State Consumer Disputes Redressal Commission
Nanak Chand Rajors vs State Bank Of India on 17 March, 2017
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 17.03.2017 First Appeal No.885/2013 (Arising out of the order dated 10.07.2013 passed in Complaint Case No.368/2012 by the District Consumer Disputes Redressal Forum (North East), Nand Nagari, Delhi) Shri Nanak Chand Rajora, S/o Shri Durga Mal, R/o B-676, New Seemapuri, Delhi-110095. ....Appellant Versus State Bank of India, Seemapuri Branch, Delhi -110095. ....Respondent CORAM Justice Veena Birbal, President Salma Noor, Member
1.Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
Justice Veena Birbal, President This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, "the Act") wherein challenge is made to order dated 10.07.2013 passed by the Consumer Disputes Redressal Forum (IV), Delhi (in short, "the District Forum") in CC No.368/2012 whereby the aforesaid complaint has been dismissed with costs of Rs.3,000/-.
Briefly the facts relevant for the disposal of present appeal are that a complaint under Section 12 of the Act was filed by the appellant herein i.e. the complainant before the District Forum alleging therein that he was having a Saving Bank Account No.30838135535 with the respondent/OP and was also having an ATM Card. It was alleged that on 03.08.2011, someone had withdrawn a sum of Rs.25,000/- from his account. He had contacted the Branch Manager of the respondent/OP who told him that the amount was withdrawn by the appellant/complainant himself. It was alleged that the appellant/complainant had never withdrawn the said amount. It was alleged that two ATMs machines were installed in Seemapuri Branch of the respondent/OP wherein a slip was pasted on the machine that over Rs.10,000/- could not be withdrawn at one time. It was alleged that on 07.09.2011 the appellant/complainant made a police report to SHO, Seemapuri but no action was taken. It was alleged that in response to an application under Right to Information Act, it was informed by the Head Quarter of respondent/OP that from TXN. No.8913, only Rs.20,000/- could be withdrawn at one time. It was alleged that the branch manager of respondent/OP assured the appellant/complainant number of times for refund, however, the amount was not refunded to him. It was alleged that the respondent/OP was deficient in service and prayer was made before the District Forum seeking directions to the respondent/OP for refund of Rs.25,000/- and Rs.20,000/- as compensation for mental pain and agony and Rs.5000/- as litigation costs.
The respondent/OP had opposed the complaint by filing written version wherein it was stated that there are three makes of ATM machines working in Delhi i.e. NCR, HCL and Diebold. It was stated that first and second type of ATM machine can dispense maximum 40 currency notes at a time whereas the third machine i.e. Diebold can dispense maximum 50 currency notes at a time. It was alleged that as far as present case is concerned, Diebold ATM machine was used which can dispense maximum 50 current notes at a time. It was alleged that the concerned branch had loaded the machine with Rs.500/- and Rs.100/- denomination and maximum Rs.25,000/- could be withdrawn from the said ATM Machine. It was alleged that had the respondent/OP branch had replenished Rs.1000/- currency notes in the said machine, Rs.50,000/- could have dispensed from the said machine depending upon the limit allocated to a particular card. It was alleged that Rs.25,000/- had been dispensed from the said machine from other different accounts by using their respective ATM cards including the ATM card of the appellant/complainant.
It was admitted that the appellant/complainant was having saving bank account and was maintaining ATM Card, number of which has been given above with the respondent/complainant. It was alleged that the transaction in question was successful and Rs.25,00./- had been withdrawn by using ATM card of the appellant/complainant. It was alleged that two ATM machines were installed in the Seemapuri Branch. The ID of first ATM is S10A004839001 and that of second ATM is S10G004839002. It was alleged that transaction in question took placed from 2nd ATM. It was alleged that the PIN number of the ATM of individual is a secret one and respondent/OP bank is not liable for misuse or unauthorized use of ATM card. It is for the card holder to protect its safety.
Rejoinder was filed by the appellant/complainant wherein contents of the complaint were reiterated.
Both the parties filed their evidence in the form of affidavits.
After hearing the parties, Ld. District Forum dismissed the complaint by holding that the respondent/OP bank had proved by way of documents that the amount was withdrawn by using card of the appellant/complainant whereas no evidence was filed by the appellant/complainant to substantiate his case.
Aggrieved with the aforesaid order, the present appeal is filed by the appellant/complainant.
