State Consumer Disputes Redressal Commission
Joy Basu vs State Bank Of Patiala on 10 August, 2015
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.900 of 2013
Date of institution : 21.08.2013
Date of decision : 10.08.2015
Joy Basu son of Sh. Ajit Kumar Basu resident of House No. 1195, Urban
Estate, Phase-II Patiala District Patiala.
.......Appellant/Complainant
Versus
1. State Bank of Patiala, Branch office DCW, Patiala through its
Branch Manager.
2. State Bank of Patiala, the Mall Road, Sheran Wala Gate, Patiala
through its Managing Director.
3. State Bank of India, Branch office Southern Avenue, Kolkata-
700026, through its Branch Manager.
4. The Branch Manager (ATM/LHO/SBI/1, strand Road, Kolkata-
700001 of State Bank of India.
........Respondents/Opposite Parties
First Appeal against order dated
15.07.2013 passed by The District
Consumer Disputes Redressal
Forum, Patiala.
Quorum:-
Mr. J. S. Klar, Presiding Judicial Member
Mr. H. S. Guram, Member.
Present:-
For the appellant/complainant : Sh. Lakhinder Bir Singh, Advocate
For respondent No. 1 & 2 : Sh. Sandeep Jain, Advocate
For respondent No. 3 & 4 : Sh. Ajay Sharma, Advocate
F.A. No. 900 of 2013 2
MR. H. S. GURAM, MEMBER:-
ORDER
This appeal has been preferred by the appellant (the complainant in the complaint) against the respondents of this appeal. (OPs in the complaint), assailing order dated 15.07.2012 passed by the District Consumer Disputes Redressal Forum Patiala, in Consumer Complaint No. 13/82 dated 05.03.2013, vide which, the complaint filed by the complainant was dismissed.
2. The brief facts of the case are that the complainant was maintaining his saving bank account No. 55072270135 with OP No.1 namely State Bank of Patiala. He was also provided an ATM-cum-debit card facility to operate his account. It was further submitted in the complaint that on 28.12.2011 in the evening hours at about 17:30 PM, the complainant visited SBI Southern Avenue Branch ATM Kolkata to withdraw a sum of Rs. 2,000/- from the ATM booth. It was further pleaded that there were two ATM machines installed in that booth. When the complainant entered in the ATM booth, he noticed that one person was standing in that booth, who was operating ATM machine and when that person left the booth, the complainant started operating the ATM machine. It was also noticed by him that one another person had entered into the ATM booth and he was trying to peep into the ATM keyboard from behind the complainant. The complainant requested the said person to leave the ATM booth and he wanted to use that ATM machine. He further noticed that no ATM security guard was provided by the bank outside the ATM booth to safeguard the ATM transactions to be conducted by the customers. When complainant inserted his ATM card and pressed the secret password in the ATM Machine, then the ATM gave a printed message that the withdrawal F.A. No. 900 of 2013 3 limits exceeded. The complainant pressed the cancel buttons on the ATM and came out form the ATM booth. After the receipt of the printed message, he went to the second ATM machine and found that the said machine was a touch screen operating system. The complainant pressed the word "Banking", but the same was not responding and he left the second ATM booth also and pressed the clear and cancel keys and removed his card from the ATM machine. He again went to another Branch on the same day. On 28.12.2011 at about 18:15 PM SBI at Charu Chandra Avenue Kolkata and he tried to withdraw money twice, but all in vain. Further the complainant was astonished to find that he had received two SMSs on his mobile phone at 6:17:19 on 28.12.2011 to the effect that a sum of Rs.20,000/- was debited from his account and balance in his account was shown Rs.49982.42P. Subsequently, he received second two SMSs that he again debited Rs.20,000/- and his balance stood Rs.28982.42P only. The said two SMSs were received by him. On the same day, on 28.12.2011 by 7:58 PM, he lodged a telephonic complaint to the bank through helpline No. 18002222 and 0826599000990 regarding the said unauthorized withdrawal of his money. The customer service attendant advised the complainant to contact the concerned Branch Manager. The complainant lodged a written complaint on 29.12.2011 to the Branch Manager of SBI/Southern Avenue Branch Kolkata and requested him to reimburse the amounts of Rs.40,000/-, which were illegally withdrawn from his saving bank account through ATMs installed by their branch. The said branch Manager of SBI advised him to make a request letter to the concerned branch Manager, in which he was maintaining his account. On his arrival from Patiala to Kolkata, he made a written complaint to the branch Manager of State Bank of Patiala DCW Patiala. The OPs failed to F.A. No. 900 of 2013 4 resolve the matter and lastly refused to reimburse a sum of Rs. 40,000/- to the complainant, which was illegally withdrawn from his saving bank account through ATM of SBI by someboby. However, the complainant had also lodged a complaint to the local Police Station Tollygunge and also Cyber Crime Station situated at DD Lal Bazar Kolkata regarding ingenious withdrawal of money from his saving account of SBI. The complainant went to the local Head Office of State Bank of India and met Manager In- Charge as well in this regard. The complainant has prayed for reimbursement of the amount of Rs.40,000/-, besides, Rs.50,000/- as compensation for mental harassment and Rs.11,000/- as cost of litigation.
