State Consumer Disputes Redressal Commission
State Bank Of Patiala vs Ritu Lakhanpal on 19 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 186 of 2014 Date of Institution 19.5.2014 Date of Decision 19.06.2014 State Bank of Patiala, Daddu Majra, Chandigarh through its Branch Manager. ..Appellant/Opposite Party No.1. Versus 1. Ritu Lakhanpal R/o Flat No.304, Primerose Tower, Mayfair Apartments, Sector 70, Mohali. .....Respondent/Complainant. 2. Axis Bank Ltd., Santacruz Police Station, Mumbai through its Branch Manager. Respondent/Opposite Party No.2. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SH. DEV RAJ, MEMBER
SMT. PADMA PANDEY, MEMBER Argued by:Sh. S. C. Thatai, Adv.
for the appellant.
Sh. Gaurav Bhardwaj, Adv. for respondent No.1.
Service of respondent No.2 already dispensed with vide order dated 20.5.2014.
PER DEV RAJ, MEMBER This appeal is directed against the order dated 04.04.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which it partly allowed the complaint filed by the complainant and directed Opposite Party No.1 (now appellant) as under:-
9] It is evident that because of slackness on the part of OP No.1, it could not get the CCTV footage of the said transactions made at ATM of OP No.2, for taking further necessary action against the real culprit. The delay on the part of OP No.1 in asking for CCTV footage from OP No.2 after a gap of 90 days proves deficiency in rendering proper service to the complainant.
10] For the reasons recorded above, the complaint is partly allowed. The OP NO.1 is directed as under:-
i) To make payment of Rs.5500/- to the complainant as compensation for deficiency in service.
ii) To pay Rs.4500/- as litigation expenses.
This order be complied with by OP No.1 within a period of 30 days from the date of receipt of copy of this order, failing which it shall be liable to pay the awarded amount of Rs.5500/- along with interest @12% p.a. from the date of filing this complaint i.e. 12.11.2013 till its actual payment, besides paying litigation expenses as aforesaid. The complaint qua OP No.2 stands dismissed.
11] Before parting with the order, it is made clear that the complainant shall be at liberty to file a criminal complaint or civil suit for damages and compensation in respect of alleged fraudulent withdrawals from her savings bank account through ATM at Mumbai.
2. In brief, the facts of the case, are that the complainant is having salary account No.65126174563 in Opposite Party No.1 Bank, against which, an ATM Card was also issued to her. It was stated that the complainant was shocked to receive three consecutive messages at 08.22 A.M. on 20.8.2012, on her mobile, to the effect that three transactions of Rs.10,000/-, Rs.10,000/- and Rs.2300/- were done. It was further stated that the complainant immediately brought the matter to the notice of Opposite Party No.1, which advised her to lodge a complaint with the police, whereupon DDR No.21, dated 20.10.2012 was registered (Annexure C-1). It was further state that the complainant was informed that the transaction had been done at Mumbai from ATM of Opposite Party No.2, and, subsequently, Opposite Party No.1 sent letter dated 21.11.2012 to Opposite Party No.2, with a request to provide the CCTV footage and other details (Annexure C-2). It was further stated that the complainant kept on waiting for the refund of the amount, after investigation, but when nothing was done, she wrote a letter to Opposite Party No.1 on 12.2.2013 (Annexure C-3) as well as gave online complaint (Annexure C-4), but to no avail, as till date, neither the money was credited to her account nor CCTV footage was provided. It was further stated that the complainant was present at Chandigarh/Mohali on 20.8.2012 and her ATM was with her whereas the money was withdrawn from the ATM of Opposite Party No.2, located at Mumbai. It was further stated that Opposite Parties No.1 and 2 failed to nab the culprit, and also failed to credit the amount to the account of the complainant. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant was not redressed, a complaint under Section 12 of the Consumer Protection Act, 1986, was filed seeking direction to Opposite Party No.1, to credit the amount of Rs.22,300/- alongwith interest @6% per annum from 20.08.2012. The complainant also prayed for directing both the Opposite Parties to pay an amount of Rs.50,000/- as compensation for physical harassment and mental agony besides Rs.11,000/- as costs of litigation.
