BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, EAST SIKKIM AT GANGTOK

                                                                          Date of institution: 25.07.2019                                                                                                                                                  Date of Pronouncement: 28.11.2022

CONSUMER COMPLAINT CASE NO.10 OF 2019

Smt. Girija Khatiwara,

W/o Dr. Bishnu Sharma

R/o Noap Gaon, Pakyong,

East Sikkim

                                                              (Through:- Ld. Senior Advocate Shri N.Rai                                                             assisted by Ld. Legal Aid Counsel Shri Sushant Subba)

                                                                                      …....Complainant                                           

                                                          -Versus-

1. The Regional Manager,

State Bank of India,

Gangtok, East Sikkim

2.  Branch Manager           

State Bank of India,

Pakyong branch, East Sikkim

West Bengal

3.  Smt. Reena Banerjee,

C/o Reserve Bank of India,

15-Netaji Subash Road,

Kolkata

                                                                   (Through: Ld. Counsel Shri                                                                       J.K.Chandak for OPs No. 1 & 2)                         

                                                                                              ......Opposite Parties

J-U-D-G-M-E-N-T

1. The present complaint has been filed before this Commission under Section 12 of the Consumer Protection Act, 1986.              
2. The complainant's case briefly stated is that she has a savings account No.33008554071 in the State Bank of India(SBI), Pakyong Branch(OP No.2) for which she had been issued an ATM-cum-Debit Card facility with No.5596010021798101 to operate her account. That she had gone to Bali, Indonesia with her cousin sister for a vacation on 19.12.2017 and returned to India on 26.12.2017. While in Bali she used her ATM card and made some withdrawals. Thereafter, upon her return to India on 29.12.2017 she transferred a sum of Rs.34,000/- through the Green Channel Counter(GCC) of SBI, Pakyong branch.  On 31.12.2017 much to her surprise she found that after she had returned to India, an amount of Rs.84,236/- had been withdrawn at Bali, Indonesia from her aforesaid account. She immediately informed the SBI, Pakyong Branch, and also reported the matter at Pakyong PS. Thereafter, she made several visits and also corresponded with the SBI, Pakyong branch and the RBI.
3. The Branch Manager, SBI Pakyong Branch finally replied her letter dated 19.04.2018 and advised  the complainant to fill a form and sent it to the Banking Ombudsman on 12.04.2018. The complainant thereafter received an email dated 08.05.2018 (Exhibit 12) from the office of the Banking Ombudsman, Reserve Bank of India, rejecting the complaint on the ground that the complaint is not in accordance with sub clause (3) of clause 9 of the Banking Ombudsmen Scheme 2006 and had closed her complaint under clause 13(a) of the Banking Ombudsmen Scheme 2006.
4. Since there was no development thereafter the complainant even wrote to the Reserve Bank of India (RBI) but failed to get any satisfactory response. That although the complainant updated her passbook on 28.03.2018 a sum of Rs.10,587,48/- had been deposited in the saving account of the complainant. However, the complainant remained unaware of the same till she received the reply to her notice from the Counsel. However as no details of how this amount of Rs. 10,587.48/- had been arrived at/calculated was furnished to her, the complainant being aggrieved and left with no option, filed the present complaint dated 25.07.2019 before this Commission seeking the following reliefs:-

(i) An order/direction to the respondent for refunding the amount of Rs.84,236/- withdrawn from the complainant's saving account without her knowledge and consent together with interest at the rate of 18% per annum;

(ii) An order/direction to the respondent for payment of Rs.50,00,000/- to the complainant/applicant together with interest at the rate of 18% per annum as damages for harassment, mental and physical torture, other allied expenses etc;

(iii) Cost of the proceedings and any other reliefs.

5. The OP No.1 and 2, on the other hand, in their reply aver that the complaint is not maintainable and has been filed for illegal gain to harass them. It is submitted that the complaint is misconceived and that the complainant has no locus-standi to file the present complaint. It is contended that all the statements, allegations and facts that are not borne by records may be deemed to have been denied by them. Similarly, OP No.3 also filed her written objection stating that the complainant has no cause of action to implead OP No.3 in the matter and that the complaint totally misconceived and is not maintainable either in law or on facts and as such is liable to be dismissed. It is contended that the main grievance of the complainant is against her banker, the OP No.1 and 2 and not against OP No.3. The OP No.3 thus denies the averments made in the claim and prays that the complaint filed by the complainant be dismissed with costs.
6. The complainant in support of her claim examined herself and one Ms. Poonam Khatiwara(CW1). She filed her evidence-on-affidavit(Exhibit 22) and relied on the documents (marked Exhibits 1 to 21). The OPs on it’s part examined Shri Partha Mitra, Chief Manager (Compliance & Operation) SBI and Shri Anit Lamichaney, Branch Manager of SBI, Pakyong.
7. Based on the pleadings of the parties the following issues were framed: -

