State Consumer Disputes Redressal Commission
State Bank Of India, Barasat Branch vs Mr. Asesh Mukherjee on 11 February, 2014
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11-A, MIRZA GHALIB STREET KOLKATA-700 087. S.C. CASE NO. : FA/79/2013 (Arisen out of judgement dt. 17.10.2012 of DCDRF, North 24 Parganas in C.C.Case No. 170/2012) DATE OF FILING : 22.01.2013 DATE OF FINAL ORDER: 11.02.2014 APPELLANT State Bank of India 12/28, K.N.C.Road Barasat Branch Kolkata-124 North 24 Parganas. RESPONDENT Mr. Asesh Mukherjee Ichcha Dakhinpara P.O. Barasat Pin-700 124 Dist. North 24 Parganas. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT HONBLE MEMBER : MRS. MRIDULA ROY HONBLE MEMBER : MR. TARAPADA GANGOPADHYAY FOR THE APPELLANT : Mr. Surajit Auddy, Ld. Advocate FOR THE RESPONDENT : Mr. Amal Madhab Chatterjee, Ld. Advocate : O R D E R :
MR. TARAPADA GANGOPADHYAY, HONBLE MEMBER This Appeal U/S 15 of the Consumer Protection Act, 1986 challenges the judgment dated 17.10.2012 of the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas, in Case No. CC/170/2012 directing the OP/Appellant to pay to the Complainant/Respondent `1,97,518 as reimbursement of the money lost, ` 20,000/- as compensation for mental pain and agony, ` 5,000/- as cost, and also to deposit with S.C.W.F., West Bengal, an interest of ` 100/- per day for the delay to comply with the said order.
The brief facts giving rise to this Appeal are laying in a narrow compass.
The Respondent had an ATM Debit Card bearing No. 5196200002239951 together with the Savings Bank Account No. 11216809867 with State Bank of India, Barasat Branch. The said ATM Debit Card, which was kept in the folio bag of the Respondent, was lost together with his folio bag on 15.9.2011 somewhere at Salt Lake, Sector-I. After noticing such event of loss the Respondent lodged the information on 15.9.2011 with the North Bidhannagar Police Station for investigation and, the Branch Manager, State Bank of India, Barasat Branch on 17.9.2011 with a request to the latter for issuance of a new ATM Card with Pin number. Thereafter, on 24.9.2011 when the Complainant revisited the concerned branch of State Bank of India, he found that `1.97,518/- was withdrawn between 16.9.2011 and 23.9.2011 from the said Savings Bank account, related ATM card of which was lost on 15.9.2011. The Complainant by a letter dated 26.09.2011, followed by a reminder dated 19.10.2011, informed the Chief General Manager, State Bank of India, Mumbai, all these facts, but to no effect. In the above premises, the Respondent/Complainant filed the Complaint before the Ld. District Forum, North 24 Parganas, which passed the order as referred to hereinbefore holding the concerned bank liable for deficiency in service.
Being aggrieved by and dissatisfied with the order of the Ld. District Forum the OP/Appellant has moved this Commission.
Ld. Advocate for the Appellant appearing contends that the Bank in question is not in deficiency in service because the concerned Bank was not responsible for misuse or abuse of the ATM Debit Card and its PIN number, which was under the personal safe custody of the Respondent; that the Bank, being a mere custodian of the account-holder, cannot block the operation of the ATM card until and unless the Bank is so instructed by the account-holder; and, that the Bank issued new ATM card as and when it was prayed for. The Ld. Advocate for the Appellant emphasizes that the Bank is not in any way responsible for alleged misuse of the ATM card arising out of lack of safety of the same while it was under the exclusive custody of the card-holder, i.e. the present Respondent, nor is there any deficiency in functioning of the ATM machine, which cannot identify the ATM card without unique PIN number of the ATM card. In support of his contention the Ld. Advocate for the Appellant places reliance on the following judgments:
1.
2011 (2) CPR 26 (NC) [State Bank of India Vs. K.K.Bhalla]
2. Revision Petition No. 2382 of 2012 before the Honble National Commission [State Bank of India Vs. Om Prakash Saini]
3. Judgments of this State Commission in S.C.Case Nos. FA/173/2011 [Sri Ratan Majumder Vs. The Manager, State Bank of India], FA/170/2012 [The Branch Manger, State Bank of India, Metiabruz Branch Vs. Raunaque Hussain], FA/38/2012 [The Chief Manager, State Bank of India, Club Road, Jalpaiguri Vs. Smt. Ruma Paul] On the contrary, the Ld. Advocate for the Respondent stresses the deficiency in service on the part of the Bank concerned on the ground of failure of the Bank to block the ATM card when the Bank was informed by a letter dated 17.9.2011 followed by contact with the appropriate bank authorities through helpline 1800112211, about the loss of the said ATM Debit Card.
The Ld. Advocate for the Respondent further submits that had the Bank blocked the ATM card immediately after loss of the same, financial loss of ` 1,97,518/- being debited between 16.9.2011 and 23.9.2011 to the concerned Savings Bank Account of the Respondent would not have occurred and, that in such failure of the Bank lies the deficiency in service of the Bank.
Heard the Ld. Advocates for both sides and examined the evidence adduced. Also perused the judgment and order dated 17.10.2012 of the Ld. District Forum.
It stands undisputed that ` 1,97,518/- were debited to the Savings Bank Account with which the said ATM Debit Card was connected. But it could not be proved beyond doubt that the said card was misused as alleged for deficiency in service by the Bank because the Bank is not accountable for lack of safe custody of the ATM Debit Card while the same was not in the safe custody of the Bank, but in the exclusive custody of the card-holder, i.e. the Respondent. Further, no evidence, except a copy of the letter dated 17.9.2011 addressed to the concerned Bank, could be produced by the Respondent to show that the concerned Bank had confirmed, as claimed by the Respondent in the said letter, the event of blocking the card on 17.9.2011 following his request and, that the Bank thereafter defaulted in discharging its service to the Respondent. In the letter dated 17.9.2011 the Respondent did not request the Bank to block the ATM card. On the other hand, he stated that steps were taken by him with the concerned Authority to block the card. No docket number was mentioned by the Respondent in the said letter.
In the judgments, as mentioned above, upon which the Appellant has placed reliance, it was held that without PIN number no ATM card is capable of being used, and the issuing bank of the said card is not in deficiency in service. In view of the discussion made hereinabove, we find that the Bank is not in deficiency in service for its access available to other party caused by the card-holder himself.
In the result, the Appeal succeeds.
Hence, it is ORDERED that the Appeal is allowed on contest without cost. The impugned judgment is set aside. The Petition of Complaint is dismissed.
MEMBER MEMBER PRESIDENT