OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C. No. 49/15
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2) Smti ArchanaDekaLahkar - Member
3) Md Jamatul Islam - Member
Mir Alfaz Ali -Complainant
Son of Late Mir Abdul Jalil
Resident of Chandmari Colony,
P.O.Silpukhuri, P.S.Chandmari
District- Kamrup (Metropolitan), Assam
Pin -781001.
-vs-
1) The State Bank of India -Opp.parties
Represented by the General Manager-II
State Bank of India,6th Floor,
Local Head Office, G.S.Road, Dispur
Guwahati-781006
2) Chief Manager,State Bank of India
Silpukhuri Evening Branch, G.N.B.Road
Silpukhuri, Guwahati-781006
Appearance- Ld.advocates Mr.Tahidul Islam and Ms. Aniten Mosen for the complainant and Ld.advocates Mr.Ghanashyam Jalan and Ms.Himashree Das for the opp.parties.
Date of argument- 28.8.18
Date of judgment- 18.9.18
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Mir Alfaf Ali against the State Bank of India, represented by General Manager - II, Dispur, Guwahati and the Chief Manager,State Bank of India, Silpukhuri Evening Branch was admitted on 8.7.15 and notices were also served upon them and they also filed a joint written statement on 13.9.15. Thereafter, the complainant filed his evidence on affidavit on 26.2.16 and he was cross examined by the opp.party side on 5.8.16. The opp.party side also filed the evidence of one Shri Jogesh Das in affidavit and he was also cross examined by the complainant side. Thereafter, ld.Advocate Ms. Aniten Mesen filed written argument on behalf of the complainant on 10.8.17 and Ld. advocate Mr.G.Jalan also filed written argument for the opp.parties on 29.6.17. We heard the oral argument of Ld.advocate Mr.Tauhidul Islam for the complainant and of Ld.advocate Mr. Ghanashyam Jalan for the opp.parties on 13.8.18 fixed the day of 7.9.18 for delivery of judgment ,but on that day we could not deliver the judgment due to absence of one of the members of this forum and today we deliver the judgment, which is as below.
2) The gist of the complaint is that, the complainant Mir Alfaj Ali , who has a Saving Bank Account vide A/C No.10638777262 with Silpukhuri Evening Branch (Guwhati) of State Bank of India in the morning of 7.1.13 went to an ATM booth of opposite party’s bank situated at G.N.B. Road, Chandmari, Guwahati-3 for withdrawing cash and while he entered the ATM booth he found a boy waiting therein pausing himself as an attendant of the said booth and the said boy tried to guide him as to which of two ATM’s in the booth had cash and than he withdrawn Rs.10,000/- from the ATM and left the ATM and while he withdraw the money the said boy was standing inside the booth and he did not mind believing him in good faith to be attendant/ caretaker of the said ATM booth and an employee of opp.party bank. On that very day at 4-00 p.m. while checking the SMS in his mobile he found a massage that Rs.20,000/- has withdrawn from his saving bank account immediately after withdraw of money by him in the morning and then he enquired in the opp.party’s bank. The bank official also confirmed the fraudulent withdrawal from his account and he then lodged an F.I.R. with Chandmari Police Station (Guwahati) informing the police about the said fraudulent withdrawal through Chandmari ATM No.SI0A000078168 and Chandmari Police Station registered a case on receipt of FIR from him vide Chandmari P.S.Case No. 10/2014 under Section 420/380 IPC and started investigation and on 8.1.14 he also lodged a complaint with Opp.Party No.2 about such fraudulent transaction and he also lodged a petition to the opp.party to lock his ATM Card and after receipt of complaint Opp.Party No.2 forwarded copy of the complaint to the General Manager-(ii) , State Bank of India and the Chief Regional Manager of State Bank of India, Region No.1, Guwahati . After completing investigation, Chandmari P.S. sent the chargesheet to the court of Chief Judicial Magistrate, Kamrup, Guwahati against the Mantu Barman and one Shri Krishna Kalita under Section 420/380 of I.P.C. which has established fraudulent withdrawal of Rs.20,000/- from his account through the ATM situated at Chandmari. On 11.2.14 he submitted an application with the Manager of SBI Silpukhuri Evening Branch, Guwahati stating the fact of Charge sheet the culprit of said fraudulent transaction and also filed another application on 8.1.14 enclosing the copies of FIR and the charge sheet, which was duly received by them and he also approached opp.parties to credit the said amount in his account but they refused to credit the said amount to his account or to pay the amount in cash. The opp.party is the custodian of money of the customers and as such they are duty bound to employ some caretaker for protection of the ATM booth and in fact in many ATM’s there are caretaker employed by the opp.party. Failure of the opp.party to employ a caretaker/attendant in the ATM booth of the instant case, the miscreants had withdrawn Rs.20,000/- from his account fraudulently; and thus it is a case of deficiency of service on the part of the opp.party towards him and that also caused financial loss to him as well as caused mental anxiety to him and hence they are bound to pay him compensation of Rs.30,000/- for committing deficiency of service towards him and to pay back him Rs.20,000/- which had been fraudulently withdrawn from his account with interest @18% per annum, and also to pay him Rs.20,000/- as compensation for causing mental anxiety to him as well as the cost of the proceeding.
