

Thiruvananthapuram

CC/13/137

N GOPALAN NAIR - Complainant(s)

Versus

THE GENERAL MANAGER SBT - Opp.Party(s)

28 May 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANNATHAPURAM

PRESENT

   SRI.P.V.JAYARAJAN     : PRESIDENT

SMT.PREETHA.G.NAIR  : MEMBER

                                  SRI.VIJU.V.R                  : MEMBER

CC.NO.137/2013 (Filed on : 02/04/2013)

ORDER DATED: 28/05/2022

COMPLAINANT

N.Gopalan Nair,

S/o.Narayana Kurup,

Vrindavan, Mankulam  Lane,

Pappanamcode.P.O

Thiruvananthapuram

         (By Adv.Ajeesh.G.R)

                                                          VS

OPPOSITE PARTIES

1. The General Manger,

State Bank of Travancore,

Head office, Poojappura,

•  

2. The Manager,

State Bank of Travancore,

Industrial Estate Branch,

Pappanamcode, Thiruvananthapuram – 19

(By Adv.G.S.Kalkura)

                                                                              ORDER

SMT.PREETHA.G.NAIR          : MEMBER

 1. The complainant is maintaining a Savings Account with opposite parties Bank. On 28.11.2012 the complainant went to the ATM counter of opposite parties situated opposite to Pareeksha Bhavan, Poojappura to withdraw an amount of Rs.2000/- from the ATM No.1 and after inserting the ATM card the complainant found that the ATM,No.1 was not functioning. The complainant did not entered his password. So the complainant went to the ATM No.2 at the same ATM counter and withdrawn an amount of Rs.2000/-. On 29.11.2012 the complainant who uses net banking facility of the opposite parties verified the statement of the complainant’s savings account. The complainant got bewildered and shocked to see that on 28.11.2012 an amount of Rs.35,000/- was withdrawn from his account without his knowledge. The withdrawal of Rs.35,000/- on 28.11.2012 was not made by the complainant. The complainant had carefully kept the ATM card as well as the password PIN number for operating the card in his personal custody /knowledge. The complainant on 30.11.2012 went to second opposite party’s office submitted a written complaint to them regarding the aforesaid unauthorized and fraudulent withdrawal of Rs.35,000/- from the complainant’s account. The complainant on 14.12.2012 filed a complaint before the Hon’ble Banking Ombudsman since no action was taken by the opposite parties bank. The Banking Ombudsman passed an order on 13/01/2013 with an advice to opposite parties to file a complaint with police. On 7^th December 2012 complainant’s son on behalf of the complainant met the chief Manager of opposite parties in order to know about the progress of his father’s complaint. The Chief Manager informed the complainant’s son that the opposite parties are aware of the fact that some malpractice were going in Twin ATM counter situated at Poojappura where the complainant lost his money. On 30.01.2013 the opposite parties submitted a letter to the Inspector of Police, Poojappura Police Station along with a copy of the complaint to register a case on the alleged theft committed on the complainant’s savings account. On the basis of letter dated 30.01.2013 the police has registered an FIR, as crime no.112 under section 379 of IPC. It is the duty of the opposite parties to provide and install defect free ATM’s at counters so that theft and fraudulent withdrawal from customers account could be prevented. It is the duty of the opposite parties to rectify the mechanical and technical defect of ATM, which the opposite parties failed as far as ATM No.1 at Poojappura is concerned and which resulted in the theft of Rs.35,000/-, hence this complaint.

