Karnataka

Belgaum

CC/601/2015

Irappa L Patil - Complainant(s)

Versus

The Manager, State Bank Of India - Opp.Party(s)

R K Patil

14 Jul 2017

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.601/2015

 

                     Date of filing: 11/12/2015

 

                                                                  Date of disposal: 14/07/2017

 

P R E S E N T :-

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

   

 

COMPLAINANT      -

Shri.Irappa S/o Laxman Patil, Age: 61 Years, Occ: Agriculture, R/o: At/Post: Kurihal, Tq: & Dist.Belagavi.                            (Rep. by Shri.R.K.Patil, Adv.)

- V/S –

 

 

OPPOSITE PARTY

The Manager, State Bank of India, Risaldar Galli Branch, Belagavi.                         (Rep. by Shri.V.S.Prabhu, Adv.)

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to refund the illegal withdrawn amount deposited by the complainant on his S.B. A/c of Rs.39,990/- and further interest @ 18% p.a. till realization of entire amount and Rs.5,000/- towards compensation for mental agony.

 

2.      The facts of the case in brief are that;

 

          It is case of the complainant that, the complainant had opened an S.B. bearing No.31759754466 in OP/Bank and deposited an amount of Rs.45,858/- and out of the same the complainant withdrawn an amount of Rs.3,000/- on dtd: 14.10.2015 and further on dtd: 18.10.2015 he received ripited phone calls on his mobile No.9449952250 from mobile No.08404828763 saying that, I am calling from OP Bank head office Bangalore and asked the name of complainant and if complainant did not furnished the name then your account will be terminated. Immediately, the complainant received the massage of transactions of withdrawal S.B.I. Buddy as below;

1.First time withdrawn dtd: 18.10.2015 POS 101815777456 State Bank Buddy S.B.I. epa 9999.00 32859.59 Cr.

2.Second time withdrawn dtd: 18.10.2015 POS 101815778998 State Bank Buddy S.B.I. epa 9996.00 22860.59 Cr.

3.Third time withdrawn dtd: 18.10.2015 POS 101815779533 State Bank Buddy SBI epa 9996.00 12864.59Cr.

4.Fourth time withdrawn dtd: 18.10.2015 POS 101815779548 State Bank Buddy SBI epa 9996.00 total amounting to Rs.39990/- and balance amount of Rs.2,868.59.

 

          Immediately on the next day the complainant approached on OP/Bank on dtd: 19.10.2015 and intimated all the facts and further the OP/Bank Manager also called upon the said mobile phone No.08404828763 and enquire the matter at that time the said person replied and the manager reply to the complainant that, the said amount will be repaid to the complainant and further OP/Bank Manager requested the complainant to give complaint in writing and hence the complainant has given in writing which was received by the OP on dtd: 19.10.2015, but did not made any enquiry the matter not provided proper services which amounts to unfair trade practice.  

 

          Finally, the complainant has got issued a legal notice to the OP on dtd: 03.11.2015 through his counsel and the said notice is duly served to the OP. But, the OP falsely reply to the said notice and contending that, the complainant might have disclosed pin numbers etc., is all false. Hence, the complainant has constrained to file this complaint.  

 

3.      After issue of notice to the Opponent. The Opponent has appeared through his Counsel and resisted the claim of the complainant and denying the entire case of the complainant inter-ailia and further contended that, the complainant is the master of his Account for withdrawing the amount with the help of ATM Card by using secret code number (PIN number) and further the case is not tenable before this Forum, as on dtd: 18.10.2015 the point of sale, ATM purchases “BuddY” online on four different times as shown in the statement of account of the complainant, are not within the jurisdiction of this Hon’ble Forum. Therefore, on this count also the complaint deserves to be dismissed.

 

          It is further OP contended that, the ATM Card will be issued with a special instruction not to reveal the PIN number to anybody if the ATM Card and the PIN number made known to anybody other than the Complainant there will be chance of withdrawing the amount by an unauthorized person. It is the responsibility of the Complainant not to part with the ATM Card and the PIN number. Any amount withdrawn with the help of ATM Card immediately or on the next day, it will be shown in the Statement of Accounts. Except the Complainant, no other person empowered to withdraw the amount. In case, if the amount is withdrawn with ATM Card and PIN Number, the same numbers will be displayed in the Statement of Accounts. The OP-Bank given a proper reply to the legal notice by its letter dated;10.11.2015 and informed that, the fraudulent persons had contacted over phone to the complainant and asked for ATM Card details such as PIN (Personal Identification Number) CVV Number  (Card Verification Value Number) and one time pass secret PIN, which were disclosed by the complainant to such a fraudster and therefore, the said fraudster has used the said details and authorized the debit POS (point of sale) purchase through Buddy as evidence from statement of account of the complainant and further OP-Bank contended that, when the complainant enquired about the said transaction, the OP-Bank has immediately advise the complainant to file FIR, with Police Department against such fraudster. As per terms and conditions of issue of debit-cum-credit card, the OP-Bank bears no liability for unauthorized use of ATM and Card Holder complainant is fully responsible for the same and there is no deficiency in service on the part of the OP-Bank and accordingly it is prayed for to dismiss the complaint with costs.

 

4.      The Adv. for complainant has filed his affidavit in lieu of evidence in support of his case. On behalf of complainant has produced 6 documents i.e. Xerox copy of Bank Passbook, Office copy of notice, Postal receipts, Postal Acknowledgement, Application submitted by complainant to the OP-Bank and Reply notice, which are marked as Ex.P-1 to Ex.P-6, as against this, the OP has filed his affidavit and produced 03 documents i.e. Proforma of application form of ATM Card, Booklet of ATM Card and Statement of account, which are marked as Ex.R-1 to Ex.R-3, for sake of our convenience, we have marked P & R series. The complainant has filed his written argument, the Adv. for OP has argued the matter. Heard the argument of OP, the argument of complainant is taken as heard.

