State Consumer Disputes Redressal Commission
State Bank Of India vs Mrs Yamuna Ganpat Mhatre on 27 November, 2018
A/17/172 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/17/172
(Arisen out of order dtd.07/11/2016 in Complaint No.243 of 2012 of Thane
District Consumer Disputes Redressal Forum)
State Bank of India,
Branch Office at - Marigold,
Sadguru Garden, Kopari Branch, ......Appellant/
Thane (East). (Original Opponent)
Versus
1. Mrs.Yamuna Ganpat Mhatre,
R/at -1/2, beside P.W. D. Chawl No.1,
Kopari Colony, Thane (East).
2. Ld.Consumer Disputes Redressal Forum,
Thane. ......Respondents.
BEFORE: Justice Mr.A.P.Bhangale, President
Mr.A.K. Zade, Member
PRESENT: Advocate Mr.Kiran Shinde for appellant.
Advocate Mr.Pravin Mhatre for respondent.
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) This appeal is filed against the order dtd.07/11/2016 passed by Ld.District Forum by which the consumer complaint filed by Respondent- Complainant was partly allowed and Opponent was directed to pay the amount of Rs.1,11,100/- to Complainant alongwith interest @ 9% with effect from 30/05/2012 i.e. date of filing complaint till realization. By the said order Opponent was also directed to pay to Complainant till 31/12/2016, an amount of Rs.5,000/- towards mental harassment and Rs.10,000/- towards cost of complaint. It was further directed that, if the A/17/172 2 said amount was not paid until the said period, then the same will have to be paid alongwith interest @ 9% with effect from 01/01/2017.
2) As per Complainant, facts of the case are as follows -
Complainant was having Saving Bank Account with Opponent and Opponent had provided ATM-cum-Debit Card facility to her. However, she had not used the said ATM Card at all and was not knowing number of the said ATM Card. Complainant further stated that she lost her ATM Card while traveling from Shegaon to Thane by train on 28/08/2011. On 29th morning after returning to Thane, she approached Branch Manager of Opponent Bank and informed him about loss of her ATM/Debit Card requesting him to block transactions of her ATM Card forthwith. However, instead of blocking the said card, Manager advised Complainant to lodge complaint about it to SBI Customer Care. As per Complainant, she then tried to contact Customer Care repeatedly and on 30/08/2011, she succeeded in lodging complaint in that respect to SBI Customer Care bearing complaint No.20110903980376 and she was assured that her lost ATM- cum-Debit Card would be blocked. Next two days i.e.31/08/2011 and 01/09/2011 were holidays on account of Ramzan Id and Ganesh Chaturthi respectively. On 02/09/2011, Complainant could not approach the bank because of Ganesh festival at her home. She therefore, approached the relevant branch of Opponent on 03/09/2011 to obtain new ATM-cum-Debit Card and also to update passbook. But due to failure of computer, she could not update her passbook on that day. On 05/09/2011 when she again approached the bank and got updated her passbook she came to know that an amount of Rs.1,11,100/- was withdrawn/stolen through her ATM Card from Indian Overseas Bank ATM ID No.IOBD-9708 at Puri Railway Station, Bhuvaneswar. Complainant immediately approached the Branch Manager of Opponent Branch again and informed him about the abovesaid withdrawal. However, Opponent Branch Manager refused to co-operate.
A/17/172 3Complainant therefore, wrote letter dtd.06/09/2011 to said Branch Manager and also wrote complaint to Sr.Police Inspector, Kopari about the same. She also wrote letters to Thane Crime and Cyber Cell on 07/09/2011 informing them about the said incident. Complainant approached the bank on many occasions for recovery of the said amount, but the same was not reimbursed to her. Her complaint was also registered with Kopari Police Station for offence u/s.379 of I.P.C., but she did not get her money back from the bank. She therefore sent legal notice to Opponent and filed the subject consumer complaint alleging negligent and deficient service on the part of opponent and praying for direction to Opponent to pay Rs.1,11,100/- to Complainant alongwith interest @ 18% till realization and also to pay the amounts of Rs.50,000/- towards mental agony and Rs.15,000/- towards cost of the proceeding.