3) The pleading of the opp.party in brief is that , the complaint is vexatious . There is no cause of action for filing the complaint. The security personnel appointed by the opp.party are always attending their duties in uniform displaying their identify by wearing identity card; but complainant due to negligence on his part, without verifying the identity of the unknown person present inside the ATM; proceeded to withdraw the money in his presence at his own risk . Rs.20,000/- was not fraudulently withdrawn from the account of the complainant and if such amount was really withdrawn fraudulently from the account of the complainant, the complainant is solely responsible for the same having the complainant without verifying the identity of the said unknown person inside the ATM booth proceeded to withdraw money which is an act of negligence on the part of the complainant. The Branch Manager of the Opp.Party No.2 never advised the complainant to lodge FIR for the alleged fraudulent withdrawal as the incident took place within his knowledge. It is true that , the complaint petition filed by the complainant with them was registered as complaint No. 2014010819950773 for blocking his ATM on 8.1.14 alleging fraudulent withdrawal of Rs.20,000/- from his saving A/C through ATM No. 510A000078168 situated at Chandmari ,Guwahati on 7.1.14 at 7-41 A.M. The charge sheeted accused namely Mantu Barman and Krishna Kalita under section 420/380 IPC for fraudulent withdrawal Rs.20,000/- from the account of the complainant are not bank employees under them. As charge sheeted accused are not employee of the bank and as complainant himself was negligent in withdrawing money through his ATM in presence of unknown persons without taking all necessary caution, they are not in obligation to credit the said amount to his account. After the said incident, they never assured the complainant to credit the said amount to his account and then refused to do so. There is no gross deficiency of service on their part in not employing care taker in the said ATM booth, rather the complainant had himself withdrawn money from the said ATM in the presence of an unknown person, which is an act of negligence and carelessness on his part. The complainant has suffered financial loss due to his own negligence and as such there is no cause of action to file this complaint before this forum, and on the same reason, they are not liable to return Rs.20,000/- to the complainant which was allegedly withdrawn from his account fraudulently, and to pay him compensation of Rs.30,000/- in the head of deficiency of service and Rs.20,000/- as compensation in the head of causing mental anxiety to him and as such the complaint is liable to be dismissed.
4) We have perused the pleading as well as evidence of the parties and it is found that both sides admit that the complainant Mr.Mir Alfaj Ali, who has Savings Bank Account vide No. 10638777262 with SBI Evening Branch (Opp.Party No.2), on 7.1.14, at morning used his ATM Card in the ATM of the opp.party bank situated at G.N.B.Rd, Chandmari, Guwahati and withdrew Rs.10,000/- through the ATM card.
5) It is found that the complainant, in his pleading and evidence, states that on 7.1.14 at about 4 p.m. while he was checking SMS in his mobile, he found a massage that Rs.20,000/- was withdrawn from his Savings Bank Account through ATM after withdrawal of Rs.10,000/- by him in the morning and then he on advice of the Branch Manager of Silpukhuri Evening Branch, lodged F.I.R, with Chandmari Police Station , Guwahati about the said withdrawal of money from his account stating that the said amount was fraudulently withdrawn by someone; and the said FIR was registered as Chandmari Police Station Case No.10/2014 u/s 420/380 IPC and during investigation, the police arrested some miscreants – Mantu Barman and Krishna Kalita. The Opp.Party side admits that the complainant on 7.1.14 informed them about withdrawal of Rs.20,000/- from his account through ATM situated at G.N.B.Road , Chandmari, Guwahati stating that the said amount was fraudulently withdrawn by someone and that he also lodged one FIR with Chandmari P.S. about that withdrawal and the police arrested two miscreants namely Mantu Barman and Krishna Kalita . This very act of the complainant informing Opp.Party No.2 about the said withdrawn i.e. of Rs.20,000/- after withdrawal of Rs.10,000/- by himself in the morning of 7.1.2014 through ATM situated at G.N.B.Road, Chandmari, Guwahati which he says a fraudulent withdrawal and the act of filing FIR with the Chandmari P.S. as to the said fact, infers that what the complainant states in his complaint as well as in his evidence i.e. his statement that on 7.1.14 he had withdrawn Rs.10,000/- at morning from ATM of SBI situated at G.N.B.Road and while he was withdrawing the amount he found a boy waiting inside the ATM booth posing himself as an attendant of ATM booth and the said boy tried to guide him as to which of two ATM ‘s in the booth had cash and he believed that the said boy was the attendant /the employee of the opp.parties and he left the booth after withdrawing the said amount but on that very day at 4 p.m. while he checked SMS in the mobile, he found a massage that Rs.20,000/- was also withdrawn from his account through the said ATM on 7.1.2014 by some miscreants, is a true statement. In the written statement the opp.party side has not