1)Whether the complaint is maintainable?(opc)

2)Whether the OPs No.1 & 2 can be made  liable for the alleged fraudulent withdrawal of Rs. 84,236/-(Rupees Eighty four thousand two hundred and thirty six) only from the bank account of the complainant, supposedly from Indonesia ?(opc)

3)Whether there has been any deficiency in service on the part of the OPs?(opc)

4)Whether the complainant has any cause of action against the OP No.3?(opr)

5)Whether  the complainant is entitled to the reliefs prayed for by her?(opc)

8. Issue No.1. 1)Whether the complaint is maintainable?(opc)
9. The complainant is a resident of Pakyong, Sikkim and admittedly has a savings account in the SBI, Pakyong branch being account No. 33008554071 from where the amount of Rs. 84,236/- was allegedly found withdrawn on 31.12.2017 when she was in India. Hence, the matter falls within the jurisdiction of this Commission.
10. It is further found that the compensation amount claimed does not exceed 20 lakhs and as such in terms of Section 11 of the Consumer Protection Act, 1986 this Commission has the jurisdiction to entertain the complainant filed by the complaint under Section 12 of the said Act. It is thus the finding of this Commission that Issue No.1 be decided in favour of the complainant and the complaint filed under Section 12 of the Consumer Protection Act, 1986 is thus found maintainable.
11. Issue Nos.2, 3 and 4 taken up together.

2)Whether the OPs No.1 & 2 can be made  liable for the alleged fraudulent withdrawal of Rs. 84,236/-(Rupees Eighty four thousand two hundred and thirty six) only from the bank account of the complainant, supposedly from Indonesia ?(opc)

3)Whether there has been any deficiency in service on the part of the OPs?(opc)

4)Whether the complainant has any cause of action against the OP No.3?(opr)