Appellant/complainant has argued in person. He has contended that when the respondent/OP bank had put a circular on the machine that more than Rs.10,000/- could not be withdrawn at one time then it cannot be said that Rs.25,000/- was withdrawn by the appellant/complainant in one go. It is contended that findings given by the Ld. District Forum are contrary to record. It is further contended that the costs had also been wrongly imposed upon him. It is contended that the Ld. District Forum had wrongly held that the allegations in complaint are false.
On the other hand, ld. counsel for the respondent/OP has contended that while passing the impugned order, the Ld. District forum has given justified reasons. It is contended that the Ld. District Forum has considered documentary evidence on record and thereafter dismissed the complaint. It is contended that even the cost has been rightly imposed upon the appellant/complainant, which he has not deposited.
We have considered the submissions of the parties and have perused the material on record including the record of the District Forum.
It may be mentioned that alongwith the complaint, the appellant/complainant has annexed a copy of the mini statement, which shows that on the relevant date i.e. 03.08.2011, the appellant/complainant at 12.03 hours from first ATM Machine of Seemapuri Branch bearing ID No.S10A004839001 had used his ATM Card vide transaction ID No.5062 by using PIN number which was only known to the appellant/complainant had taken out the mini statement. Since this document is in possession of the appellant/complainant and has been annexed with the complaint it means that the first ATM machine was used by him at 12.03 hours. Appellant/complainant is disputing transaction No.8913, which was done on the same date at 12.04 hours from second ATM Machine bearing ID No.S10G004839002 installed in the same branch. It is admitted position that the card remained in the possession of the appellant/complainant. It is not the case of the appellant/complainant that he had lost or misplaced the same. PIN number of the ATM also remained in his exclusive knowledge. Further the transaction in question has been proved by the respondent/OP by filing documents i.e. copy of the ATM log, which clearly shows that the amount of Rs.25,000/- had been withdrawn from the ATM ID No.S10G004839002 (ATM machine in question) from branch No.4839 (Seemapuri Branch of respondent/OP) at 12.04.22 hours. The second document which is a certified copy of log of ATM ID No.S10G004839002 (1st machine) for July, Aug., Sep. 2011 for TXN of Rs.25,000/- which also proves that an amount of Rs.25,000/- has been withdrawn through ATM Card No.6220180483900101245 from Account No.00000030838135535 (saving bank account of the appellant/complainant) at 12.04.22 hours on 03.08.2011. The aforesaid documents prove the case of the respondent/OP. the findings given by Ld. District Forum are based on evidence on record.
The stand of the appellant/complainant that the slip was pasted on the machine that over Rs.10,000/- could not be withdrawn is no ground to accept the case of the appellant/complainant. According to the stand of respondent/OP, the same was of advisory in nature and was put for safety purpose so that amount remains available for other customers also. Further, the certified copy of slip of first ATM machine referred above also shows that Rs.25,000/- has been withdrawn by different customers by using their respective ATM from the aforescaid machine on different dates. In view of above discussion, it cannot be said that the machine cannot dispense Rs.25,000/- in one go. No evidence is also placed on record by appellant/complainant to substantiate the aforesaid contention.
In State Bank of India v. K.K. Bhalla, in RP No.3182/2008 decided by National Commission on 07.04.2011, it has been held as under:
In the instant case it is not disputed that the ATM Card or PIN remained in the self-custody/knowledge of the Respondent. In view of elaborate procedure evolved by the Petitioner/Bank to ensure that without the ATM Card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, we find it difficult to accept the Respondents contention. No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM Card or the PIN number fell in wrong hands.
In the present case also the appellant/complainant has not disputed that the ATM Card or PIN did not remain in his self custody/knowledge. Also on the same date just 1-2 minutes before the disputed transaction, he has taken out the mini statement from 1st ATM machine of Seemapuri Branch of respondent/OP Bank. In these circumstances the appellant/complainant can't allege unauthorized use of his card.
In view of the above discussions, we find that the Ld. District Forum has considered all the material on record and has passed a well reasoned order, therefore, we find no reason to disagree with the reasoning given by the Ld. District Forum. There is no merits in this appeal, the same stands dismissed.
A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. The record of Ld. District Forum be also sent back forthwith.
File be consigned to Record Room.
(Justice Veena Birbal) President (Salma Noor) Member