 2. Written version submitted by second opposite party on behalf of first opposite party stating the following contentions. The complainant is a holder of savings bank account with the second opposite party branch, operated by him subject to the terms and conditions of the contract and savings bank rules and regulation, applicable from time to time. The complainant has been issued with an ATM Debit Card so as to facilitate the complainant to operate his account as and when required by him. The complainant has been issued with the ATM card on his request on 08.04.2004 and has been operating the same at his convenience. The password (Pin number) is known to the complainant alone. If the complainant has acted contrary to the instructions and the terms and conditions of the ATM facilitiy then these opposite parties are no way liable or responsible for the negligent act and latches on the part of the complainant.  The opposite party on the basis of complaint received from the complainant and his son as there has been illegal withdrawal of an amount of Rs.35,000/- from his account, the opposite parties carried out an enquiry. The opposite parties on verification of the video footage of ATM No.1, it was revealed that the complainant had inserted his ATM card and gave his pin number and without waiting the transaction to be completed or cancelling the transaction, carelessly and negligently ejected the ATM card and moved on to the ATM no.2 where he inserted the ATM card and carried forward the transaction by withdrawing an amount of Rs.2000/-. On completion of said transaction, the complainant left the ATM counter.  Thereupon another unidentified person, taking advantage of the non cancellation of transaction entered by the complainant at ATM No.1 withdrew an amount of Rs.35,000/-. The above negligent and irresponsible act of the complainant had resulted in withdrawal of money by a third person for which the opposite parties is no way liable or responsible nor can be blamed for the acts of the complainant. There has been no negligence or deficiency of service on the part of the opposite parties in the matter of the above withdrawal of money by a third person. The complainant had informed the opposite parties that he had lost Rs.35,000/- in the ATM, the opposite parties immediately contacted the concerned Poojappura Branch and advised them to verify Electronic journal Log & cash in the ATM. As informed by them, the opposite parties advised the complainant that there was no excess money in the ATM of the concerned branch as the electronic journal confirms that transaction as successful and there is no excess cash in the ATM on that day.  Subsequently when the complainant contacted the Chief manager, Zonal Office, they again verified concerned records from the system and confirmed that the transaction is successful. The ATM that has been installed are defect free and fool proof free and there has been no fraudulent withdrawal from the customer’s account. The withdrawal of the amount from complainants account is on account of his own misdeeds. The complainant has not sustained any loss on account of any of the acts on the part of opposite parties on the other hand it is the complainant own negligent act in operating the ATM had resulted in withdrawal of Rs,35,000/- by an unidentified person. 

3. Complainant and opposite parties filed chief affidavit and documents. Exts. P1 to P8 marked and PW1 was cross examined by opposite parties. Exs.D1 to D3 marked from the side of opposite parties and cross examined by complainant. Argument note filed by complainant.

4. Issues to be considered are :-

1. Whether there is any deficiency in service and unfair trade practice on the side of the opposite parties?
2. If so what is the relief and cost?