3) The said consumer complaint was resisted by Opponent by filing written statement before the Ld.District Forum stating that the complaint was false, frivolous, vexatious and deserved to be dismissed out rightly with costs. As per Opponent, there was no cause of action for the subject complaint and that Complainant had deliberately projected untrue picture with malafide motive to extract illegal money from Opponent Bank and had come to Forum with unclean hands. Opponent had denied all allegations against it. However, Opponent admitted that complainant had come to Opponent Bank on 29/08/2011 and enquired about procedure to be followed in case of loss of ATM Card on which she was instructed to contact Customer Care Service for lodging complaint and for blocking the card and customer care number was pointed out to her. She was also instructed to give in writing, the details of her account mentioning therein that her ATM Card was lost and she was requesting to block the same. However, as per Opponent, Complainant neither gave any details nor lodged any written complaint with Opponent Bank on 29/08/2011 about the same. Opponent A/17/172 4 further submitted that, Complainant telephoned Customer Care on 30th August, but failed to give details and for the first time on 03/09/2011 she contacted Customer Care for blocking her ATM Card. It is also admitted by Opponent that Complainant had lodged her first written complaint on 06/09/2011 regarding the same. Opponent therefore, denied that there was any deficiency in service on its part and that it cannot be held liable for negligence for the same because as per the user manual, the Complainant was specifically instructed to keep the Card and PIN in safe custody and that procedure in the event of loss of card was also mentioned therein. Opponent therefore, stated that Complainant was not entitled for any relief whatsoever and prayed for dismissal of subject consumer complaint with cost.
4) Both parties submitted their affidavits of evidence and written arguments and also advanced oral arguments after hearing of which and after perusing the entire record, the Ld.District Forum passed the impugned order which is subject matter of this appeal.
5) Appellant had filed this appeal on the grounds that the ATM Card can only be used when the customer inputs his personal four digit identification number which was selected by the customer and not by the bank and that customer is advised to retain PIN in memory so that no one else can have its information and also that unless a person is in possession of the relevant ATM Card and also knows the four digit PIN, the ATM Card cannot be used and operated. But Complainant failed to take due precaution and therefore, Opponent cannot be held liable for the same, but Ld.District Forum failed to appreciate the aforesaid facts and therefore, the impugned order passed by Ld.District Forum was bad-in-law and erroneous. Further, regarding tearing of ATM PIN packet and its opening, the expert opinion of Adv.Ashish Gogate obtained by the Ld.District Forum was the opinion of a A/17/172 5 person who was not an expert and who was not able to ascertain the issues related to ATM/Debit Card. It is also another ground of Opponent that whether the transaction relating to withdrawal of the said amount from account of Complainant was fraudulent or not and whether withdrawal of the said amount was within knowledge of the Complainant or not, can be decided only by detailed enquiry/investigation either by police or Civil Court after examining the entire record of disputed transactions, examination and cross-examination of witnesses and after detailed evidence alongwith production of all necessary documents etc., but the same was beyond the purview of summary jurisdiction of Ld.District Forum. As per Appellant, the Ld.District Forum erred in holding that Appellant/Opponent was deficient in rendering service and also in holding that it was a moral duty of appellant to block ATM/Debit Card immediately on 29/08/2011. The appellant also contended that the Ld.District Forum failed to appreciate that it was duty of the Cardholder to immediately inform customer branch or contact center by letter or on phone about the lost card, but it was clear from the evidence on record that Respondent/Complainant did not bother to take immediate steps to put up written complaint to Opponent branch while she had made written request on dtd.30/08/2011 in respect of loss of her another ATM Card of other bank i.e. Thane Janata Sahakari Bank, Kopari Branch, to the said bank, as admitted by Complainant herself. Complainant failed to take same steps immediately in respect of her ATM Card with Appellant/Opponent and it was only on 06/09/2011 that she put up her written letter to Opponent Bank although her ATM-cum-Debit Card was already blocked on 03/09/2011 after her call and information to Customer Care/Contact Center, but the Ld.District Forum ignored the above facts while passing the impugned order. Appellant therefore, prayed for setting aside the impugned order with cost of the appeal.
6) Perused record. Heard arguments on behalf of the parties.
A/17/172 67) The Ld.District Forum observed that Complainant had filed sealed envelope in respect of PIN, in Consumer Forum and stated that she had never opened the said envelope. Ld.District Forum appointed Adv.Ashish Gogate to verify the said contention of Complainant regarding opening of sealed envelope as an expert. The said expert submitted his expert report with affidavit stating that "the said PIN packet did not indicate any obvious tear, tampering, scratching or fondling etc." and in his opinion, the said packet did not show any obvious and apparent indication that it was ever opened and subsequently sealed again." Opponent objected the expert report and submitted that after loss of the first ATM Card, Opponent had issued another ATM Card with PIN envelope to her and the alleged transactions might be by the said another PIN. The Ld.District Forum rejected this objection of Opponent for the reason that the disputed transaction were carried out in between 30/08/2011 and 02/09/2011 while the second PIN was issued by the bank on 05/09/2011 to Complainant and there was no evidence by the Opponent in respect of any transaction made by the said second ATM Card/PIN by the Complainant. The Ld.District Forum therefore, held that it was not established that the said ATM PIN was used by Complainant during the said period.
