Karnataka

Kolar

CC/41/2016

Sri.Vasudeva Holla.M - Complainant(s)

Versus

The Manager,SBI - Opp.Party(s)

Sri.M.P.Narayanaswamy

21 Mar 2017

ORDER

Date of Filing: 18/06/2016

Date of Order: 21/03/2017

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 21^st DAY OF MARCH 2017

PRESENT

SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

 

CONSUMER COMPLAINT NO :: 41 OF 2016

Sri. Vasudeva Holla.M,

S/o. Shankaranarayana

Holla, Aged About 59 Years,

R/at: Amrutha Nilaya,

Muneshwara Nagara,

Antharagange Road,

KOLAR-563 101.                                        ….  COMPLAINANT.

(Rep. by Sriyuth. M.P. Narayanaswamy, Advocate)

 

- V/s -

(1) The Manager,

State Bank Of India, 2^nd Cross,

Kolar Branch, Kuvempunagar,

Kolar-563 101.

(Rep. by Sriyuth. Sama Rangappa & S.R. Nagesh, Advocates)

 

(2) The Manager, Flip Cart Internet

Pvt. Ltd., 7^th Floor, ‘O’ Zone Maney

Tech Park ‘B’ Block, #56/18, and

55/9, Hongasandra Village, Begur

Hobli, Gare Bhavi, Hosur Road,

Bangalore-560 068.

(Rep. by Sriyuth. Nithyananda.K.R, Advocate)

 

(3) The Manager,

One Mobirwik Systems Pvt. Ltd.,

2^nd Floor, Orchid Centre,

Golf Course Road, Sector-53,

Gurgaon, Haryana-122002.

India.

(Ex-parte)                                                         …. OPPOSITE PARTIES.

-: ORDER:-

 

BY SMT. A.C. LALITHA, LADY MEMBER

01.   The complainant having submitted this complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter in short, it is referred as “the Act”) has sought issuance of directions to Ops to rectify the wrong debit entries in his S.B. Account vide No.31170596867 at OP No.1 for Rs.49,979/- which was entered on 01.07.2015 and sought for Rs.40,000/- as compensation from Ops towards damages and also sought for Rs.10,000/- as cost and any other reliefs as the Forum deems fit.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, he is having S.B. Account vide No.31170596867 at OP No.1 Bank and also having ATM card for the same.  The amount of Rs.3,94,979/-was deposited to his account by PF office, but this was not messaged to him by OP No.1.  After enquiring at PF Office, he approached OP No.1, got entered his pass book, to his surprise some amount was drawn without his knowledge as on 01.07.2015 two times at Bangalore by OP No.2 a sum of Rs.14,999/- and Rs.24,990/- at Delhi by OP No.3 and a sum of Rs.9,999/- in total Rs.49,979/- was withdrawn without his knowledge.

 

(b)    Further it is contended that, he had written request letter to Manager of OP No.1 on 03.09.2015 to rectify the wrong withdrawal from his account and also given complaint to kolar police on 03.09.2015.  After several requests OP No.1 without rectifying had given letter stating that, “Transaction No.9333” was successful transaction.  Thus OP No.1 had rendered gross negligence and deficient in service.

 

(c)    Further it is contended that, only with the inference of branch officials had falsified the account ATM card got duplicated or fabricated and amount withdrawn, instead of enquiry OP No.1 Bank had given evasive answer.  Thus rendered deficient in service.  So contending, the complainant has come up with the compliant on hand with above set-out releifs.

 

(d)    Along with the complaint the complainant has submitted below mentioned copies of the documents:-

(i) Account particulars extract.

(ii) Letter dated: 03.09.2015 to SBI, Kolar.

(iii) Reply letter

(iv) Legal Notice

(v) Reply Notice

(vi) Registered Post receipts.

(vii) Postal acknowledgments.

 

03.   In response to the notices served on the Ops, OP No.1 and OP No.2 have put in appearance through their learned counsel and has submitted written version by resisting the claim of the complainant in toto.  As per the proceedings noted in order-sheet OP No.3 placed exparte.

 

04.   It is contention of the OP No.1 that, it admits that, the complainant is an account holder of OP No.1 bearing No.31170596867 and also issuance of ATM card and the transaction too and rest of all allegations are denied.

 

(a)    It is contention of OP No.1 that, the Bank is not responsible for any debits.  It is the duty of the complainant to maintain his secret PIN of his ATM card.  The said transactions are towards online purchases with OP No.2 and OP No.3.  So, OP No.1 has not rendered any deficient in service, so prayed for dismissal of the complaint.

