CONSUMER CASE NO. : 52/S/2007 DATED : 29.01.2010.
BEFPRE PRESIDENT : SMT. ANITA DEBNATH,

Ex-Member of W.B. Higher Judicial Services and

Addl. Dist. & Session Judge,

President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARJEE

&

SRI ASIT RANJAN DAS.

COMPLAINANT : SRI KISHAN MIMANI,

C/O Siliguri Auto Works,

Sevoke Road,

Siliguri.

O.Ps. 1) : UTI BANK LIMITED,

Spectrum House,

Sevoke Road,

Siliguri - 1

2) : MANAGER,
UTI Bank Ltd.,
Spectrum House, Sevoke Road,

Siliguri - 1.

FOR THE COMPLAINANT : Sri Prabir Seal, Advocate.

FOR THE OPs : Sri Swadesh Sarkar, Advocate.

J U D G E M E N T


This is a case for realization of the amount of Rs.3,63,444.88/- for monetary loss under Section 12 of the Consumer Protection Act, 1986.

The case of the complainant in a nutshell is that the complainant hired the service by purchasing a Debit card from OPs Bank. The complainant opened a Savings Bank Account in UTI Bank under A/C No.035010100005975 and he was given a number to operate Debit Card being No.5267010350024101. For using debit card service charge is also taken by the OP from the complainant time to time.


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The complainant had gone from Delhi to USA on 03.11.06 and returned to Delhi via Italy on the night of 16.11.06. The complainant also used the said UTI Bank Debit Card only once in Florida spending Indian Rs.1721.41 on 06.11.06 and thereafter four times in Italy spending Indian money of Rs.14,295.47/- on 10.11.06 and another expenditure on 11.11.06 amount to Rs.9169.62/- and on 13.11.06 amounting to Rs.13,751.03/- and again to Rs.12081.05/- for another expenses. So, total amount of Rs.51,018.58/- was used through the said Debit Card.

The complainant came back to India on 17.11.06 and at the time of arrival also used Debit card from HDFC Bank ATM at South Extension, New Delhi for withdrawal of Ra.15,000/- and the balance was then Rs.3,75,977.88/-.

The Debit card was all along in his possession and custody and it was never given to anyone for operation.

Subsequently, after arriving the complainant issued three cheques from the said Bank A/C one of which was Rs.35,000/- under cheque No.206553. But the other two were dishonoured by UTI Bank. So, on 04.12.06 the complainant went to UBI Bank to check the balance in his A/C and it came to know that the amount under his A/C was almost cleared up and balance amount was only Rs.1375.74/-. So, proper notice was issued to the OP for making inquiry about his A/C. Thereafter, several reminders dated 06.12.06; 22.12.06 and 27.12.06 including personal visit were made to the OP for redressal. The OP by several letter dated 08.12.06; 18.12.06; 13.01.07 intimated about their investigation and assured to intimate the further development in this regard. Ultimately, the OPs by its letter dated 05.03.07 agreed to pay a sum of Rs.1,56,262.91/- as compensation maintaining good gesture.

From the statement of A/C it has come to his knowledge that the said Debit Card was used in Europe and somewhere. But no report of the investigation was intimated to the complainant for which he is in dark about the said investigation. Due to withdrawal from his Savings Account the complainant sustained a loss of Rs.3,63,444,78/-. Hence, this case on verification.

The OP/UTI Bank presently known as Axis Bank contested the case by putting W/V denying each and every allegation as made therein with a specific defence that the case is not maintainable.

Specific defence is that the complainant opened a Savings Bank A/C No.035010100005975 on 21.07.99 and also issued a Debit Card and a Unique PIN (Personal Identification Number) through separate courier/post channel so as to avoid any sort of misplacement or mis-delivery of both the card and the PIN to a wrong and/or

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third person and the same was duly used by the complainant. It is further alleged that without the PIN Number and Card in possession no one can withdraw the money even the bank staffs also. It is further alleged that no transaction could be taken place without the knowledge of the customer as the Bank Debit card and the PIN is totally a secure system and is only known to the complainant.

It is further alleged that the banking authority verified the transaction in details through their core banking solution. All transactions of the OP/Bank at ATMs and through internet banking facility meet the most stringent safety and security criteria as specified by international association like Visa and Master Card. The ATM is full proof system with reconciling accounts. It is impossible for a fraudster to crake it. If wrong PIN is enter therein thrice then the card is not usable by the customer at the ATM for the next 24 hours or till the end of day cutover of the ATM takes place which is normally at 9 p.m. So, without knowing the unique PIN Number there is no way for any user by any fraudster. The case as alleged by the complainant is a concocted and is a false one. As there is no deficiency of service on the part of the OP, the complainant is not entitled to get compensation or the decree as prayed for. The case is liable to be dismissed with cost.

