State Consumer Disputes Redressal Commission
Sh. Jagdish Prasad vs State Bank Of India, on 8 February, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 23 / 2012
State Bank of India
Main Branch, Kashipur
District Udhamsingh Nagar
Through its Chief Manager
......Appellant / Opposite Party
Versus
Sh. Jagdish Prasad Yadav S/o Sh. Ram Charan Yadav
R/o 18-B, Railway Colony, Kashipur, Udhamsingh Nagar
......Respondent / Complainant
Sh. S. Parashar, Learned Counsel for the Appellant
Ms. Anupama Gautam, Learned Counsel for Respondent
AND
FIRST APPEAL NO. 24 / 2012
Sh. Jagdish Prasad S/o Sh. Ram Charan
R/o 18 B, Railway Colony, Kashipur, Udhamsingh Nagar
......Appellant / Complainant
Versus
Main Branch Manager
Main Branch State Bank of India, Kashipur
District Udhamsingh Nagar
......Respondent / Opposite Party
Ms. Anupama Gautam, Learned Counsel for the Appellant
Sh. S. Parashar, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mrs. Veena Sharma, Member
Dated: 08/02/2018
ORDER
(Per: Mrs. Veena Sharma, Member):
These two appeals, one by the opposite party and another by the complainant, filed under Section 15 of the Consumer Protection Act, 1986, 2 arising out of the order dated 04.01.2012 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 41 of 2010, whereby the District Forum has partly allowed the consumer complaint and directed the opposite party to pay Rs. 1,00,000/- as damages, to the complainant, from the date of filing the consumer complaint till the date of payment alongwith interest @7% per annum simple interest, within one month from the date of this order and also to pay Rs. 5,000/- to the complainant towards cost of litigation.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Jagdish Prasad Yadav has a saving bank account with the opposite party-State Bank of India, Kashipur, Udhamsingh Nagar having account No. 10795301134. The opposite party has issued ATM card facility to the complainant bearing card No. 6220180068800070386. The complainant has used the said ATM card on 19.06.2009 last time by withdrawing Rs. 2,000/-. After this transaction, some technical problem was faced by the complainant, for which complainant has lodged a complaint to the opposite party-State Bank of India. The opposite party advised the complainant to deposit Rs. 200/- for issuing a new ATM card to him and to submit the old ATM card with the opposite party-Bank. The complainant has fulfilled the requirement by depositing Rs. 200/- in cash and submitting his old ATM card with the Bank. The opposite party has issued a new ATM card No. 6220180066800095789. On 08.08.2009 the complainant had checked the new ATM card by withdrawing Rs. 200/-. On 13.01.2010, when the complainant used his ATM card, he was surprised to see that on the receipt issued by the ATM machine, available balance of his account is very low. The complainant updated his bank pass-book. After getting entry in the passbook, the complainant came to know that from 07.08.2009 to 13.01.2010 a total sum of Rs. 1,89,500/- was withdrawn through his old ATM card No. 6220180068800070386, which was submitted by him in the bank. He immediately informed the opposite party-Bank this on 3 13.01.2010 about the said transactions. Again on 14.01.2010 Rs. 36,000/- and on 15.01.2010 Rs. 1,500/- were withdrawn. Thus, the complainant has suffered huge loss of his money from this account. Bank has not considered the information regarding all this. Aggrieved by this, the complainant has lodged a complaint on 18.01.2010 in Kotwali Kashipur. In the broacher published by the bank about ATM directions that it is the duty of the bank employee / officer to destroy the ATM card which is surrendered by the consumer, as it cannot be used by someone. But the opposite party-Bank did not follow the procedure and the complainant has suffered a huge financial loss. Therefore, the complainant has filed a consumer complaint before the District Forum.
