State Consumer Disputes Redressal Commission
State Bank Of India vs Anil Kumar on 30 May, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.1556 of 2006.
Date of Institution: 14.12.2006.
Date of Decision: 30.05.2011.
State Bank of India, Sadar, Jalandhar Cantt. through Vijay Singh Negi,
Branch Manager.
.....Appellant.
Versus
Anil Kumar S/o Sh. Ram Sunder, E-617354, 155 MED REGT (SP), C/o 56
APO;
2nd Address: Anil Kumar, village Chatturpur, P.O. Kishan Ganj, District
Partapgarh (U.P.).
.....Respondent.
First Appeal against the order dated
30.10.2006 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Before:-
Sh. Inderjit Kaushik, Presiding Member.
Sh. Baldev Singh Sekhon, Member.
Present:-
For the appellant : Sh. Ashok Gupta, Advocate.
For the respondent : Sh. Munish Goel, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
State Bank of India, appellant (In short "the appellant") has filed this appeal against the order dated 30.10.2006 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short "the District Forum").
2. Facts in brief are that Sh. Anil Kumar, respondent/complainant (in short, "the respondent") filed a complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant on the grounds that the appellant has an arrangement with M/s G.E. Capital Services, to issue ATM cards to its customers, who apply ATM card facility. The First Appeal No.1556 of 2006 2 respondent applied for the opening of his account with the appellant on 27/28th July, 2003 and applied for ATM card for withdrawals from his account as per the ATM facility.
3. The respondent was given S/F Account No.01190160413 and was issued bank passbook on 08.08.2003 and the respondent deposited the amount in savings and also withdrew the cash till 12.04.2004 without any problem and last withdrawal of Rs.6000/- was made on 12.04.2004, leaving a balance of Rs.16,585/-.
4. The respondent did not operate his account till 18.05.2004 and when he visited the appellant for withdrawing money and for completion of passbook, he learnt that his account reflected unauthorized ATM withdrawals to the extent of Rs.18,100/- on different dates as per the following particulars:-
Date ATM Card No. ATM operate Amount (in Rs.)
Withdrawn
26.04.2004 ATM 072802 OGFL ATM 5000
26.04.2004 ATM 072802 OGIGB ATM 1100
26.04.2004 ATM 072802 OG13 ATM 9000
11.05.2004 ATM 072802 OGQF ATM 2000
11.05.2004 ATM 072802 OGVC ATM 1000
TOTAL Rs.18,100/-
5. The respondent had not received the ATM card till date and no amount could be withdrawn. The supply of the ATM of respondent no.1 was dependent on his account number with the appellant and subject to verification of his solvency. Withdrawal has to be from ATM by person using ATM card and PIN. The bank manager including M/s G.E. Capital Services are responsible for negligence and unauthorized withdrawals by the impersonated ATM card holders from the account of the respondent. Respondent no.1 immediately informed the appellant on 18.05.2004 followed by letter dated 21.05.2004. The appellant stated to have been informed the respondent on 31.05.2004 through communication addressed to Commanding Officer L & W, 155 Medium Regiment C/o 56 APO. This letter First Appeal No.1556 of 2006 3 did not reach him because it did not bear service number and after many personal visits, he received a letter on 01.07.2004. The courier did not deliver the ATM card to the respondent, but delivered to somebody else and with the ATM card and PIN, unauthorized withdrawals were made. The respondent asked the appellant to pay back Rs.18,100/-, but no satisfactory reply was given. The amount of Rs.18,100/- legitimately belonged to the respondent which was illegally withdrawn and it amounts to deficiency in service and the prayer was made that the appellant be directed to pay Rs.18,100/- to the respondent which was withdrawn from the account of the respondent due to deficiency and negligent act of the appellant and its agent M/s G.E. Capital Services and to pay Rs.50,000/- as compensation and Rs.2200/- as litigation expenses.
6. In the reply filed on behalf of the appellant, the preliminary objections were taken that the complaint is not maintainable and the respondent is not a consumer. The complaint is bad for non-joinder of necessary parties. The courier agency M/s G.E. Capital Business Process Management Services Pvt. Limited, Indian Postal Authorities,1 697 Filed Post Office C/o 56 APO and Commanding Officer of 155 Medium Regiment being necessary parties, have not been joined. The respondent has not come to the Forum with clean hands and he suppressed the material facts. Under the Globalization Plan and plan of Union of India to facilitate better services to its customers, State Bank of India made provisions for ATM card to facilitate the withdrawals of money even in odd hours and respondent Anil Kumar, an army personnel applied for ATM card and M/s G.E. Capital Business Process Management Services Pvt. Limited sent the ATM card no.6220180072800068859 through speed post to said Anil Kumar at his address i.e. 155, Medium Regiment C/o 56 A.P.O. on 14.08.2003 vide speed post barcode no.EE 275246541 IN and Personal Identification Number mailer was sent to said Anil Kumar subsequently on 18.09.2003 through Skypak Courier vide AWB No.903644271.
