Tripura

StateCommission

A/24/2015

Shri. Aditya Sankar Sengupta & Others - Complainant(s)

Versus

The State Bank of India - Opp.Party(s)

Mr. A.Sengupta

21 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.A/24/2015.

 

1. Shri Aditya Sankar Sengupta,

S/O Sri Narayan Sankar Sengupta and

Smti Nilima Senguta.

 

2. Smti. Nilima Sengupta,

W/O Shri Narayan Sankar Sengupta,

Both are the resident of 29/C Krishnanagar

Near Sankar Chowmohani, P.O-Agartala,

P.S-West Agartala, District-West Tripura.

                  ….    ….    ….    ….    Appellants.

                   Vs

         The State Bank of India,

          Agartala Branch, Melarmath,

          P.O-Agartala, P.S-West Agartala,

          District-West Tripura (represented by its

          Assistant General Manager).

             ….    ….    ….    ….    Respondent.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

 

               MR.NARAYAN CH. SHARMA,

               MEMBER,

                 STATE COMMISSION.

               

 

For the Appellants    :      Mr.A.Sengupta,Adv.

          For the respondent   :      Mr.H.K.Bhowmik,Adv. & Mr.A.Saha,Adv.

                                        

Date of Hearing         :     07.08.2015.

Date of delivery of Judgment  :

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 30.06.2015 under Section 15 of the Consumer Protection Act., 1986 by the appellants Aditya Sankar Sengupta and his mother Nilima Sengupta is directed against the judgment dated 23.05.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-52 of 2014 whereby the Ld. District Forum dismissed the complaint filed under Section 12 of the C.P.Act, 1986 on contest being devoid of any merit, but without any cost.       

2. The case of the appellants, in brief, is that the appellant- complainants are the holder of a Joint Account No. 30383020051 standing at Agartala Branch of the State Bank of India and an amount of Rs.40,000/- has been shown withdrawn from the said account in three phases which did not come to the notice of the complainants until they received three messages in the Cell Phone on 12.11.2013. It is also the case of the appellants that the said amount was withdrawn using SBI ATM-cum-Debit Card bearing No.6220180000200252377 issued in the name of the complainant No.1 by someone from the ATM counter at BARISHA BIREN ROY ROAD(E). It is also stated that they have never used the said SBI ATM card after issuance of the same in favour of the complainant No.1 and the said ATM-cum-Debit Card is still in their custody in unused condition. It is further asserted that the complainants never visited Kolkata for the last eight years and as such, the question of any use of the said ATM card by the complainants does not arise at all. It is also stated that on receipt of the messages dated 12.11.2013, the complainants by a letter dated 13.11.2013 requested the respondent-O.P. to block the above account so that no further unauthorized withdrawal from the said account could take place.                                                    
3. It is also the case of the appellant-complainants that they are the consumers of the O.P., but due to faulty services of the O.P., an amount of Rs.40,000/- was debited from their account when no money was withdrawn by them by using the ATM card. It is further stated that the complainants by several letters requested the respondent-O.P. to credit the said amount of Rs.40,000/- to their account which was wrongly debited from the said account, but the respondent-O.P. made no response to their correspondences nor credited the said amount of Rs.40,000/- to their account and hence, the complainants filed the complaint.
4. It transpires that the Ld. District Forum considering the pleadings of the parties and evidences on record passed the impugned judgment and thereby being aggrieved and dissatisfied, the appellants have preferred the instant appeal on the grounds that the finding of the Ld. District Forum to the effect that the withdrawal of Rs.40,000/- from the joint account of the complainants was successful, is erroneous and untenable in the eye of law, that the finding of the Ld. District Forum that the bank is liable to reimburse the money if stolen from the customer’s account through ATM only when fraudulent transaction is taken place, but not in case of successful transaction when the money is shown to have been withdrawn by using the ATM card allotted to the complainants, is based on no evidence and perverse in the eye of law, that at the time of passing the judgment the Ld. Forum should have considered that the ATM-cum-Debit Card can easily be cloned at a Merchant Point of Sale (POS) terminal at the time of purchase of any goods from the merchant point of sale, but the respondent-Bank never informed the appellants- customer through any communication or public notice that the ATM-cum-Debit Card is not safe and can be cloned easily from the merchant POS and the customer should not use the ATM Card in any merchant POS for the purpose of purchasing goods, that the Ld. Forum ought to have considered that the expert of ATM-cum-Debit Card failed to provide any assurance to the customers as to the safety and security of the customer using ATM Card, that the Ld. Forum should have considered that there is no norms prescribed by the Reserve Bank Of India(RBI) who is the authority for formulating guide lines, instructions for any kind of banking exercise in any nationalized bank in India.
5. The further ground of appeal is that the Ld. District Forum did not consider that the complainants never visited Kolkata or BARISHA BIREN ROY Road(E) nor used the ATM-cum-Debit Card and in that case, the withdrawal of the said amount of Rs.40,000/- through ATM Booth of BARISHA BIREN ROY ROAD(E) indicates that due to some defects in the system, the complainants’ money in the custody of the bank went unsafe which is nothing, but a deficiency in service on the part of the bank, but the Ld. District Forum failed to appreciate this facts and circumstances of the case and erroneously passed the impugned judgment which cannot be sustained in the eye of law and should be set aside in this appeal so preferred by the appellants.             

