State Consumer Disputes Redressal Commission
Bhadra N. Dalal, vs Bank Of India, on 16 July, 2010
BEFORE THE HON
BEFORE THE HONBLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
(1) First Appeal No.754
of 2009 Date of filing: 06/05/2009
In Complaint
No.232/2007 Date of order: 16/07/2010
District Consumer
Disputes Redressal Forum, South Mumbai.
Bhadra N. Dalal,
23A, Yusuf Building,
49, Veer Nariman
Road, Fort,
Mumbai 400 001.
..Appellant/
(Org. Complainant)
V/s.
Bank of India,
Mumbai Main Branch
Office,
70/80, M.G. Road,
Fort, Mumbai 400
023.
..Respondent/
(Org. Opp. Party)
(2) First Appeal No.918
of 2009 Date of filing: 06/07/2009
In Complaint
No.232/2007 Date of order: 16/07/2010
District Consumer
Disputes Redressal Forum, South Mumbai.
Bank of India,
Mumbai Main Branch
Office,
70/80, M.G. Road,
Fort, Mumbai 400
023.
..Appellant/
(Org. Complainant)
V/s.
Bhadra N. Dalal,
23A, Yusuf Building,
49, Veer Nariman
Road, Fort,
Mumbai 400 001.
..Respondent/
(Org. Opp. Party)
Quorum:
Shri P. N. Kashalkar, Honble Presiding Judicial Member.
Smt. S. P. Lale, Honble Member.
Present:
Ms.S.U. Deshmukh, Advocate for Appellant in A-754/2009.
Mr.V.M. Abhyankar, Advocate for Respondent in A-918/2009.
-: O R D E R :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member:(1)
By this common judgement, we are disposing of these two appeals since they have been filed challenging the judgement and award passed by District Consumer Disputes Redressal Forum, South Mumbai. Appeal no.754/2009 has been filed by the original Complainant for enhancement of compensation, whereas Appeal No.918/2009 has been filed by Opposite Party - Bank of India, the original Opposite Party seeking quashing of the award passed by District Consumer Disputes Redressal Forum, South Mumbai.(2)
Facts to the extent material may be stated as under:
Shri Bhadra N. Dalal had filed consumer complaint alleging deficiency in service and unfair trade practice against Opposite Party - Bank of India, Mumbai Main Branch, Fort, Mumbai. The case of the Complainant was that she was having Bank account No.000110100003955 with the Opposite Party Bank. One day, she found that from her Saving Bank Account amount of Rs.45,090/- was debited showing it was the withdrawal made from A.T.M. by using ATM Card given to her. According to Complainant, she never used ATM Card for cash withdrawal on 28th, 29th, and 30th August, 2006, but, she found that there were debits of cash withdrawal on these dates of Rs.15/-, Rs.15,025/- and Rs.15,025/- and again an amount of Rs.15,025/- respectively withdrawn from her account as was shown in the entries made in the passbook. She noticed these withdrawals when she updated her passbook on 2nd September, 2006. She immediately made complaint on the same day, to the Bank Manager of Opposite Party. The Bank Manager promised that the matter would be investigated and decision to give credit of Rs.45,090/- would be taken by General Manager on 5th September, 2006. She also lodged F.I.R. at Azad Maidan Police Station. She claimed that General Manager of Bank of India informed her that the said amount has been credited to her account with entry as Fraudulent with. in ATM Refunded and credit was recorded in the passbook in her passbook on 05.09.2006. But, she further pleaded that she received letter from the Bank, stating that Bank has no responsibility or liability in respect of cash withdrawal and that said credits were reversed which also recorded in her passbook. Complainant states that there were 2 withdrawals on 28/08/2006 amounting to Rs.15/- and Rs.15000/-, while Bank rules permit a maximum withdrawal of Rs.15,000/-. Therefore, it was fraudulent withdrawal as Bank did not prevent excess withdrawal in one day. She therefore pleaded that due to negligence of Bank in not properly maintaining ATM she suffered loss of Rs.45,090/- and also claimed compensation for mental harassment and cost of the proceeding.(3)
Opposite Party Bank contested the complaint by filing written statement. Opposite Party pleaded that withdrawal of cash is not possible without inserting ATM Card and without entering confidential Pin Number given to every customer. The Bank also pleaded that, it is the duty of the every customer to keep Pin Number as secret and confidential. No customer is supposed to divulge his or her Pin Number of the ATM Card to anybody. They admitted that initially they had credited the amount of Rs.45,090/- on the ground that it was fraudulent withdrawal in ATM. But, thereafter, Head Office of the bank told that unless ATM Card is inserted in ATM Machine along with individual pin code number of the customer, there cannot be cash withdrawal by anybody from any ATM machine. So, Head Office directed Bank of India, Mumbai Branch to debit the said amount which was credited to the account of the Complainant on account of fraudulent withdrawal. The Bank pleaded that Bank had already lodged report about fraudulent withdrawal and Complainant too had filed F.I.R. for the said fraudulent withdrawal at Azad Maidan Police Station and the investigation was under progress. The said complaint is of frivolous nature and police will take due action under Cyber Law. The Bank, therefore, pleaded that complaint should be dismissed with costs.
(4)On the basis of documents and affidavits placed on record, the President of South Mumbai District Consumer Disputes Redressal Forum by her judgement dated 16.09.2008 allowed the complaint and directed the Opposite Party to pay sum of Rs.15,025/- along with interest @9% per annum from 28.08.2006 till realization and rest of the claim was rejected and Complainant was directed to approach Civil Court for proper redressal of her claim. Another Member of the said Forum gave dissenting judgement. She was pleased to dismiss the complaint observing that Bank had given good services to the Complainant. The Complainant had erroneously filed consumer complaint with no fault of the Bank. Fraudulent withdrawal was not made by the Bank Officials. Complainant herself was to be blamed since she had not taken due care by keeping her ATM card in safe custody and divulging her pin code number of ATM Card to some person of her acquaintance who might have misused the said card, on this ground complaint was dismissed.