12. It is contended by Ld. Counsel for the complainant that the complainant came to know on 31.12.2017 that the amount of Rs.84,236/- was withdrawn from her account in Bali, although she had already returned to India on 26.12.2017 itself. That on coming to know of the unauthorized withdrawal she immediately informed the OPs No.1 and 2 and also Pakyong PS and thereafter made several visits to the SBI Pakyong and also corresponded with them. Although initially, the Pakyong Branch vide their reply dated 19.05.2018 (Exhibit 9) rejected her claim on the ground that there was no evidence to establish that the ATM card was in the possession of the complainant, subsequently the OP No.2 advised the complainant to fill a form(Exhibit 11) and send it to the Ombudsman  on 12.04.2018 to which she did as advised. Thereafter, she received an email on 08.05.2018 from the Ombudsmen RBI that her complaint is rejected and closed under section 13A of the Banking Ombudsman Scheme, 2006. It is contended that the ATM Card was in the possession of the complainant and as per the admission of the OP Nos.1 and 2 themselves a chipped card cannot be cloned or hacked. Hence, Ld. Counsel contends the amount was fraudulently withdrawn from her account due to the negligence and deficiency of service by the SBI Pakyong for which she has not only had to suffer financial loss of her hard earned money but has also suffered great mental stress and tension as a result thereof.  It is contended that the complainant updated her passbook(Exhibit 1) on 28.03.2018  and found a sum of Rs.10,587.48/- had been deposited in her savings account which she remained unaware of until she received a notice from the Counsel of the bank(Exhibit 17) and came to learn that the said amount had been calculated by the Ombudsman in her favour. However, neither the order nor the calculation of the Ombudsman has been furnished by the  the OPs.
13. The OPs also state that Ombudsman thereafter had passed an order, yet no such order has been filed before this Commission. Ld. Counsel for the complainant thus contends that the Ombudsman therefore has not passed any order as claimed by the OPs. Hence, Ld. Senior Counsel prays that complainant be granted the compensation as prayed for by the opposite parties for the gross negligence, incompetence and ineffectivness and deficiency in service  on the part of the OPs which not only caused her monetary loss but immense mental agony and physical harassment as well. In support of his contention, Ld. Counsel Senior Counsel relied on the cases of 2015 SCC Online NCDRC 1383, Vidya Vathi v. State Bank of India and Ors., (Paras 6, 7, 8, 9 and 10).
14. Ld. Counsel for the OP No.1 and 2 on the other hand contends that there has been no deficiency of service on the part of the OPs. Further an assessment of her complaint the Ombudsman of their bank has found she is entitled to the sum of Rs. 10,587.48/- only which has been duly deposited in the account of the complainant. Hence, she is not entitled to any further compensation.
15. The OPs examined Shri Anit Lamicahanay Branch Manager of SBI Pakyong on behalf of the OPs No.2 who in his evidence denies the allegations of the complainant and states that “on 31.12.2017 as per the bank’s record, few ATM withdrawals were transacted outside India through ATM card of the complainant and a total sum of Rs.84,246/- including withdrawal commission found to be debited from her savings account.” He also states that the transactions were successful and that the money was withdrawn by miscreants. However, he says that by cloning an ATM Card one cannot withdraw money unless the ATM pin is revealed/shared/disclosed. He alleges that the complainant had shared/revealed/disclosed her ATM pin number hence the  miscreant successfully withdrew her money while she was in Bali. It is also in his evidence that as per the mail dated 22.05.2018 sent by the Consulate General of India, Bali, MEA to the complainant’s sister Sailaja Khatiwara during the investigation conducted by the Regional police in Bali in the case the  CCTV footage of the ATM was taken but the perpetrators could not be identified. However, admittedly the footage is not available before this Commission.
16.  Witness Anit Lamichanay further admits that the complaint to OP No.3 was forwarded to the internal Ombudsman of SBI, who ordered payment of compensation of a sum of Rs.10,587:48/- to the complainant by OP No.2 and on the basis of which he admits that the said amount was credited in her savings bank account. The witness claims the information of the compensation by the Ombudsman was furnished to the complainant by the OP vide its letter dated 30.03.2019 (Exhibit A) and its communication (Exhibit 18) and legal notice (Exhibit 17).
17. The receipt of the complaint, dated 04.01.2018(Exhibit 4), is admitted by the OP No.2 who says it was then forwarded to OP No.1 who then forwarded it to their Zonal office in Calcutta. In cross-examination the witness Anit Lamichanay admits that “It is true that all the transactions of an account will be mentioned in the records of the bank for the said account. It is true that the bank is concerned about the transaction that took place in Bali. Bank is fully aware of the said transaction. It is true that it is in the record of our bank that on 29.12.2017 the complainant had transferred a sum of Rs.34,000/- to her recurring account. As far as I know there cannot be cloning of the chip-inserted ATM card. It is true that we do not have any record that the complainant had shared her password/pin of her ATM with any other person. It is true that the complainant has lost Rs.84,236/- and the said amount cannot be said the loss of the bank”. He further admits “It is true that we did not give information to the complainant about our deposit of Rs.10,587.48/- in the account of the complainant. The said amount of 10,587.48/- was deposited in the account of the complainant  as per the orders of the Internal Ombudsman. It is true that on the date the said amount of Rs.10,587.48/- was deposited, the Internal Ombudsman and the State Bank of India, Pakyong branch were well aware that the complainant had suffered a loss of Rs.84,236/-. It is true that we have not filed the order passed by the Ombudsman about the present dispute. It is true that I am not aware as to for what reason the Ombudsman disbursed Rs.10,587.48/- as against the stated loss of Rs.84,236/-. It is true that the Ombudsman did not summon the complainant or the SBI, Pakyong for hearing and taking the decision. Ombudsman had only given its decision on the basis of the complaint of the complainant.”