3. Opposite Party No.1, in its written statement, admitted that the complainant is having account with it and has ATM facility as well. It was stated that, as per JP LOG, all the three transactions bearing Nos.5455, 5456 & 5457 pertaining to the account of the complainant were done at Santa Cruz, Mumbai ATM on 20.8.2012 owned by Axis Bank and the same were successful (Exhibit R-2). It was further stated that the ATM could not be operated without the ATM Card and ATM Pin. It was further stated that it was the prime duty of the customer to keep the ATM Card and Pin safe. It was further stated that even in the case of cloning of the card by some unknown person, it could not be operated, unless the correct pin number was applied. It was further stated that the complainant had already lodged a complaint with the Police Station Mataur and got recorded DDR No.21 on 20.10.2012 with the SHO, Police Station, Sector 71, Chandigarh, which was still pending for investigation with the said authorities. It was further stated that the CCTV footage had not so far been provided by Opposite Party No.2 inspite of letter dated 21.11.2012 and reminder dated 12.1.2013 and, therefore, it was not possible to identify the person, who might have used the ATM card belonging to the complainant (Exhibits R-3 and R-4). It was further stated that the said amount had been withdrawn through the same ATM Card which was either handed over by the complainant alongwith the PIN Number, to her known person, for using the same or she might have used the same herself and, in any case, it appeared to be the negligence of the complainant herself in safe-guarding the card and pin number. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of Opposite Party No.1, nor did it indulge into unfair trade practice. The remaining allegations, contained in the complaint were denied.
4. Opposite Party No.2, in its written statement, admitted that the ATM Card, in question, was operated thrice through its ATM at 1.45 P.M. and 1.46 P.M. and amounts of Rs.10,000/-, Rs.10,000/- and Rs.2,300/- were withdrawn vide transactions No.5455, 5456 & 5457 on 20.8.2012 (Annexures R-1 to R-3). It was stated that the ATM Channel Management Centre Mumbai (ACMC) when contacted regarding the video footage of three transactions dated 20.8.2013, it was informed by the ACMC, Mumbai that the video footage dated 20.8.2012 could not be retrieved since more than 90 days had passed from the date of transaction and, in case, the complainant or Opposite Party No.1 had contacted Opposite Party No.1, within time, the same could have been made available to them. It was further stated that the complainant was not a customer of Opposite Party No.2 and there was no privity of contract between Opposite Party No.2, and the complainant. It was further stated that even if it was assumed that the complainant had not used the said ATM card, then somebody having original ATM card and confidential PIN number might have used the same and it was possible that either the family members or somebody having close relationship with the account holder might have given access to the original card and confidential PIN number which was only known to the account holder. It was further stated that a third party might have withdrawn the amount using the card of the complainant. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of Opposite Party No.2, nor did it indulge into unfair trade practice. The remaining allegations, contained in the complaint, were denied.
5. The complainant filed separate replications, wherein she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written versions of Opposite Parties No.1 and 2.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, partly allowed the complaint, as stated above.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
10. The Counsel for the appellant/Opposite Party No.1, submitted that the District Forum did not appreciate the facts and circumstances of the case in right perspective. It was further submitted that the District Forum also failed to appreciate and consider that respondent No.1/complainant could have herself used the ATM in withdrawing the money and she herself failed to prove her presence in Chandigarh/Mohali on 19.08.2012/20.08.2012 i.e. the date of occurrence. It was further submitted that respondent No.1/complainant got recorded DDR at Police Station, SAS Nagar, Mohali after two months, which depicted her negligence. It was further submitted that Opposite Party No.2, did not place, on record, any notification/evidence that CCTV footage could be preserved only for 90 days and, as such, liability for the same was on Opposite Party No.2. It was further submitted that respondent No.1/complainant could herself obtain the CCTV footage from Opposite Party No.2, immediately after the incident. It was further submitted that relevance of CCTV footage arises only when it was the case of stolen ATM Card. It was prayed that the order of the District Forum be set aside. The Counsel for the appellant/Opposite Party No.1 relied upon State Bank of India Vs. K. K. Bhalla, Revision Petition No.3182 of 2008 decided by the National Consumer Disputes Redressal Commission, New Delhi on 7.4.2011.