First Appeal No.1556 of 2006 4
7. It was further pleaded that the appellant received a complaint from said Anil Kumar that someone withdrew an amount of Rs.18,100/-, using his ATM card and personal identification number. He further stated that he never received the said card from the bank side. On receipt of the complaint, the appellant made strenuous efforts to locate the things and ultimately, Sudebar of Field Post Master 1697 F.P.O. wrote letter dated 18.11.2004 addressed to Senior Executive of M/s G.E. Capital Business Process Management Services Pvt. Limited that ATM card sent through barcode no.EE 27524654 IN has been delivered on 17.08.2003 to the Unit Post Orderly of 155 Medium Regiment. M/s Skypak Courier also assured the delivery of parcel, but they showed their inability to produce the documentary evidence alleging time gap between delivery and demand of delivery proof. It appears that M/s Skypak has delivered the parcel to the Unit Orderly of 155 Medium Regiment and without coinciding two things, no one can withdraw the money from the ATM machine. They also disclosed the details of Post Orderly as having no.1443621 B-W-PA Mr. R. Raja which shows that somebody else in the Unit itself has done this mischief because with the gap of hardly one month, the bank sent through its agent ATM card and Personal Identification Number separately through two different channels and one parcel was duly delivered to the orderly of Unit and without receiving both the parcels, no one can withdraw the money from the account. Denying all other allegations, it was prayed that the complaint may be dismissed.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the vide evidence Ex.O7, one article was delivered to R. Raja who was authorized representative of the Unit and there is no evidence that second document i.e. PIN Code was supplied to the representative of the Unit and there is deficiency in service on the part of the appellant, and First Appeal No.1556 of 2006 5 allowed the complaint, directing the appellant to refund an amount of Rs.18,100/- to the respondent with 9% p.a. interest from 11.05.2004 till payment and pay Rs.3000/- as compensation and Rs.2000/- as litigation costs.
10. Aggrieved by the impugned order dated 30.10.2006, the appellant-Bank has come up in appeal.
11. We have gone through the pleadings of the parties, perused the record of the District Forum and heard the arguments advanced by the learned counsel for the parties as well as perused the written arguments filed on behalf of the appellant.
12. It was submitted by the appellant through the written arguments that the ATM card was applied by the respondent and it was sent on his address which was C/o 56 APO. Once packet containing ATM card was delivered at the given address and the appellant bank discharged its duty of providing ATM card to the respondent. From the account opening form, it is clear that the respondent gave his address as 155 MEDREGT (SP) C/o 56 APO and there is no negligence in service on the part of the appellant nor any deficiency is there and the appeal may be accepted and the impugned order may be set aside.
13. On behalf of the respondent, it was contended that the ATM card was never received by the respondent nor the PIN code was received and it was handed over at the gate to someone else and it never reached the respondent. If the postal authorities were not allowed to enter the premises, then the respondent was not, at all, at fault and the address given by the respondent was the same where the ATM card was sent which was never received. The order of the District Forum is correct and the appeal may be dismissed.
14. We have considered the submissions of the parties and have minutely perused the record.
First Appeal No.1556 of 2006 6
15. Admittedly, ATM card was applied by the respondent and he gave his address as 155, Medium Regiment C/o 56 APO. The bank is stated to have sent the ATM card through postal authorities and the same was delivered to one R. Raja, who was representative of the above Unit, vide Ex.O7, but PIN Code of the said ATM card which is stated to have been sent by the appellant bank to the above address of the respondent C/o 56 APO, has not been delivered to the authorized representative of the said Unit and there is no evidence brought on record regarding the same by the appellant bank. It was the duty of the appellant bank to deliver the ATM card as well as the PIN Code which is the most important document, to the respondent and if the same was not delivered, then the appellant bank should have examined some officials of the postal department, but that was never done nor the appellant bank sought impleadment of the postal authorities as a party in the complaint in order to discharge their burden that the ATM card and the PIN Code were entrusted to the postal authorities and then it was on the postal authorities to prove that the same were handed over to the respondent or to the authorized representative of the respondent at the gate of the Unit of the respondent, but the appellant bank has failed to discharge their onus and for no fault of the respondent, the amount was withdrawn from his account. The ATM card and the PIN Code are supposed to be with one person, then only the amount can be withdrawn, but since the ATM card or the PIN Code never reached the respondent and the same were misused by some third person, for that the respondent cannot be blamed. The District Forum has passed a detailed and reasonable order and there is no ground to interfere with the same.
16. In view of above discussion, the appeal filed by the appellant is dismissed and the impugned order dated 30.10.2006 under appeal passed by the District Forum, is affirmed and upheld. No order as to costs.
17. The appellant-Bank had deposited an amount of Rs.13,661/- with this Commission at the time of filing of the appeal on 14.12.2006. This First Appeal No.1556 of 2006 7 amount with interest accrued, if any, be remitted by the registry to the respondent/complainant by way of crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
18. Remaining amount as per order of the District Forum shall be paid by the appellant to the respondent/complainant within two months from the receipt of copy of the order.
19. Arguments in this appeal were heard on 25.05.2011 and the order was reserved. Now the order be communicated to the parties.
20. The appeal could no be decided within the stipulated timeframe due to heavy pendency of Court cases.
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member May 30, 2011.
(Gurmeet Singh)