Dev Raj, Member:
1. This appeal is directed against the order dated 12.02.2014, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it partly allowed the complaint filed by the complainant and directed the Opposite Parties (now appellants) as under:-
œ12. For the reasons recorded above, the complaint filed by the complainant is partly allowed. OPs are found deficient in service so far as the withdrawal of more than Rs.40,000/- from the account of the complainant on 15.8.2012 is concerned. OPs are accordingly directed :-
i) To make the payment of an amount of Rs.15,000/- to the complainant as compensation for deficiency in service.
ii) To make the payment of an amount of Rs.5500/- to the complainant towards litigation costs.
The liability of the OPs shall be joint and several.
13. This order shall be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the above said awarded amount to the complainant along with interest @ 12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.
14. Before parting with the order, it is made clear that the complainant shall be at liberty to file a criminal complaint/civil suit for damages/compensation in respect of alleged fraudulent withdrawals from his savings bank account through ATMs at different stations from 15.8.2012 to 17.8.2012.?
2. In brief, the facts of the case, are that the complainant is serving as a Science Teacher in Govt. High School, Jawahar Pur, Tehsil Dera Bassi, District Ajitgarh, Mohali (Pb.) and is having a savings bank account No.55029112499 with State Bank of Patiala, Dera Bassi, Mohali. It was stated that on 15.8.2012, an amount of Rs.80,085/- was withdrawn, from the account of the complainant through eight different withdrawals, from ATM by some unknown person. It was further stated that as informed by the Manager of Opposite Party No.1, not more than Rs.40,000/- could be withdrawn, in a day, as per the Rules and Regulations of the bank. It was further stated that withdrawal of Rs.80,085/- by some unknown person illegally, from the account of the complainant constituted negligence, on the part of Opposite Party No.1. It was further stated that on 15.8.2012, the complainant was present in a meeting in connection with Independence Day in the School, as per the letter pad of his attendance, Annexure C-1. It was further stated that on 16.8.2012, some unknown person again illegally withdrew an amount of Rs.40,000/- through ATM, from the saving account of the complainant at Howrah. It was further stated that on 17.8.2012, again Rs.15,434/- were withdrawn by some other unknown person, through two ATM withdrawals at New Delhi. It was further stated that unauthorized and fraudulent withdrawals, from the account of the complainant, started after the last ATM transaction done by him on 7.8.2012 from ATM Number 4183 of Punjab National Bank, Chandigarh. It was further stated that the complainant issued two cheques bearing Nos.453301 dated 9.8.2012 for Rs.5,000/- in favour of Smt. Anjana Narang, 453302 dated 9.8.2012, for Rs.3,000/- in favour of Samreen Sharma, but cheque No.453302 dated 9.8.2012 was dishonoured due to insufficient funds. It was further stated that he immediately rushed to his bank i.e. Opposite Party No.1 and was shocked to know that only an amount of Rs.2,002.97 was left in his account, in place of Rs.1,37,521.97. It was further stated that 15.8.2012 was Independence Day and he was on duty in the School, 16.8.2012 was declared local holiday and on 17.8.2012, he was on official duty in a meeting at Govt. Model Senior Secondary School, Phase III B1, SAS Nagar with the District Education Officer (Secondary). He was having his ATM card alongwith him from 15.8.2012 to 17.8.2012. It was further stated that he made a complaint, Annexure C-4/A, to his bank on 21.8.2012 about the fraudulent transactions, done by some unknown person out of his ATM account, due to the sole negligent working of the bank and asked it to reimburse the amount of Rs.1,35,519/-. It was further stated that the complainant suffered loss due to the negligent up-keeping of ATM machines, lacking adequate security measures, as well as by omitting to depute security person to protect the consumers from unscrupulous persons doing the cloning of ATM cards as well as stealing the secret ATM pin code but the Opposite Parties did not take any action in this regard. It was further stated that the complainant also preferred a complaint before the SHO Dera Bassi, District Mohali on 29.8.2012, Annexure C-5. It was further stated that the complainant also approached the Zonal Office and gave a complaint dated 14.2.2013, Annexure C-6. When nothing was done by the Opposite Parties, the complainant sent a legal notice, Annexure C-7, to them but to no effect. It was further stated that the aforesaid act of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the œAct? only), was filed seeking directions to the Opposite Parties, to refund Rs.1,35,519/- alongwith interest from the date of actual withdrawal, apart from compensation for mental pain, agony and suffering due to dishonoring of cheque and thereby suffering loss of reputation.