Upon consideration of the pleadings of the respective parties the following points are framed for adjudication :-

1) Is the case maintainable ?

2) Is there any deficiency of service or Unfair Trade Practice on the part of the OP ?

3) Is the complainant entitled to get decree as prayed for ?

4) To what other relief/reliefs as prayed for ?


Point No.1

This is a case for withdrawal of money from the A/C through ATM card issued by the UTI Bank/the OPs illegally as alleged.

In order to entertain the case under the C.P. Act, 1986 the moot question is whether service of the Bank was hired/availed of being a consumer of the Bank or not.

Section 2(1)(o) of the Consumer Protection Act, 1986 defines service of any description which is made potential users including the facilities in connection with banking authority.

Admittedly, the complainant is an Account Holder under the OP having facility of ATM system. The complainant hired the service/the said facility on consideration. If

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that be so, the complainant is a consumer as provided under Section 2(1)(d)(ii) of the said Act and the nature of dispute arises when service has been denied in keeping the money in safety and security in the custody of the Bank the nature of the disputes comes within the definition of consumer dispute as provided under Section 2(1)(e) of the said Act of 1986. Deficiency means any fault, imperfection or shortcoming of any kind of service as required under the law and when such service as provided under Section 2(1)(o) has not been rendered by the OP the nature of dispute obviously comes within the purview of consumer dispute and thereby when the complainant alleges for deficiency in service which is to be decided later on the case is quite maintainable against the OP.

Thus, the issue is decided in favour of the complainant.



Point No.2 – 4.



The Ld. Advocate on behalf of the OPs advanced argument that the alleged transaction could not happened without the knowledge of customer and the bank debit card and PIN (Personal Identification Number) is a totally secured system and known to him as it was clarified and even though he might have withdrawn the amount, he may have or had given access to his card and PIN to a third party or someone close to him who may have used this card. ATM system is a highest technology. There is a journal printer in the machine which records each and every transaction done through ATM. This ATMs are full proofs system with reconciling accounts and the PIN which is hardly impossible for a fraudster to crake it. So, without knowing the unique system of a PIN there is no way to use it by any fraudster at any ATM for cash withdrawal. Until and unless unique PIN coupled with original debit card is handed over to the third party by the complainant. It is not possible for anyone to withdraw the amount from the Account. In this regard it has been further urged that the detailed inquiry was conducted by the Bank and the fraudster as alleged was committed either by the complainant himself or by any other persons known to him but to maintain a good relation with its customer such amount of Rs.1,52,262.91/- was offered to the complainant and such offer was not accepted by the complainant and when there is no promise on the part of the Bank there was no concluded agreement enforceable in any judicial proceedings and thereby there is no deficiency of service on the part of the OP and the claim as made by the complainant is not entertainable in law. When the complainant admitted in his evidence that ATM card along with PIN always remains with him such amount as alleged can not be withdrawn save and except by the complainant or his men known to him.

The Ld. Advocate on behalf of the complainant on the other hand argued that



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from the Banks statement it has come to the knowledge of the complainant about withdrawal of almost all money from his Bank Account for which letter of request was made to the OP on 04.12.06 for making enquiry and all along it has been intimated that the matter in question is under investigation the result of which has not yet been intimated to the complainant despite service of legal notice to the OP. It has been further argued that the operation of ATM machine and the transaction as appeared in the Banks Statement are in the special knowledge of the OP/bank. After receiving the said complaint Whether any investigation was made or not and non production of the details about the investigation as alleged to have been made by the OP it amounts to the deficiency of service on their part and it can be deduced that the OP did not investigate the compliant as lodged by the complainant. The witness Sri Somenath Paul is not an expert in Hardware or Software which installed in the computer for operating the ATM/Debit card machine. Whether the ATM was used abroad by the complainant or his alleged known person it requires to be proved by cogent evidence. Mere oral assertion is not sufficient to hold that in collusion with the complainant such ATM card was used and all the moneys kept in his Accounts were cleared either by himself or through his known men. When result of the investigation has not been submitted before the Forum how the OP came to its conclusion that there was/is no scope of manipulation of the transaction or it has been withdrawn either by the complainant or by his known men as alleged. The amount as withdrawn is after 17.11.06 or onwards but the complainant arrived on 17.11.06 and ATM facility was availed of only on that date of arrival at Delhi and if it be withdrawn by operation of ATM Machine or using Debit Card it requires to be proved by cogent evidence.