 

(b)    By denying all allegations of complainant OP No.2 strictly contends that, the complainant is not a Consumer of OP No.2 as per provisions of Consumer Protection Act, 1986 wrongly implead OP No.2 as party in this case, so prayed for dismissal on ground of mis-joinder of party.

 

(c)    OP No.2 contends that, the complainant had not made any case against OP No.2 the entire allegations is against OP No.1 and this Forum has no jurisdiction to entertain the case as there is no privity of contract with the complainant.  So contending, prayed for dismissal of the complaint with costs.

 

(d)    Counsel for OPs have produced copies of following documents along with citations:-

(i) Account extract dated: 28.06.2016

 

(ii) Decision of Hon’ble District Consumer Dispute Redressal Forum-II, U.T. Chandigarh in C.C. No.369 of 2013 between Manju Bhatnagar Vs SBI Credit Cards & Others.

 

(iii) Decision of First Appeal No.89 of 2015, passed by Hon’ble State Consumer Disputes Redressal Commission, U.T., Chandigarh.

 

05.   The complainant has submitted his affidavit evidence by way of examination-in-chief and replied cross-examination by way of affidavit to interrogatories submitted by OP No.2 and also filed his written arguments.

 

06.   On behalf of OP No.1 Sri.Siddharudh.N.K, Manager of OP No.1has put in his affidavit evidence by way of examination-in-chief.  And on behalf of OP No.2 Sri.Aneesh Garg, S/o. R.K.Garg, Authorised Signatory of OP No.2 has put in his affidavit by way of examination-in-chief.

 

07.   Therefore the points that do arise for our consideration in this case are:-

(A) Whether there is any nexus between the complainant and OP No.2 and OP No.3 as customer envisaged Under Section Consumer Protection Act, 1986?

(B) Whether it could be held that, Ops are guilty of deficiency in service?

(C) If so, whether the complainant is entitled to the relief sought for in the complaint?

 (D)  What order?

08.   Findings of this District Forum on the above stated points are:-

POINT (A):-          In the Negative

POINT (B):-          In the Negative

POINT (C):-          Does not survive for

consideration.

 

POINT (D):-          As per the final order

for the following:-

 

REASONS

POINT (A):-

09.   The specific contention of OP No.2 is that, there is no relationship between complainant and OP No.2 and OP No.3 as Consumer and there is no privity of contract between them.

10.   On perusal of pleadings, evidence and documents of both parties, it is clear that, the complainant has no contract with OP No.2 and OP No.3 in any manner and also he has not come up with any specific complaint against OP No.2 and OP No.3 as how they related as customer and deficient in service.  The complainant had failed to prove how he will become Consumer to OP No.2 and OP No.3.  Without being evidence we cannot believe OP No.2 and OP No.3 are responsible.  Hence we come to conclusion that, there is nexus between complainant and OP No.2 and OP No.3 as per provisions provided under Section 2(1)(d) of the Consumer Protection Act, 1986. 

 

POINT (B) & (C):-

11.   To avoid repetition in reasonings and as these points do deserve common course of discussion, the same are taken up for consideration at a time.

 

12.   It is an admitted fact that, the complainant is an account holder of OP No.1 Bank and also the alleged transactions are true.

 

13.   It is worth to note that, reply letter dated: 26.08.2015 issued by SBI, Kolar (OP No.1) to the complainant reveals that, the said transactions are towards point of sale by him, such transactions will be complete only with a OTP authentication of ATM Card.

 

14.   So, in our view, when the said transactions are towards point of sale and online debits, by using OTP number of ATM card.  As the ATM card is well within the custody of complainant, it is bounden duty of complainant to maintain secret of the PIN number.  It shows negligence of complainant only.  When the transactions taken place OP No.1 entered the same in complainant’s account.  So there is no fault of OP No.1.  Therefore we consider there is no deficiency in service on the part of OP No.1 in entering the said debits in his account. 

 

15.   In these circumstances, we are finding that, there was no negligence of any kind on the part of OP No.1.  And that OP No.2 and OP No.3 are only intermediary provides platform for online third party sellers.  So, we find OP No.2 and OP No.3 are not necessary parties to this complaint as there is no privity of contract as envisaged Under Section 2(1)(d) of Consumer Protection Act, 1986.

 

POINT (D):

16.   We proceed to pass the following:-

ORDER

01.   For foregoing reasons the complaint stands dismissed against OP No.1 as no deficiency in service and same is dismissed against OP No.2 and OP No.3 on the ground of mis-joinder of parties, with a direction to all the parties to bear their own costs.

02.   The complainant is given liberty to approach the concerned jurisdictional authority/competent court of law with necessary parties.

03.   Send a copy of this order to both parties free of cost

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 21^st DAY OF MARCH 2017)

 

 

 

 

LADY MEMBER                                            PRESIDENT