Date of filing:-15/11/2017.
Date of Order:-08/08/2018.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM(COURT)
B A R G A R H.
Consumer Complaint No. 59 of 2017.
Ananta Ram Nayak, S/o. Debaraj Nayak, aged about 35(thirty five) tears, R/o. Banjipali, P.o. Mahada, P.s. Binika, Dist-Subarnapur. ..... ..... .....Complainant.
Vrs.
The state Bank of India, through Chief Manager, State Bank of India, Barpali Branch, At/Post-Barpali, Dist-Bargarh. ..... ..... ..... ..... Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri M.L.Dash, Advocate with other Advocates.
For the Opposite Party:- Sri Hadu Dash, Advocate.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.08/08/2018. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief Fact of the case;-
Being persuaded by the provision of the Consumer Protection Act 1986 U/s 12 the Complainant has preferred to file the case as envisaged hereunder, that he being a consumer of the Opposite Party vide his Account No. 31638809450 and A.T.M card holder vide No-5196190193824598, on Dt.13.04.2017 at about 7 A.M. to 7.15 A.M. tried to withdraw some amount of money from his said account from the A.T.M. counter of S.B.I., Barpali Branch but could not get any amount as such he checked his balance and found to be correct and then went to Bargarh and in the A.T.M. counter of the Bargarh Branch, he tried to withdraw some amount but there he could know that an amount of Rs.40,000/-(Rupees forty thousand)only has been withdrawn from his said account at Barpali A.T.M. counter and that there after he went to the Branch office of Binika and enquired about the same and up-dated his Pass Book to ascertain his balance amount and found that the aforesaid amount has been withdrawn from the said A.T.M. counter of the Barpali Branch then being surprised reported the matter before the Chief Manager of the Opposite Party in the prescribed format on his advice and on his instruction he reported the matter before the police station of Barpali.
His further case is that though he has reported the matter of withdrawal of his amount, the Opposite Party neither credited the said amount in to his account nor informed him about the consequence of the report submitted before him for which the Complainant sustained a lot of mental agony and financial loss, which in his view amounts to deficiencies of service on the part of the Opposite Party. And thus being helpless has filed the case before the Forum claiming the refund of the amount of Rs.40,000/-(Rupees forty thousand)only and an amount of Rs.45,000/-(Rupees forty five thousand)only towards his mental and financial loss consequent upon the deficiencies in rendering service on the part of the Opposite Party with pendentilite and future interest and Rs.14,900/-(Rupees fourteen thousand nine hundred)only towards his litigation expenses. And in support of his case has relied upon the following documents (i) the Xerox copy of the Pass Book No.31638809450 (ii) Xerox copy of his A.T.M. card (iii) Complaint filed in the prescribed format (iv) Xerox copy of the check slip in the A.T.M. Counter (v) F.I.R. lodged before the I.I.C., Barpali Police Station.
Perused the complaint, the documents filed by the Complainant and on hearing his counsel the case was found to be a genuine one hence admitted and notice was served on the Opposite Party. In response to the same the Opposite Party appeared through his Advocate and filed his version before the Forum so far as the rival contention of the Opposite Party is that he has admitted the Complainant as one of his customer but has denied him to be a consumer of his Bank, in furtherance to his contention he has categorically stated in his version that the Complainant has withdrawn the alleged amount from the Carpal's A.T.M. counter on the relevant date but has deferred about the time of withdrawal with that of the Complainant’s claim, further he has stated that the Complainant has not checked his verification of his account from the A.T.M. counter rather has up-dated his account in their Branch office at Binika from where it has been established that such an amount has been withdrawn as the rest balance amount clearly revealed in his Pass book and the same has been certified by the Chief Manager of the concerned Bank with his seal and signature, And has also further averted in his version that on the complain of the Complainant he has lodged an online complaint V/d ticket vide No. AT429229490261 on Dt.15.04.2017 at 6.02:32 Binika Branch and has closed the complain on Dt.17.04.2017 with a remarks that the transaction is successful and denied the complain of the Complainant as no excess cash has been found on Dt. 13.04.2017 and on Dt.14.04.2017 and as has intimated the same that his said transaction was successful hence got no deficiencies in rendering service towards him and is not liable thereof and has also denied the claim of the Complainant on the ground that no F.I.R has been registered before the police station of Barpali and as such the copy of the F.I.R which has been filed before the Forum is a false and fabricated one and has claimed the case of the Complainant as a false and fabricated one and liable to be dismissed, And in support of his such averments has relied on several documents as annexure vide the following list of documents (i) ATM alert report in Annexure-5 (ii) No excess cash certificate for ATM transaction from Dt.12.04.2017 to Dt.13.04.2017 as found in Annexure -6 (iii) No excess cash certificate for ATM transaction from Dt.13.04.2017 to Dt.14 .04.2017 as found in Annexure-7. And has prayed before the Forum to dismiss the case of the Complainant as of devoid of any merit and denied to pay a single paise .
On perusal of the Complaint, his documents and the version of the Opposite Party and his relied documents and on hearing of the respective counsels of the parties the following points of determination has come up before us to adjudicate the case.
Whether the Complainant is a consumer or not ?
Whether the Opposite Party has committed any deficiencies in rendering service to the Complainant and thereby whether has committed unfair trade practice or not ?
Whether the Complainant is entitled to any reliefs ?