3. The opposite party-State Bank of India has filed written statement before the District Forum and has admitted para Nos. 1 to 4 and denied para Nos. 5 to 10 of complaint. Answering opposite party accepted in para No. 11 of written statement that in the ATM guide book / user's manual direction has given that how to issue another ATM card & denied all paras of consumer complaint. In additional pleas, the answering opposite party has stated that the complainant had applied for new ATM card as old ATM card was not working, but it is not admitted that old ATM card was surrendered to answering opposite party. Old ATM card is in the possession of complainant. After issuing the new ATM card, the card holder is advised to hot list the old ATM card himself. The complainant started using the new ATM card from 07.08.2009. During the transaction, the acknowledgment slip displace the withdrawal amount alongwith the balance amount. Therefore, complainant was aware about his balance amount. Every ATM card has an unique number, which is in the knowledge of cardholder. So there is no question of using complainant's ATM card by someone else. There is no deficiency in service on the part of the answering opposite party. So the consumer complaint is liable to be dismissed.
44. The complainant has filed replication against the written statement filed by the opposite party and has stated that when he himself informed the opposite party-Bank about non-function of his ATM card, one of the bank employee had asked his ATM card and PIN number to operate it, however, the ATM card didn't work. After getting the confirmation that the ATM card was not functioning, they issued a new ATM card. In the whole process, the opposite party-Bank never told to hot list the card. After issuing the old ATM card, it was the responsibility of opposite party- Bank to discard the card. He denied the allegation that after every transaction, he was aware of his balance amount, because he is a middle age person and doesn't know about all the facilities provided by the ATM machine. He also contested the fact of para No. 21 of written statement that the complainant has used his old ATM card on 07.08.2009 to 13.01.2010, while the fact is that he used the said card last time on 19.06.2009. He further stated that the opposite party-Bank is a reputed bank believing so, he did not update his bank passbook during the period of fraud transaction. So he could not know about the fraud transactions done from 07.08.2009 to 13.01.2010.
5. The District Forum on an appreciation of the material on record has allowed the consumer complaint vide order dated 04.01.2012 in the above manner. Aggrieved by the said order, the opposite party-appellant has filed First Appeal No. 23 of 2012 thereby assailing the propriety and legality of the impugned order passed by the District Forum and the complainant- appellant has filed First Appeal No. 24 of 2012 for enhancement of the awarded amount.
6. We have heard Sh. S. Parashar, learned counsel for the appellant and Ms. Anupama Gautam, learned counsel for respondent in First Appeal No. 23 of 2012 and Ms. Anupama Gautam, learned counsel for the appellant and Sh. Sh. S. Parashar, learned counsel for respondent in First 5 Appeal No. 24 of 2012. We have also perused the entire record of the District Forum as well as material placed on record.
7. In the appeal, learned counsel for the appellant-opposite party-State Bank of India has submitted that the District Forum did not appreciate the facts and rules in the right perspective and gave the judgment on the basis of presumptions and conjectures. The Forum below was wrong in presuming that the witness of the bank was not in the branch on the date in question. This question was not raised either by the complainant or by the District Forum at any stage of the case. It was clearly stated in the affidavit of witness that he was fully acquainted with the facts stated therein. The Forum below was wrong in presuming that the ATM work was being looked by some other staff. The Forum below had come to a clear finding that the pin of the ATM card was known only to the complainant and, therefore, it was not possible for anyone else to use the ATM card. Inspite of such finding allowing the complaint even for a lesser amount was not justifiable. There was no deficiency in service on the part of the appellant and there was no negligence in discharge of duty on the part of the appellant. The Forum below was wrong in even partly allowing the complaint, when it was clearly established on record that the complainant himself or someone with his consent or connivance could operate the account through ATM card. It was absolutely clear from the record that the complainant had been using both the ATM cards regularly. The Forum below did not appreciate the fact that the complainant was only trying to get unjust enrichment. The complainant has not suffered any loss. The findings and order of the District Forum is based on presumptions and surmises and is against the facts and evidence on record.
8. Learned counsel for the appellant-complainant has stated in the appeal that the District Forum has not considered the facts and evidence on record. The order impugned passed by the District Forum needs modification. The Forum below has failed to consider that the second ATM 6 card was issued to the appellant-complainant after non-working of old ATM card, so how he is responsible for the transaction done by old ATM card. The responsibility is fixed against the appellant-complainant, inspite of opposite party-Bank. The opposite party-Bank has failed to prove that the appellant-complainant has used the old ATM card. The District Forum has erred in passing the judgment that the appellant is responsible for the transaction, as he has not deposited / hot listed his old ATM card to the Bank. The District Forum has awarded insufficient compensation and low rate of interest. So the appellant-complainant has prayed that the appeal filed by the appellant-complainant be allowed and the amount of Rs. 2,27,000/- with interest and Rs. 5.00 lakhs as mental agony be awarded to him.
