National Consumer Disputes Redressal
State Bank Of India vs Jarnail Singh & 2 Ors. on 22 June, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 275 OF 2021 (Against the Order dated 15/09/2020 in Appeal No. 83/2018 of the State Commission Delhi) 1. STATE BANK OF INDIA ...........Petitioner(s) Versus 1. JARNAIL SINGH & 2 ORS. 2. PUNJAB NATIONAL BANK . ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
For the Petitioner : Mr. Amit Chawla, Advocate For the Respondent : Dr. Simmi K. Ratan, Daughter of R-1 (In Person)
Mr. Saurav Bajaj, Advocate for R-2
Mr. Manas Arora, Advocate for R-3
Dated : 22 Jun 2022 ORDER
R.K. AGRAWAL, J., PRESIDENT
The present Revision Petition has been filed by State Bank of India (hereinafter referred to as "the Petitioner Bank"), challenging the Order dated 15.09.2022, passed by the Delhi State Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as "the State Commission") in First Appeal No. 83 of 2018. Whereby, the State Commission has concurred with the finding of the District Consumer Disputes Redressal Forum-II, Udyog Sadan, C-22 & 23, Qutub Institutional Area, New Delhi (hereinafter referred to as "the District Forum") and dismissed the First Appeal. However, reduced the penal interest awarded by the District Forum in case the Petitioner Bank fails to refund the amount within 60 days from 9% per annum to 6% per annum.
2. The facts giving rise to the present Revision Petition are that the Complainant/ Respondent No.1 herein is having a Saving Bank Account (Pension) No. 10679599109 with the Petitioner Bank. He had also obtained the ATM (Debit) Card (ATM Card No. 6220180681200046040) with SMS alert facility. On 22.09.2015, the Complainant had withdrawn an amount of Rs.10,000/- at about 12.30 p.m. from the ATM of Punjab National Bank at Malviya Nagar, New Delhi. It is averred by the Complainant that after that transaction on 22.09.2015 he had not used his ATM Card for more than a month and had kept the ATM Card in SBI ATM Card Cover. On 05.11.2015, the Complainant came to know that a Cheuque issued by him in favour of BSES had been bounced due to insufficient fund. Thereafter, the Complainant contacted the SBI helpline regarding status of his Account and he was informed that the amount has been transferred or withdrawn using ATM Card. On 06.11.2015, the Complainant's daughter on his behalf lodged a Complaint with the Police Authorities for fraudulent withdrawal of money from the Account of the Complainant.
3. It is alleged in the Complaint that the Complainant neither received any SMS nor any other communication regarding the frequent unusual heavy transactions/ withdrawals from the Petitioner Bank despite having been registered the mobile number with the Bank for SMS alert service for transactions, which is a chargeable service. It is further alleged that no message was received by him even after the amount fell below the Minimum Balance Limit. On 28.12.2015, the Complainant sent a Legal Notice to the Petitioner Bank. As the grievances of the Complainant remained unaddressed, he approached the District Forum by filing a Complaint alleging deficiency of service on the part of the Opposite Parties in not receiving any message or communication in respect of fraudulent transactions, claiming amount of ₹6,88,456/- along with interest @ 24% per annum, ₹1,00,000/- towards compensation for mental agony and litigation cost.
4. The Complaint was resisted by the Petitioner Bank by filing the Written Statement. It is alleged in the Written Statement that the Complainant on his own passed the ATM Card and Pin to some other person who might had misused the same. It is stated that as per term and conditions of the ATM Card facility, it is the duty of the Card Holder to keep the ATM Card and PIN in his safe custody and possession, which in the present case the Complainant had failed to do so and for the negligence of the Complainant in keeping the ATM Card and Pin in safe custody, the Petitioner Bank cannot be made liable. Hence the petitioner Bank sought the dismissal of the Complaint with cost.