18. Even the witness for OP No.1 Partha Mitra Chief Manager, (Compliance and Operation) SBI India in his evidence  states that on 31.12.2017 a sum of Rs.84, 326/- including withdrawal commission was successfully debited from the savings account of the complainant by some  miscreants. He also admits the ATM card cannot be cloned. It is also stated that after they received her complaint from OP No.2 bank, the OP No.1 forwarded the same to the Zonal Office at Kolkata. He denies any negligence or deficiency in service on the part of OP No.1. When cross-examined the witness admitted that “It is true that there is no order of the Ombudsman filed in the  matter.”
19. Hence from the above evidence so discussed it is clearly established that after the receipt of the petitioner’s complaint the bank Ombudsman awarded a sum of Rs.10,587.48/- which was thereafter credited into her account by OP No.2, but while doing so, admittedly, neither was the order of the Ombudsman nor the basis of its findings furnished to the complainant. Rather it is evident the complainant remained unaware about it until she was informed by the Counsel for the OPs vide his notice (Exhibit 17) and found the amount of Rs. 10,587.48/- credited in her account updated on 28.03.2018. It is thus evident that the order was passed against the principles of natural justice, since the complainant was never heard in person the matter prior to passing of the order (as admitted by OP No.2) and the Ombudsman gave its decision merely on the basis of the complaint.
20. That as per the evidence of the complainant her ATM Card was very much in her possession when she returned to India.  This is evident from her report lodged before the O/c Pakyong PS dated 04.01.2018 (Document 4) and the GD entry annexed thereto that several transactions were made in Bali where she had gone for a vacation and where she had used her ATM card to withdraw money from local ATMs. It is also established that she had returned India on 26.12.2017 but the illegal transactions were made at Bali at ATMs when she was no longer in Bali. There is no report of the loss of her ATM card at any point of time. On the contrary Exhibit 2 is the Debit card furnished in this case by the complainant, which is the State Bank Debit Card Global bearing No.5596 0100 2179 8101 issued in the name of Girija Khatiwara. The production of Exhibit 2 thus clearly belies the averment of the OPs that the ATM card was not in the possession of the complainant when she returned to India from Bali. Moreover, it is in the evidence of bank's witness themselves that an ATM card with chips cannot be cloned or hacked.
21. Exhibit 1 the SBI Passbook of the complainant clearly proves that she had an account (No.33008554071) with the OP No.2 with Debit Card facility (Exhibit 2). Exhibit 1 clearly indicates a sum of Rs.84,236/- was withdrawn on 31.12.2018 which is also admitted by OP No.1 and 2. The deposit of a sum of Rs.10,587.48/- (the compensation granted by the Ombudsman on 30.03.2019) is also clearly recorded therein.
22. Vide Exhibit 8 it is proved that the complainant had  informed OP No.2 and wherein it is also mentioned that her sister(who had also gone to Bali with the complainant) had also lost money in a similar manner from her Axis bank account, Gangtok Branch and that her sister's bank i.e., Axis bank had refunded her sister’s similarly fraudulently withdrawn amount on 10^th March 2018, whereas the complainant’s bank(OPs No.1 and 2) failed to even respond to her complaint dated 4^th January 2018(Exhibit 4).
23. Further, on going through the documentary evidence it is found that Exhibit 11 is a copy of  the form of the complaint lodged with the banking Ombudsman by the complainant on the advise of the OPs No.1 and 2. Exhibit 12 is the letter of the Ombudsman through its Assistant Manager Bulbul Chatterjee dated 08.05.2018, rejecting the complaint on the ground that it is not in accordance to Sub Clause 3 of the banking Ombudsman Scheme 2006. Yet surprisingly vide its letter dated 4^th October 2018 (Exhibit 14) the office of the banking Ombudsman RBI, informed the complainant, that they acknowledge her complaint against the bank and that the matter has been taken up and the decision of the Ombudsmen will be communicated. The evidence adduced in the case thus reveals the OPs have treated the complaint flippantly and the Ombudsman in total disregard to the principles of natural justice apparently later took up the matter in the absence of the complaint and proceeded to award a meager amount of Rs.10,587:48/- to her. There is no evidence adduced before this Commission as to how, why and on what basis the said compensation amount was arrived at.
24. It is not disputed that the amount of Rs. 84,236/- has been fraudulently withdrawn by unknown miscreants at Bali from the account of the complainant while the complainant was very much in  India and her Debit card (Exhibit 2) was very much in her possession at the time thereby causing her loss of the said amount. In such a situation in a similar matter i.e., Vidyawanti v. SBI and Others (2015) SCC Online NCDRC 1383 the National Consumer Dispute Redressal Commission has held that in a case where they found the money had been wrongly withdrawn by a third party by foul play by manipulating the ATM machine and withdrawn unauthorized amounts from the account of the complainant, it was held that the Opposite Party Bank being in the banking business and earning profit out of it, were held liable to make good the loss.
25. Similarly, the NCDRC in State Bank of India v. K.K.Bhalla Revision Petition No.3182 of 2008 in a matter  where it was found that the withdrawals were made by fraudulent means by unauthorized persons from the account of the complainant by operating her ATM Debit Card, the Hon'ble Commission was pleased to order that the Bank credit the amount fraudulently withdrawn from the account of the petitioner and was also pleased to further award payment of compensation of Rs.15000/- including costs.
26. Thus for the reasons as discussed herein before, this Commission is also of the opinion that the complainant is entitled to compensation of the amount fraudulently withdrawn from her account. Consequently, she is found entitled to the following reliefs:-

