State Consumer Disputes Redressal Commission
Ms. Saroj Soni vs Central Bank Of India on 30 December, 2021
M.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
APPEAL NO. 668/2014
1. Mrs. Saroj Soni,
W/o Mr. S,C. Soni,
Aged arund 62 years,
R/o Soni Sadan, H.No.4,
Lane-II, Lakherapura,
Bhopal(M.P.).
2. Dr. S.C. Soni
S/o Mr. M.L. Johari,
Aged arund 68 years,
R/o Soni Sadan, H.No.4,
Lane-II, Lakherapura,
Bhopal(M.P.).
... Appellants
Vs.
Central Bank of India,
Through its Branch Manager,
Imami Gate Branch,
Yazdani Building,
Bhopal (M.P.). ... Respondent
BEFORE;
HON'BLE SHRI JUSTICE SHANTANU KEMKAR, PRESIDENT
DR. MONIKA MALIK, MEMBER.
COUNSEL FOR THE PARTIES:
SHRI DEEPESH JOSHI, LEARNED COUNSEL FOR APPELLANTS.
SHRI MANOJ SHAHI, LEARNED COUNSEL FOR RESPONDENT.
: 2 :
ORDER
( 30.12.2021 ) The following order of the Bench was delivered by Dr. Monika Malik, Member.
This appeal is directed against the order dated 20.2.2014, passed by the District Consumer Disputes Redressal Commission, Bhopal (for short 'the District Commission'), in complaint case No.198/12, whereby the complaint filed by the complainants has been dismissed.
2. Briefly put, facts of the case, as narrated by the complainants, are that they are having a joint saving bank account No.3065699411, in the Imami Gate branch of respondent/Bank and the complainants had obtained an ATM card-cum-Debit facility with SMS reminder facility on complainant No.2's mobile number. Complainants were using the said ATM card rarely and whenever there was a withdrawal made through the ATM card, the complainants received message on the mobile of the complainant No.2. Suddenly in the month of July 2011, the aforesaid ATM card along with some necessary papers were stolen, regarding which the complainants were totally unaware. In the night of 12th August,2011, the complainant received three messages on his mobile that a sum of Rs.10,000/- has been withdrawn thrice and the remaining amount in the account of the complainants was Rs.3,64,419/-. From the statement of account, the complainant found that a sum of Rs.10,000/- was withdrawn 27 times from 1st August till 12th August, 2011. The complainants : 3 : alleged that they did not receive any SMS, informing any such withdrawals. Alleging deficiency on part of the opposite party/Bank, who failed to send ATM transaction alert, thereby causing huge loss of amount from their account, the complainants filed complaint, seeking compensation.
3. Opposite party resisted the complaint stating that the complainants have been totally unaware/ignorant, regarding stolen items/card. They were negligent in not keeping the ATM card and other related papers in confidence at a safe place with proper care and abundant caution. Complainants are responsible for whatever loss they have sustained from the fraudulent withdrawal from their account through the stolen ATM card. The belated action on part of the complainants, by not keeping the opposite party/Bank promptly informed about the theft of ATM card and other related papers caused the fraudulent withdrawal. The complainants themselves are responsible and accountable for the fraudulent transactions and therefore, the opposite party cannot be held liable for the careless action on part of the complainants. Furthermore, it is stated that the SMS reminder facility is not obtained by the complainants, whereas the same has been provided by the computerized banking system of opposite party, by default and that too free of cost. Therefore, there has been no deficiency in service on part of the opposite party.
4. The District Commission dismissed the complaint filed by the complainants on the ground that the opposite party had not charged separately for instant SMS notification service : 4 : provided to the complainants and was thus not responsible for any loss caused to the complainants and therefore, they are not entitled for any relief.
5. Heard. Perused the record.
6. Learned counsel for complainants/appellants, Shri Deepesh Joshi, vehemently argued that the appellants have a joint account in the respondent/Bank for which an ATM card was also provided at a prescribed annual fees for the same. The appellants were advertised and encouraged by the respondent/Bank to avail the facility of the ATM card by citing that the usage of the ATM card was secured by the facility of receiving instant SMS from the Bank detailing the nature, location, amount of the withdrawal and the balance amount etc., as soon as any transaction takes place through the card in any of the ATMs. The facility of sending instant messages to appellants mobile as soon as the ATM card was brought into use at any ATM was inclusive in the fees of the ATM card itself and the same has been assured as a prominent feature of the ATM facility by the respondent/Bank. When the appellants unexpectedly received message on 12.8.11 that there have been three cash withdrawals of Rs.10,000/- each, using the ATM card, they were shocked, as they had not used their ATM card since long and the said transactions were not authorised by them. On searching for the said ATM card, they discovered that the same was stolen way back in the month of July, 2011 and the appellant came to know of the said theft only then.
