State Consumer Disputes Redressal Commission
State Bank Of India vs Dr. M.S. Bisht on 29 February, 2024
First Appeal No. State Bank of India 29.02.2024
285 of 2022 Versus
Dr. M.S. Bisht
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
Date of Admission: 20.12.2022
Date of Final Hearing: 21.02.2024
Date of Pronouncement: 29.02.2024
FIRST APPEAL NO. 285 / 2022
State Bank of India, A Body Corporate constituted under
The State Bank of India Act, 1955 (Act No. 23 of 1955)
having its Registered / Central Office at
State Bank Bhawan, Corporate Centre, Madame Cama Road
Mumbai - 400021, Maharashtra
through one of its Branch at State Bank of India
Collectorate Branch, Dehradun - 248001, Uttarakhand
through its Authorised Representative & Signatory It's Branch Manager
Sh. Amit Gosain (34 years old) S/o Sh. Parmanand Gosain
C/o State Bank of India, Collectorate Branch
Dehradun - 248001, Uttarakhand
(Through: Sh. Ashish Chakravarty, Advocate)
...... Appellant
Versus
Dr. M.S. Bisht S/o Sh. S.S. Bisht
R/o B-404, Garden View Apartment
Panditwari, District Dehradun
(Through: Sh. Pankaj Raturi, Advocate)
...... Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
The present appeal under Section 41 of the Consumer Protection Act, 2019 has been directed against the impugned judgment and order dated 09.11.2022 passed by learned District Consumer Disputes Redressal Commission, Dehradun (hereinafter to be referred as "The District Commission") in consumer complaint No. 166 of 2018, titled as Dr. M.S. Bisht Vs. State Bank of India, wherein and whereby learned District Commission has allowed the consumer complaint, directing the 1 First Appeal No. State Bank of India 29.02.2024 285 of 2022 Versus Dr. M.S. Bisht appellant to pay a sum of Rs. 5,80,350.40/- to the respondent / complainant along with interest w.e.f. 30.03.2017 till actual payment at prevalent rate of interest and a sum of Rs. 30,000/- towards mental agony and Rs. 10,000/- as cost of consumer complaint (total -
Rs. 6,20,350.40/-) within 30 days' of passing of the impugned judgment and order.
2. The facts giving rise to the present appeal, in brief, are, as such, that the appellant / opposite party (State Bank of India) is a nationalized bank, wherein the respondent / complainant is having his Savings Bank Account No. 30757146898. The complainant used to deposit amount in his aforesaid account and also used to withdraw amount from the account. The complainant got registered his mobile No. 9412925666 with the bank for receiving the SMS alert with regard to deposit as well as withdrawal pertaining to his account. Before 30.03.2017, the complainant used to receive SMS alert on his mobile handset regarding deposit and withdrawal in his account, but from 30.03.2017 to 15.05.2017, the complainant did not receive any SMS alert on his mobile handset regarding withdrawal made from his account. For the period from 30.03.2017 to 04.04.2017, some unknown person had withdrawn amount from the account of the complainant on different dates, detailed as under:
Sl. No. Date Amount
1. 30.03.2017 Rs. 20,000/-
2. 30.03.2017 Rs. 25,000/-
3. 30.03.2017 Rs. 5,000/-
4. 30.03.2017 Rs. 16,512/-
5. 30.03.2017 Rs. 10,690/-
6. 31.03.2017 Rs. 20,000/-
7. 31.03.2017 Rs. 20,000/-
2
First Appeal No. State Bank of India 29.02.2024
285 of 2022 Versus
Dr. M.S. Bisht
8. 31.03.2017 Rs. 30,000/-
9. 01.04.2017 Rs. 10,000/-
10. 01.04.2017 Rs. 10,000/-
11. 01.04.2017 Rs. 30,000/-
12. 01.04.2017 Rs. 30,600/-
13. 01.04.2017 Rs. 5,100/-
14. 01.04.2017 Rs. 10,000/-
15. 01.04.2017 Rs. 4,000/-
16. 01.04.2017 Rs. 10,000/-
17. 01.04.2017 Rs. 10,000/-
18. 01.04.2017 Rs. 9.20/-
19. 01.04.2017 Rs. 9.20/-
20. 01.04.2017 Rs. 9.20/-
21. 02.04.2017 Rs. 9.20/-
22. 02.04.2017 Rs. 10,000/-
23. 02.04.2017 Rs. 15,000/-
24. 02.04.2017 Rs. 15,000/-
25. 02.04.2017 Rs. 5,800/-
26. 02.04.2017 Rs. 5,000/-
27. 02.04.2017 Rs. 2,500/-
28. 02.04.2017 Rs. 2,500/-
29. 02.04.2017 Rs. 3,500/-
30. 03.04.2017 Rs. 30,000/-
31. 03.04.2017 Rs. 10,000/-
32. 03.04.2017 Rs. 9.20/-
33. 03.04.2017 Rs. 10,023/-
34. 03.04.2017 Rs. 10,023/-
35. 03.04.2017 Rs. 10,023/-
36. 03.04.2017 Rs. 10,023/-
37. 03.04.2017 Rs. 5,800/-
3
First Appeal No. State Bank of India 29.02.2024
285 of 2022 Versus
Dr. M.S. Bisht
38. 03.04.2017 Rs. 5,000/-
39. 03.04.2017 Rs. 5,000/-
40. 03.04.2017 Rs. 5,000/-
41. 03.04.2017 Rs. 5,000/-
42. 03.04.2017 Rs. 6,400/-
43. 03.04.2017 Rs. 5,500/-
44. 03.04.2017 Rs. 10,500/-
45. 04.04.2017 Rs. 30,000/-
