State Consumer Disputes Redressal Commission
The Manager, State Bank Of India vs Shri Narayan Devji on 14 March, 2024
Appeal No. The Manager, 14.03.2024
232 of 2018 State Bank of India & Others
Vs.
Sh. Narayan Devji
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Admission : 14.12.2018
Date of Final Hearing : 06.03.2024
Date of Pronouncement : 14.03.2024
First Appeal No. 232 / 2018
1. (The Manager), State Bank of India
BHEL, Ranipur, Haridwar
2. (The Zonal Manager) State Bank of India
1, New Cantt. Road, Dehradun
3. State Bank of India
Head Office, Third Floor, G-Block, Synnerjee Building
Bandra Kurla Complex, Behind National Stock Exchange
Bandra East, Mumbai
4. (The Manager), State Bank of India
Gopal Puri, Gandhi Dham
District Kuchh, Gujrat
(Through: Sh. S. Parashar, Advocate)
.....Appellants
VERSUS
Sh. Narayan Devji S/o Sh. Devji
R/o 3, Kailash Society, Gandhi Dham, District Kuchha, Gujrat
.....None for Respondent
Coram:
Ms. Kumkum Rani, President
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of Consumer Protection Act, 1986 has been directed against judgment and order dated 05.11.2018 passed by the learned District Consumer Disputes Redressal Forum, Haridwar in 1 Appeal No. The Manager, 14.03.2024 232 of 2018 State Bank of India & Others Vs. Sh. Narayan Devji consumer complaint No. 443 of 2015 styled as Sh. Narayan Devji Vs. Manager, State Bank of India and others, wherein and whereby the complaint was allowed.
2. According to the complaint, the facts giving rise to the present appeal, in brief, are as such are as such that the complainant is the resident of Gandhi Dham District Kuchha, Gujrat. He holds the bank account No. 20222261100. He came to take Holy-bath in the river Ganga at Haridwar on dated 03.06.2015 and stayed in the Katchchilal Dharamshala, Haridwar. The Bank had issued an ATM card with four digit secret pin directing him to put the ATM card in the ATM machine and put the secret four digit pin in the ATM machine, then the withdrawal of money would be made. On dated 04.06.2015, the complainant went to the PNB ATM machine, Shantikunj, Haridwar for withdrawing some amount and withdrew Rs. 5,000/- from the ATM card. At the ATM machine, there were some unknown persons present. They have exchanged the ATM card of the complainant with their own ATM card. This fact was not known to the complainant at that time. When the complainant reached Gujrat on dated 13.06.2015 and he checked his bank account, he came to know that an amount to the tune of Rs. 1,76,000/- were transferred from his account at several intervals. After making further inquiry, this fact was apprised to him that the said transactions were made from the SBI ATM machine, installed in Sugandha Deluxe, Mukhiya Gali, Haridwar by the exchanged ATM. The complainant has immediately informed the bank in-charge of ATM machine requesting to show the ATM CCTV footage, but he avoided. A letter to this effect through Police Kotwali, Haridwar was also given to the bank, but no satisfactory reply was given to the complainant. The person to whom the said transactions were made by some unknown persons, was requested to transfer the amount to his account, but nothing was done by them. The matter comes within the purview of deficiency in service on the 2 Appeal No. The Manager, 14.03.2024 232 of 2018 State Bank of India & Others Vs. Sh. Narayan Devji part of the opposite parties, hence the complaint was submitted before the District Commission.
3. The opposite parties have submitted their written statement denying the contents of the complaint and have alleged that from the contents of the complaint, it is clear that the complainant himself was negligent by using the ATM card in the presence of two unknown persons and avoided to observe the precaution by using the ATM card. The complainant has used the ATM card by applying the secret pin number in the process of withdrawal Rs. 5,000/- in the presence of some unknown persons. The complainant has already conceded that he has lodged the case of forgery in the Police Station, Kotwali. All the facts have transpired that if some unlawful act is done, it needs the elaborate investigation, which is not possible in the Consumer Protection Act. The complainant has not made the Punjab National Bank as necessary party, therefore there was no negligence on the part of the answering opposite parties. Hence, the complaint is liable to be dismissed.
4. The District Commission after hearing both the parties and taking into consideration the pleadings and evidence available on record, passed the judgment and order dated 05.11.2018 wherein and whereby the complaint was allowed directing the opposite parties to pay Rs. 1,76,000/- alongwith compensation of Rs. 5,000/- to the complainant.