9. There is no dispute with regard to the fact that the appellant-opposite party-Bank had issued a new ATM card No. 6220180066800095789 to the complainant-respondent in the month of June, 2009. The dispute is that after issuing a new ATM card to the respondent, his old ATM card bearing No. 6220180068800070386 was used on various dates upto the month of October, 2010. Rs. 2,27,000/- was debited from the respondent's account by using old ATM card. Who is responsible for the said transaction done by using old ATM card.
10. According to the respondent-complainant, a new ATM card No. 6220180066800095789 was issued by the appellant-opposite party to him. After fulfilling all the formalities, the respondent received a new ATM card. While the contention of the appellant is that the respondent never deposited his old ATM card to the Bank.
11. The main argument of the learned counsel for respondent- complainant that without surrendering the old ATM card, new ATM card cannot be issued to him. In support of his argument, he drew attention to paper No. 18/46 on the District Forum's record. The reply of respondent's 7 information by Regional Manager, Right to Information, Kusumkherra, SBI, where it is mentioned that:-
(1) only one ATM card is issued in an account.
(2) After locking old ATM card Customer can apply for new one after depositing the appropriate fee.
(3) Mostly, it is necessary to deposit old ATM card to the Bank before getting new one. If it is not possible due to some reasons, then at the satisfaction of Bank, new ATM card is issued.
12. The appellant has filed SBI Circular (paper No. 26/5 on the District Forum's record), wherein direction to issue / replacement of ATM card (new ATM card) is given. In the last para, it is mentioned that "The customer need not surrender the damaged card to the branch, but should destroy it effectively. Branch should obtain a simple request letter from the card holder for issuance of the replaced card.
13. After going through all the documents and evidence, it seems that it was the responsibility to both Bank and respondent to block / hot list the damaged old ATM card before issuing a new card. But continuous transaction by the old ATM card shows that neither respondent, nor appellant-Bank has blocked / hot listed the damaged ATM card. Although a new ATM card can be issued at Bank's satisfaction, but the Bank has not shown any sufficient reason to issue new card without destroying the old ATM card. The respondent has not cancelled the old ATM card from toll free number shows carelessness of respondent. In the replication, the respondent has stated that when he informed the Bank about his card's non- functioning, then Bank asked his Pin Number to check the ATM card, but in F.I.R. lodged on 08.01.2010 this fact had not discussed. Even this fact is not disclosed in complaint. It seems that the respondent has taken this plea after filing written statement by the appellant afterthought. Respondent never point out the employees of the Bank to whom respondent had given him ATM's Pin Number.
14. In view of the discussion made in forgoing paragraphs, we are of the view that the respondent-complainant informed the appellant-Bank that his 8 old ATM card was not working and the appellant-Bank had issued a new ATM card to the respondent-complainant. Without hot listing / blocking the old ATM card to issue a new card to the customer was gross negligence on the part of appellant-Bank, as well as not to block the card from toll free number, as it was necessary, shows carelessness of the respondent also.
15. So in our view, both the parties, appellant-State Bank of India and complainant-respondent, were negligent on their part. Respondent- complainant had lost Rs. 2,27,000/- from his account. However, both the parties are equally responsible for the disputed transaction. Therefore, respondent-complainant is not eligible to get the total refund, as claimed.
16. Therefore, in our view the impugned judgment and order passed by the District Forum does not suffer from any infirmity and the same is fit to be upheld. Thus, the appeals filed by the State Bank of India and the complainant are liable to be dismissed.
17. For the reasons aforesaid, both the appeals are dismissed. Impugned judgment and order dated 04.01.2012 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 41 of 2010 is hereby affirmed. No order as to costs.
18. Let the copy of the order be kept on the record of First Appeal No. 24 of 2012.
(MRS. VEENA SHARMA) (JUSTICE B.S. VERMA)