State Consumer Disputes Redressal Commission
State Bank Of India, Corporate Office, ... vs Sh. Rajesh Kumar Verma Aged 43 Years S/O ... on 20 December, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1305 of 2011
Date of institution: 29.08.2011
Date of Decision : 20.12.2013
1. State Bank of India, Corporate Office, 4th floor, State Bank Bhawan
Madam Kama Road, Mumbai, 400021, through its
CMD/MD/Chairman/GM.
2. Branch Manager, State Bank of India, Branch Sibian, NFL Complex,
Bathinda.
.....Appellants/O.Ps
Versus
Sh. Rajesh Kumar Verma aged 43 years S/o Sh. Sohan Lal Verma R/o
16742 Street No. 5/3, Sarabha Nagar, Bathinda.
.....Respondents/Complainant
First Appeal against the order dated
24.06.2011 passed by the District Consumer
Disputes Redressal Forum, Bathinda.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member Argued By:-
For the appellant : Ms. Avtar Kaur, Advocate
For the respondent : None
Order
JASBIR SINGH GILL (MEMBER)
The appellant/O.P has filed the present appeal against the order dated 24.06.2011 passed by the District Consumer Disputes Redressal Forum, Bathinda (hereinafter called "the District Forum") in consumer complaint No. 73 of 07.02.2011 vide which the complaint was allowed.
2. Brief facts of the case are that complainant/respondent (hereinafter referred as complainant) was holding an account number First Appeal No. 1305 of 2011 2 11430289965 with the bank and O.Ps/appellants (hereinafter referred as O.Ps) issued an ATM card to the complainant. The complainant has alleged that before 30.09.2010 an amount of Rs. 23,936.15 was laying in his account. On 02.10.2010, the complainant inserted his ATM card in the ATM machine installed at SBI, Amrik Singh Road, Bathinda and withdrew an amount of Rs. 10,000/-. On 14.10.2010 the complainant again visited to the ATM manchine and inserted his ATM card in the ATM machine but the ATM machine did not accept the ATM card. The card was blocked and on again inserting the card, the complainant got message from ATM machine that the ATM card of the complainant is not the correct one. The complainant checked the ATM card and found that the ATM card was replaced by some miscreant. The complainant came to know that a person who was standing behind him changed his ATM card with his ATM card. The complainant reported this matter to the O.Ps on the next day and came to know that some unknown person withdrew the amount i.e. Rs. 10,000/-02.10.2010, Rs. 3000/-, Rs. 100/-, Rs. 900/-, Rs. 900/- and Rs. 19,000/- on 03.10.2010 from the ATM machine by availing his lost ATM card. The bank refunded Rs. 3000/- on 16.10.2010 to the complainant by incorporating the entry in his account as the payment could not be paid due to defect in the ATM machine. On 16.10.2010, the O.Ps demanded Rs. 10,000/- from the complainant as excess money withdrawn through ATM. The O.P. No. 2 detained the salary of the complainant forcibly, illegally and deducted Rs. 16,964/- on 01.12.2010 as overdraft money without telling the complainant. The complainant protested the same as he was not having any facilities of CC account nor having the limit. The complainant suffered a financial loss of Rs. 30,900/- as he was not having any account beyond Rs. 13936/- on 02.10.2010. The complainant further alleged that he got the house loan from HDFC bank and gave advance First Appeal No. 1305 of 2011 3 cheque to the HDFC bank regarding instalments. The cheque of October, 2010 was dishonored by the bank. It was further pleaded that he has suffered monetary loss due to hanky panky of the officials of the O.Ps hence he filed the complaint with the prayer that the O.Ps be directed to pay Rs. 30,900/- with 18% interest and Rs. 60,000/- as compensation for his mental harassment.
3. Upon notice, reply was filed by the O.Ps. taking legal objections that the complainant has no locus standi or cause of action to file the present complaint, the complaint is not maintainable and that the complainant is stopped from filing the present complaint by his own act and conduct. On merits, it was pleaded that all the customers availing the facilities of the ATM are also provided with the secret password of their respective ATM card for their use so that the ATM card issued to any person may not be misused by any other person and same can only be used after entering the password of the ATM card. The customers including the complainant are bound to keep their respective password secret from other. It is further pleaded that the complainant withdrawn a sum of Rs. 10,000/- twice from his ATM account on 02.10.2010. He withdrew a total sum of Rs. 20,000/- on 02.10.2010 but due to some problem in the system of ATM, the said amount of Rs. 20,000/- was not debited in the account of the complainant, rather the account was still showing a credit balance of Rs. 23,936.15. The story put forth by the complainant that the ATM card of the complainant was misplaced by some miscreant with his own ATM card on 02.10.2010 is totally false and prayed for dismissal of the complaint.
4. Parties were allowed by the District Forum to lead their evidence.
First Appeal No. 1305 of 2011 4
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1 alongwith documents photocopy of letter dated 01.12.2010 Ex. C-2, photocopy of letter Ex. C-3, photocopy of email Ex. C-4, photocopy of FIR report Ex. C-5, affidavit of Rajesh Verma dated 02.05.2011 Ex. C-6 and photocopy of letter Ex. C-7 and closed his evidence. On the other hand, the O.Ps tendered into evidence affidavit of Gurcharan Singh Ex. R-1, photocopy of letter Ex. R-2, photocopy of ATM account statement Ex. R-3 to Ex. R-5, photocopy of receipts Ex. R-6 to Ex. R-8, photocopy of letter dated 01.12.2010 Ex. R-9, C.C. camera photographs Ex. R-10 to Ex. R-11, photocopy of letter Ex. R-12, photocopy of account statement Ex. R-13 to Ex. R-14 and photocopy of letter dated 22.12.2010 Ex. R-15 and closed the evidence.