5. Aggrieved by the aforesaid judgment and order of the District Commission, the opposite parties have preferred the present appeal as appellants alleging that the District Commission did not consider the fact that no consumer dispute had arisen between the parties and he is not a consumer under the definition of Consumer Act because the clear case of the complainant was that some unknown person had fraudulently exchanged his ATM card with some other card and no explanation had 3 Appeal No. The Manager, 14.03.2024 232 of 2018 State Bank of India & Others Vs. Sh. Narayan Devji come forth on the part of the complainant as to why he handed over his ATM card to a stranger and allowed him to change the same. Thus, the complainant himself was negligent, hence the District Commission should dismiss the complaint with costs and special costs under Section 26 of the Act, but the District Commission has exceeded its jurisdiction and heard the complaint, therefore, the complaint is liable to be dismissed and the impugned judgment is liable to be set aside.
6. Respondent - complainant did not appear before the Commission on several dates, hence on dated 12.05.2023, an order was passed to proceed the appeal ex-parte against the respondent.
7. We have heard learned counsel for the appellants and perused the material available on record.
8. It is an admitted fact that the respondent - complainant was holding his bank account 20222261100 and he is the permanent resident of Gandhi Dham District Kuchha, Gujrat. It is also not disputed that the complainant had come to take Holy-bath in the river Ganga at Haridwar on dated 03.06.2015 and he stayed in the premises of Katchchilal Dharamshala, Haridwar. It is also undoubtedly proved that the respondent used his ATM card on dated 04.06.2015 at about 8 or 8:30A.M. in the PNB ATM machine situated at Shantikunj, Haridwar and withdrew Rs. 5,000/- from the ATM machine. As per the contents of the complaint, it is also admitted by the complainant that two unknown persons were also present near the ATM machine while making the transaction through ATM card and withdrawal of Rs. 5,000/- from the ATM machine by using his secret pin. As per the complaint, fraudulently transaction through complainant's ATM card took place on the date of 04.06.2015 and it was used several times while withdrawing the total amount of Rs. 1,76,000/- by deceitful transactions.
4 Appeal No. The Manager, 14.03.2024
232 of 2018 State Bank of India & Others
Vs.
Sh. Narayan Devji
9. It is also conceded and proved that in presence of two unknown persons, Rs. 5,000/- were withdrawn on dated 04.06.2015 from the PNB ATM machine and his ATM card was exchanged with other's ATM card. As per the guidelines and various instructions time to time circulated by the Bank "Customer" should not use ATM card in the presence of other persons and he should not share his secret pin code of the ATM card to someone else. When the transaction of Rs. 5,000/- was made in the presence of other two unknown persons in the PNB ATM machine installed in Shantikunj, Haridwar, thus, there was the gross fault and gross negligence on the part of the respondent - complainant who avoided the instructions, guidelines and the precautions issued by the Bank from time to time to their customers.
10. The respondent - complainant had not given any explanation to this effect that why he handed over his ATM card to other person and allowed them to change the same. The respondent - complainant has neither submitted any pleading nor any evidence on record that there was any prohibition / information of the transfer of money from ATM to other Bank account for more than a particular number of times in a day.
11. Learned counsel for the appellants has stated that there is restriction is only on withdrawal of cash from the ATM machine and there is no such restriction on transferring amounts to one or any number of accounts. Thus, from the appreciation hereinbefore discussed, it is proved that the respondent - complainant was negligent in using his ATM card and he has not taken precaution for using it, therefore, he became a victim of fraud and deceitful act of some unknown person. It is also an established principle that the respondent - complainant cannot take the compensation for his negligent act from the appellants - opposite parties. Thus, we find there was no deficiency in service on the part of the appellants - opposite parties and the District Commission has passed the impugned judgment and order without facts, merits and evidence and in contravention of the mandate 5 Appeal No. The Manager, 14.03.2024 232 of 2018 State Bank of India & Others Vs. Sh. Narayan Devji provisions of law. The impugned judgment and order is perverse and is not in accordance with law, thereby the District Commission had exceeded its power which was not vested in it by law and had acted with material illegality and irregularity while passing the impugned judgment and order. The impugned judgment and order is based on presumption not borne out from the facts or evidence on record. Thus, we are of the definite view that the District Commission has erred in allowing the complaint, therefore, we are inclined to interfere with it. We hold that the appeal is liable to be allowed and the impugned judgment and order deserves to be set aside.
12. Accordingly, the appeal is allowed. Impugned judgment and order dated 05.11.2018 passed by the District Commission, Haridwar is hereby set aside and the complaint shall stand as dismissed. No order as to costs of the appeal.
13. Statutory amount deposited by the appellants, if any, be released in favour of the appellants.
14. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. A copy of this Order be sent to the concerned District Commission for record and necessary information.
15. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) President (Mr. B.S. Manral) Member Pronounced on: 14.03.2024 6