3. OP No. 1 & 2 filed their written reply to the complaint of the complainant and contested it. It was alleged in the written reply by OP No.1 & 2 that complainant violated the terms and conditions of the ATM card by not keeping the secret code with him in safe custody. It was admitted that complainant opened saving account with OP No.1 and ATM-cum-debit card was issued to him. It was denied that complainant entered into the ATM booth and operated the ATM machine and complainant noticed one person entering in the ATM booth, who was peeping through the back of the complainant. It was further pleaded that there was mirror on each ATM through which it could be easily seen, if somebody was watching the customer from his back. It was further pleaded that ATM cannot be operated unless the 4 digit secret code was known to some other person. The JP log of the ATM showed that Rs.20,000/- were withdrawn by the complainant at 17:27 and RS. 20,000/- at 17:30 through Card No. 6038455052100062913 from ATM No. S10A001505002 by the complainant. It is also submitted that another customer having card No. 6220180043200227643 had withdrawn Rs. 3,000/- at 17:35 on same day F.A. No. 900 of 2013 5 i.e. 28.12.2011 from ATM No. S10A001505002. The CCTV footage showed that the complainant was present in the ATM booth at the time of above withdrawal. OP No.1 & 2 further averred that the amount of Rs.40,000/- was debited from the account of the complainant through transaction No. 4383 and 4384 on 28.12.2011 at 17:27 PM and 17:30 PM as the withdrawal by complainant was successful. It was further averred that complaint of the complainant was decided by the bank after due verification from SBI South Avenue Branch Kolkata. It was found that there was no excess amount in the amount on that day. The copy of photographs of CCTV footage showed that at the time of withdrawal of money at 17:27 and 17:30 PM, the complainant was present in the said ATM booth. OP No.1 & 2 prayed for dismissal of the complaint.
4. OP No.3 filed its separate written reply alleging that the cause of action in the present case accrued at Kolkata and present complaint is not maintainable. The complainant violated the terms and conditions of the ATM card by not saving the secret code, which was known to him only. OP No.3 virtually adopted the written reply of OP No. 1 & 2, and it prayed for the dismissal of the complaint on the points as pleaded by OP No. 1 & 2.
5. The Complainant tendered in evidence his affidavit Ex.C-1, copy of passport Ex.C-2, copy of stamps of immigration on passport Ex.C- 3, copy of legal notice dated 04.05.2011 Ex.C-4, postal receipts Ex.C-5, copy of ticket dated 24.09.2015 Ex.C-6, copy of boarding pass of flight No.SQ-405 Ex.C-7, copy of boarding pass flight No.SQ-231 Ex.C-8 and close her evidence. OP No.1 tendered into evidence affidavit of Sh. Anand Goyal Ex.OP -1/A, computer generated copy of e-mail Ex.OP-1/B and closed his evidence. OP No.2 tendered its evidence by way of affidavit of Sh. Paul Doraj Raj, Manager Northern India OP-2, Ex.OP-2/A, copy of e- F.A. No. 900 of 2013 6 ticketing generation printed Ex.OP/B and closed the evidence. OP No.3 tendered its evidence in one of affidavit by Sh. Arun Pathanis Ex.COP-3/A, copy of exchange voucher Ex-OP3/B, copy of flight schedule Ex.OP-3/C, copy of ticket Ex.OP-3/D, copy of bill Ex.OP-3/E, copy of invoice dated 09.10.2010 Ex.OP-3/G and closed its evidence. On conclusion of evidence and arguments, the District Forum Patiala dismissed the complaint of the complainant. Dissatisfied with this order of the District Forum, the complainant now appellant has preferred this appeal against the same. Aggrieved by the order of the District Forum, the complainant now appellant filed the present appeal against the same
6. We have heard counsel for the parties and also examined the record of the District Forum, which was called at the stage of admission.