3. In the written version, the Opposite Parties, took up the preliminary objections, that the complainant did not approach the Forum with clean hands; that since the complainant had alleged fraudulent withdrawal from his ATM card in different branches, and there were allegations of forgery or fraud, the same could not be decided under the Act. On merits, it was stated that Opposite Party No.3 had written a letter dated 2.4.2013 to the complainant, in which, it was specifically mentioned that the ATM transactions could not be made without using ATM card and without inserting confidential PIN and, therefore, the onus of keeping ATM card safe and PIN confidential lay with the customer only. It was stated that in view of the non joinder of Bank of Baroda, SBI, Dena Bank, Axis Bank, Calcutta and Delhi, from where, the amounts were withdrawn, the complaint was liable to be dismissed. It was admitted that amount of more than Rs.40,000/- could not be withdrawn, in a day, as per the Rules and Regulations of the Opposite Parties. It was further stated that as per the normal practice and procedure, the software of the operating system of the ATM starts at 11.25 PM, and ends at 00.05 hrs. AM every day. It was further stated that, accordingly, process of end of the day started at 11.25 PM of the previous day i.e. 14.8.2011, which continued upto 00.05 hours of the next day i.e. 15.8.2012 meaning thereby whatever transactions were done by the complainant during the process of above said 30 minutes, the same were to be considered of 14.8.2012 and the transactions done after 00.05 hours were to be considered on next day i.e. 15.8.2012. It was further stated that the allegation of the complainant that an amount of Rs.80,085/- was withdrawn, on one day, could not be possible as the first transaction of Rs.10,000/- took place at 00:00:09, second transaction of Rs.10,000/- took place at 23:58:59, third transaction of Rs.10,000/- took place at 00:01:41 and 4th transaction of Rs.10,017/- took place at 00:02:53 hours. It was further stated that all the transactions were considered of 14.8.2012 as the same took place before 00:05 hours. It was further stated that, accordingly, only an amount of Rs.40,000/- was withdrawn on 14.8.2012, which did not cross the credit limit, Annexure OP-2. It was further stated that though the complainant had not made any request to Opposite Party No.1, to deactivate his ATM card, yet Opposite Party No.1, had itself deactivated the card on 21.8.2012. It was further stated that the transactions, in question, had been successful between 15.8.2012 to 17.8.2012. It was further stated that the complainant approached Opposite Party No.1, after the delay of 4 days and there was no negligence on its part. It was further stated that the bank was not responsible for any loss either direct or indirect on account of the ATM failure/mal- functioning. It was further stated that the Opposite Parties installed the high technique sensor facility, in front of the doors of their ATM branches, and the doors could only be opened after inserting the card. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.
4. The complainant filed replication, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, partly allowed the complaint, as stated above, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
8. We have heard the Counsel for the appellants, at the preliminary stage, and, have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellants/Opposite Parties submitted that the software of the operating system of the ATM starts at 11.25 PM, on the previous day and ends at 00.05 hrs. AM on the next day. It was further submitted that, accordingly, process of end of the day started at 11.25 PM of the previous day i.e. 14.8.2011, which continued upto 00.05 hours on the next day i.e. 15.8.2012, meaning thereby that the transactions done by the complainant, during the above-said 30 minutes, were to be considered of 14.8.2012 and the transactions done after 00.05 hours, were to be considered of the next day i.e.15.8.2012. It was further submitted that more than Rs.40,000/- could not be withdrawn in a day, as per the Rules and Regulations of the bank. It was further submitted that only an amount of Rs.40,000/- was withdrawn on 14.8.2012, which did not cross the credit limit and, as such, the allegation made by the respondent/complainant that an amount of Rs.80,085/- had been withdrawn, by some unknown person, on one day was false.
10. After giving our thoughtful consideration, to the submissions, made by the Counsel for the appellants/Opposite Parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. The factum that the respondent/complainant was having a savings bank account No.55029112499 with the State Bank of Patiala, Dera Bassi Branch, Mohali and as per Annexure C-3, withdrawal of an amount of Rs.1,35,519/- through 13 different transactions through ATM during the period from 15.8.2012 to 17.8.2012 is admitted.
11. On the issue of alleged fraudulent withdrawals during the period 15.08.2012 to 17.08.2012, from the aforesaid account of the respondent/complainant, the District Forum rightly held that he did not implead Punjab National Bank, Chandigarh, State Bank of Patiala, Darya Ganj, Delhi, Bank of Baroda, New Delhi and State Bank of India, Howrah, as necessary parties, which could explain, as to whether, there was any negligence in up keeping of ATM machine maintained by them and whether the cloning of ATM card was possible from their ATM machines and granted liberty to the complainant to file a criminal complaint/civil suit in respect of the alleged fraudulent withdrawals, from his Savings Bank Account through ATMs at different places.
12. Now coming to the allegation of the respondent/complainant, as regards withdrawal of Rs.80,085/- on a single day i.e. 15.8.2012, the case of the appellants/Opposite Parties, is that an amount of not more than Rs.40,000/- could be withdrawn in a day through ATM as per their Rules and Regulations. However, the entries of Passbook of the respondent/complainant, Annexure C-3, which the District Forum also tabulated in Para 10 of its order, prove it otherwise. There are eight regular entries, all dated 15.8.2012, on which date, the withdrawals were made at ATMs of Darya Ganj, Delhi and Bank of Baroda, New Delhi, making it a total of Rs.80,085/-. As such, an amount of more than Rs.40,000/- was withdrawn through ATM, from the savings bank account of the respondent/complainant, on a single day viz. 15.8.2012. The appellants/Opposite Parties did not produce any cogent and convincing evidence, in support of their contention, that process of end of the day started at 11:25 P.M. on the previous day i.e. on 14.8.2012, which continued up to 00.05 hours of the next day i.e. 15.08.2012 and the amount exceeding Rs.40,000/- was not withdrawn in a day, through ATM. This deficiency is clearly attributable to the appellants/Opposite Parties, on account of which, two cheques, issued by the respondent/complainant, got dishonored thereby causing embarrassment to him and also loss of his (complainants) reputation. The District Forum was, thus, right in holding deficiency, in rendering service, on this account, on the part of the appellants/Opposite Parties. The relief granted to the respondent/complainant by the District Forum is just and adequate. The impugned order, in our considered opinion, does not suffer from any illegality or perversity.
13. No other point, was urged, by the Counsel for the appellants/Opposite Parties.
14. For the reasons recorded above, the appeal filed by the appellants/Opposite Parties, is dismissed, at the preliminary stage, with no order as to costs. The order passed by the District Forum is upheld.
15. Certified Copies of this order be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion.