BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986), MEDAK AT SANGAREDDY

                   Present:Sri P.V.Subrahmanayma, B.A.B.L., PRESIDENT

Smt. Meena Ramanathan, B.Com., Lady Member 

Sri G. Sreenivas Rao,M.Sc.,B.Ed.,LL.B.,PGADR (NALSAR),

                                                           Male Member

Wednesday, the 19^th day of January 2011

CC. No.  41 of  2010

Between:

Mr. Nimmagalla Balraj, S/o Kistaiah,

Age: 31 years, H.No. 1-19/1,

New Hunnapur Village,

Shivampet (M), Andol (T),

Medak – 502 273.                                                                             … Complainant

          And

The Manager,

State Bank of India,

Sangareddy Branch,

Sangareddy.                                                                                   ….Opposite party

This case came up for final hearing before us on 11.01.2011 in the presence of the complainant in person and Sri. M. Sunil Kumar, advocate for opposite party, upon hearing arguments, on perusing the record and having stood over for consideration till this day, this Forum delivered the following

O R D E R

(Per Sri P.V. Subrahmanyam, President)

                   This complaint is filed Under Section 12 of  The Consumer Protection Act, 1986 to direct the opposite party to pay Rs.5,708/- towards misuse of the amount with interest, to pay compensation of Rs. 55,000/- and costs of Rs. 10,000/-.

                   The averments in the complaint in brief are as follows:

1.                The complainant is an auto driver residing in Andole, Medak District. He opened a savings bank account in the opposite party bank with account No. 31080257134 for which a pass book was given to him on 05.03.2010. The complainant has made the following transactions in his account.

              Deposits:                                                                   Withdrawals:

After the above transactions there was a balance of Rs. 5,900/- in the account till 01.06.2010. The complainant visited the opposite party branch ATM on 02.06.2010 and withdrawn Rs. 100/-, which is the last transaction made by him and the balance in the account was Rs. 5,800/- . While on 03.06.2010, to his shock, he received an SMS from the bank stating that Rs.2,344/-, Rs.1528/-, Rs.918/- and Rs. 918/- were deducted through POS from the savings bank account number 31080257134 and the current available balance in the account was Rs. 92/- only. On 04.06.2010 the complainant rushed to the opposite party and met the Assistant manager, Mr. Srinivas Rao and apprised him of the situation and requested for clarification about the illegal deductions of the amounts from his account. He was informed that the said payments were deducted for Point Of Sale (POS) and given an online transaction sheet to the complainant. The Assistant Manager has further stated that these are the general frauds happening these days and stated that the complaint of the complainant will be forwarded to the head office. Thereafter the complainant regularly visited the opposite party and he was informed that the matter was under investigation and he was advised to give report to police, Sangareddy - which he did. The complainant saved the money in his account for repayment of hand loan and for purchase of books for his children, but the negligence of the opposite party caused loss to him. So far there is no communication from the opposite party. They are not bothered nor is there any reply to the complainant about his grievance due to which the complainant suffered mental agony. He could not purchase books for his children and he is not in a position to repay the hand loan. Hence the complaint.

2.                The opposite party resisted the claim of the complainant by filing his version, which is in brief as follows:

                    The claim of the complainant is false, incorrect and baseless. The various allegations made in the complaint are emphatically denied. The complaint is bad for non joint of necessary parties ie.  the merchant establishment i.e. POS and its banker through which the alleged amount was drawn without whose presents no effective adjudication can be made in the above complaint. The complainant cannot have any grievance against the opposite party. The complainant has suppressed material facts. There is a glaring fraud in the matter of the encashing the amounts and the complainant’s negligence, complicity, omissions and commission cannot be ruled out because it is quite difficult for the alleged misuse of the debit card without the knowledge and consent of the complainant. The opposite party cannot be roped in for the alleged liability as it is in no way responsible or connected with the wrongful utilization of the debit card. In view of the complex and intricate questions of fact and law this forum has no jurisdiction to adjudicate the complaint. It is true that complainant is an auto driver and is a resident of Andole and on his request the opposite party had opened the savings bank account in question and issued pass book on 05.03.2010 and that he had made deposits and withdrawals on the dates mentioned in the complaint and the last transaction made by him was withdrawal of Rs. 100/ through ATM of the opposite party branch on 02.06.2010 and the balance that was available in his account was Rs.5,800/-. It is also true that on 04.06.2010 the complainant met the Assistant manager of the opposite party Mr. Srinivas Rao and apprised him of the situation who informed him that the payments on 03.06.2010 were traced in merchant establishment i.e. point of Sale and gave online transaction sheet to the complainant but it is incorrect to state that the Assistant Manager Mr. Srinivas Rao further stated to him that these are general frauds happening these days. It is however true that the complainant was informed that his complaint was forwarded to the head office and that he has regularly followed with the opposite party. The complainant was informed that the matter was under investigation and he was advised to give a report to police. When the complainant was aware of the fact of debiting the amount from his account on 02.06.2010 when his card was swiped on the point of sale one after the other in quick succession the delay on his part in approaching the opposite party on 04.06.2010 exhibits suspicion, complicity and ill motive  on the complaint. There is no negligence on the part of the opposite party as alleged.  The complainant himself must have been negligent or he must have facilitated fraud to be perpetrated for unless he parts with the card and the PIN, amount cannot be misused or mis-utilized The complaint is outside the ambit of the scheme of The Consumer Protection Act and the very nature of the case setup by the complainant is a serious nature of civil dispute enabling the civil court alone to try and dispose of the case against the opposite party and necessary parties. There are no merits in the complaint. The complaint is frivolous and vexatious. The complaint may therefore be dismissed with exemplary costs.