It has been further argued burden lies upon the OP when the allegation of forging the ATM card has been made. When the complainant has suffered the loss of sum of Rs.3,63,444.78/- in between the period from 17.11.06 to 04.12.06 it causes mental pain, suffering and harassment. Since the complainant according to the Ld. Advocate on behalf of the complainant has furnished all relevant documents and when no result of investigation has been furnished by the OP the claim of the complainant with regard to deficiency of service has been proved by cogent, oral and documentary evidence.

The complainant in this regard led evidence as PW No.1 narrated the case as made out in the complaint.

The complainant was cross-examined by way of interrogatories and replied thereof. Specific question was put to the complainant (Question No.24) as to whether all the disputed transaction took place at abroad after his return from USA and Italy or used



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the ATM Debit card in India on several occasions. He has also questioned for using the same through internet payment. In this regard the complainant specifically replied against the Q. No.24 that he used ATM Debit Card only once on 17.11.06 after return to India from abroad. The complainant also categorically denied in using the debit card through internet payment against the Q. No.32 although the complainant admitted that he all along followed the instructions of the ATM machine of the OP/Bank.

The OP led evidence on the other hand though one Sri Somenath Sen. The said witness narrated the procedure about the delivery of the ATM card along with PIN. The said witness categorically stated that PIN is a totally secured system and only known to the complainant and statement of Account clearly shows withdrawal of the amount by the complainant and Bank has nothing to do with this withdrawal. It has been further stated that the Bank has also verified the transaction in details through their Core Banking Solutions. It was not manipulated by any person in any way what so ever. The money as agreed and offered is only maintaining the relationship with its valuable customer and also have for the sake of reputation of bank as well as to avoid unwarranted litigation of the laws of the bank. The sole contention of the said witness is that the instant case has been filed by the complainant with a malafide motive and for illegal gain and without the knowledge of the complainant no such money can be withdrawn from the Account of the complainant. The said witness was thoroughly cross-examined. In cross-examination the said witness categorically stated that the bank has no control or supervision in the working of the machine. The full processes are automated. The machine will work only when the card and the PIN will match and the machine will work only when the customer follow the usage and act as per direction indicated by the machine at the time of use by the holder. Against Q. No.14 as put by the complainant with regard to details of the transaction and/or closing balance of any customer by the bank staff or not. The said witness categorically stated in his evidence about the possibility of seeing the details of the transaction or closing amount by way of answering ‘Yes’. The said witness Somenath Sen replied in negative form about non-possibility of withdrawal of any amount from the ATM machine without issuing the ATM Debit Card or PIN number. From the mouth of the said witness it has come out that the Bank has no knowledge about any complaint lodged by the OP against the fraudulent withdrawal of the money after receiving the complaint from the complainant.

The compliant has furnished several documents in support of his claim. Those are Bankers’ statement between 01.10.06 and 18.12.06 from which it reveals that on 17.11.06 a sum of Rs.15,034/- was withdrawn the balance amount was then Rs.3,75,977.88/-. So, it



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is evident from the Bankers’ statement that at that moment i.e. on 17.11.06 after using ATM facility the balance amount of Rs.3,75,977.88/- was then available or lying in the said Account.

Admittedly, the complainant has Savings Bank Account No.035010100005975 with ATM facility coupled with Debit Card facility under the OP/Bank.

The case of the complainant is that he left for USA from Delhi on 02.11.06 and returned to Delhi via Italy in the night of 16.11.06 i.e. 17.11.06 and the complainant used/ operated the ATM machine on 17.11.06 from HDFC ATM at New Delhi South Extension. Thereafter, he did not use the ATM Card which, according to the complainant is lying with him all along. But subsequently it has come to his knowledge that all the money lying with the S/B account was cleared up. The complainant has lodged complaint on 04.12.06 to the OP who received the same by putting official seal and signature thereon (Annexure-B Page-24). It further reveals that the complainant on 06.12.06 also requested the OP for taking necessary action for the amount as cleared up through his S/B Account as mentioned above (Annexure-B Page-25). Repeated request was made by the complainant for taking necessary action by letter dated 22.12.06 (Page-27). The OP by letter dated 08.12.06 assured the complainant for best service against the letter dated 04.12.06 (Annexure-C Page-27). Similarly, the OP intimated the complainant by letter dated 13.01.07 (Page-21) that the matter in question is under investigation. The letter dated 18.12.06 issued by the OP also reflects about the process of investigation. Ultimately, by letter dated 05.03.07 (Annexure-D Page-30) it has been intimated that the Bank authority have no fault on the part of the Bank or any officers but to maintain good gesture to its valued customers they have agreed to pay a sum of Rs.1,56,262.91/-. It further reveals that the complainant issued a letter/notice dated 05.06.07 to the OP again with regard to the complaint as lodged by the complainant before the OP. The complainant also submitted the copy of the reply as issued by the OP against the legal notice dated 15.06.07 wherein it has categorically denied any fault on their part. By such reply it has further stated that as per the contains of the Usage Booklet the Card holder will be responsible for transaction effected by the use of the Card whether authorized by the card holder or not and shall indemnify UTI Bank against any loss or damage caused by any unauthorized used of the card or related PIN. It has been further contended that after going through the terms and conditions and understanding the features of Kay to usage of Debit Card and accepted all terms and conditions and therefore, the complainant is stopped from making such complaint against the Bank.