           

Now, on the basis of these facts, the following points that would arise for our consideration:

                    

1.	Whether the complainant proves the deficiency in service on the part of OP-Bank?
2.	To what relief the parties entitled?

 

 

5.      Answer to the above Points:-

 

 

01. In the Negative.

 

02. As per final Order.

 

 

                          R E A S O N S

 

6.  POINT NO.1:  It is not dispute facts are that, the Complainant is the Customer of the OP-Bank and he had opened an S.B. bearing No.31759754466 in OP-Bank and deposited an amount of Rs.45,858/- and that he was operating his accounts.
It is further case of the complainant that, the complainant has withdrawn an amount of Rs.3,000/- with the help of ATM Card on dtd: 14.10.2015 and further on dtd: 18.10.2015 the complainant has received the massage of transactions of withdrawal S.B.I. Buddy as below;

1.First time withdrawn dtd: 18.10.2015 POS 101815777456 State Bank Buddy S.B.I. epa 9999.00 32859.59 Cr.

2.Second time withdrawn dtd: 18.10.2015 POS 101815778998 State Bank Buddy S.B.I. epa 9996.00 22860.59 Cr.

3.Third time withdrawn dtd: 18.10.2015 POS 101815779533 State Bank Buddy SBI epa 9996.00 12864.59Cr.

4.Fourth time withdrawn dtd: 18.10.2015 POS 101815779548 State Bank Buddy SBI epa 9996.00 total amounting to Rs.39990/- and balance amount of Rs.2,868.59.

 

        It is the specific contention of the Complainant that, the said amount has been fraudulently withdrawn with the help of POS ATM Card Purchased and the PIN number provided. Therefore, the burden heavily rests upon the Complainant to prove that, the POS ATM Card Purchased with the PIN number was fallen in the wrong hands and amount has been withdrawn without the knowledge of Complainant. It is mandatory duty on the complainant to establish as alleged in the complaint as well as affidavit evidence, the Complainant has to prove by adducing legal and admissible evidence that, either the ATM Card along with PIN number were stolen from his custody or that without his knowledge, the said numbers were taken away from his custody and withdrawn the amount. Therefore, keeping in view of this aspect of the matter now we will proceed to examine whether the Complainant has adduced the legal evidence to substantiate his case?

 

7.    The Complainant in the instant case, it is not the case of complainant that, the ATM Card with PIN number were missed from his position or that somebody have committed theft of them and then they have withdrawn the amount from his account fraudulently and he lodged complaint before the concerned Police and investigate the same. But, the case of the complainant is that, somebody has used his PIN Number and used POS, the same has been done by the said fraudster has used the said details and authorized the debit POS purchase through Buddy. It is an evident as evidence from statement of account, the statement produced by the OP-Bank is marked as Ex.R-3, regarding withdrawn of amount, the complainant has enquired about the said transaction, the OP-Bank has advised that, immediately file complaint before the Police against such fraudster.

 

8.     Further, the Complainant in the instant case not produced any admissible evidence to show that, how the amount from his account fraudulently withdrawn without the assistance of his ATM Card with PIN number. There is also no evidence forthcoming to show that his ATM Card and PIN number was manipulated by somebody else. For that proposition we would like to rely a Revision Petition No.3182/2008 of Hon’ble National Consumer Disputes Redressal Commission, New Delhi. In the case of State Bank of India V/s K.K.Bhalla, wherein it has held that, the “fraudulent withdrawals” occurred either because of the ATM Card or the PIN number fell in wrong hands and another recent decision reported in 2017 (I) CPR 262 (NC) wherein the Hon’ble National Commission held that, Bank cannot be held accountable for fraud committed by third parties. The said principles makes it clear that, without making use of the ATM Card with PIN number no withdrawals can be made and any transactions made pertains to POS, it is not responsible of Banks. Under such circumstances, the ATM holder ought to have taken more care towards operating the PIN number. The Complainant being the holder of ATM Card with PIN number as to specifically plead and then adduce an admissible evidence that, the said ATM Card and PIN number either stolen or that somebody taken away from his position and thereafter money was withdrawn fraudulently.

 

    The OP-Bank contended that, it is not a duty of the OP to maintain all accounts of the public at large who have opened the account and further contended that, at the time of issuing the ATM Card the OP-Bank has given direction towards how to operative and maintain PIN Secrete code Number without disclosing the same to others. Under such circumstances, it is a duty of the complainant has to maintain proper his ATM card and PIN number and even the complainant has not made effort to lead supporting evidence or no such evidence forthcoming from the side of Complainant. Mere pleading regarding fraudulent withdrawing amount from his account is not sufficient to hold that, there is a deficiency of OP-Bank and the said pleading are not helpful to the complainant. Hence, for all these reasons, we are of the considered view that, the Complainant has failed to prove the deficiency in service on the part of the OP-Bank. Hence, we answer the Point No.1 in the negative.  

 

9.  POINT NO.2: The Complainant has failed to prove the deficiency in service on the part of the OP-Bank, as such there is no occasion arises to award any relief in favour of the Complainant. The Complaint deserves to be dismissed, in the result we proceed to pass the following

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           

O R D E R

 

            For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is hereby dismissed. No order as to cost.

 

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 14^th day of July, 2017).

 

Sri. A.G.Maldar,     President.

Smt. J.S. Kajagar,    Lady Member.