State Consumer Disputes Redressal Commission
Branch Manager, State Bank Of India vs Jayakrushna Mishra on 5 July, 2022
Cause Title/Judgement-Entry IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION ODISHA, CUTTACK First Appeal No. A/376/2017 ( Date of Filing : 26 Jul 2017 ) (Arisen out of Order Dated 21/06/2017 in Case No. CC/496/2010 of District Khordha) 1. Branch Manager, State Bank of India At/Po- Sunakhala, Ps- Bolagarh, Khurda. 2. State Bank of India Khurda Branch, At/Po- Khurda, through its Chief Manager. ...........Appellant(s) Versus 1. Jayakrushna Mishra S/o- Gangadhar Mishra, At- Hatabasta, Po- Bankoi, Khurda. At present Girls High School, Begunia, At/Po- Begunia, Khurda. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE Dr. D.P. Choudhury PRESIDENT HON'BLE MR. Pramode Kumar Prusty. MEMBER HON'BLE MS. Sudihralaxmi Pattnaik MEMBER PRESENT: M/s. D.K. Mishra & Assoc., Advocate for the Appellant 1 M/s. B.P.B. Bahali & Assoc., Advocate for the Respondent 1 Dated : 05 Jul 2022 Final Order / Judgement
Heard the learned counsel for the appellant.
None appears for the respondent but written submission is filed by him.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant has a bank account with ATM facility with OP No.1. It is alleged inter-alia that on 21.09.2010 the complainant has deposited Rs.1,67,000/- and the balance was Rs.1,80,747.05 in his account. It is alleged by the complainant that on 25.09.2010 at 03.27 PM he had withdrawn Rs.5,000/- by ATM card through ATM branch of S-1 and after such withdrawn, the balance showed as Rs.1,75,747.05. On 27.09.2010 the complainant again has withdrawn Rs.30,000/-. The complainant alleged that he found there was withdrawal of Rs.35,000/- as on 25.09.2010but he has not withdrawn that amount. So, he filed one complaint before the OP on 01.10.2010. As no action was taken by OP, he filed the complaint.
4. The OP No.1 did not file written version, for which he was set-exparte.
5. The OP No.2 filed written version stating that the case is not maintainable. It is averred that on 25.09.2010 at 3.27 PM the complainant has withdrawn Rs.35,000/- from his account through ATM from SBI,Rajsunaklhala counter and withdrawn Rs.5,000/- from ATM No.II. Therefore, there is no any deficiency in service on the part of OP No.2.
6. After hearing both the parties, learned District Forum passed the following order:-
Xxxxx xxxxxxxx xxxxxx " In the result, the complaint is hereby allowed exparte against the OP No.1 and on contest as against the OP No.2. The Ops are hereby jointly and severally directed to refund the amount of Rs.35,000/-(Rupees thirty five thousand) to the complainant or credit the said amount in the account of the complainant in question with immediate effect alongwith interest @ 12 % per annum from the date of withdrawal i.e. 25.09.2010 till the date of actual payment. The Ops are further directed to pay litigation cost of Rs.3000/- to the complainant. The order be complied with by the Ops jointly and severally within a period of one month from the date of communication of this order, failing which the complainant is at liberty to execute the same against the Ops in accordance with law."
7. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the written version with proper perspectives. According to him, the ATM being supplied by the OP to the complainant can not be used by any other person. Learned District Forum has erred in law by observing that and OP have not having CCTV footage committed deficiency in service but the fact is very clear from the ATM slip of the complainant that the money has been withdrawn on 25.09.2010 successfully. However, they have submitted to set-aside the impugned order by allowing the appeal.
8. Learned counsel for the respondent filed the written submission whereas it is stated by the respondent that the appellant has to take safety measures to protect the consumer/account holder from unauthorized withdrawal of money at any ATM counter and the bank is duty bound to provide safety to the customers. He submitted that due to negligence of the OP, the respondent has lost the money. He relied on the decision of Revision Petition no. 3073 of 2016 SBI-Vrs- Dr. J.C.S. Kataky and others decided on 03.05.2017.
9. Considered the submission of learned counsel for the appellant and respondent, perused the DFR and impugned order.
10. It is admitted fact that the complainant is a consumer under the OP. It is admitted fact that there was withdrawal of money of Rs.35,000/- from his account by using the ATM card. The impugned order of the learned District Forum only cast duty upon the appellant for having not arrayed under the CCTV coverage. Before going to that aspect we do not find any ground in the impugned order or ground mentioned by the complainant how the ATM card was used. There is nothing revealed from the impugned order whether the ATM card has been handed over to another person or stolen from the possession of complainant because without ATM card, withdrawal of money is not possible. When the payment by use of ATM is confirmed, the question of burden to appellant for not having CCTV footage recedes. On the otherhand, learned District Forum has not discussed the case with proper reasons.
11. In the result, we are of the view that the ATM being in possession with the complainant and he has admittedly used the same on 27.09.2010, the liability of appellant can not be attributed. On the otherhand, we find the impugned order of the learned District Forum having no reason can not sustained, it is set-aside.
Appeal stands allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
Statutory amount be refunded. [HON'BLE MR. JUSTICE Dr. D.P. Choudhury] PRESIDENT [HON'BLE MR. Pramode Kumar Prusty.] MEMBER [HON'BLE MS. Sudihralaxmi Pattnaik] MEMBER