State Consumer Disputes Redressal Commission
State Bank Of India vs Arindam Samanta on 15 October, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/605/2013 (Arisen out of Order Dated 11/12/2012 in Case No. Complaint Case No. CC/106/2012 of District Paschim Midnapore) 1. State Bank Of India Dahijuri, P.O. - Dahijuri, P.S. Binpur, Dist. Paschim Medinipur, Pin Code No.-721 504. ...........Appellant(s) Versus 1. Arindam Samanta S/o Nakul Chandra Samanta, Dighisole, P.O. - Dahijuri, P.S. Binpur, Dist. Paschim Medinipur. ...........Respondent(s) BEFORE: HON'BLE MR. TARAPADA GANGOPADHYAY PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Surajit Auddy Mrs. Swapnalekha Auddy, Advocate For the Respondent: Mr. Prasanta Banerjee, Advocate ORDER 15.10.2015 MR. TARAPADA GANGOPADHYAY, HON'BLE MEMBER
The present Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed assailing the judgment and order dated No. 07 dt. 11.12.2012 passed by the Ld. District Consumer Disputes Redressal Forum, Paschim Medinipur in Complaint Case No. 106/2012, directing the OP to pay within 30 days to the Complainant Rs. 30,000/- along with simple interest @ 8% per annum since the date of filing the Complaint till the date of the order, failing which interest @ 10% per annum shall accrue on the above amount for the entire period of default.
Facts of the case, in brief, are that the Respondent/Complainant used to hold an ATM Card against Savings Bank Account No. 30145982421 with Dahijuri branch of the Appellant/OP-Bank. On 7.2.2012 when the Respondent/ Complainant attempted twice between 11 A.M. and 12 noon to withdraw Rs. 30,000/- by the said ATM Card at the ATM (ID No. S10A001895001)located at Northern Avenue, Kashipur, Kolkata, the said ATM machine did not delivery any money, but later on the passbook of the said Savings Bank Account showed debit of Rs. 30,000/- on the said date. Noticing such allegedly unauthorized withdrawal of money from the said Savings Bank Account the Respondent/ Complainant lodged a Complaint with the Appellant/OP-Bank on 11.2.2012, followed by several reminders dated 7.3.2012, 20.3.2012, and General Diary dated 21.3.2012 with the Chitpur Police Station, Kolkata, but without any success. Then the Respondent/Complainant filed the instant Complaint with the Ld. District Forum concerned alleging deficiency in service on the part of the Appellant/OP-Bank for their failure to provide adequate safety and security for the money of the Respondent/Complainant. With this factual background, the Ld. District Forum passed the impugned judgment and order in the aforesaid manner. Aggrieved by such order the OP has preferred the instant Appeal.
The Ld. Advocate for the Appellant/OP-Bank filing BNA submits that the Ld. District Forum failed to consider that because of the elaborate safety procedure as observed by the banking system, an unauthorized person cannot withdraw any money through ATM.
The Ld. Advocate further submits that no money can be withdrawn from the ATM without coincidence of the ATM card and the PIN, which remain under the personal and confidential custody of the ATM card-holder and for access to which by any person other than the ATM card-holder himself, the ATM card-holder cannot shake off his own liability.
In support of the aforesaid submission the Ld. Advocate has relied upon the following decisions of the Hon'ble National Commission:
State Bank of India Vs. K.K.Bhalla, reported in 2011 (2) CPR 26 (NC), State Bank of India Vs. Om Prakash Saini, decided on 18.1.2013 in Revision Petition No. 2382 of 2012, Raghabendra Nath Sen & Anr. Vs. Punjab National Bank, decided on 17.12.2014 in Revision Petition No. 3973 of 2014 and State Bank of India Vs. Subhasis Chowdhury, decided on 18.2.2015 in Revision Petition No. 545 of 2013, wherein the ratio was decided that in view of the elaborate procedure evolved by the Appellant/OP-Bank to ensure safety and security of the money of the customer, it is not possible for money to be withdrawn by any unauthorized person from the ATM without the ATM card and knowledge of PIN.
The Ld. Advocate finally submits that the entries in the passbook, as available on records, exhibit the withdrawal of the amount in question which the Respondent/Complainant could not counter by support of any documentary evidence in his favour.
The Ld. Advocate concludes that in view of the aforesaid submission and the decisions of the Hon'ble National Commission, the instant Appeal should be allowed and the impugned judgment and order be set aside.
On the other hand, the Ld. Advocate for the Respondent/Complainant, repelling the aforesaid submission of the Ld. Advocate for the Appellant/OP-Bank, submits that the Appellant/OP-Bank did not respond to the complaint by the Respondent/Complainant in spite of issuance of several reminders, nor even contested the case before the Ld. District Forum despite due service of notice, indicating thereby that the Appellant/OP had no cogent evidence in their favour, except the entries in the passbook which may be inadvertently entered, to contradict the said fraudulent withdrawal of the amount in question.
The Ld. Advocate for the Respondent/Complainant continues that the event of withdrawal of the disputed amount of Rs. 30,000/- from the ATM, which failed to deliver the money to the Respondent/Complainant at the time of operation of the same by the Respondent/Complainant, indicates the fraudulent withdrawal of the amount in question.
The Ld. Advocate for the Respondent/Complainant also submits that the Appellant/OP-Bank did not provide any video footage to corroborate that the Respondent/Complainant was involved in withdrawal of the amount from the ATM as the Appellant/OP-Bank has tried to establish in their submission.
The Ld. Advocate for the Respondent/Complainant adds that the Appellant/OP, being the custodian of the money of the Respondent/Complainant-Customer, did not render adequate qualitative service of security in respect of the money of the Respondent/Complainant-Customer, and that such failure on the part of the Appellant/OP constitutes deficiency in service on their part.
The Ld. Advocate for the Respondent/Complainant concludes that in view of the submission so put forward, the impugned judgment and order should be sustained.
We have heard both the sides, considered their respective submission and perused the materials on records.
Materials on records reveal that apart from the entries in the passbook, no other evidence like ATM Log, J.P. Log, ATM Customer Advice, etc. had been produced either by the Appellant/OP-Bank or by the Respondent/Complainant in support of their respective claim to enable this Commission to arrive at an undisputed conclusion. Even, in the impugned judgment and order the Ld. District Forum also has not specifically referred to any cogent evidence in support of its satisfaction as recorded in the impugned judgment and order.
In view of the foregoing discussion and of lack of cogent evidence on records, we have no option but to dismiss the Appeal and remand the case before the Ld. District Forum concerned for adjudication afresh on the basis of the cogent evidence as discussed herein and also in accordance with the principle of law settled in respect of the matter.
In the result, the Appeal is dismissed. The case is remanded to the Ld. District Forum for adjudication afresh on merits. No order as to costs.
Both the parties are directed to appear before the Ld. District Forum on 16.11.2015. [HON'BLE MR. TARAPADA GANGOPADHYAY] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER