OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.54/2012
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
Sri Nirmal Polley -Complainant
S/O- Late Bechuram Polley
R/O- CISF Unit , LGBT Airport,
Guwahati,Assam
-VS-
1. State Bank of India -Opp. party
Airport Branch,Guwahati,
District Kamrup,Assam
2. The Branch Manager, State Bank of India
Airport Branch,Guwahati,
District Kamrup,Assam
3. The Chief Manager
State Bank of India,
Howrah Branch,Kolkata
Appearance: Ld advocate Ms. Mallika Deb for the complainant and
ld advocates Mr. Akhtar Pervez, Mr. Nabajyoti Das and Mr.Dipankar Gogoi for the opp. parties.
Date of argument: 6/4/2017
Date of judgment: 25/4/2017
Judgment
This is a proceeding under section 12 of Consumer Protection Act,1986.
1) The complaint filed by Sri Nirmal Polley against State Bank of India,Airport Branch (Guwahati), the Branch Manager ,State Bank of India , Airport (Guwahati) and Chief Manager ,State Bank of India ,Howrah Branch ( Kolkata) was admitted on 31/08/2012 as a proceeding under section -12 of Consumer Protection Act,1986 and notices were served upon the opp. parties and they also filed their joint written statement through Sri R. N. Bujarbaruah , the Branch Manager of State Bank of India, Guwahati Airport Branch . The complainant filed his evidence on affidavit on 03/09/2013 and he was crossed examined by the ld counsel of opp. parties. Thereafter Sri R.N. Bujarbaruah , the Branch Manager of SBI,Guwahati Airport Branch filed evidence on affidavit on 20/03/2015 in support of all the opp. parties and he was crossed examined by the ld counsel of the complainant. On 11/02/2016, ld advocate Ms. Mallika Deb filed written argument for the complainant. On 30/03/2016 ld advocate Mr. Akhtar Pervez filed written argument for the opp. parties. Finally , on 22/09/2016, we have heard oral argument of ld advocate Ms. Mallika Deb for the complainant and of ld advocate Mr. Nabajyoti Das for the opp. parties and fixed the day of 6.10.2016 for delivery of judgment, but on that day, this forum failed to deliver the judgment due to lack of quorum on that day owing to the fact of resignation of the only member of this forum; and on joining of a new member, we again on 6.4.17 heard oral argument of Ld advocate, Ms Mallika Deb for the complainant and of Ld advocate Mr.Dipankar Gogoi for the opp.parties, and today we deliver our judgment , which is below.
2) The case of the complainant, in brief, is that the complainant went to Kolkata for going to Mumbai for joining his official course of three months as CISF personnel, and at Old Howrah Station, he went to a ATM Counter situated nearby Old Howrah Railway Station for withdrawing a sum of Rs.1,000/- and operated the ATM machine but the cash amount did not come out, nor the statement regarding failure of the transaction, and he then cancelled the operation and went to another ATM counter situated nearby and withdrew a sum of Rs.1000/- but this time also no statement come out from the machine; and after withdrawing said one thousand rupees he boarded his train for Mumbai and joined his course for 3 months there; and during his course there one day he needed money and operated a ATM counter there for withdrawing money and after withdrawal of money, the statement slip came out from the machine , from which he knew that Rs30,000/- was illegally withdrawn from his account which was not at all withdrawn by him; and then he informed the bank authorities the matter and prayed to resolve the matter and return back the said amount to his account, and they also assumed him that he will get his money back very soon. After finishing his course at Mumbai he returned back to Guwahati and personally went to the opp. party and enquired the matter and also updated his passbook and found that the said amount Rs .30,000/- was showed withdrawn from his account at Old Howrah ATM Counter where he had for the first time entered to withdraw Rs.1,000/- which failed. He also visited Opp. Party No-1 & 2 and also the head office situated at Bhangagarh,Guwahati with a hope to get back his money and in every occasion Opp. Party No- 2 gives a assurance to him that very soon he will get back the said amount of Rs.30,000/-. Opp. Party No-2 contacted Chief Manager ,State Bank of India,Howrah Branch,Kolkata for a report on such withdrawal and asked him for showing the video footage of the alleged transaction to the complainant and the video footage was shown to him but it was found not clearly visible so as to identify the faces of any person entering in the said ATM booth and operating ATM machine for withdrawal or any other purposes , then he again went to meet Opp. Party No-2 in that connection ; and at last on 22/05/2012, one closure report was delivered to him which shows that Rs.30,000/- was fraudulently withdrawn by someone else from his account, ofwhich he had no knowledge. He is the sole user of his ATM card and it was always with him in all the time and PIN number of his ATM is known to him only and hence , it is not possible to withdraw such a huge amount of Rs.30,000/- without knowing the PIN number and without using ATM card, which is always in his custody. No security guard was placed on duty in the said ATM counter to keep eye on the people who were operating the said ATM machine and for such carelessness and fault on the part of the opp. parties , he is now suffering loss and therefore , opp. parties are liable to refund him said Rs.30,000/- along with Rs.17,000/- as compensation and Rs.2,000/- as cost of visiting the banks of the opp. parties and Rs.5,000/- as litigation cost.