11. The Counsel for the respondent No.1/complainant submitted that the stand of Opposite Party No.2, was that the request for providing CCTV footage was made beyond 90 days, and had the request been made within 90 days, the same (CCTV footage) would have been made available. It was further submitted that 19.08.2012 and 20.08.2012 were holidays and as per Annexure C-5, respondent No.1/complainant, attended the school on 18.08.2012 and 21.08.2012. It was further submitted that respondent No.1/complainant was, thus, present in Chandigarh on 20.08.2012. It was further submitted that the order of the District Forum was just and correct and the same was liable to be upheld.
12. The case of respondent No.1/complainant is that an amount of Rs.22,300/- was withdrawn from her account through ATM. The District Forum, in Para 6 of its order, has held that .........It means some unknown person cloned the ATM Card of the complainant and stored the secret ATM PIN Number at the time of some ATM transaction made by the complainant or someone in connivance with the complainant might have made said transactions. The question whether the withdrawal of a total sum of Rs.22,300/- from the account of the complainant was fraudulent or withdrawal of the amount was within the knowledge of the complainant, can be decided by detailed enquiry/investigation either by the police or the civil court after examining whole of the record of the disputed transactions. In other words, detailed evidence, production of documents and cross-examination of various witnesses are involved for decision of fraudulent withdrawal, which is beyond the purview of summary jurisdiction of this Forum...... Despite the aforesaid categoric findings, in our considered opinion, the District Forum erred in holding the appellant/Opposite Party No.1 deficient in rendering service on the ground that it contacted Opposite Party No.2 after the expiry of 90 days, the period for which the CCTV footage is preserved. It is evident from record that letter to Opposite Party No.2 to provide CCTV footage was written by the appellant/Opposite Party No.1, of its own. There is also force in the argument of appellant that Opposite Party No.2 did not place any evidence/notification that CCTV footage could be preserved only for 90 days. Respondent No.1/complainant could also take up with Opposite Party No.2, at her own level. The fact that respondent No.1/complainant lodged DDR after two months, also exhibited her negligence. When respondent No.1/complainant herself was free to seek CCTV footage from Opposite Party No.2, then even if the appellant/Opposite Party No.1, did not take up with Opposite Party No.2, within 90 days, that cannot be a valid ground to hold it liable for deficiency in service.
13. In State Bank of India Vs. K. K. Bhallas case (supra), the National Commission held as under:-
It is not in dispute that the ATM Card was issued to the Respondent and that he had kept the Card in his safe custody. Thus, no one had access to it nor was it ever missing. Further, only the Respondent was aware of the special four digit PIN number which is essential to operate the ATM Card. Despite all these facts, learned fora below ruled in favour of the Respondent only on the grounds that the CCTV footage which was required in respect of ATM transactions was not made available and this was a major lapse on the part of the Petitioner/Bank since it breached the security and safety in ATMs and was thus, clearly a deficiency in service.
We are not convinced by this reasoning of either the District Forum or the State Commission, particularly, in view of the fact that merely because the CCTV was not working on those dates and its footage was thus not available, does not mean that the money could be withdrawn fraudulently without using the ATM Card and the PIN number. In case the ATM Card had been stolen or the PIN number had become known to persons other than ATM card holder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card. In the instant case it is not disputed that the ATM Card or PIN remained in the self-custody/knowledge of the Respondent. In view of elaborate procedure evolved by the Petitioner/Bank to ensure that without the ATM Card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, we find it difficult to accept the Respondents contention. No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM Card or the PIN number fell in wrong hands.
Keeping in view these facts, we have no option but to set aside the orders of the learned fora below and accept the revision petition which is allowed with no order as to costs.
14. In view of the observations made in State Bank of India Vs. K. K. Bhalla (supra) and the position discussed in the foregoing paras, the District Forum erred in coming to the conclusion, that the appellant/Opposite Party No.1 was deficient, in rendering proper service, to the respondent/complainant.
15. No other point, was urged, by the Counsel for the parties.
16. In view of the above discussion, it is held that the District Forum, erred in partly allowing the complaint qua the appellant/Opposite Party No.1, and the order passed by it qua the appellant/Opposite Party No.1, suffers from illegality, warranting the interference of this Commission.
17. For the reasons recorded above, the appeal, filed by the appellant/Opposite Party No.1, is accepted, with no order as to cost. The order of the District Forum is set aside qua appellant/Opposite Party No.1. Consequently, the complaint qua Opposite Party No.1 stands dismissed with no order as to cost.
18. Certified Copies of this order be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion.
Pronounced.
June 19, 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Ad