8) The Ld.District Forum also observed that Complainant had asked for list of the said transactions from opponent's Contact Center Department AGM, ATM, Navi Mumbai and also ATM Switch Centre, customer transaction and also observed that Complainant had asked for relevant CCTV footage of the said ATM from Manager of the concerned bank i.e. Indian Overseas Bank. However, Indian Overseas Bank expressed its inability to provide the said CCTV Footage. From the documents produced by Opponent, Ld.District Forum observed that the alleged transactions for Rs.1,11,100/- were carried out during the period 31/06/2011 to 02/09/2011 from Complainant's saving bank account at Indian Overseas Bank, Puri A/17/172 7 Railway Station ATM ID No.IOBD9708. It is observed by Ld.District Forum that Opponent had admitted that the information regarding loss of ATM Card was received by Opponent on 29/08/2011. The Ld.District Forum also observed that when Complainant approached Opponent Bank on 29/08/2011 informing about loss of ATM Card and asking for further procedure, Opponent directed complainant to take Customer Care Number but did not take any action on its part by taking account number from Complainant and informing Customer Care about the same. The said card was not blocked for the technical reason that there was no written complaint by complainant and therefore, because of the non action on the part of Opponent, the said loss of Rs.1,11,100/- was caused to the Complainant. In written arguments, Opponent had pointed out towards para 4 of terms and conditions in respect of ATM Cards wherein it is mentioned -
"Loss of card- The cardholder should immediately notify the customer branch or contact centre by letter or by phone call followed by confirmation in writing, if card is lost/stolen".
The Ld.District Forum observed that, accordingly Complainant had personally visited Opponent Bank on 29/08/2011 and had informed about the said loss of ATM Card. Complainant had also submitted evidence before the Ld.District Forum in respect of phone calls made by Complainant to Customer Care on 30/08/2011. However, the Customer Care had blocked the said card on 03/09/2011. As per the Ld.District Forum, when complainant personally visited Opponent Bank, informed Opponent about loss of her ATM Card and asked for further procedure, it was necessary for the Bank to immediately block transactions in respect of the said card but the Opponent Bank did not take due cognizance of the complaint of Complainant and did not block the said card for the technical reason of not receiving written complaint and did not properly guide Complainant and therefore, caused deficiency in service. The Ld.District Forum further A/17/172 8 observed that, if Opponent would have taken due cognizance of the complaint of Complainant on 29/08/2011 itself, then it would have been possible to avoid said disputed transactions and therefore, it is Opponent who is responsible for the said monetary loss to Complainant which was caused to her for no fault on her part and passed the impugned order.
9) During arguments, the Ld.Advocate for appellant pointed out that the so called calls made by Complainant to Customer Care on 29/08/2011, was only for 14 seconds and therefore, in the said call, it was not possible for her or for anyone to communicate information of loss of the said card during that period. It is also argued on behalf of appellant that the ATM PIN is known to cardholder only and the accountholder is supposed to memorize it and to keep card in safe custody. The said envelope which was produced before the Ld.District Forum for proving that it was not opened at all by Complainant might be relating to the second ATM Card and not the first however, there is no concrete evidence to support this contention of appellant. In our view, when it is admitted by Opponent that Complainant had approached the Opponent Bank and also the responsible officer of the respective branch i.e. Branch Manager, informing him about loss of the said card and requesting him to block the said card, it was a bounden duty of Opponent to take due cognizance of the said complaint and to inform the Customer Care to block the said card at least temporarily, if not permanently, to prevent unauthorized transactions, which was the immediate possible action required to be taken by concerned bank in case of loss of the card. The Opponent bank could have obtained details from Complainant and also the written request, then and there only, to prevent unauthorized transactions, if any, instead of directing her to Customer Care and leaving her to herself. We therefore, agree with the findings of the Ld.District Forum. We also find that the impugned order is a well reasoned order and the Ld.District Forum had passed the impugned order after A/17/172 9 discussing the entire evidence in details. We therefore, do not find any reason to intervene with the impugned order and find that the impugned order is just and proper. We therefore pass the following order -
ORDER
(i) Appeal No.A/17/172 is hereby dismissed.
(ii) No order as to cost.
(iii) Copies of this order be furnished to the parties.
Pronounced on 27th November, 2018.
[Justice A.P.Bhangale]
President
[A.K.Zade]
Member
aj