46. 04.04.2017 Rs. 10,000/-
47. 04.04.2017 Rs. 10,023/-
48. 04.04.2017 Rs. 10,023/-
49. 04.04.2017 Rs. 10,023/-
50. 04.04.2017 Rs. 10,023/-
51. 04.04.2017 Rs. 15,200/-
Total Rs. 5,49,832/-
3. Here, it is pertinent to mention that in the consumer complaint, the complainant has stated that an amount of Rs. 5,80,350.40/- was illegally withdrawn from his account, details whereof, as reproduced above, have been given in para 3 of the consumer complaint.
4. It was also alleged that the bank has not sent / forwarded any information to the complainant regarding withdrawal of the aforesaid amount through SMS alert on his registered mobile number. When the complainant visited bank for getting his passbook updated, he came to know that some unknown person had withdrawn aforesaid amount from his account at different places through ATM, whereas the original ATM was in complainant's possession. The act of not sending SMS alert by the bank on the complainant's registered mobile number of the 4 First Appeal No. State Bank of India 29.02.2024 285 of 2022 Versus Dr. M.S. Bisht complainant with regard to withdrawal of amount from his account between 30.03.2017 to 04.04.2017 and closure of SMS alert facility during the said period, amounts to gross negligence and deficient service on the part of the bank. It appears that with the connivance and conspiracy of employee of the bank, some unknown person has withdrawn the amount from the account of the complainant. The complainant is entitled to get Rs. 5,80,350.40/- along with interest from the bank, which was allowed by the bank from his account by some unknown person without due verification. It was further stated that the bank did not deploy security guard at ATM No. 2080, Dhartawala, Panditwari, District Dehradun, which also expressly indicates gross negligence and deficiency in service on the part of the bank. Therefore, the complainant is entitled to Rs. 5,80,350.40/- from the bank together with interest as well as compensation for mental agony and cost of litigation.
5. The appellant / opposite party (bank) has submitted its written statement before the District Commission, denying the averments made in the consumer complaint and alleging that the bank provided SMS alert service on mobile No. 9412925666 of the complainant regarding the transactions which took place in regard to his Savings Bank Account No. 30757146898. It is admitted that various transactions took place from the complainant's account between 30.03.2017 to 04.04.2017 and these transactions are supposed to be carried out either by the account holder or the person authorised by the account holder to do so. The contention of the complainant that for the period between 30.03.2017 to 15.05.2017, there was no SMS alert facility on his registered mobile number, is wrong and vehemently denied. It is also denied that the complainant came to know regarding the transactions only when he visited bank for getting his passbook updated. The SMS alert of each and every transaction has been sent to the account holder 5 First Appeal No. State Bank of India 29.02.2024 285 of 2022 Versus Dr. M.S. Bisht on his registered mobile number and a true copy of the record of SMS alerts maintained in bank system has been annexed with the written statement as Annexure - A. As per the record of SMS alerts, it is clear that the bank has given proper information of withdrawal to the account holder through SMS. The complainant has only demonstrated mental insolvency complaint because ATM Pin is a very confidential number and it is not possible for any other person except the card holder or the person authorised by the card holder to know the ATM Pin. The transaction, as mentioned, in the consumer complaint had taken place at various places and the complainant has not mentioned as to how any bank official or employee has scammed the complainant. The complainant is deliberately accusing the bank for alleging cloning of the ATM card without having any proof to support his allegations. The cloning of an ATM card is not possible without having the original ATM card. From the contents of the contents of the consumer complaint, it seems that the person who is holding the ATM card of the account holder, has misappropriated money of the account holder and to save his skin, the complainant / account holder is making false allegations on the bank, hence the consumer complaint is liable to be dismissed.
