State Consumer Disputes Redressal Commission
State Bank Of India vs Abhay Kumar Singh on 19 August, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 236 / 2007
State Bank of India
Lalkuan, District Nainital
through its Branch Manager
......Appellant / Opposite Party
Versus
Sh. Abhay Kumar Singh S/o Sh. Yogendra Prasad Singh
R/o Token No. 2518, Power House, C.P.C. Mill
Lalkuan, Tehsil Haldwani, District Nainital
......Respondent / Complainant
Sh. Surendra Parashar, Learned Counsel for the Appellant
Sh. Afzal Ahmed, Learned Counsel for Respondent
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Smt. Kusum Lata Sharma, Member
Dated: 19.08.2009
ORDER
(Per: C.C. Pant, Member):
This appeal is directed against the order dated 15.06.2007 passed by the District Forum, Nainital, partly allowing consumer complaint No. 139 of 2006, directing the opposite party - bank to pay to the complainant sum of Rs. 80,400/- together with interest @6% p.a. from 01.09.2005 till the date of actual payment; Rs. 2,000/- as compensation for mental agony and Rs. 1,500/- towards litigation expenses, within a month from the date of the order.
2. In brief, the facts of the case are that the complainant Sh. Abhay Kumar Singh has a Saving Bank Account No. 01190010159 with the opposite party - State Bank of India, Lalkuan Branch, District Nainital (appellant before us). The bank also provides to its account holders on their request, the facility of ATM card. The 2 complainant also applied for the ATM card, but no card was issued to him even after a lapse of many months. When he complained to the bank in this regard, the bank got from him another application for the issuance of the ATM card. On this second application, he was issued an ATM card No. 622018025-6700038787 having Pin Code No. 8895. The card was activated on 18.08.2005. On this date, the balance amount in his account was Rs. 80,642.45/-. After the activation of the card, the next withdrawal was made on 08.08.2006 for sum of Rs. 100/-. On 09.08.2006, when the complainant used the card for further withdrawal of money, he came to know that the balance amount in his account was Rs. 214/- only. When he brought this fact to the knowledge of the Branch Manager, he assured him to enquire into the matter. Branch Manager told the complainant that the money was withdrawn by using another ATM card. According to the complainant, he was issued only one ATM card on his second application and he had not received any ATM card on his first application. Upon this, he filed a consumer complaint before the District Forum, Nainital, which was allowed by the District Forum vide its order dated 15.06.2007 in the above terms. Aggrieved by the said order, the bank has filed this appeal.
3. We have heard the learned counsel for the parties and perused the material placed on record in the light of the legal aspects of the case.
4. Explaining the procedure of issuance of ATM card, the learned counsel for the appellant - bank said that these cards are issued free of cost to the bank's account holders. When an account holder applies for an ATM card, his / her details are sent to GE Capital Business Process Management Services Pvt. Ltd., Gurgaon ("GE Capital" for short), with whom the bank has a tie up for preparing ATM cards for 3 its customers. The cards are directly sent by the GE Capital to the account holder. A list of such cards, giving their numbers and other details, is also sent to the bank. The Pin Code for using the card is sent in a sealed envelope to the bank. When the ATM card holder approaches the bank, the sealed envelope is delivered to him / her and only then, the ATM card is activated. The Pin Code is most secret and the ATM card holder can obtain it by scratching the Pin Code card. He / she is also advised to change the Pin Code immediately after using the original Pin Code. He further submitted that if the ATM card holder does not approach the bank for obtaining his / her Pin Code within three months from the issuance of the ATM card, his / her ATM card is blocked.
5. The learned counsel for the appellant further submitted that the complainant - respondent had received the ATM card in the month of February, 2004 and his card number was 6220180256700025297 ("25297" for short). The bank had also handed over the envelope containing the Pin Code to the complainant, but the bank's official forgot to take his signatures on the receipt. He said that Lalkuan is a small place and people know each other. When the complainant approached the bank, the official dealing with ATM cards handed over the Pin Code to him in good faith without taking his signatures on the receipt. The complainant knew this fact and took the advantage of this lapse on the part of the bank's official. The learned counsel put his logic this way that had the Pin Code not been issued within three months' time, the bank would have blocked the ATM card. Since the ATM card was not blocked, this shows that Pin Code was obtained by the complainant.
6. The complainant applied for another card, which was also issued to him. This card bears the number 6220180256700038787 4 ("38787" for short). The card was activated on 18.08.2005 and on that date, the complainant had withdrawn sum of Rs. 200/- only from his account. Since then, for almost one complete year, he did not use this card. On 08.08.2006, he had withdrawn Rs. 100/- from his account. Between these two dates, i.e., 18.08.2005 and 08.08.2006, he used the first card and withdrew sum of Rs. 80,400/- from his account. Learned counsel argued that the ATM card holder obtains an account slip every time he / she withdraw money from ATM. So, when the complainant withdrew money on 08.08.2006, it came to his knowledge that the balance in his account was only Rs. 214/- and a sum of Rs. 80,400/- had been withdrawn from his account. This was such a fact, which needed to be brought to the notice of the bank immediately, but the complainant brought this fact to the notice of the bank on 04.09.2006. The learned counsel submitted that the complainant's actions and conduct to withdraw Rs. 200/- on 18.08.2005 and Rs. 100/- on 08.08.2006 and not to inform bank immediately regarding withdrawal of Rs. 80,400/-, itself proves that it was he, who had withdrawn Rs. 80,400/- by using the ATM card No. "25297", which had been issued earlier on his first application.
