OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C. No. 52/2013
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
3)Md Jamatul Islam - Member
Sri Jay Chandra Handique - Complainant
Resident of house No.1, Sugam Path
Jayanagar, Sixmile,
Pin- 781022.
District : Kamrup, (Metro)
Guwahati, Assam.
-vs-
1) The State Bank of India, -Opp.parties
Mumbai, Maharastra-400021
Represented by its Chairman cum Managing Director
2) The Managing Director
The State Bank of India,
State Bank Bhawan,
4th Floor Madam Cama Road,
Nariman Point , Mumbai,
Maharastra-400021
3) The Chief General Manager,
The State Bank of India,
North Eastern Circle, Dispur,
Guwahati-781006, Assam
4) The Deputy General Manager
State Bank of India, Guwahati Region,
Bhangagorh, Guwahati-5.
District : Kamrup, (Metro),Assam.
5) The Assistant General Manager,
State Bank of India, Dispur Branch
Dispur,Guwahati-8, Assam
Appearance:- Ld.advocate Mr.Amarendra Gogoi for the complainant and Ld. Advocate Mr.K.K.Dey and Mr.P.K.Baruah for the opp.party side.
Date of argument: 19.06.18
Date of judgment: 04.07.18
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Sri Joy Chandra Handique against State Bank of India, Mumbai and four others was admitted on 31.5.13 and notices were served upon them and they also filed written statement on 4.9.2013. Thereafter complainant filed his evidence on affidavit on 12.2.14 and he was cross examined by the opp.party side on 5.11.2014. Thereafter the opp.party side filed evidence of one Abhishek Kumar on affidavit and he was cross-examined by the ld.counsel of the complainant . Thereafter Ld.counsel Amarendra Gogoi filed written argument for the complainant on 19.11.15 and on the same day Ld.advocate Mr.B.K.Baruah filed written argument for the opp.party side and on 19.6.18 we heard oral argument of Ld.advocate Mr. Amarendra Gogoi for the complainant side and of Ld.advocate Mr.K.K.Dey and Mr.V.K.Bora for the opp.party side and today we deliver our judgment which is as below-
2) The complainant case in brief is that the complainant is a consumer of service in the Dispur branch of S.B.I. vide Savings Bank account No. 10821579071 with ATM Gold Card bearing No. 5118780303003896. He met with an accident on 18.02.2011, and had to under-gone treatment in Guwahati Neorological Research Centre, Guwahati (GNRC) and had also under-gone surgery in his right hand on two occasions, the first surgery was done on GNRC on 21.2.2011 and second one was done at Indraprastha Apollo Hospital, New Delhi , and before the operation at Indraprastha Apollo Hospital, he needed a good sum; accordingly he visited the ATM booth and tried to collect money by using his ATM card and failing to withdraw the amount he approached State Bank of India, Dispur Branch on 05.06.12 and the bank inform him that there was no money in his savings bank account and that money was withdrawn from his account by way of POS transaction with effect from 30.04.12 to 11.05.2012. On 17.04.2012, there was balance of Rs.4,09.007.84/- (Rupees four lakhs nine thousand seven and eighty four paisa) only in his said savings bank account and on that very day he filed a written complaint before the SBI, Dispur branch for taking necessary steps to recover the money withdrawn from his bank account and also to block his ATM gold card ,which was duly acknowledged by the complainant. Thereafter, on 8.6.2012 he made a representation to the Chief General Manager , State Bank of India, Guwahati and requested him to do needful for recovery of the money and also lodged a FIR at Dispur Police Station to that effect ,which was registered as Dispur Police Station Case No.1139/2012. He went to Delhi for his second surgery on 12.06.2012 taking personal loan from some other source on a high rate of interest. He also filed a petition to the Asstt. General Manager, S.B.I.Dispur on 26.06.2012 requesting him to take necessary action and he vide letter No. AGM/40/157 dtd. 22.06.2012 informed him that the transaction were done at different point of cells using his ATM credit No. and ATM PIN number. Special Task Force, Assam Panbazar, Guwahati, on 6.6.12, after receiving one FIR from the bank, registered a case vide Case No. S.T.F.P.S. Case No. 15/2012 u/s 420 I.P.C. r/w Section 66 (c) Information Technology Act .For the negligent act of the bank he suffered huge loss and the bank is solely liable to the suffering sustained by him. He again, on 29.06.12, filed a representation to the Deputy General Manager, State Bank of India, Guwahati, to that effect, and requested to direct the bank to credit the amount to his account which was taken out of his account. But found no response to him and then he made complaint to the Chairman of State Bank of India as well as the Managing Director of S.B.I. on 4.9.2012, but found no response from them also. From the bank statement he found that the money were debited from his account by way of 40 (forty) POS transactions w.e.f. 30.4.2012 to 11.5.2012, and within the period of 13 days an amount of Rs.4,00,000/- was debited from his account . The bank has not paid the lost money to him and thereby causing immense harassment to him physically and mentally; and as such bank is liable to pay him the loss amount which is Rs.4,09,007.84/- which had been in his account on 17.4.2012 along with interest @ 18% per annum; and also to pay him Rs.2,00,000/- as compensation as well as Rs.50,000/- towards interest and the cost of the proceeding.