5. The District Forum on the basis of the material on record and evidences adduced before it, allowed the Complaint observing as under:
"Now, the case of the gullible complainant is that he was never sent any SMS alert on his mobile phone though he had got the SMS alert facility activated on his mobile phone through OP-3. The case of OP-2 in this regard is that there is reasonable apprehension of the complainant being in collusion with some other person to extract money from OP-2 bank; the KYC maintained with OP-2 for making alert to his customer is there and SBI has done successfully; however, because of technical problem, difficulty in net banking cannot be ruled out but the same cannot constitute a deliberation or negligence amounting to deficient in service. Thus, admittedly the case of OP-2 is that the complainant had maintained the KYC with OP-2 and had activated the facility of getting SMS alert messages from OP-2 after each transaction taken place by using the ATM card in question.
OP-2 may be correct in saying that because of technical problem SMS alert could not be sent. This may happen once or twice but atleast not continuously for the period of 22.09.2015 to 05.11.2015 and that too when transactions worth over Rs.l,00,000/- was being done from the ATM Card in question in one single day.
Therefore, in our considered opinion, OP-2 bank has taken very self collapsible and fallacious plea that non-sending of SMS alert to the customer cannot constitute a deliberation or negligence amounting to deficiency in service. After all activation of SMS alert is not a game to be played by a person for his/ her fun and pastime. This is a very very important, legal and valuable facility being provided by the banks to their customers and as soon as some transaction is done through their bank account or through their ATM cards, they may get an alert and in case there is a wrong transaction customer may report the matter to the concerned bank and/ or local police. This is not an empty formality which can be taken in such a lighter manner with no amount of responsibility. Therefore, we do not think that OP-2 is justified in taking such a lame excuse for not sending SMS alerts to the complainant in respect of the heavy transactions done by using the ATM card in question continuously for about 45 days.
We are not oblivious of the fact that in her statement recorded on 17.02.2016, the daughter of the complainant stated that due to his old age, the complainant who is her father used his ATM card himself very rarely; that either she or her husband used his ATM card; that sometimes he (the complainant) also takes the help and assistance of some persons not related to him present in the ATM booth; however, according to her the main grievance of her father is that on 29.09.2015 onwards whenever his ATM card was used by anyone, her father did not get SMS alert from the bank. It may be correct that some other persons had used the ATM card in question on behalf of the complainant but, however, since the transactions during the intervening period from 22.09.2015 to 05.11.2015 were being made from different locations in the county by using the ATM card more than once or even upto the amount of Rs.1,75,000/- in one single day, the collusion of the OP-2 bank officials also cannot be ruled out. There is also great possibility that keeping in view the old age of the complainant and that he had been getting help of others sometimes while using his ATM card, the officials of OP-2 bank had got collusion with some unscrupulous person/s and had given his ATM card number, PIN number to use it from different locations in the country.
Therefore, in the facts and circumstances of the case discussed hereinabove, we are of the considered opinion that non-sending of SMS alerts on the mobile phone of the complainant by OP-2 bank continuously w.e.f. 22.09.2015 to 05.11.2015 was a gross act of deficiency in service which led to withdrawal of Rs.6,88,456/- from the bank account of the complainant through his ATM card in question.
In view of the above discussion, we hold OP-2 State Bank of India guilty of deficiency in service and direct OP-2 to pay Rs.6,88,456/- alongwith interest @ 6% per annum from the date of filing of the complaint till its realization to the complainant within 60 days from the date of receipt of copy of this order failing which OP-2 shall be liable to pay the said amount of Rs.6,88,456/- alongwith interest @ 9% per annum from the date of filing of complaint till its realization. In the facts and circumstances of the case, we do not award any compensation towards mental agony etc. or cost of litigation to the complainant. Complaint stands disposed off accordingly."
6. Aggrieved by the Order of the District Forum, the Petitioner Bank approached the State Commission by filing Appeal. The State Commission, has concurred with the finding of the District Forum and dismissed the Appeal observing as under:
"21. I have given my careful thought to the arguments and find the same breft of any merits. First of all there is no provision for rejoinder. In any event no rejoinder can be filed in appeal . Filing of additional documents in appeal require permission to lead additional evidence which the appellant has not sought.