       a) refund of the entire sum of Rs.84,236/- by the OPs No.1 and 2. However, the sum of Rs.10,587:48/- already credited in the account of the complainant shall be deducted from the refunded amount of Rs. 84,236/-. Hence, the amount to be refunded is Rs.84,236/- - Rs.10,587:48/- = Rs. 73,648.52/-.

b)The OPs are also directed to pay interest thereupon at the rate which would be payable/normally applicable for the aforesaid amount w.e.f 31.12.2017.

(c) It is also hereby ordered that a sum of Rs 20,000/- shall be paid to the complainant by OPs No.1 and 2 for the harassment and mental agony suffered by the complainant at the treatment meted out to her by the OPs in handling her complaint.

27. No order as to cost.

       Complaint allowed to the above effect.  
            PRONOUNCED.

                                          (Rohit Kumar Pradhan)           (K.C.Barphungpa)            

                                                  Member                                   President

                                            DCDRC(E) at Gangtok                 DCDRC(E) at Gangtok

Pronounced on : 28.11.2022

LIST OF WITNESSES EXAMINED BY THE COMPLAINANT

01.        CW1     -  Girija Khatiwara(complainant)

02.        CW2     - Poonam Khatiwara

LIST OF DOCUMENTS EXHIBITED BY THE COMPLAINANT

01.        Exhibit 1    - Original passbook of complainant

02.        Exhibit 2    -  Original debit card of complainant

03.        Exhibit 3    -  Photographs dated 31.12.2017 & 01.01.2018

04.        Exhibit 4    -     Complaint dated 04.01.2018

05.        Exhibit 5    -  Copy of FIR

06.        Exhibit 6  -  Certified copy of letter forwarded by SBI                                     Pakyong

07.        Exhibit 7  -  Original office copy of letter submitted by                                General Manager, RBI

08.        Exhibit 8    -     Letter dated 19.04.2018

09.        Exhibit 9    -     Original reply dated 19.05.2018

10.        Exhibit 10   - Original office copy of letter dated                                                 23.05.2018

11.        Exhibit 11   - Prints out of the online complaint

12.        Exhibit 12 -     Print out copy of email dated 08.05.2018

13.        Exhibit 13 -   Letter dated 26.07.2018

14.        Exhibit 14 -     Email print out dated 04.10.2018

15.        Exhibit 15 -     Print out of email dated 13.03.2019

16.        Exhibit 16 -     Office copy of legal notice

17.        Exhibit 17 -     Original reply dated 20.05.2019

18.        Exhibit 18 -     Postal envelope

19.        Exhibit 19 -     New passbook of savings bank account of                              complainant with SBI

20.        Exhibit 20 -     Original medical certificate

21.        Exhibit 21 -     Print out of email correspondence

22.        Exhibit 22 -     Main evidence-on-affidavit of the                                                complainant

23.        Exhibit 23 -     Additional evidence-on-affidavit of the                                                   complainant

                                                              LIST OF WITNESSES EXAMINED BY THE OPPOSITE PARTIES

                                                              01.        DW1    -  Partha Mitra, Chief Manager, SBI

                                                              02.        DW2  -  Anit Lamichanay, Branch Manager, SBI,

                                                                                             Pakyong

LIST OF DOCUMENTS EXHIBITED BY THE OPPOSITE PARTIES

01. Exhibit A - Letter dated 30.03.2019

02. Exhibit B - Original postal slip

03. Exhibit C - Evidence-on-affidavit of of DW2

04. Exhibit D -              -do- of Partha Mitra                               

                                          (Rohit Kumar Pradhan)                      (K.C.Bargphungpa)            

                                                    Member                                                President

                                                                                                          DCDRC(E) at Gangtok