3) The case of the opp. parties, in brief, is that the complaint does not disclose any deficiency of service on the part of the opp. parties and there is no cause of action for filing the complaint. The alleged transaction was successful for Rs.30,000/- and the complainant verify this fact by seeing video footage available with the bank which is showing that the complainant was withdrawing the said amount .The complainant lodged this complain without seeing the said video footage. The complainant lodged complain with the opp. party bank on 22/12/2011 and after receipt of the said complaint , the complain management system has verified the record and shown the complainant the video footage of the alleged transaction, which shows that EJLOG transaction is successful; and hence , the complainant has no ground for filing allegation showing that that was a illegal withdrawal. The bank rejected his claim after verification of bank records . The opp. parties have not acted in careless and negligent manner; and hence there was no any fault on their part ;and the entire complaint is based upon the concoted story ;and there is no deficiency of service on their part and therefore , the complainant is not entitled to receive any amount from them.
4) We have perused the pleading as well as the evidence of the parties . We have also perused the arguments of both side’s ld counsels.
5) We have found from the record that the complainant Sri Nirmal Polley, who is a resident of CISF Unit, LGB Airport ,Guwahati is an accountholder under the opp. parties vide Account No- 10376705486 under Guwahati Airport , Borjhar Branch ,and he had also obtained ATM facility from that branch.
6) From evidence of the complainant, it is proved that he went to Kolkata on 06/12/2011 to go to Mumbai for training, and on that day he went to a ATM booth nearby Old Howrah Station and used ATM card for withdrawing a sum of Rs.1,000/- but the said amount did not come out from the ATM machine, not even statement slip; and then he went to another ATM at the Howrah Station, from-where drew only Rs.1,000/-, and that time also the statement slip did not come out and then he went to Mumbai from Howrah Station; and at Mumbai one day he went to a ATM booth to withdraw some money but he was socked to know that an amount of Rs.30,000/- had already been withdrawn from his account on 06/12/2011 at Old Howrah Station (Kolkata) through ATM booth situated nearby (ANX-A is the said statement slip). Thus , it is established that Rs.30,000/- was withdrawn from his account through ATM booth at Old Howrah Station (Kolkata) on 06/12/2011 .
7) The complainant further states in his evidence that he is the sole user of his ATM card & PIN and the PIN number of his ATM card is not known to anyone except him, nor he had lost his ATM card, nor kept the ATM card in the custody of any other person at any occasion. This version of the complainant is believable owing to the fact that the opp. party side adduces no evidence to nullify said evidence.