22. Over and above all I feel that when appellant bank has reached to the extent that the withdrawals were credited in the account of one single person named Digamber Singh , it is not clear as to why he has not filed affidavit of said Digamber Singh to show that he withdrew the amount on behalf of the complainant or that he had any acquaintance with the complainant. It is note worthy that said Digamber Singh was having account not with any third bank but with appellant's own branch in Chamoli. The appellant could have easily found from the said account holder as to what was the truth. Adverse inference has to be drawn against appellant bank for not taking pains to find out as to who said Digamber Singh is and how he accessed the pin and ATM card of complainant and made the withdrawals.
23. It was held by National Commission in Bhadra and Dalal vs. BOI IV (2011) CPJ 330 that in case of withdrawal through ATM in excess of limit , bank is liable to refund the amount with interest.
24. In view of above discussion, the appeal fails and is dismissed. However, the directions of the District Forum to pay enhanced rate of interest @ 9% p.a. in case the order is not complied within 60 days from receipt of copy of impugned order is set aside because the complainant was having saving fund account only and not FD or any other instrument carrying higher rate of interest. Rate of interest in saving fund never touched 9% . Thus it is directed that appellant bank would refund Rs. 6,88,456/- with uniform interest @ 6% p.a. from date of filing of the complaint till date of refund. The District forum has already declined to grant compensation for mental agony and harassment and cost of litigation. Thus District Forum has taken care of interest of appellant bank. Nothing more could be done. Appeal is disposed off accordingly."
7. Dissatisfied by Order passed by the State Commission, the Petitioner Bank, preferred this Revision Petition along with an Application being IA/2284/2022 seeking permission to file Additional Evidence.
8. Heard the learned Counsel for the Parties and Dr. Simmi K. Ratan, the daughter of the complainant/ Respondent No. 1 herein and perused the material on record.
9. At the threshold I would like to deal with the Application filed by the Petitioner Bank seeking permission to produce the Additional Evidence under Order XLI Rule 27 of the Civil Procedure Code, 1908. Rule 27 of Order XLI of the Civil Procedure Code 1908 provides certain conditions on which parties to the Appeal may be allowed by the court to produce evidence at the Appellate stage. These conditions are -
If The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or;
If the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or ;
The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, The Appellate Court may allow such evidence or document to be produced, or witness to be examined.
10. The Hon'ble Supreme Court in A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 7 SCC 713, K.R. Mohan Reddy v. Net Work Inc ., (2007) 14 SCC 257, North Eastern Railway Admn. v. Bhagwan Das, (2008) 8 SCC 511, N. Kamalam (dead) and another v. Ayyasamy and another , (2001) 7 SCC 503, Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148, In Mahavir Singh and others v. Naresh Chandra and another , (2001) 1 SCC 309 , has laid down the law that the Parties are not entitled to produce Additional Evidence whether oral or documentary in the appellate court, but for the three situations mentioned above and the Parties are not allowed to fill the lacunae of Evidence at the Appellate stage. It is against the spirit of the Code of Civil Procedure to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27.
11. In the case at hand, no effort was made by the Petitioner Bank to produce the SMS Delivery Report before the District Forum and further there was no mention of SMS alerts being sent and SMS Delivery Report in the Written Statement filed by it before the District Forum, when the whole case of the Complainant was that he has not received the SMS alerts for the transactions. It cannot be said that the Petitioner Bank with due diligence could not have produced the SMS Delivery Report before the District Forum or could not have moved an application under Order XLI Rule 27 to get the SMS Delivery report produced before the State Commission as an Additional Evidence, which is the first Appellate Authority.