On going through the entire record and the available materials and on hearing the respective counsels with utmost care it came to our notice that the Opposite Party has admitted the Complainant as his customer but has denied him to be a consumer, in this regard while scrutinizing the total transaction of the banking system to our observation it is an established principle of law as per the provision of the Act itself that the customer of a banking institution, the customer hire service of the same in exchange of it’s service charges in terms of money against his/her deposit in as much as also paying the service charges for the use of ATM facility having being fortified by the provision envisaged in the Act U/s 2(a) that one who hires any service for a consideration which has been paid or promised or partly paid and partly promised or any system of deferred payments is a consumer and also the same has been fortified by Damodaram Committee report more emphatically on Banking service list various measures to enhance convenience for customer and safety of electronic transaction, the Damodaran Committee on Banking Customer services says there should be zero-liability on customer for any loss in electronic transaction such as through Net Banking, A.T.M. & so on, so keeping in view the aforesaid observation. We are of the view that the Complainant is very much a consumer and is entitled for service of the bank, thus our answer is assertive in favor of the Complainant.
Secondly while dealing with the point of determination as to whether the Opposite Party has committed deficiencies in rendering service to the Complainant and that has committed unfair trade practice or not in this regard with utmost care. We perused the materials available and heard the learned counsels of the respective parties and also the personal adherence to the Branch Manager of the Opposite Party, thereby it came to our notice it has been admitted by the Opposite Party that such a complain of the withdrawal of money has been made by the Complainant before them but the question remains that whether the same has been withdrawn by the Complainant himself or by some unauthorized person. So to our observation in response to the complain of the Complainant the Opposite Party has denied on the basis of their records from the alleged A.T.M of Barpali and the branch office of Binika wherein they found the said transaction vide No.2879 is correct and the same has been confirmed by their E.J. Log report and in furtherance to their averment they have filed an Annexure vide No-4(four) wherein it has been mentioned that the admin balance after withdrawal remains Rs.2840.60/-(Rupees two thousand eight hundred forty and sixty paise)only. And as such claimed the case of the Complainant is a false and fabricated one hence are not liable for any action against them. But in this regards in our view, the facts as to whether the said funds has been withdrawn by the Complainant himself or by somebody else other than him remains unanswered in as much as the steps taken by the Opposite Party to ascertain the same by them is not visible, hence on our query to the concerned Branch Manager on his personal appearance at his own, as to whether they have taken resort to verify the C.C.T.V. footage to ascertain the same and in response to that he replied that such steps cannot be taken by them at their own unless it is enquired by the police and to substantiate his version filed a circular of the State Bank of India, but on perusal of the same we did not find any material therein not to take any steps as such, rather it has disclosed in that circular that such type of cyber crime have grown up and to fight out with such crime with regard to debit card escalation of matrix is suggested and with reference to an enclosed copy of the same vide Annexure –B, and the relevant portion of the same speaks like the wording (i) Card Member declaration (ii) Copy of the transaction statement (iii) Copy of police Complaint (if not made, reason thereof) and to that effect to our observation as to why not to take any steps to call for the C.C.T.V. footage by the Opposite Party to excavate the truth especially when the matter of withdrawal by somebody other than the Complainant is alleged to have been made by the Complainant and it has been reported to the Police and at same time to the Opposite Party and however the police has not given his endorsement in the same for the reason best known to them to which also the Opposite Party could have ascertained from the police station, therefore in our view since the matter is within the knowledge of the Opposite Party he could have ascertain about the truth behind the episode by calling for the report of the C.C.T.V. footage at his own to give service to it’s consumer which has been clearly recommended by the R.B.I. on the basis of the M. Damodaram Committee report vide it’s publication on dated 30th Oct. 2011 wherein it has mentioned that in case of losses in A.T.M. transaction the Customer/Consumer has got no liability, so in our prudent view it is the responsibility of the bank to safeguard the interest of it’s consumer to which it has not followed, which in our view is a clear case of deficiencies in rendering service to him also coupled with unfair trade practice for taking different pleas to escape from it’s liability, in stead of taking the suitable measure to ascertain the truth and give the proper service to the Complainant to which he is entitled, as such in view of the above facts and circumstances, our view is expressed in favor of the Complainant.
Thirdly with regard to the question of the entitlement of the claim of the Complainant, as the Opposite Party has failed to establish his case against the Complainant to which we have discussed vividly in details of the case in our foregoing paragraphs and have unanimously opined in favor of the complainant. Now it is obvious upon us to express our view in favor of the Complainant. Hence our order follows .
O R D E R.
In view of the facts and circumstances as enumerated above, the Complaint is allowed against the Opposite Party, hence the Opposite Party is directed to pay an amount Rs. 40,000/-(Rupees forty thousand)only with an interest @ 6 % (six percent) per annum to the Complainant from the date of filing of the case till the date of this Order and besides that, is also directed to pay an amount of Rs. 5,000/-(Rupees five thousand)only towards his mental agony and litigation expenses within thirty days from the receipt of the order, in default of which an interest @ 9%(nine percent) per annum would accrue on the total amount till the actual amount is realized.
Further the Opposite Party is cautioned to be conscious of their duty towards their consumers in dealing with such matter in view of the growing cyber crime day to day and give proper service to their consumers.
Accordingly the case is disposed off to-day i.e on Dt.08.08.2018 ,being pronounced in the open Forum.
Typed to my dictation
and corrected by me.
( Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree,
( Ajanta Subhadarsinee)
M e m b e r (W)