Points for consideration.

6.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned judgment dismissing the complaint and (2) whether the judgment under appeal should be set aside as prayed for.        

                         Decision with Reasons.

7.  Both the points are taken up together for the sake of convenience and brevity.
8. The learned counsel for the appellants submitted that admittedly, the complainants have a joint account in the Agartala Branch of State Bank of India and an ATM-cum-Debit Card has also been issued in the name of appellant-complainant No.1 Aditya Sankar Sengupta. He also submitted that it is the specific case of the appellant-complainants that for the last eight years they never visited Kolkata nor they ever used the said ATM Card for withdrawal of any money from their said joint account. He also submitted that an amount of Rs.40,000/- in three phases have been shown withdrawn on 12.11.2013 from the ATM Booth at BARISHA BIREN ROY ROAD(E). He also submitted that when it has not been established that the complainants visited Kolkata or BARISHA at the relevant time, the question of using the said ATM card by the complainants for withdrawal of any money through ATM Booth at BARISHA BIREN ROY ROAD(E) of the SBI does not arise at all. He also submitted that on receipt of the CELL PHONE messages, the complainants made correspondences to the SBI Authority of Agartala Branch, but in vain. He also submitted that admittedly, there was the installation of a C.C.T.V. in the ATM Booth at BARISHA BIREN ROY ROAD(E), but the respondent-O.P. by producing the C.C.T.V. footage failed to establish that the complainants used that ATM Card in the ATM Booth at BARISHA BIREN ROY ROAD(E) on 12.11.2013.     
9. The learned counsel for the appellants also submitted that the respondent-O.P. is the custodian of the money lying deposited in their joint account of the complainants, but the respondent failed to prevent such unauthorized withdrawal of money from the joint account and thereby, the respondent is found negligent and deficient in providing proper service to the appellant-complainants as the O.P. failed to credit the said unauthorized withdrawal amount of Rs.40,000/- to their joint account, in spite of letters addressed to the respondent. He also submitted that the respondent at the time of issuing ATM-cum-Debit Card never informed the complainant that the use of the ATM Card by the complainants is their own responsibility and the bank has no liability for withdrawal of any money from the account through adopting any unfair means. He also submitted that the Ld. District Forum did not consider at all as to the utility for installation of any C.C.T.V. in the ATM Booth. He also submitted that the Ld. District Forum did not consider that the respondent-Bank is legally responsible for the safe custody of the money of the complainants, and failed to appreciate the deficiency of the respondent-Bank in providing proper service to the appellant-complainants and being miserably failed to appreciate in this regard, passed the impugned judgment which cannot be sustained in the eye of law and therefore, he further submitted for setting aside the impugned judgment and also for passing an award as per prayer contained in the complaint.     
10. The learned counsel for the respondent-State Bank of India submitted that the preservation of the ATM-cum-Debit Card and of the four digits secret PIN (Personal Identification Number) is the sole responsibility of the holder of the said ATM Card. He also submitted that the warning not to disclose the PIN to any person is given in the leaflet while issuing the four digits secret PIN to the ATM-cum-Debit Card holder. He also submitted that admittedly, an amount of Rs.40,000/- in three phases have been withdrawn from the ATM Booth at BARISHA BIREN ROY ROAD(E). He also submitted that the joint account of the complainants is with the Agartala Branch of the SBI and the above mentioned ATM Booth is in Kolkata, West Bengal. He also submitted that for withdrawing any money by using the ATM-cum-Debit Card with the help of connected four digits secret PIN NUMBER from an ATM Booth of the SBI within India, the holder of the card in whose name the said ATM is standing does not require to go to Kolkata personally leaving Tripura. The holder of the ATM Card can use the said ATM Card outside Tripura by sharing the said ATM Card and the four digits secret PIN with any person as per his choice. He also submitted that as per documentary evidence, the withdrawal of the said amount of Rs.40,000/- in three phases is the outcome of successful operation of the ATM Card issued to the complainant-appellant No.1. He further submitted that the complainant-appellant No.1 Aditya Sankar Sengupta in his cross-examination as P.W.1 categorically admitted that the money cannot be withdrawn through the ATM Booth only by using ATM Card without entering the PIN NUMBER, and both ATM Card and the four digits secret PIN are required for withdrawal of money by anybody else.