specifically denied this version of the complainant , but they say that they are not under obligation to deposit the said amount of Rs.20,000/- as per prayer of the complainant stating that the charge-sheeted and the arrested person was not employee of the bank at any point of time and that the complainant himself was negligent as he had withdrawn the amount of Rs.10,000/- through his ATM card in the presence of the said unknown person , although he was expected to take all necessary cautions while using ATM cards . This version of the opp.party suggests that the version of the complainant that on 7.1.14 the complainant had withdrawn Rs.10,000/- from his account through the ATM booth of SBI situated at G.N.B.Road, Chandmari , Guwahati and on that very day while he checked the SMS of his mobile at 4 p.m., he found that there was a massage in his mobile that Rs.20,000/- was also withdrawn from his account through the said ATM, which, he says is a fraudulent withdrawal by miscreants, is substantially a true fact. Thus, we hold that it is clearly established that on 7.1.14 some miscreants fraudulently withdrew Rs.20,000/- from the account of the complainant by manipulating the ATM machine of SBI situated at G.N.B.Road, Chandmari (Chandmari ATM No. S10A000078168) after withdrawal of Rs.10,000/- by him on that very day at the morning.
6) It is admitted fact that the concerned ATM booth was not provided with service of security guard to protect the interest of the clients of banks whereas in some ATM booths security guards are provided. Thus, it is crystal clear that opp.parties committed negligence by not providing security guard in the said ATM booth for protecting interest of the clients of the banks.
7) Now next question is that what is the deficiency in the ATM machine installed in the said booth, and whether the machine was easily manipulated by the miscreants without utilizing the ATM card and the PIN of the complainant. It is already found that the complainant was keeping his ATM Card and PIN number secret, and on that day of 7.1.14, he never gave the ATM Card to another person nor he gave the PIN number to someone else on that day. It is admitted fact that the boy who had been inside the said ATM booth while the complainant was processing to withdraw Rs.10,000/-, was presumed by the complainant as the employee of the bank guarding the ATM booth. The ATM machines as per expectation of the consumer should be of such efficiency that nobody can withdraw any amount from the account of a person even after knowing the PIN number, and nobody can withdraw any amount without using the ATM card. In the instant case, it is found that without using the ATM card and PIN number of the complainant the miscreants withdrawn Rs.20,000/- from the account of the complainant through that ATM on 7.1.14 manipulating the process of withdrawing the money. Thus, we hold that the said ATM was not a efficient to prevent withdrawal of money manipulating the process of withdrawal without using the ATM card. Thus, it is established that the said ATM was either a ATM having manufacturing defect or an inefficient ATM to protect the interest of the bank clients . With that reason, we must have to say that the opp.parties committed deficiency of service by providing the said defective / inefficient ATM to the bank clients in result of which the miscreant fraudulently withdrew Rs.20,000/- from the account of the complainant on 7.1.14. Therefore, the opp.parties are liable to credit the said amount to the account of the complainant with interest @12% per annum from 7.1.2015.
8) It is also found that the complainant had just after knowing about the said fraudulent withdrawal, informed the police as well as the opp.parties about the said fraudulent withdrawal requesting them to approached the miscreants for trial, and he also requested the opp.parties to credit the said amount in his account, but opp.parties have refused to settle his claim. As such, we are of opinion that by refusing to settle the said claim of the complainant, the opp.parties caused harassment and mental agony to him and also caused lowering of his high esteem in the eye of public, and so for such harassment, the opp.parties are liable to pay him Rs.10,000/- as compensation. Moreover, complainant, for no fault of him, compelled to prosecute the opp.parties before this forum by incurring a handsome cost in paying fees to his counsel etc., and for such reason, the opp.parties are liable to pay an amount of Rs.10,000/- also to him as cost of proceeding.
9) Because of what has been discussed as above, we hold that the complainant has a prima facie case against the opp.parties, which, he has succeeded to prove. Hence the complaint against both the opp.parties is allowed on contest and opp.parties are directed to pay the complainant Rs.20,000/- (the amount fraudulently withdraw) with interest @12% per annum from 7.1.14 and also to pay him Rs.10,000/- as compensation for causing harassment etc. to him as well as Rs.10,000/- as cost of proceeding, to which , both the opp.parties are jointly and severally liable. They are asked to pay the awarded amounts within 45 days, in default, the other two amounts shall also carry interest at the same rate.
Given under our hands and seals on this 18th September of 2018.
Smti Archana Deka Lahkar (Md. Jamatul Islam) (Md. Sahadat Hussain) Member Member President