5.Issues I & II :- The specific case of the complainant is that he lost Rs.35,000/- due to unauthorized withdrawal by third party. Admittedly complainant is a holder of savings bank account with second opposite party operated by him subject to the terms and conditions of the contract. The opposite party stated that on verification of the video footage of ATM No.1 it was revealed that the complainant had inserted his ATM card and gave his PIN No and without waiting the transaction to be completed or cancelling the transaction, carelessly and negligently ejected the ATM card and moved on to the ATM No.2 where he inserted the ATM card and carried forward the transaction by withdrawing an amount of Rs.2000/- . According to the complainant on 28.11.2012 the complainant went to ATM NO.1 and inserted his ATM card and found that ATM not functioning and he did not entered his password, the monitor of the ATM No.1 was blank. Then the complainant went to ATM No.2 of the same ATM counter and inserted his ATM card and withdrawn Rs.2000/-. As per Ext.P1 dtd 30.11.2012 the complainant submitted written complaint to second opposite party. The complainant filed a complaint before Banking Ombudsman and they closed the complaint and issued a letter dated 13.01.2013 with an advice to opposite parties to file complaint before Police authority. Ext.P3 shows the complaint before Ombudsman. Ext.P5 shows the complaint given to Inspector of Police by second opposite party. Ext.P6 is the copy of FIR taken by the SI of Police, Police station, Poojappura. As per Ext.P8, the account statement of complainant, shows that on 29.11.2012 ATM 3061 SBT withdrawn Rs.2000/- and ATM 6264 withdrawn Rs.35,000/-. Ext.P8 shows two withdrawals from two ATM. At the time of cross examination DW1 deposed that in 2012 November and October he was working at Bangalore. The opposite parties had not produced the Manager at the time of the incident. At the time of cross examination of complainant deposed that Ext.P6  ൻറെ അടിസ്ഥാനത്തിൽ   police station  ൽ പോയി investigation നെ  കുറിച്ചു അനേഷിച്ചിരുന്നോ      ( Q )  ആദ്യ   എൻറെ   മൊഴി എടുത്തു.  അതിനു ശേഷം ഞാൻ പോയി അനേഷിച്ചു.  police രണ്ട് north Indians നെ Bangalore ൽ  നിന്നു arrest ചെയ്തു  Poojappura  police lockup ൽ ഇട്ടു. SI രണ്ടു പേരെയും എന്നെ കാണിച്ചു ആകണ്ടവരാന്നോ CD ൽ ഉണ്ടായിരുന്നത് (Q)  അതിൽ ഒരാൾ CD ൽ ഉണ്ടായിരുന്നു(A) പിന്നിട്‌ ഉള്ള സംഭവങ്ങൾ police അറിയിക്കാമെന്ന് പറഞ്ഞു . Police  അറിയിച്ചില്ല. In Ext.P2 the reminder given by the complainant to second opposite party mentions that the son of complainant visited Mr.Sreekumar ATM channel Manager Zonal Office, SBI has informed that he has not received any complaints from the branch. However he is aware of some malpractice going on in twin ATM counters where such kind of frauds has happened in the recent past by some miscreants.  For the loss and damage caused to the complainant while using ATM, the opposite parties have to be compensated.

6. On the available evidence it is clear that the complainant has lost Rs.35,000/- on 29.11.2012. In the police station one of the north Indians was identified by the complainant who was present in the ATM. The complainant stated that on verification it was found that there was no security arrangements in the opposite parties ATM counter. According to the complainant he was using debit cum ATM card, the maximum limit to withdraw money at one time was only Rs.20,000/-. The withdrawal of Rs.35,000/- by third party is clear evidence of hacking of the ATM for which opposite parties are responsible. If an account is maintained by the bank, the bank itself is responsible for its safety and security. The opposite parties had not produced evidence to disprove the case of complainant.

            In view of the above discussions we find that there is deficiency in service on the part of opposite parties.

             In the result, complaint is allowed. We direct the opposite parties jointly and severally to pay Rs.35,000/- amount lost from the complainant and pay Rs.10,000/- as compensation for mental agony and pay Rs.2500/- as cost of the proceedings, failing which the amount except cost carries interest @9% per annum from the date of order till realization.

                A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

               Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 28^th day of May2022.

                                                                                       Sd/-

P.V.JAYARAJAN   : PRESIDENT

 

                                                                                         Sd/-

                                          PREETHA G NAIR: MEMBER

 

                                                                                             Sd/-

                                          VIJU.V.R    : MEMBER

 

Be/

APPENDIX

CC.NO.137/13

Witness for the complainant

 

PW1                      - N.Gopalan Nair

 

Exhibits for the complainant

 

Ext.P1                             - Copy of the letter dated 30.11.2012

 

Ext.P2                            - copy of letter to the Manager, SBT, Industrial Estate,

                                        Pappanamcode,Tvm

 

Ext.P3                            - Copy of letter dated 14.12.2012

 

Ext.P4                            - CD including cover

 

Ext.P5                            - Copy of letter dated 30.01.2013

Ext.P6                            - Copy of FIR

 

Ext.P7                            - Copy of letter dated 31.01.2013

 

Ext.P8                            - Copy of bank statement

 

Witness for the opposite parties

 

DW1                               - Ramkumar.V

 

Exhibits for the opposite parties 

 

Ext.D1                            - Copy of bank statement

 

Ext.D2                            - Copy of bank statement

 

Ext.D3                            - Copy of letter dated 31.01.2013

 

Court Exhibits                 - NIL

 

 

                                                                                                   Sd/-

                                                                                           PRESIDENT