6. After going through the complaint and evidence on the record, the learned District Forum allowed the complaint and the O.Ps were directed to refund the amount of Rs. 30,900/- alongwith interest @ 9 % and Rs. 3000/- as cost.
7. Aggrieved with the order passed by the learned District Forum, the appellants/O.Ps filed the present appeal on the grounds that the complainant is not entitled to claim anything for his own negligence as he could not get the benefit of his own fault which he has admitted in the FIR made to the police. It is further submitted that without the secret password amount could not have been withdrawan. The whole transactions of the withdrawal of the ATM card belonging to the complainant are result of passing of the secret password and not due to the fault of the appellant.
8. It is not disputed that the complainant was having the account with the O.Ps. It is also not disputed that the complainant has the ATM card. Only dispute is regarding that on 02.10.2010 he had withdrawn First Appeal No. 1305 of 2011 5 Rs. 10,000/- from the ATM machine as there was a balance of Rs. 23,936.15. On 14.10.2010 he could not avail the service of the ATM machine as the ATM machine did not accept the ATM card.
9. We have gone through the pleadings of the parties, grounds of appeal, perused the record of the learned District Forum and heard the arguments of the counsel for the appellant.
10. As per the version of the complainant the amount of Rs. 23936.15 was lying in the account and on 14.10.2010 he visited the ATM machine but ATM machine did not accept the ATM card and it was blocked and again on inserting the card, a message was displayed on the ATM machine as the ATM card was not correct one. When he checked his ATM card, it found that it has been replaced by some miscreant. He came to know that a person standing behind him changed his ATM card with some other card and this matter was reported to the O.Ps on the next date. It came to the knowledge of the complainant that an amount of Rs. 10,000/- from his account has been withdrawn on 02.10.2010 and Rs. 19,000/- were withdrawn on 03.10.2010 from the ATM machine. The bank has refunded him Rs. 3000/- on 16.10.2010 by incorporating the entry in his account as the payment could not be made due to defect in the ATM machine.
11. The appellant submitted that customers availing the facility ATM card are also provided with the secret password of their respective ATM card for the use of ATM card and so that the ATM card issued to any person may not be misused by any other person and the same can only be used after entering the password of the ATM card. The customers including complainant are bound to keep their respective password secret from other in order to avoid the mis-use of ATM card in case of loss. First Appeal No. 1305 of 2011 6
12. We have perused the FIR Ex. R-5 in which it has been mentioned that some unknown person replaced my ATM card from my back pocket of my pant with another one. Whereas the letter written to the bank on 22.10.2010 that someone stolen the ATM card from his pocket on 02.10.2010. This proves the malafide intention of the complainant to get undue benefits of non debiting of the withdrawal of Rs. 20,000/- on 02.10.2010. As per his own assertion on 14.10.2010, he inserted ATM card in the ATM machine but the ATM machine did not accept the ATM card but when the repetition of this attempt, the machine flashed a message that the ATM card inserted by the complainant is not the correct one and as per the assertion of the complainant that his ATM was replaced by some person standing behind him and his card was changed by someone. This version is not acceptable as he took stand that his card was changed by some unknown person who had put his card again back into his pocket. In the police complaint or FIR No. 506 on 21.10.2010, the respondent had taken the plea that his ATM card has been lost. That the contrary stand taken by the complainant with deliberate knowledge that nobody else can withdraw money from his account without the knowledge of his secret password. All these facts have been corroborated from the evidence adduced by the appellants/O.Ps in the form of affidavit submitted and the letters Ex. R-1 and Ex. R-15 written by the complainant himself.
13. As per the bank record Rs. 10,000/- has been debited from the account number 11430289965 twice on 02.10.2010. The balance as per Ex. R-15 was Rs. 23936.15 on 30.09.2010 and after withdrawal of total of the above said amount the balance remained Rs. 3936/-. On 03.10.2010 Rs. 19,000/- was withdrawn through ATM machine when the balance was left only Rs. 3936/-. The amount of Rs. 3000/- was tried to be withdrawn from the said ATM but the same could not be withdrawn due to First Appeal No. 1305 of 2011 7 technical problem and the amount of Rs. 3000/- was credited in the account of complainant. It was refunded to the complainant on 16.10.2010. In case his ATM card was changed by someone or it has been lost, there is no deficiency in service on the part of the bank.
14. In view of the above discussion, we are of the opinion that there is merit in the appeal and the same is accepted. The order of the District Forum is set-aside. .
15. The appellant had deposited an amount of Rs. 16,950/- in this Commission at the time of filing of the appeal on 29.08.2011. The amount of Rs. 16,950/- alonwith interest accrued thereon, if any, be paid by the registry to the appellants by way of crossed cheque/bank draft after the expiry of 45 days under intimation to the learned District Forum.
16. The arguments in this appeal were heard on 10.12.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
17. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member December 20, 2013. (Jasbir Singh Gill) RK Member First Appeal No. 1305 of 2011 8