11. The learned counsel for the appellants submitted that the appellants in this appeal have filed three documents namely, (1) questions, answered by R.B.I under R.T.I Act collected through internet. (2) Reporting by Arvind Chhabra on Titled “crime”, clone thieves strikes ATMs” collected through internet and (3) “The Tribune” on line Edition on the topic “Is your ATM Card safe ?”. He also submitted that these three documents clearly indicate that the operation of banking transactions by using ATM Card is not safe and in this regard, there is no RBI guidelines for ATM CCTV Recording in India and there exists the scope of cloning the ATM Card and also the recording of PIN on a hidden camera. He also submitted that knowing fully well the Banking Authority has introduced the electronic system for banking transactions by using ATM-cum-Debit card with the help of PIN. He also submitted that from the above, it is palpable that the respondent is negligent and deficient in providing proper service to its customers like the appellants. He further submitted that the respondent bank cannot avoid its liability for introducing such type of defective electronic system in banking transactions through user of ATM-cum-Debit Card with the help of four digit secret PIN for withdrawal of money from the ATM Booth. He also submitted that the Ld.District Forum overlooked this aspect of the case and being failed to appreciate, passed the impugned judgment absolving the bank from its liability and thereby erroneously dismissed the complaint which is not tenable in the eye of law and as such it is liable to be set aside and the appeal should be allowed by granting the reliefs claimed in the complaint.      
12. The learned counsel for the respondent referring to the above admission of the P.W.1 submitted that it is not the responsibility of the respondent-SBI to prove as to whether the complainant No.1 or the complainant No.2 ever visited Kolkata, West Bengal or not. He also submitted that for operating the said ATM Card with the help of four digits secret PIN, the complainants do not require to go to West Bengal. The complainant No.1 can hand over his ATM-cum-Debit Card with four digits secret PIN to somebody else for withdrawal of money from their joint account by using that ATM card. He further submitted that as the documentary evidence has proved that the user of the ATM card issued to the complainant No.1 for withdrawal of money from the ATM Booth situated at BARISHA BIREN ROY ROAD(E) has made it clear that there involves no question of unauthorized withdrawal of money from the said account of the complainants. He also submitted that it is true that the respondent, in spite of taking attempt, could not get the C.C.T.V. footage from the C.C.T.V. installed in the said ATM Booth at BARISHA, but that does not mean that the withdrawal of the said money by using the ATM card issued by the respondent to the complainant-appellant No.1 with the help of four digits secret PIN is unauthorized one. He also submitted that as the withdrawal of money was authorized through the using of the said ATM-cum-Debit Card issued to the complainant No.1, there arises no question of crediting the said amount by the respondent to the joint account of the complainants. He also submitted that the Ld. District Forum properly considered the facts and circumstances of the case and the evidences on record and ultimately arrived at the conclusion that the complaint is devoid of any merit and accordingly, dismissed the complaint by the impugned judgment which being proper, legal and justified should be upheld and the appeal, is, therefore, liable to be dismissed. 
13. Ld. Counsel for the respondent-bank submitted that it is a fact that RBI has no guidelines regarding CCTV recording in India. He also submitted that the custody of the ATM Card and the secrecy of the PIN number is the sole responsibility of the customer. He also submitted that if the customer-ATM card holder violates the above terms and conditions of the agreement, the bank cannot be held liable for withdrawal of money by using ATM Card with the help of four digits secret PIN from the ATM Booth by somebody else. He also submitted that throughout India almost all the nationalized banks and reputed private banks have introduced the use of ATM Card facility and the customers are using the same. He also submitted that a duty is cast upon the holder of the ATM card to keep the ATM Card in proper custody and also to keep in secret the four digits secret PIN so that none other than the holder of the ATM Card to whom an ATM Card has been issued by the Bank, can know the said secret PIN. He also submitted that in the case in hand, the withdrawal of an amount of Rs. 40,000/- in three phases through ATM Booth at BARISHA BIREN ROY ROAD (EAST) by using the ATM-cum-debit card issued to the complainant-appellant No.1, as a result of successful operation of the said transaction have made it clear that the complainant No.1 or through somebody else got the said joint account operated by using the same ATM Card with the help of secret PIN number and as such the said withdrawal of money cannot said to be an unauthorized one and the respondent- Bank cannot be held responsible for such authorized withdrawal of the money from the joint account of the appellants. He also submitted that as regards the three documents so submitted by the appellants, the respondent-Bank has no knowledge about it and moreover, there is no authenticity and actual legal evidentiary value of these documents so as to bind the respondent-bank with any liability. He also submitted that the said three documents collected through internet as alleged are not helpful to the appellants in any way and therefore, the impugned judgment deserves to be affirmed and the appeal is liable to be dismissed.       