(5)Since the President and Member of constituting bench differed on each other, this complaint was referred to another member Shri Chandrakant Badgujar. Shri Badgujar by his judgement and order dated 07.03.2009 agreed with the findings recorded by the President of District Forum and therefore, by majority, this complaint stood allowed. Aggrieved by this order the original Complainant filed Appeal No.754/2009 for getting enhanced compensation and original Opposite Party Bank of India has filed Appeal No.918/2009, challenging the award passed by the District Consumer Disputes Redressal Forum, South Mumbai.
(6)We heard submissions of Advocate Mr.V.M. Abhyankar, for the Bank of India in both the appeals and Advocate Ms.S.U. Deshmukh, for original Complainant in both the appeals.
(7)Upon hearing Ld. Advocates, we are of the view that the award passed by the majority judgement by South Mumbai District Consumer Disputes Redressal Forum in Consumer Complaint No.232/2007 is required to be quashed and set aside for the simple reason that Complainant had not adduced any evidence to prove that amount of Rs.45,090/- had been fraudulently withdrawn by some officials of Bank of India. We are finding that there was cash withdrawal of Rs.45,090/- from the ATM Card issued to the Complainant in the month of August, 2006. According to Complainant said ATM card was never used by her for said withdrawal. As per Banks contention, any cash withdrawal from ATM machine cannot be made unless the customer using the said ATM Card or ATM-cum-Debit Card inserts it in the ATM and feed the pin code number in the machine. These two things are required to be done simultaneously for withdrawal of cash from anybodys account. The ATM card issued to customer is required to be kept in proper custody by the Bank Customer himself and pin code number issued confidentially to the Bank customer is also required to be kept in secret and the said pin code number should not be divulged to anybody else. So, ATM-cum-Debit Card and the Pin Code Number is most valuable thing which a bank customer is required to keep in proper custody. But, if the Bank customer has given the said ATM-cum-Debit Card to any person and has disclosed or divulged the pin code number to anybody else, even accidentally then there can be fraudulent withdrawal from the customers account even behind back of the said Bank customer. When it is the contention of the Bank that there cannot be withdrawal of cash from the ATM Card unless the particular card is inserted along with pin code number of the customer, the Head Office of the Bank, on finding that the said Branch had unnecessarily recredited the amount of Rs.45,090/- to the account of Complainant had directed the bank to debit the said amount and Bank did so. Contention of the Complainant is that once the Bank had recredited the amount of Rs.45,090/- alleging that it was on account of fraudulent withdrawal from ATM, Bank was not supposed to reverse the entry by debiting the said amount subsequently without her knowledge. But, we are finding that Bank had issued notice to the Complainant and after giving notice the amount was debited from the account of Complainant. The said letter was handed over to the Complainant on 22.09.2006 and on 23.09.2006 the amount was credited earlier, has been debited from the Saving Bank Account of the Complainant as per direction issued by Head Office. In the circumstances, we are finding that there was no negligence of any kind on the part of the Bank. In fact, there was negligence on the part of Complainant herself in not properly keeping the ATM-cum-Debit Card issued in her favour by the Bank and in not keeping pin code number allotted to her in secret. It is possible that her card and pin code number had been unauthorisedly used by some of the relatives or some servants of the Complainant and there was withdrawal of amount of Rs.45,090/- from the account of Complainant. The Forum below without appreciating the facts on record erroneously held that ATM machine was not maintained properly. This is something very strange. ATM machine is used by thousands of people, day in and day out and nobody else had made any grievance about the working or malfunctioning of the ATM machine and only Complainant had asserted that there was withdrawal of amount of Rs.45,090/- from her account fraudulently. Complainant had lodged complaint and F.I.R. in police station in which she asserted that some unknown person had used ATM Card issued to her and withdrew Rs.45,090/- without her consent from her Saving Bank Account fraudulently and thereby deceived her as well as Bank of India and therefore, she lodged complaint u/sec 420 of I.P.C. When this is the complaint of the Complainant when she lodged in Azad Maidan Police Station she cannot be heard to say that Bank was negligent in maintaining the ATM. She has also not proved by adducing any evidence that because of Banks negligence the amount of Rs.45,090/- could be withdrawn by somebody. In the circumstances, we are of the view that Ld. District Forum by its majority judgement has erroneously decided the complaint and awarded Rs.15,025/- along with interest @9% per annum from 28/08/2006 to the Complainant without any basis. The fault was of the Complainant herself, because she had not kept her ATM-cum-Debit Card and pin code number in proper custody and somebody has used it fraudulently to her disadvantage to cause wrongful loss to the Complainant. In this view of the matter, the Bank is not at fault in this episode and the Forum below erroneously passed award in favour of the Complainant. So, by allowing Appeal No.918/2009, the said award is required to be quashed and set aside and complaint will have to be dismissed.
(8)As a natural corollary, the appeal filed by the Complainant being Appeal No.754/2009 for enhancement of compensation will have to be dismissed, since his original complaint is being dismissed by us. Hence, we pass the following order:
O R D E R
(i) Appeal No.754/2009 filed by original Complainant is hereby dismissed.
(ii) AppealNo.918/2009 filed by Opposite Party is allowed.
(iii) Impugned order passed in Consumer Complaint No.232/2007 is quashed and set aside. In the result, complaint stands dismissed.
(iv) Parties are left to bear their own costs.
(v) Informed the parties accordingly.
(S.P. Lale) (P. N. Kashalkar) Member Presiding Judicial Member