7. During the course of arguments, the counsel for the appellant/ complainant argued that the District Forum had solely relied upon the JP logs of the transactions 4383 and 4384 submitted by the OPs and had not considered the CCTV footage, as provided in Ex.R-1 and Ex.R-5. From these exhibits, it is visible that one other person was present in the ATM booth, when the complainant was there in the said ATM booth to operate the ATM machine. As per the RBI guidelines/directions issued to the banks who had installed ATM machines, the banks are to provide the security guards outside the ATM booth. Failure of the OP Bank to provide security guard amounts to deficiency in service. Moreover, in their written statement the OPs had denied the allegations of complainant that some other person was present in the ATM booth at the time of entry of the complainant therein. The counsel for the respondents in this appeal argued that the order, passed by the District Forum has been rightly passed and the same should be affirmed.
F.A. No. 900 of 2013 7
8. In order to examine the bone of contention of non payment of Rs.20,000/- cash withdrawals pertaining to SBI Southern Avenue Branch of OP No.3 and we have perused the contents of Ex.C-11 which states as under:-
"On Tue, 3/4/12, COMPLAINTS <[email protected]> wrote:
From: COMPLAINTS <[email protected]> Subject : SRHI JOY BASU : COMPLAINT OF ATM WITHDRAWAL FROM SBI SOUTH AVENUE BRANCH KOLKATA To: [email protected] Date: Tuesday, 3 April, 2012, 4:57 AM We refer to your complaint dated 24.01.2012 on the above mentioned subject, It is submitted that your complaint has been investigated in detail and it has been found that the transaction No. 4383 & 4384 dated 28.12.2011 which were conducted from the ATM of SBI, South Avenue Branch, Kolkata are successful transaction as per ATM log & EJ log.
The DVSS images footage were also called for from the above noted branch of SBI and it is inferred from the images that:-
a) You came to the ATM at 17:26:27 hrs and is seen leaving at 17:27:06 hrs wheresas cash was dispensed at 17:27:45 hrs. However, some other person is also seen in the ATM Kiosk when you were operating and apparently that person may have taken the cash.
b) Immediately after the first transaction, you are again seen coming to the ATM at 17:28:36 hrs and remained there till 17:29:39 whereas, cash was dispensed at 17:30:21 hrs. Here again some other person is also seen in the ATM kiosk who may have taken the cash dispensed at 17:30:21 hrs. In view of the above it is reasonably inferred that you have used your card twice at SBI, South Avenue Branch ATM and the two persons seen in the images may have duped and taken cash.
Further, regarding the apprehension expressed by you that the ATM had some software and hardware problem, we are unable to comment as the ATM is owned by SBI.
Chief Manager"
F.A. No. 900 of 2013 8
After going through the above message, we have also perused the CCTV footage Ex.R-1 dated 28.12.2011 for the time 17:25:09. From this, the presence of two persons in the ATM booth is clearly proved. The CCTV footage Ex.R-2 and Ex.R-3 show the presence of two persons in the ATM booth. However, the CCTV footage as per Ex.R-5 for the time 17:30:21 pertaining to transactions No. 4384 is not clear.