7. He further argued that upon enquiry it was brought to the knowledge of the appellants by the respondent that there : 5 : have been 25 instances of unauthorised cash withdrawals from the ATM card worth Rs.2,50,000/- from 1.8.11 to 12.8.11. None of these were informed by the respondent/Bank via instant SMS service. The respondent also did not provide CCTV video footage to the appellants, which could have helped them to nab the culprits. This reckless and careless act of respondent/Bank is gross deficiency in service on its part. He argued that the impugned order deserves to be set aside and this appeal be allowed.
8. In support of his contentions learned counsel for appellants has placed reliance on the judgment of the Apex Court in the case of Canara Bank vs. Canara Sales Corporation and others (1987) 2 Supreme Court Cases 666, judgment of the National Consumer Disputes Redressal Commission in the case of State Bank of India vs. Dr. J.C.S. Kataky 2017 SCC OnLine NCDRC 1093 and the judgment of High Court of Allahabad in the case of Awadhesh Singh vs. Reserve Bank of India and others 2021 SCC OnLine AII 301. He also put forward a circular dated 6th July, 2017, issued by the Reserve Bank of India.
9. Learned counsel for the respondent, Shri Manoj Shahi, opposed the allegations made by the learned counsel for the appellants and submitted that it was the duty of the appellants to safeguard the ATM card, which was obtained by them. The appellants have been totally unaware that their ATM card was lost. They have been negligent and therefore they are responsible for the loss they had sustained from the fraudulent withdrawal. He added that the withdrawal cannot be taken : 6 : place without the card details, including PIN, even though the card is stolen. The appellants were duti bound to take care of the details of the ATM card. The respondent/Bank cannot be affixed with the liability due to negligence of the appellants. He further stated that the CCTV footage could be provided by the Bank from where the alleged transaction took place, as none of the withdrawal was made from the respondent/Bank, who had issued the card to the appellants. The respondent/Bank has thus, no role to play in the matter.
10. We have carefully perused the record of the District Commission. We observe that the appellants have made a categorical statement that the respondent/Bank did not send SMS alerts regarding fraudulent transactions, which occurred after their ATM card got stolen. It is stated by the appellants that they came to know about the fraudulent transactions by an SMS sent by the respondent/Bank on 12.8.11 and no SMS prior to that was received by them, with regard to 25 unauthorised transactions. It is submitted by the appellants that they came to know of the fact that their ATM card has been stolen in the month of July 2011 only after receiving the SMS on 12.8.11 from the respondent/Bank.
11. It is not in dispute that the alleged fraudulent transactions took place after the ATM card was stolen from the possession of the appellants. It needs mention here that the appellants came to know about this fact that their ATM card is stolen via SMS alert only. Strangely enough, the appellants now recalled that their ATM card was stolen in July. They did not realize until the time of the first SMS alert that their ATM : 7 : card was stolen. We find that the entire case of the complainants/appellants revolves around allegations on the bank regarding non-issuing SMS alerts, but the appellants' avouchment with regard to their endeavour to take due caution regarding safety of the ATM card along with its details, is inaudible.
12. This fact cannot be ignored altogether that it was the responsibility of the appellants to take proper care and caution regarding safeguarding of the ATM card issued in their name. The appellants cannot escape from their responsibility regarding taking due care, caution with regard to safety of the ATM card, including the details, necessary for facilitating withdrawal like password, PIN etc. After the card was stolen and the transactions took place, the respondent/Bank cannot be held accountable, merely on the basis that no SMS alert were sent by the Bank, when noteworthily, nothing substantiating has been put forward by the appellants in support of their submission that at that point of time it was mandatory on part of the respondent/Bank to send SMS alert to the customers and also to this effect that this facility was provided by the respondent/Bank at prescribed annual fees and that the same was advertised and hence encouraged the appellants to avail facility of ATM card and was rather not provided by the computerised banking system of the respondent/Bank, as submitted by the Bank. Undisputedly, the respondent/Bank blocked the card, after receiving application from the appellants and no further transaction took pace.
: 8 :13. The circular of the Reserve Bank of India dated 6th July, 2017, emphasizes on the 'Customer Protection - Limiting Liability of Customers in Unauthorised Electronic Banking Transactions'. It is not illustrated by perceiving the aforesaid circular that the directions contained therein were effective for the instant matter at that particular point of time. The appellants cannot be granted any relief without any such corroboration. We also find that the judgments relied upon the learned counsel for appellants are also no application in the instant matter, since the facts of those cases are different from the case in hand.
14. Therefore, in view of the foregoing discussion, we reach a conclusion that this appeal filed by the appellants is devoid of any merits. It is accordingly, dismissed, with no order as to costs.
(JUSTICE SHANTANU KEMKAR) (DR. MONIKA MALIK)
PRESIDENT MEMBER
Mercy