3.               The complainant filed his evidence affidavit and marked Exs. A1 to A7 on his behalf, in order to prove the averments made in the complainant. The opposite party filed his evidence affidavit and marked Ex.B1on his behalf. Complainant filed a memo to treat his evidence affidavit as written arguments and advanced oral arguments. On behalf of the opposite party written arguments are filed and oral arguments are submitted in reply to the oral arguments of the complainant. Perused the record.

4.                The point for consideration is whether there is negligence and deficiency in service on the part of the opposite party and whether the complainant is entitled to the amounts claimed in the complaint?

Point:

5.                The facts which are not in dispute between the parties are that the complainant has opened a savings bank account in the opposite party bank on 05.03.2010 for which a pass book was given to him and ATM Debit card facility was also given to him and that he has made deposits and withdrawals on different dates up to 02.06.2010. According to the complainant on 03.06.2010 he received an SMS that Rs.2344/-, Rs. 1528/-, Rs.918/- and Rs.918/- were deducted from his account through POS and available balance in his account was Rs. 92/- only, therefore on 04.06.2010 he rushed to the opposite party.  The opposite party also admitted about the complainant coming to them and apprising the situation on 04.06.2010 and that they have forwarded his complaint to the head office and further advised him to give a report to police.

6.                According to the complainant he has not used the ATM Debit card in any shop or for any purpose except to withdraw money from the ATM centers on the dates mentioned in the complaint and he does not know how the various amounts were deducted from his account on 02.06.2010. According to the opposite party the payments of Rs. Rs.2344/-, Rs. 1528/-, Rs.918/- and Rs.918/- on 02.06.2010 were traced as merchant establishment ie. Point Of Sale and the complainant either must be negligent or must have facilitated the fraud to be perpetrated for unless he parts with the card and the PIN, amount cannot be misused or mis-utilized. Therefore according to the opposite party there is neither negligence nor deficiency in service on the part of the opposite party. Moreover the nature of the case set up by the complainant is a serious nature of civil dispute enabling the civil court alone to try and dispose of the case and hence the complaint deservers to be dismissed with exemplary costs.

7.                Ex.A1 is copy of statement of account, which was given by the opposite party to the complainant, showing the disputed withdrawals. Ex.A2 is copy of statement of account. Ex.A3 is copy of written complaint of the complainant to the opposite party. Ex.A4 is letter of acknowledgement of receipt of nomination sent by the opposite party. Ex.A5 is copy of complaint to police. Ex.A6 is copy of state bank shopping card and Ex.A7 is ATM swipes center branch lock. Ex.B1 is copy of statement of account relating to the complainant.

8.                The first contention of the opposite party is that the complaint is bad for non joinder of necessary parties i.e. the merchant establishment where the purchases were made with the aid of the debit card and its banker. According to the opposite party in the absence of the said two parties no effective adjudication of the claim in this complaint can be made.

9.               On 04.06.2010 the complainant has given Ex.A3 written complaint to the opposite party who has acknowledged the receipt of the same on the same date. Even though it is stated in the version of the opposite party that the complaint of the complainant was forwarded to their head office and the matter was under investigation, no proof is placed before this forum by the opposite party in evidence of forwarding of the complaint and that the matter was under investigation. It is not known whether the said investigation is completed or not, if completed what is the out come of it. The only document marked on behalf of the opposite party is statement of account of the complainant. A rural person like the complainant,who is an auto driver, cannot be expected to trace out the fraud. If really the opposite party evinced any interest in the matter, it is not difficult for it to ascertain to which bank account the disputed amounts were transmitted from the account of the complainant on 02.06.2010. As seen from Ex.A7 all the disputed transactions were made on 02.06.2010 between 8:22 p.m. and 8:42 p.m. i.e. within a span of about 20 minutes. Therefore probably all the four debits must have been in one and the same shop and the bank account to which the amounts were transmitted must be of that shop only. The opposite party appears to have not at all evinced any interest in this matter to protect its customer. In the circumstances, the contention of the complainant, that some other customers like him also faced similar problems and their complaints are also pending with the opposite party bank unattended, appears to be true and correct. The contention of the opposite party that the complainant suppressed material facts like the name of the merchant establishment and its banker cannot be believed to be correct. On the other hand it is understood from the circumstances the opposite party must have ascertained in their investigation as to the merchant establishment in which the card was used and to which bank account the amounts were transmitted, from the account of the complainant and the said facts are suppressed by the opposite party for the reasons best known to it. Therefore the contention of the opposite party that the complaint is bad for non-joinder of necessary parties cannot be accepted.