12. In the present case none of the conditions prescribed under Order 41 Rule 27 are found to exist and hold as laid down by the Hon'ble Supreme Court in the aforenoted Citations. Further, this Application has been filed at a Revision stage and not at an Appellate stage and at this juncture, I would like to place reliance on the latest Judgment of the Hon'ble Supreme Court in Sunil Kumar Maiti Vs. State Bank of India & Anr. , 2022 SSC OnLine SC 77, wherein it has been observed that the Additional Evidence, produced at the Revisional stage cannot be relied upon, when the fora below had no opportunity to deal with the same. The relevant portion of the Judgment is reproduced below:
"8. It is pertinent to note that pending the revision application, the National Commission had called for a report on the whole matter from the SBI. Accordingly, a report dated 19th March, 2019 was filed by the Regional Manager of the SBI. Relying upon the said report, the National Commission allowed the revision application filed by the bank, by observing inter-alia that though revisional jurisdiction of the Commission under section 21(b) of the Act, 1986 has a defined purview and ambit, it does allow interference if grave misappreciation of evidence or superficial appraisal of a case is discernible on the part of the two fora below. This court is at a loss to understand as to how the National Commission could have sought for a report at the revisional stage, that too from an officer of the party which already had an opportunity to submit all the documents necessary for the purpose of defending itself before the Consumer Forum, and as to how such a report in the form of an additional evidence produced at the revisional stage could be relied upon, in respect of which the two fora below had no opportunity to deal with."
13. For all the aforenoted reasons and respectfully following the aforementioned ruling of the Apex Court, the Application being IA/2284/2021 filed by the Petitioner Bank seeking to produce Additional Evidence at this belated stage is rejected.
14. The facts not in dispute are that the Complainant/ Respondent No.1 was an Account Holder of the Petitioner Bank and was availing ATM (Debit) Card facility. The Complainant/ Respondent No.1 on 22.09.2015 had withdrawn Rs.10,000/- from the ATM of the Punjab National Bank. The withdrawals/ transfers worth Rs.6,88,456/- had taken place from the account of the Complainant in different parts of the country through ATM between 22.09.2015 and 05.11.2015 by some unknown scoundrels. The Complainant's mobile number was registered for SMS alert service.
15. It is the case of the Complainant that he has not received any SMS alert or communication from the Petitioner Bank for fraudulent transactions and he only came to know about the fraudulent transactions when his Cheque issued in favour of BSES got bounced and he immediately informed the Bank about the same and got the card blocked.
16. From the Written Statement, I find that the Petitioner Bank except for making bald allegation against the Complainant that he himself had committed a fraud and had a hand in glove with wrongdoers, did not mention whether SMS alerts were sent and delivered to the Complainant or not and that position did not change before the State Commission. Further, the Petitioner Bank has failed to prove its contention that the Complainant was himself involved in the fraud, by adducing any evidence. Learned Counsel appearing for the Petitioner Bank argued that the SMS alerts were duly sent to the Complainant's registered mobile number. It is significant to mention that no such averment and pleading was made in the Written Version filed before the District Forum and on the contrary the Complainant in his Evidence Affidavit has categorically stated that he has not received any AMS alert or communication for the Petitioner Bank. It is relevant to mention here that Petitioner Bank did not even care to conduct any inquiry into the incidence after reporting of the same by the Complainant on 05.11.2016, when it first came to his knowledge and furthermore, when the amount from the Complainant's Account was transferred to another Customer of the Petitioner Bank. From the evidence and material on record, I find that the District Forum as also the State Commission have rightly come to a conclusion that the Bank was deficient in providing service in not sending SMS alerts or information to the Complainant about the transactions.
17. Therefore, for all the reasons, cited above, I find that the Orders passed by the Fora below were based on the proper appreciation of facts of the case and evidences adduced before them and does not suffer from any illegality, irregularity or jurisdictional error warranting interference in the limited Revisional jurisdiction as envisaged by the Hon'ble Supreme Court in Sunil Kumar Maiti (Supra). Needless to add, that the State Commission has reduced the penal interest awarded by the District Forum from 9% per annum to 6% per annum.
18. The Revision Petition fails and is accordingly dismissed.
19. Pending Applications, if any, also stands disposed of.
......................J R.K. AGRAWAL PRESIDENT