He further states that when he first detected such fraudulent withdrawal ,heinformed the bank authorities about the matter and requested them to return the said amount to his account and they also assured him to do so , but they did nothing and then after returning from his official training from Mumbai he personally went to SBI, Airport Branch to enquiring the matter where he updated his passbook and then he came to know that the said amount of Rs.30,000/- was withdrawn from his account at Old Howrah Station ATM booth , where he had for the first time entered to withdraw Rs.1,000/- which failed ; and on his insistance Opp. Party No-2 contacted Chief Manager, SBI,Howrah Branch and asked him to send a report of such withdrawal and the video footage of the alleged transaction and Opp. Party No-2 collected the video footage which was shown to him but it did not disclose anyone’s identity, nor the faces of any person entering and operating the said ATM or for any other purpose; and thereafter on further enquiry by him ,Opp. Party No-2 delivered one Closer Report to him, which shows that an amount of Rs.30,000/- was fraudulently withdrawn by someone else. It is also found that O.P.W Sri Ramendra Malla Bujarbaruah, in his cross examination, admits that Opp. Party No-2 collected video footage from Chief Manager, SBI, Howrah Branch and it was shown to the complainant but he himself did not view the video footage. Thus , it is seen that the version of the complainant that the video footage of the alleged transaction which was shown to him by Opp. Party No-2 does not identify the identity or the faces of the persons who had entered and operated said ATM booth or entered thereinto for any other purpose, is believable. It is found that the opp. parties has no averment as to the effect that the video footage succeeds to identify the complainant as a personoperating the said ATM machine at the relevant time and he is the person who withdrew that amount of Rs.30,000/- . Therefore, in such premises it must be presumed that the alleged video footage does not show the complainant as a person operating the alleged transaction in the said ATM booth, meaning thereby the version of the complainant is the true version . We have also perused Anx-D(document attached to the evidence of the complainant) and found that it is a closer report issued by the opp. parties on 22/12/2011, where it is written that on 06/12/2011 an amount of Rs.30,000/- has been debited in from the account of the complainant without his knowledge.This closure note is a significant notion in support of the case of the complainant . The complainant further states that the said ATM booth was not provided with security arrangement and it was an unsafe ATM booth . This fact is indirectly admitted by the opp. party side. Secondly, the opp. party side adduces no concrete evidence to prove that the alleged amount was withdrawn by the complainant himself or by his agent . It is also found that the video footage, they collected, doesnot show the complainant as the person operating the said transaction . In these backdrops we hold that the complainant has succeded that he had not drawn Rs.30,000/- by operating the ATM booth situated nearby Old Howrah station (Kolkata) on 06/12/2011 but another person had withdrew that amount on that day manipulating the process of using the ATM machinein the chance not guarding the said ATM machine by security guard . Now a days, it is seenthe miscreants in different places in our country have succeeded to withdraw amounts from the account holders manipulating the process of using the ATM machines, and they become successful only because ATM booths are not provided security guards by the banking organizations and there are inbuilt fault in the ATM machines . Therefore, we hold that for not providing security guards in the alleged ATM booth in the relevant date & time, some miscreants on that day withdrew Rs.30,000/- from the account of the complainant manipulating the process of using ATM machine . It is also known to all that the ATM machines are not immune from manipulation of the process of using .These machines can be manipulated and the same thing happened in the said alleged ATMand that was possible due to not providing security arrangement to the said ATM booth . Therefore ,we hold that for the negligence of the opp. parties some miscreants had fraudulentlywithdrew Rs.30,000/- from the account of the complainant by manipulating the process of using the said ATM of the said ATM on 06/12/2011 . Therefore the opp. parties are liable to refund the said amount to the complainant with interest @ 12% per annum.
8) Due to negligence of the opp. parties, the complainant had to visit different authorities of the opp. parties to get his grievances addressed but they did not give any relief to him although his case is a genuine one. Such conduct of the opp. parties is a clear instance of deficiency of service, for which the opp. parties are liable to pay atleast Rs.5,000/- as compensation for causing harassment to him. Secondly, for no fault of him, the complainant had to prosecute the opp. parties before this forum to get his relief ; and in that persuit he had to bear cost of the proceeding. Therefore, the opp. parties are liable to pay him atleast Rs.4,000/- as litigation cost.
9) Because of what has been discussed as above, the complaint against the opp. parties (SBI) is allowed on contest ,and they are directed to refund Rs.30,000/- (the amount fraudulently withdrawn from his account) with interest 12% per annum and also to pay him Rs.5,000/- as compensation for causing harassment to him and Rs.4,000/- as litigation cost towhich they are jointly and severally liable. They are directed to make payment within two months in default, the other two amounts shall also carry interest in the same rate.
Given under our hands and seal of this forum on this day 25th April,2017.
Free copies of judgment be delivered to the parties.
(Md.S.Hussain)
President
(Smti Archana Deka Lahkar )
Member