10.              The next contention of the opposite party is, complex and intricate questions of fact and law are involved in this case and therefore civil court alone is competent to decide the dispute in this case and hence this forum has no jurisdiction to adjudicate the complaint. The opposite party has not stated any such complex and intricate questions of fact and law in this case. It is to be observed here that as per Section 3 of the Consumer Protection Act the provisions of the Act shall be in addition to and not in derogation of the provisions of any other Law. As already stated above the opposite party himself appears to have knowledge regarding the merchant establishment in which debit card was stated to have been used and its banker.

11.             Further contention of the opposite party that the disputed transactions are dated 02.06.2010 and if really the complainant is not concerned with the said transactions why he has approached the bank late on the third day i.e. on 04.06.2010 even though he has received an SMS about the transactions. According to opposite party the said delay on the part of the complainant exhibits suspicion, complicity and ill motive of the complainant. This contention has no force at all because the disputed transactions are on 02.06.2010 night between 8:22 to 8:42 p.m. and the complainant’s version is that he has seen SMS on the morning of 03.06.2010, which is not disputed by the opposite party. Therefore the complainant approaching the bank in the next day i.e. 04.06.2010 cannot be said to be suspicious and his complicity cannot be doubted. The delay is only one day after receiving the SMS. A person like the complainant who earns his living by running an auto cannot be expected to rush immediately without attending to his works. Therefore the delay of one day in approaching the bank cannot be said to be abnormal and hence this contention of the opposite party also has no force.

12                Under normal circumstances the contention of the opposite party that without use of the debit card, transactions cannot be made and because the debit card is in possession of the complainant normal presumption is that he must have facilitated the fraud to be perpetuated is correct. But in the instant case, taking into consideration the avocation of the complainant and use of the card on 02.06.2010 night it must be held that the complicity of the complainant is remote. The opposite party has access to know the merchant establishment where the card was used and its banker, but it has not produced any such proof. Not submitting the particulars of the merchant establishment and its banker amounts to negligence and deficiency of service on part of the opposite party.

13               During arguments the learned counsel for opposite party has contended that J.P. role of the bank will show the merchant establishment where the card was used and bank to which the amounts were transmitted. When the learned counsel was directed to produce such J.P. role , in the next date of adjournment he has stated that J.P role shows only online transactions but not transactions made at shops therefore J.P. role does not contain the disputed transactions of this case.

Adding to the above, now-a-days the banking system is totally computerized and every transaction made by the debit card of the customer can be traced very easily because at the point of sale (POS) made in any shop/establishment, such shop issues a “customer’s slip” showing the amount deducted for the transaction concerned and retains with him the “merchant’s copy” with the signature of the debit card holder, which is subsequently furnished at the merchant’s bank to realize the transaction amount. Thus, the merchant’s bank liason with this SBI (bank in this case), for final realization of the amount. In this process, at every stage the records can be traceable like POS -  Merchant’s copy – Merchant’s Account holder’s bank – Customer’s Account holder’s bank.

                   Whereas the opposite party i.e. the Nationalized SBI bank failed to furnish the required information to its customer or atleast to the forum, leading to great suspicion on the so called “Customer Helpline”/ “Customer Care” which amounts to deficiency in service.

14               In view of the discussion supra, it is held that there is negligence and deficiency in service on the part of the opposite party and the complainant is entitled for the four disputed amounts viz., Rs. Rs.2344/-, Rs. 1528/-, Rs.918/- and Rs.918/- totaling Rs. 5,708/- with interest. He is also entitled to compensation for mental agony and costs. The point is answered in favour of the complainant.

15.              In the result the complaint is allowed with costs. The opposite party is directed to pay to the complainant Rs. 5,708/- (The total of the four disputed amounts) with interest at 9% p.a. from 02.06.2010 till realization. The opposite party is further directed to pay Rs.2,000/- to the complainant towards compensation and Rs. 1,000/- towards costs of this litigation. One month time is granted for payment of the above amounts.          

                     Typed to dictation, corrected and pronounced by us in the open forum this  19^th day of January, 2011.

          Sd/-                                           Sd/-                                               Sd/-

  PRESIDENT                       LADY MEMBER                            MALE MEMBER

Copy to

1. The Complainant              copy delivered to the Complainant/
2. The Opposite parties                         Opposite parties On ______
3. Spare copy

Dis.No.       /2011, dt.