6. Against the written statement filed by the bank, the complainant filed replication before the District Commission, thereby denying the averments made in the written statement.
7. Learned District Commission, after hearing both the parties and after taking into consideration the material available on record, passed the impugned judgment and order on dated 09.11.2022, wherein and whereby the consumer complaint was allowed and it was held as under:
6First Appeal No. State Bank of India 29.02.2024 285 of 2022 Versus Dr. M.S. Bisht "mijksDrkuqlkj] ifjoknh }kjk ;ksftr ;g ifjokn miHkksDrk laj{k.k vf/kfu;e ds vUrxZr fuEukuqlkj Lohdkj fd;k tkrk gS& foi{kh dks vknsf"kr fd;k tkrk gS fd og ifjoknh dks vadu 5]80]350-40 :i;s dk mDr [kkrs ds lanHkZ esa fnukad 30-03-2017 ls vafre vnk;xh rd çpfyr C;kt nj lfgr Hkqxrku djs lkFk gh ekufld {kfr vadu 30]000@& :0 o okn O;; vadu 10]000@& :0 dk Hkh Hkqxrku djsA /kujkf"k dh vnk;xh 30 fnu ds vUnj djuk lqfuf'pr fd;k tk,A ;fn fufnZ"V vof/k esa Hkqxrku ugha fd;k tkrk gS rks ifjoknh mijksDr vadu 40]000@& :0 ¼30]000+10]000½ dh /kujkf"k ij ifjokn çLrqr djus dh frfFk ls Hkqxrku rd 9% okf"kZd nj ls lk/kkj.k C;kt Hkh ikus dk vf/kdkjh gksxkA fu.kZ; dh çfr i{kdkjksa dks fu%"kqYd çnku dh tk;sA mDr fu.kZ; dks ftyk vk;ksx dh osclkbV ij viyksM fd;k tk;sA"
8. On having been aggrieved by the impugned judgment and order, this appeal has been preferred by the bank as appellant.
9. We have heard learned counsel for the parties and perused the record. The main contention raised on behalf of the appellant - bank is that the District Commission has not considered the settled proposition of law that an attorney holder can not substitute in place of the principal and also can not plead / aver and adduce evidence on facts, which can only be in the knowledge of the principal. Hence, on the said ground, the appeal deserves to be allowed. The rival contention on behalf of respondent / complainant was as to that the complainant has also submitted his own affidavit in evidence as PW1, thus, it is incorrect to say that the averments of the consumer complaint were proved by an attorney holder. We have also perused the original record of the District 7 First Appeal No. State Bank of India 29.02.2024 285 of 2022 Versus Dr. M.S. Bisht Commission summoned by us. Vide list of witness dated 26.09.2019 (Paper No. 17ka of the original record), the complainant has submitted his affidavit dated 17.09.2019 (Paper Nos. 17ka/7 to 17ka/12), besides the affidavit of his wife Smt. Anjana Bisht (Paper Nos. 17ka/1 to 17ka/6) as PW2. Thus, it is clearly proved that the consumer complaint was proved by the complainant, as he has submitted his own affidavit in evidence. Hence, the contention raised on behalf of the appellant - bank that the complainant has not appeared before the District Commission in order to prove his consumer complaint, is not sustainable. When the contents of the consumer complaint were duly proved by the complainant, it can not be said that learned District Commission has ignored settled proposition of law and allowed the consumer complaint on the basis of evidence of complainant's attorney holder.
