State Consumer Disputes Redressal Commission
State Bank Of India vs Nachattar Singh on 12 January, 2017
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1185 of 2014
Date of institution : 21.08.2014.
Order Reserved on : 22.12.2016.
Date of decision : 12.01.2017.
State Bank of India, Main Branch Malout Road, Sri Muktsar Sahib,
through its Chief Manager.
....Appellant/Opposite party.
Versus
Nachattar Singh alias Nachhattar Singh son of S.Mukhtiar Singh
resident of Village Rahurianwali Tehsil and District Muktsar Sahib.
....Respondent/Complainant.
First Appeal against order dated
04.07.2014 of District Consumer
Disputes Redressal Forum, Sri Muktsar
Sahib.
Quorum:-
Shri J.S.Klar, Presiding Judicial Member
Shri Harcharan Singh Guram, Member Present:-
For the appellant : Ms.Kavita Arora, Advocate
For the respondent : None
HARCHARAN SINGH GURAM, MEMBER :
The appellant has directed this appeal against order dated 04.07.2014 passed by District Consumer Disputes Redressal Forum, Sri Muktsar Sahib (in short, "District Forum") in consumer complaint No.187 dated 21.10.2013, vide which, the complaint of the complainant was accepted by directing OP No.1 to pay Rs.20,000/- to the complainant with interest @ 7.5% p.a. First Appeal No.1185 of 2014 2 from 13.09.2013 till actual realization through bankers' cheque along with Rs.4,000/- as litigation expenses. District Forum further gave directions that OP bank is at liberty to recover the money from said two unidentified persons shown in CCTV footage. Respondent No.1 of this appeal is the complainant in the complaint before District Forum and appellant of this appeal is OP No.1 therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short 'Act') against the OP on the averment that he was having a Savings Bank Account No.11389735135 with OP. He was provided with an ATM Card, which was issued by the OP to him in his savings bank account. It was averred that he was in government job and his salary used to be transferred by his department in the above SBI account. It was averred that on 11.09.2013, his account showed a credit balance Rs.5,761.38p on 12.09.2013, an amount of Rs.41,233/- being his salary was transferred in his account by his Department and balance was increased to Rs.46,994.38p. It was pleaded that on 13.09.2013, he withdrew an amount of Rs.10,000/- through his ATM card from the ATM machine of SBI, Malout Road Sri Muktsar Sahib, at 9.52 a.m.. It was further averred that he did not withdraw any amount form his account after the first withdrawal and did not handover his card to any person for withdrawal of any amount from his account. He further averred that he did not receive any SMS message from the OP regarding the second withdrawal. He First Appeal No.1185 of 2014 3 pleaded that after 3-4 days when he received mini-statement of his account from OP, at that time, he came to know that an amount of Rs.20,000/- was withdrawn from his above account on 13.09.2013 at 1.39 p.m. It was averred by him that this amount of Rs.20,000/- was withdrawn from his account without his knowledge. It was further averred that whenever he used to withdraw any amount from his account through ATM card, he used to receive an SMS message on his mobile regarding such withdrawal. But, no message was received by him for withdrawal of Rs.20,000/- at his mobile. On coming to know, he visited the office of OP, reported the matter to the authorities of OP, and requested the bank to refund the amount. However, the bank authorities put-off the matter under lame excuses and assurances that they would look into the matter and would try to sort out the problem. It was further averred that whole record pertaining to any unauthorized withdrawal remained with the OP and as such, it was well in the knowledge of the OP as to who had withdrawn the amount from his account. It was pleaded that non-redressal of his complaint by the OP caused unnecessary mental harassment to him and he had suffered monetary loss to the tune of Rs.20,000/- as well. He further averred that the OP did not look into the matter and thus, violated the law and rules of the bank. On non-receipt of any suitable reply from the OP, he filed his consumer complaint and sought directions to be issued against OP to refund the amount of Rs.20,000/- illegally withdrawn from his account and to award First Appeal No.1185 of 2014 4 suitable compensation in his favour for mental agony and harassment suffered by him at the hands of OP.