Banker’s Statement supports the sole contention of the complainant about the balance amount of Rs.3,75,977.88/- after operation of ATM facility at New Delhi on

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17.11.06. Subsequently, all the amounts lying with the said S/B Account of the complainant was cleared up. The complainant categorically denied about any operation of ATM facility after 17.11.06 and lodged a complaint to the OP who by issuing several letters informed that the dispute in question was under investigation. Ultimately, the OP agreed to pay a sum of Rs.1,56,262.91/- to the complainant towards maintaining good gesture. But the complainant refused to accept it as he has no fault on his part and did not operate the ATM facility after 17.11.06.

The complainant alleged for deficiency of service on the part of the OP who all along assured the complainant about the investigation against the said complaint. Now the OP flatly denied about any deficiency of service on their part by issuing a letter of reply against the legal notice. In this regard the OP has not furnished any scrap of papers to show the result of the alleged investigation as assured by the OP to the complainant by several letters. The complainant is a consumer under the Consumer Protection Act, 1986 and service was hired on consideration and it has not been denied by the OP. Rather Statement of Account clearly indicates about the charges as taken from the end of the OP on several occasions. The Bank is the public utility service and consumer kept their moneys for safely and security and service was hired on consideration. So, when any compliant was lodged before the banking authority/the OP about the clearing up almost all the moneys from the S/B Account before denying their obligation the OP is to take proper measure and to enquire the same and to intimate the result of the investigation that proper investigation was done and on its basis the Bank came to its conclusion that no such fault or shortcoming of performance remains with them and it was and whatever fault it may be is on the part of the complainant and such transaction was made either by the complainant himself or in connivance with his own men. Surprisingly no such document is forthcoming before the Forum or sent to the complainant to prove and/or to substantiate their defence that proper investigation was made by the OP against the complaint as lodged by the complainant with regard to the clearing up the amount from his S/B account keeping the amount of Rs.1375.74/-.

Mere oral assertion or taking a defence in their W/V is not sufficient to hold that proper investigation was done by the OP against the complaint as lodged by the complainant.

It is pertinent to mention here that the OP by its letter intimated about the amount as reflected above to be paid for maintaining good gesture. But Forum fails to understand as to how and what basis the OP agreed to pay the 50% of the amount towards the alleged loss claimed by the complainant. The Bank is to act as trustee towards the public



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money and public or consumers keep their money to the bank for safely and security purpose.

In this regard the Ld. Advocate on behalf of the OP advanced much about the offer and acceptance under the Contract Act and according to him when such offer was not accepted by the complainant such proposal bears no value.

A contract is completed when an offer made is accepted. It is the acceptance that given rise to the cause of action and not merely the making of an offer. Here there is no contract in between the complainant and the OP or proposal or its acceptance. The cause of action arises only when the complainant raised a complaint against the loss of money kept under the custody of the OP and in course of investigation the OP agreed to pay the 50% of the loss amount. If the result of the investigation be placed before the Forum in course of trial or to the complainant against the complaint lodged by him it can be gathered what steps was taken by the OP or whether there was any latches on the part of the OP or not. Without taking recourse against the complaint lodged by the complainant such amount was offered stating as agreed to pay. If there be no latches on their part why such offer in the manner as stated above was made by the OP. It clearly indicates that no proper investigation was made by the OP against the complaint lodged by the complainant and without taking any proper recourse they have tried to avoid their obligation to investigate the matter in question reasons of which is best known to the OP/Bank.