10. It is undisputed that an F.I.R. was lodged by the wife of the complainant with P.S. Panditwari, Dehradun on 29.05.2017 against unknown person, which was registered as case crime No. 07 / 17 under Section 420 of Indian Penal Code, 1860. It is also proved from the Final Report submitted by the police before the competent court that the Investigation Officer has also conceded that the offence took place regarding illegal withdrawal of the money, as alleged in the complaint. It was also mentioned that the CCTV footage of petrol pump where some transactions took place was not available, due to no data back-up beyond 15 days'. Therefore, the Investigation Officer has submitted the Final Report before the competent court. The police came to the conclusion that illegal / fraudulent withdrawal of disputed amount was made by some unknown person at different place and some amount was also withdrawn from the ATM installed at the petrol pump, but the CCTV footage was not available, as there was no data back-up beyond 15 days'. During investigation, the police has also obtained call details 8 First Appeal No. State Bank of India 29.02.2024 285 of 2022 Versus Dr. M.S. Bisht / SMS details of complainant's mobile number for the period from 30.03.2017 to 14.04.2017 along with a certificate of Nodal Officer. The said documents are Paper Nos. 15ka/5 to 15ka/7 of the original record, which show that during investigation, it was found that no SMS was sent by the bank to the account holder / complainant for the period from 30.03.2017 to 14.04.2017. Learned counsel for the appellant - bank has submitted that as per the SMS alert system of the bank, it is proved that the SMS alert facility was in operation and SMS's were sent from the server of the bank to the complainant. Here, it is pertinent to mention that the appellant - bank has not filed any cogent and reliable evidence by filing SMS details of the mobile company that SMS's were actually delivered to the account holder.
11. Learned counsel for respondent / complainant has submitted that there was no security guard at ATM No. 2080, Dhartawala, Panditwari, District Dehradun. This fact was not specifically denied in the written statement filed by the bank. Not deploying any security guard at ATM, also amounts to deficiency in service on the part of the bank. It is also pertinent to mention that at every ATM, facility of CCTV is available and the bank is under bounded duty to submit the CCTV footage of the ATM to show that the complainant has himself withdrawn the amount, but the same was not done by the bank.
12. Learned counsel for the appellant - bank also submitted that ATM Pin is very confidential and it is not possible for any other person except the card holder or the person authorised by the card holder to know the ATM Pin. In this context, it is important to note that the complainant has clearly stated in para 3 of the consumer complaint that the original ATM was in his possession.
9First Appeal No. State Bank of India 29.02.2024 285 of 2022 Versus Dr. M.S. Bisht
13. Learned counsel for the appellant - bank further submitted that the complainant has not disclosed about his whereabouts from 30.03.2017 to 04.04.2017 and whether he was in possession of ATM during the aforesaid period and has not shared his ATM Pin with someone else. Such contention raised on behalf of the bank is baseless, because the complainant has specifically stated that the original ATM card was in his possession and he has not given it to anyone else.
14. On the basis of the discussion made above, we are of the considered opinion that learned District Commission was justified in allowing the consumer complaint. The District Commission has held that the complainant is entitled to an amount of Rs. 5,80,350.40/-, without considering that the total of the amounts mentioned in para 3 of the consumer complaint, comes to Rs. 5,49,832/-. The District Commission has not cared to add the amounts mentioned in para 3 of the consumer complaint, so as to ensure whether the total of the same comes to Rs. 5,80,350.40/-, as alleged by the complainant or not. Such an exercise ought to have been adopted by the District Commission. The appellant - bank has also been so negligent that it has also not cared to add the amounts mentioned in para 3 of the consumer complaint and at no stage, either before the District Commission or before this Commission, the bank has challenged the amount of Rs. 5,80,350.40/- claimed by the complainant, by saying that the total of the amounts shown in para 3 of the consumer complaint does not come to Rs. 5,80,350.40/-, rather the same comes to Rs. Rs. 5,49,832/-. Thus, the amount of Rs. 5,80,350.40/- awarded by the District Commission needs to be reduced to Rs. 5,49,832/- and to that extent only, the impugned judgment and order passed by the District Commission is liable to be modified, with no other interference therein. Accordingly, we hold that the appeal is fit to be partly allowed.
10First Appeal No. State Bank of India 29.02.2024 285 of 2022 Versus Dr. M.S. Bisht
15. Appeal is partly allowed. Impugned judgment and order dated 09.11.2022 passed by the District Commission is modified to the extent that the amount of Rs. 5,80,350.40/- awarded by the District Commission, is hereby reduced to Rs. 5,49,832/-. Rest of the impugned judgment and order dated 09.11.2022 passed by the District Commission is hereby confirmed. No order as to costs of the appeal.
16. 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. The original record of the District Commission be also remitted back forthwith.
17. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 29.02.2024 11