3) The pleading of the opp.party is that there is no cause of action for filing the complaint; the complaint petition is not maintainable ; the complaint is barred by limitation. As per ledger maintained in the opp.party’s bank under Bankers Book Evidence Act, there appears serial withdrawal of money through online point of sale (POS)using his ATM No.511878030300389 from his account within the period with effect from 30.4.2012 to 11.5.2012 and there remained only Rs.360.36 as balance in his account on 11.5.2012 and there appeared only Rs.260/- in his credit on 17.6.2012. The Assistant General Manager , Dispur Branch lodged a FIR on 6.6.2012 before Special Task Force and they also registered a case vide No.15/2012 u/s 420 I.P.C. and Sec.66 (c) I.T.Act relating the said transactions and they are investigating the matter and they also informed the bank during investigation the details of I.P.address etc. which has been collected from the transaction details provided by the bank authorityand after analysis of this electronic activities it was found that the some part of the defrauded amount was paid to electric company named Torrent Power located at Bhiwandi, Maharastra. The Deputy Superintendent of Police also informed that the customer particulars in which name the power bill was paid were ascertained from the said power company and accordingly, police team of STF was sent to Bhiwandi, Maharastra and it was found that Sri Nabin Prasant Jain and Sri Vinod Ramnikol Jain of Gakul Nagar, Bhiwandi, P.S.Nijam Nagar, District –Thane, Maharastra were arrested and brought to Assam and forwarded to Judicial custody. The real fact of alleged defraud in the complainant’s account will be cleared after completion of investigation by STF . It is totally impossible to withdraw any money either through online point of sale or by use of ATM without using ATM card number and its password; and therefore, either the complainant himself had withdrawn the amount through such online point of sale or he had divulged his ATM number and the password to other persons and they had withdrawn the money from his account, and thereby they never committed any deficiency of service towards the complainant and as such they are not liable to refund the alleged amount and the complaint is liable to be dismissed./
4) We have perused the pleading as well as evidence of the parties. We have also perused the submission of both sides’ ld counsels . It is found that both sides admit that the State Bank of India, Dispur branch issued Savings Bank Account No-10821579078 along with ATM Card bearing No-5118780303003896 to the complainant for beneficial operation of his account and there was a credit balance amounting to Rs.4,09,007.84/- on 17/04/2012 in the account of the complainant but since the next entry made on 30/04/2012 upto 11/05/2012 his money was withdrawn serially by way of online point of sale transaction from his account and as a result Rs.360.36/- only remained credit balance in his account on 11/05/2012; and after operation of aforesaid P.O.S transactions, and on 05/06/2012 the complainant lodged a complaint to the Assistant General Manager,Dispur branch where he stated that no money was in credit in his account due to fraudulent transaction and by that letter he also requested to block his gold card and recover the amount fraudulently and then they immediately blocked the gold card of the complainant and Assistant General Manager,State Bank of India,Dispur branch lodged an FIR on 06/06/2012 with S.T.F P.S, Panbazar which was registered as Special Task Force P.S Case No-15 / 2012 u/s-420 I.P.C. r/w Sec-66(c) I.T. Act relating to the transaction made in the account of the complainant and S.T.F. investigated the case and Deputy Superintendent of Police cum Officer in Charge , STF Police Station ,Panbazar,Guwahati vide his letter Memo No-ADGP/STF/CASE NO-15/12/13 /2380 dtd 08/03/2013 intimated the opp. party that it was found that during investigation they found that Maharastra Police arrested Sri Nabin Prakash Jain and Sri Vinod Ramnikal Jain of Thane ,Maharastra in connection with said fraud and also found that a part of defrauded amount was paid to electric company named Torrent Power located at Bhiwandi , Maharastra, and they were trying to find out in whose name power bill was paid.
Thus it is clearly established that that Rs.4,09,007.84/- was fraudulenty withdrawn from the account of the complainant through POS transactionwithin the period w.e.f. 30/04/2012 to 11/05/2012
5) The plea of the opposite party is that the said amount was transacted through POS by using ATM card and pin number and as such they are not liable to refund the amount .Reversly , the plea of the complainant is that he or his agent had not drawn the said amount through POS transaction but some other person fraudulently drawn the said amount due to negligence of the opp. parties and the opposite parties simply providing the informations about the investigation of the criminal case filed in Panbazar STF Police Station vide STF Police Station Case No-15/2012 u/s-420 I.P.C and STF detected that a part of the fraudulently drawn amount was paid as power bill of someone in Torrent Power located at Bhiwandi , Maharastra and in whose name power bill was paid yet to be ascertained and that Maharastra Police arrested Sri Nabin Prakash Jain and Sri Vinod Ramnikal Jain of Thane ,Maharastra and STF brought them to Assam and forwarded to judicial custody and thereafter the opposite party havenot taken any further step to investigate by their own machinery about the said fraud. From the record ,it is found that since after 06/06/2012 i.e. after filing of the FIR by opposite party to Special Task Force , Panbazar, they havenot taken any further step to find out the real culprit. The opp. party side also has not adduced any evidence to prove their plea that the complainant or his agent did the said transactions or he had divulged the ATM No and PIN number to some other persons and those persons did the withdrawal . It is found that from the investigation done by the Special Task Force Police Station ,Panbazar vide STF Case No-15/2012 u/s-420,IPC r/w Sec-66(c) I.T. Act, the opposite parties are convinced that the said transaction amounting to Rs.4,09,007.84/- which were done in a serial POS transaction w.e.f. 30/04/2012 to 11/05/2012 were done by miscreants in Mumbai and the Special Task Force also convinced that the said transaction was done by some miscreants manipulating the POS transaction process. The opposite party side’s another plea is that the said transactions had been done by miscreants fraudulently and there is no negligence on their part. In such situation we are of opinion that there was certain fault in the digital system of the opposite party bank and for such fault the miscreants had succeeded to manipulate the system and by manipulating the system they had transacted Rs. 4,09,007.84/- through POS from the account of the complainant and for such fault on the system of the bank , the bank (opposite party ) is solely liable. We are of view that if such system can be manipulated by niscreants the opposite party bank shouldnot had allowed to operate the said system . The system of transaction through POS is not a demand of the consumers of the opposite party bank but the opposite party bank voluntarily extended this system to their clients including the complainant. Therefore , we hold that the opposite party is liable to refund the amount which had been fraudulently withdrawn by the miscreants from the account of the complainant through POS in Maharastra w.e.f 30/04/2012 to 11/05/2012 i.e. Rs. 4,09,007.84/- to the complainant.
6) It is admitted fact that complainant, on 05/06/2012 , approached the State Bank of India,Dispur branch and requested them to refund the money fraudulent withdrawn from his account by miscreants through POS system and he also filed representation to the CGM,SBI,North East Circle ,Chairman of SBI & M.D of SBI and requested them to refund the said amount to him and that fact is also admitted by the opposite party but the opposite party bank has not refunded the said amount to him showing some unjustifiable ground and the grounds which they failed to prove .Hence , we are of opinion that the opposite party are liable to refund the said amount to the complainant along with interest at the rate of 6% per annum from 05/06/2012.
7) By not refunding the said amount by the opposite party inspite of his repeated requests, the opposite party caused harassment to the complainant and mental agony also to him. Therefore we are of opinion that the opp. party is liable to pay atleast Rs.10,000/- as compensation to him for causing harassment and mental agony to the complainant.
The complainant states that as he had to go under surgery at Apollo Hospital on 12/06/2012 he had to take loan of Rs.2,50,000/- from Sri Gautam Kr Das and Sri Dipjyoti Neog on interest basis with two separate agreements dtd.27/05/2012 . From Ext-8 and 9 documents which are not objected by the opp. party side it is found that Ext-8 supports the statement of the complainant that he had undergone operation of his right elbow at Indraprastha Apollo Hospital by paying charge of Rs.77,725/-; Ext-9 and 10 which are agreement of loan taken by the complainant which is Rs.1,25,000/- from Sri Gautam Kr Das and another amount of Rs.1,25,000/- from one Sri Dipjyoti Neog to meet up his expenditure in doing his operation of his right elbow fully supports his plea that he had taken Rs.2,50,000/-(Rs.1,25,000+Rs.1,25,000/-) from Sri Gautam Kr Das and Sri Dipjyoti Neog on interest @10% . Thus it is established that as Rs.4,09,007.84/- were withdrawn by the miscreants from his account through POS transaction due to fault on the part of the opposite party bank he had to take the said loan and to pay interest @ 10% and therefore he has justified ground to claim the interest paid by him to his creditors . But it is seen that he had not given the detailed calculations of interest paid by him to his creditors . Therefore, we , doing some guess works , hold that he might have paid interest to the tune of Rs.20,000/-to his creditors and hence he is entitled to get that amount from the bank.
It is also found that the complainant has to prosecute the opp. party before this forum incurring a handsome cost, for the fault of the opp. parties, and therefore we are of opinion that the opposite party is also liable to pay him another amount of Rs.10,000/- as cost of the proceeding.
8) Because of what has been discussed as above, we hold that the complainant has a prima facie case against the opposite parties- ( the State Bank of India, Mumbai, Maharastra- 400021, Represented by its Chairman cum Managing Director and four others )and he has also succeeded to prove his case against them. Therefore , the complaint is allowed on contest against all the opp.parties and the opposite parties are directed to refund to the complainant Rs. Rs.4,09,007.84/- which had been fraudulently withdrawn by the miscreants from his account, along with interest @6 % per annum from 05/06/2012 until full satisfaction of the award, and to pay him Rs.10,000/- as compensation for causing harassment and mental agony to him and Rs.10,000/- as cost of the proceeding and also Rs.20,000/- as compensation for compelling him to pay interest to his creditor to which all the opposite parties are jointly and severally liable. The opp. parties are directed to pay the awarded amounts within 45 days, in default, other two amounts shall also carry interest at the same rate.
Given under our hands and seal today on this 4th July,2018.
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain) Member Member President