9. As per the instructions given by National Payment Corporation of India which is a subsidy of RBI, it has directed all the banks to provide CCTV footage to their customers, when there is complaint regarding non disbursement of the amount to the ATM card holder. It is observed by us that the complainant in his affidavit has categorically stated that he had made a request to provide CCTV footage to SBI Head Office Manager looking after ATM Section and his request was declined. We find as per directions of the National Payment Corporation of India, the OP bank was required to provide CCTV footage to the complainant by way of CD/DVD. The CCTV footages by way of photocopies were subsequently submitted in their reply submitted by the OPs in support of their averments. However, the OPs had not supplied the JP logs for the time 17:25:09 to 17:25:33 and from 17:27:01 to 17:29:33, to find out what was the position of the ATM during the crucial period, when the complainant was present in the ATM booth, as the cash was not dispensed by the ATM machine, subsequently to the time when he had left the ATM machine. We have also examined in the contents of the letter dated 02.01.2012 written by SBI Southern Avenue Branch to SBI Patiala. From the contents of Ex.R-7, it is not clear as to when the cash holding in the ATM was verified pertaining to the ATM and on which date. From the above, it is evident that the complainant had made all sincere efforts to find out the reasons for non disbursement of this cash F.A. No. 900 of 2013 9 by the ATM machine of the OPs and no sensible person would be so vehemently pursuing his case with appropriate authority by lodging his complaint to different authorities in regard to non-receipt of the amount. Vide his letter dated 29.12.2011 Ex.C-7 addressed to branch Manager SBI Southern Avenue Branch Kolkata and subsequently he wrote another letter dated 04.01.2012 addressed to Police Station Officer Kolkata and thereafter, copy to Cyber Crime Detective Department Kolkata Police Lal Bajar Kolkata about this grievance. It appears that he had been taking up his case with the authorities of SBI Patiala, which is evident from his letter dated 05.01.2012 posted to SBI Patiala, vide Ex.C-9 on 06.01.2012 by way of registered letter receipt of which was appended therein. From perusal of Ex.C-11, the reply which was given by the SBI Patiala, vide email dated 03.04.2012 addressed to Mr. Basu at 4:57 AM, it is clear that dispute pertaining to non disbursement of cash was not redressed within 7 days as pert the directions given by the RBI. If the same is not resolved within 7 days as per the RBI directions, then the OP bank were required to pay Rs.100/- per date from the day of complaint after 7 days till one day prior to the email date sent to the complainant. Thus, the amount which was required to be paid to the complainant as per the RBI directions would be from 13.01.2012 to 02.04.2012 and it is calculated as under:-
19 days of January of 2012 29 days of February of 2012 31 days of March of 2012 2 days of April of 2012 Total days 81 81X 100= 8100
10. From perusal of affidavit submitted by the OP No.1 and 3 in the F.A. No. 900 of 2013 10 District Forum, they had strongly denied the allegations made by the complainant in his affidavit regarding presence of third party in the ATM booth, when he had gone there for using the ATM machine for withdrawing the cash and they denied the allegations given in the representation stating the same to be false just to grab the money. This attitude on the part of OPs reflected that they were not interested in looking into the grievances of the complainant. They have also breached the security of ATM booth by not providing security measures outside the ATM booths for smooth functioning of ATMs as per the above instructions.
11. In view of the above discussion, we are of the opinion that there is a deficiency in service on the part of the OP No.3 by way of not providing ATM security guards outside the booths in order to avert any untoward incident. Accordingly, we hold that OP No.3 and OP No.2 would be liable to reimburse the amount of Rs.40,000/- to the complainant as they had failed to explain how the cash was dispensed from their machine when the complainant had left the ATM booth and the same was dispensed to some third party who had entered into the ATM booth in the absence of security guards. This failure on the part of the OPs cannot be taken as a contributory negligence on the part of the complainant. Thus, the OP No.1 was required to pay Rs.8100/- compensation as per RBI guidelines for non settlement of ATM dispute within 7 days.
12. In view of the above, the appeal filed by the appellant/complainant is accetpted and the order of the District Forum is set aside. OPs are directed to pay the complainant a sum of Rs.8100/- as penalty for non settlement of ATM dispute as per RBI guidelines alongwith Rs.40,000/- on account of non disbursement of cash to the complainant providing of security guards outside the ATM booths which resulted in F.A. No. 900 of 2013 11 disbursement of cash to another party without the fault of the complainant alongwith consolidated compensation for harassment and litigation cost of Rs.15,000/- to the complainant after 45 days from the date of this order.
13. The arguments in this appeal were heard on 29.07.2015 and the order was reserved. Now, the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S. Klar) Presiding Judicial Member (H.S. Guram) Member August 10, 2015 RK 2