3. Upon notice, OP filed its written reply and took preliminary objection that the complaint filed by the complainant was liable to be dismissed, as there was no deficiency in service on its part. It was averred that the complainant himself withdrew the amount of Rs.20,000/- on 13.09.2013 at 1.39 p.m. It was averred that the complaint filed by him was not maintainable in the present form. Complainant had concealed the material facts and did not come to the Forum with clean hands. He was not a consumer as per definition provided under the C.P.Act. It was averred that whenever any ATM Card was issued to customers, then secret pin number of ATM card was given to the concerned consumer and no other person would have the knowledge of the same. In the present case, the complainant got the ATM card along with its code, which was only within his knowledge. It was averred that no money could be withdrawn through the ATM without the secret pin number of the ATM. The money from the ATM can be withdrawn only by putting the ATM Card along with secret pin number and it was the duty of the complainant neither to part with his credit card nor to share his secret code with anybody else. The amount so withdrawn, as alleged by him was withdrawn by someone, who was having his ATM card as well as the secret pin number given to the complainant. It was averred that complainant concocted a false story regarding the withdrawal of Rs.20,000/- just to grab the money from public institution. It was First Appeal No.1185 of 2014 5 averred that no money can be withdrawn without inserting the ATM Card in the ATM machine and without feeding the secret Pin number in the ATM. As such, it was for the complainant to keep his ATM Card along with secret code in his safe custody and it was for the complainant to prove as to who had withdrawn money. On merits, the bank reiterated its objections as pleaded in the preliminary objections and prayed for dismissal of the complaint.
4. The parties were allowed by the learned District Forum to lead their evidence. In support of their averments, the complainant tendered in evidence his affidavit Ex.C-1, copy of ATM Card Ex.C-2, copy of passbook Ex.C-3, copy of statement of account Ex.C-4, copy of call detail of mobile no.99153-46434 for the period 13.09.2013 to 13.09.2013 in Ex.C-5 (objected to), pen drive containing clip of withdrawal of money from the ATM machine on 13.09.2013 at 01.39 p.m. supplied by OP duly packed Ex.C-6 and close the evidence. On the other hand, the OP tendered in evidence copy of statement of accounts regarding withdrawal of amount dated 06.11.2013 Ex.OP-1 and copy of statement of withdrawal of Rs.20,000/- dated 07.11.2013 as Ex.OP-2, affidavit of Sh.J.S.Bedi Ex.OP-3 and closed the evidence. After going through the averments made in the complaint, written version filed by OPs, evidence and documents brought on the record and on hearing the counsels of parties, the District Forum allowed the complaint as referred above. Aggrieved by the impugned order passed by the District Forum, the appellant/OP has filed the present appeal.
First Appeal No.1185 of 2014 6
5. Counsel for the appellant argued that no money can be withdrawn from an ATM machine without inserting the ATM card by pressing the secret Pin number to withdraw the money from the ATM. The counsel argued that the District Forum wrongly held that on receipt of information of wrong withdrawal from the complainant, the appellant did not lodge FIR with the Police. She argued that since the case of the complainant was being taken-up by the District Forum, due to this fact, the FIR was not lodged with the police. It was argued that non-lodging of FIR by the bank cannot be treated as a ground to allow the complaint filed by the complainant. It was further submitted that the orders passed by the District Forum would give wrong signal to anti-social elements or to fraudulent persons who would misuse ATM cards intentionally for withdrawal of money from account and thereafter, would claim the refund of withdrawn amount from the bank account.
6. We have perused the record of the District Forum minutely, as nobody appeared on behalf of respondent/ complainant at the time of final arguments. We proceed to decide the case on the basis of its merits.
7. The complainant has specifically stated that he did not withdraw the amount of Rs.20,000/- and had requested the OP to look into the matter in his version. We have gone through the order passed by the District Forum. From the perusal of the same, we find a pen drive was placed on the record of the District Forum vide Ex.C-6. This pen drive was operated on computer of the First Appeal No.1185 of 2014 7 District Forum and images of two persons were seen in it. However, it was not a movie, but it was a copy of photographs. The date on these photographs was written as 13.09.2013 with a time noted on it as 13.38 p.m. During the screening of the pendrive, the counsel for the OP admitted that two persons shown in the pendrive did not resemble with the complainant. It was held by the District Forum that the officials of the OP bank, on receiving the information from the complainant, and after watching the footage, should have lodged a FIR with the Police because the money from the custody of the bank was taken illegally. The OP bank kept quiet because of the reason that Automatic Teller Machine had debited the account of the complainant. It did not look into the complaint given by the complainant in order to redress his grievance despite its duty in this regard.