7. The learned counsel for the complainant - respondent reiterated the facts narrated in the complaint and arguments advanced before the District Forum.
8. We considered the submissions made by the parties. The appellant's theory in this case is that the complainant was holding two ATM cards at the relevant time. The first ATM card No. 25297 was issued to him in February, 2004. This card along with the Pin Code issued through the bank, was very well in his possession, but he is taking the advantage of the fact that the receipt of delivering Pin Code to him, was not obtained from him by the bank official. He was 5 issued another ATM card and it's Pin Code in August, 2005. Thus, while he withdrew a meagre amount of Rs. 300/- (Rs. 200/- on 18.08.2005 and Rs. 100/- on 08.08.2006) by using second ATM card. He used the first ATM card for withdrawing the balance amount of Rs. 80,400/- during a period of ten days, i.e., from 20.08.2005 to 31.08.2005.
9. We made a query to the learned counsel for the appellant - bank as to whether the bank can issue more than on ATM card against one Savings Bank Account and if yes, to show us the relevant provisions. No such provision could be brought to our notice. The complainant has alleged that he was not supplied the ATM card, which according to the bank, was issued to him in February, 2004. No receipt, in whatsoever manner it may be, i.e., a registered letter, a speed post article, letter sent through courier, could be produced before us. We find a correspondence between the appellant and GE Capital at Paper No. 27. GE Capital has stated in its letter that the date is kept in its records only for one year. We are surprised to note that to run a system like ATM, bank has made not only one, but several lapses. Issuance of an ATM card is just like issuance of cheque book. In case of a cheque book, every detail of the cheque book along with its receipt is kept by the bank in its records, but in the instant case of ATM, neither the bank has any evidence as to when the Pin Code was delivered to the complainant, nor GE Capital, which is bank's agent, has any proof that the ATM card was dispatched by registered post / speed post / courier and it was properly delivered to the complainant. Therefore, for the lapses made by the bank and its agent, the bank can not say that the complainant had cheated the bank.
10. Further, we also find that the complainant was asked by the bank to apply afresh for another ATM card. At this point of time, it 6 was bank's responsibility to check whether the card was delivered to the complainant or not. The correspondence, which the bank has made with GE Capital in 2006, should have been made in 2004 or 2005. Also, before issuing a new ATM card, it was necessary for the bank to block the old ATM card. This is gravest lapse on the part of the bank and the bank has failed to give a satisfactory explanation for the same. So without making a proper enquiry on this whole episode and without holding the concerned employee / employees of the bank responsible for making these lapses, the bank has straightaway and in very clear words, made allegations against the complainant and FIR (Paper No. 28) has also been lodged against him with Police Station, Lalkuan. No enquiry report or final report is available in this respect. However, as discussed above, the bank can not escape from its responsibility for not taking adequate precaution while delivering the ATM card and its Pin Code and this amounts to deficiency in service rendered by the bank. Therefore, the District Forum has taken a just view in this case.
11. We would like to make a few suggestive comments in the last. As stated by the bank in its written statement (Paper Nos. 18 to 23), the ATM system is controlled by satellite and computer system, but it dose not mean that user bank is helpless crones. A computer (or a machine) is not the master of the man, but man is always the master of the machine, because it is the man who had made it. Therefore, the relation between the two is that of a master (user) and a servant (computer). Therefore, someone in an organisation should be entrusted with the responsibility of managing the system. As servant is generally put under the surveillance by his master, so is the case with a machine. Moreover, today's problem and lapses / mistakes teach us a lesson and carve out future's path. So, in reference to the instant case, we would suggest that a more fool proof ATM system be 7 developed. First of all, if the bank's provisions permit issuance of more than one ATM card against a single account, then such a provision should be amended. There should be issued one and only one ATM card against a single account and the account number combined with ATM card number should form a unique number. The machine should have an in-built check or audit system. If the account number combined with the ATM card differs, it should automatically block the transaction. Further, instead of using a password (or Pin Code), technology should be developed for thumb impression of the card holder. In a more advanced system, even an electronic eye can be devised in the ATM machine, which could take a photograph of the card holder's pupil / retina for the identification of the actual / genuine user. These are a few suggestions, but there may be many more better technological solutions for keeping the machine under constant surveillance with its own in-built system.
12. For the reasons aforesaid, we are of the view that the District Forum was fully justified in holding that the bank made deficiency in service and thereby rightly went on to allow the consumer complaint. However, the District Forum was not justified to award compensation for mental agony, when interest had already been awarded and the order impugned need to be modified to that extent so as to partly allow the appeal.
13. Appeal is partly allowed. The appellant is directed to pay sum of Rs. 80,400/- to the complainant - respondent with interest @6% p.a. from 01.09.2005 till payment and Rs. 1,500/- as litigation expenses, as awarded by the District Forum. Costs of the appeal made easy.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE IRSHAD HUSSAIN) K