When there was no contract in between the complainant and the OP in this regard the amount as proposed or agreed to pay the complainant it amounts there is clear deficiency of service on their part and they are not also agreed to unearth the truth. Further it is evident from the Bankers’ Statement issued by the OP that on the date of allegation a clear sum of Rs.3,75,977.88/- was lying with them in the S/B Account of the complainant. They can not deny it and in absence of any result of the investigation or any document it can not be said to have operated the ATM facility coupled with the Debit Card facility by the complainant after wards i.e. after 17.11.06. If any materials be placed before the Forum it can be ascertained that there was latches on the part of the complainant and on his negligence such amount was withdrawn availing of ATM system. But in absence of any documentary evidence or result of the investigation this Forum is of the view that only to avoid their liability the OP now denies the claim of the complainant on the plea of fault on the part of the complainant and the terms and contract in operating the ATM Card system coupled with Debit Card facility is binding on the complainant. In a court of law such type of defence is not entertainable without furnishing any result of the investigation.

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It is pertinent to mention here that it has not been denied by the Opposite Party that the Banker’s Statement does not shown the balance amount of Rs.3,75,977.88/- in favour of the complainant. Subsequently the complainant issued three cheques one of which was Rs.35,000/- and the same was encashed but other two cheques got dishonoured and this fact has also not been denied by the bank specifically. Therefore, after encashment of Rs.35,000/- the balance amount then stands at Rs.3,40,977.88/- in the account of the complainant.

The dispute arose thereafter when other two cheques issued by the complainant got dishonoured mainly on the ground of insufficient of fund.

The Bank in order to settle up the dispute agreed to pay Rs.1,56,262.91/- on the ground of maintaining good gesture as the complainant is their valued customer. This indicates the Bank fails to take in decision regarding the dispute as alleged by the complainant. But agreed to pay the said sum as stated above.

Particularly considering the aspect this can only be decided the stand of the Bank as mentioned above on the point of balance amount of Rs.3,75,977 – Rs.35,000/- = Rs.3,40,977/- as concluded and therefore the Bank is bound to pay the same.

Be it mentioned further that the proposal as given by the Bank stand as estoppel regarding challenge as raised subsequently with regard to balance amount lying in favour of the complainant.

Further we are of the view that the argument as advanced by the Ld. Advocate for the Bank that the said proposal given to the complainant can not be converted in to an Agreement as the proposal was not accepted i.e. is not tenable in law mainly for the reason that the proposal is an act which the Bank agreed to perform as undertaken by them should be accepted as a fact where the said proposal was given without making any consultation with the petitioner/complainant. The Bank did it on its own choice and can not now set back from their earlier stand.

Considering all the facts and circumstances, in the light of the reasoning as reflected hereinbefore this Forum is of the view having short fall and negligence on the part of the OP they have come forward to settle the dispute by agreeing the payment of Rs.1,56,262.91/-. So, the argument as advanced by the Ld. Sr. Counsel about the offer and acceptance is over ruled.

Deficiency of service as provided under Section 2(1)(o) of the Consumer Protection Act, 1986 clearly provides for service of any description which is made available to potential users and includes the facilities in connection with banking system. If that be so, when no proper investigation was made by the OP and when no result of the



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investigation was filed before the Forum to substantiate that the alleged transaction was made either abroad or within India by the complainant we are of the view that the OP fails to render service in accordance with law and when service has been denied and did not perform properly such denial of service or in connection on the part of the OP amounts to shortcoming of the service as provided under Section 2(1)(g) & (o) of the Consumer Protection Act, 1986. Therefore, the case of the defence has not been substantiated by oral, cogent and documentary evidence and the case of the complainant in the result has been established by cogent, oral and documentary evidence.

When there is negligence on the part of the OP and did not render service in accordance with law and to take effective measure to unearth the truth against the loss of Rs.3,77,977.88/- which is not a meager amount the claim of the complainant stands. Therefore, the case stands.

As no proper action has been taken by the OP against the loss as reflected above and when it has not been communicated the result of the investigation either to the complainant or to the Forum such inaction obviously causes mental suffering, agony and harassment to the complainant and thereby the complainant is entitled to get a further sum of Rs.10,000/- towards the mental pain, agony and harassment.

Thus the issues are decided in favour of the complainant.

Hence, it is,

O R D E R E D

that the Consumer Case No.52/S/2007 is allowed on contest in part against the OP with cost of Rs.1,000/-.

The complainant is entitled to get an Award of Rs.3,42,353/- (Three lac forty two thousand three hundred and fifty three rupees only) from the OPs.

The complainant is further entitled to get a sum of Rs.10,000/- towards mental pain, agony and harassment.

The OPs who are jointly and severally liable to pay the Awarded sum to the complainant within 45 days from the date hereof failing which the amount shall carry interest @ 9% per annum from the date of institution of the instant case i.e. 10.07.2007 till the realization of the total Awarded sum.

In default the complainant is at liberty to put the decree in execution.

Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.