8. However, as per RBI directions issued vide Circular No.DPSS.PD.No.2632/02.10.002/2010-2011 dated 27.05.2011, as per this master circular, the complainant had a right to approach the issuing bank within 30 days from the date of the transaction. As per directions, if complaint is not resolved within the reasonable time of seven days from the date of receipt of the complaint, then the bank has to pay back in case of delay, a sum of Rs.100/- per day till the case is resolved by it. In the instant case, we find that the complainant gave his complaint in writing to the OP within 3-4 days of the incident and he was constrained to file his consumer complaint in the District Forum against the OP on 21.10.2013. Thus, it is apparent that the bank did not bother to look into the First Appeal No.1185 of 2014 8 matter or to investigate the matter even after written complaint received by it from the respondent/complainant.
9. We are of this opinion that the bank took the matter very casually and did not try to look into the facts and circumstances of the case and also did not take steps to apprise the police in this regard regarding wrongful withdrawal from the bank account through ATM. Further, we have examined Ex.OP-1, the statement of switch account placed by the OP on the record. We find that the statement contains continuous numbers, many of the transactions numbers i.e. 7972, 7974, 7978, 7986-7988, 7990, 7992, 7994, 7996-7998 pertaining to same ATM machine were missing from it. If we look into the time of the different transactions against the appended list, no reason was given to explain why the above-mentioned entries were not reported in the transaction pertaining to the ATM machine of the OP in question.
10. From the perusal of the record, no evidence has been led by the OP that whether they had investigated the matter at their end or not? The OP also did not look into the averment of affidavit given by the complainant despite he being a Government servant and his salary being credited by his Department. OPs were required to examine whether the complainant was present in his office at 1.39 p.m. on 13.09.2013 or he was not present in his office at the time of withdrawal to find out the genuineness of his complaint. However, it is an admitted fact by the counsel for the OP in District Forum had stated that it was clear from the pendrive that complainant was not one of the persons, shown in CC TV First Appeal No.1185 of 2014 9 footage, who withdrew the money from OP's ATM at 1.39 p.m. Thus, it can be safely concluded that two persons as seen in the pendrive might have cloned the ATM card of the complainant by the clever use of technology.
11. In order to find out the latest developments pertaining to news about credit/debit cards, we have downloaded in our official computer, the directions issued by the Reserve Bank of India to all commercial banks pertaining to misuse of ATM- Debit/Credit Card. From these directions, we find that Reserve Bank of India issued instructions to banks to upgrade their magnetic strip ATM cards to chip cards by Sept, 2017, in order to avoid cloning of their cards.
12. This possibility cannot be ruled out that the ATM Cards having magnetic strip can be cloned by anti-social elements.
13. In view of the above observations and also as per directions of Reserve Bank of India supra, we find that possibility of ATM Cards having magnetic strip being cloned by way of using skimmers and hidden cameras installed by the fraudulent people in ATM Cabins, cannot be ruled out, which are situated outside the premises of the banks.
14. In view of the above observations, we do not find any merit in the appeal filed by the present appellant and the same is dismissed.
15. The appellants had deposited a sum of Rs.13,500/- with this Commission at the time of filing this appeal. This amount along with interest accrued thereon, if any, be remitted by the First Appeal No.1185 of 2014 10 registry to the complainant/respondent by way of a crossed cheque/demand draft after the expiry of 90 days, from the date of dispatch of the order to the parties; subject to stay, if any, by the higher Fora/Court. OP is also directed to pay the remaining amount, as per directions of the District Forum within 30 days from the date of receipt of the copy of order without fail.
16. The arguments in this case were heard on 22.12.2016 and the order was reserved. Now, the order be communicated to the parties.
17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S.Klar)
Presiding Judicial Member
January 12, 2017 (Harcharan Singh Guram)
Lb/- Member