14. We have gone through the pleadings of the parties, evidences both oral and documentary, the impugned judgment and the memo of appeal. We have also considered the submissions made by the learned counsels of both sides. On due consideration of all we find certain admitted facts. Admittedly, the complainants have a joint account with the respondent-Bank at its Agartala Branch. It is also admitted fact that an ATM-cum-Debit Card has been issued to the complainant No.1 Aditya Sankar Sengupta and accordingly, the four digits Secret PIN has also been supplied to the complainant No.1. It is admitted position that the preservation of the ATM-cum-Debit Card and the four digits secret PIN  is the sole responsibility of the holder of the ATM Card in whose favour it has been issued. It is also admitted fact as admitted by the P.W.1 that both ATM Card and Secret PIN are required for withdrawal of money by anybody else. It is also found admitted position from the Journal Print/Electronics Journal Print Log (Ext.B) that the transactions No.5259,5260,5261 dated 12.11.2013 are successful transaction. It further transpires from the Withdrawal Logs (ATM Switch Centre), Ext. A that the said three transactions were made at 22.29.43, 22.30.28 and 22.31.16 @ Rs.10,000/-, Rs.15,000/- and Rs.15,000/- respectively by using the ATM-cum-Debit Card bearing No.6220180000200252377 which has been admittedly issued to the complainant-appellant No.1 Aditya Sankar Sengupta. From the above it is palpable that unless the ATM-cum-Debit Card of the complainant No.1 (Ext.1) and the four digits secret PIN were not used, the said amount of Rs.40,000/- in three phases would not have been withdrawn from the joint account of the complainants from the ATM Booth being No. ATM ID IHEN 001522015 located at BARISHA BIREN ROY ROAD(E), Kolkata (Ext.A). This leads us to believe and hold that either of the complainants or anybody else in possession of said ATM-cum-Debit Card with four digits secret PIN withdrew the said amount of Rs.40,000/- in three phases at the rate mentioned above from the joint account of the complainants through the ATM Booth at BARISHA BIREN ROY ROAD(E), Kolkata and as such it was authorized and valid withdrawal of the amount. We find nothing even to guess that there involved any sign of unauthorized withdrawal of the amount from the joint account of the complainants.
15. From Ext.1 (back side of ATM card) it appears that there is a direction to the effect that the ATM Card is not transferable. There is also a condition for keeping the PIN confidential. There is also another condition that ATM Card is the property of the State Bank and its use is governed by terms and conditions of the Bank. So, it is palpable that the proper custody of the ATM Card and the secrecy of the four digit PIN number is the sole responsibility of the complainant No.1 to whom the said ATM Card has been issued by the Bank. Going through the three documents collected through Internet as alleged by the Ld. lawyer for the appellants, we are of the view that since there is no R.B.I. guidelines in India regarding C.C.T.V. Footage recording in the ATM Booth, the non-production of the said C.C.T.V. Footage from the side of the respondent does not impair the defence of the Bank in any way. Furthermore, it is palpable that the ATM Card holder uses the ATM facility as per his own choice. Bank does not force its customer to use ATM Card facility. If the customer to whom an ATM-cum-debit Card has been issued by the Bank does not keep his ATM card in proper custody and also does not keep the connected PIN confidential and allows somebody else by sharing with the ATM Card and the four digits secret PIN to operate the account by using the said ATM Card with secret PIN, as in the instant case, the respondent Bank cannot be fastened with any liability for withdrawal of any money from their joint account through successful operation by using the same ATM Card. However, we find that the said three documents so furnished in this appeal collected through Internet will not come in any way in aid to the appellants to succeed in this appeal.       
16. In view of the above, we are of the opinion that the respondent rightly did not credit the said withdrawn amount of Rs.40,000/- to the joint account of the complainants as claimed by them. Going through the impugned judgment, we are of the view that the Ld. District Forum considered the case from its true perspective and rightly arrived at the conclusion and accordingly, finding no merit in the complaint dismissed the same by the impugned judgment which, according to us, calls for no interference by this Commission and as such the impugned judgment should be upheld and the appeal is also liable to be dismissed.  
17. In the result, the appeal fails. The impugned judgment dated 23.05.2015 passed by the Ld. District Forum,West Tripura, Agartala in case No. C.C. 52/2014 is hereby affirmed. There is no order as to costs.

 

          

       MEMBER                          MEMBER                                PRESIDENT

               State Commission             State Commission                     State Commission

                     Tripura                               Tripura                                       Tripura