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STATE BANK OF TRAVANCORE v. SAYED ARMAN RABBANI
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI
(Constituted under Section 9 of the Consumer Protection Act, 1986) Dates of Arguments: 05.01.18 & 8.1.18
Date of Decision: 12.01.18
First Appeal No. 536/2016
In the matter of:
State Bank of Travancore J-215, Upper Ground Floor Saket, New Delhi
Through it Branch Manager ……Appellant Versus
Dr. Sayed Arman Rabbani
S/o Dr. Sayed Mehtab Ali
B-302, Jamia Hamdard Campus New Delhi-110062 …….Respondent
CORAM
Hon'ble Sh. O.P.Gupta, Member(Judicial) Hon'ble Sh. Anil Srivastava, Member 1.Whether reporters of local newspaper be allowed to see the judgment? Yes/No
2. To be referred to the reporter or not? Yes/No
SHRI O.P. GUPTA(MEMBER JUDICIAL)
JUDGEMENT
The OP has assailed order dated 02.07.16 passed by District Forum II in CC No. 247/15. The facts that can be gathered from the impugned order are that respondent herein had a balance of Rs.1,63,270/- in his bank account. On 15.08.15 he visited ATM to withdraw the amount and message was flashed on the monitor that funds were insufficient and balance was Rs. 479/-. He never authorized anybody to use his ATM card. The limit of his ATM card was Rs. 50,000/- per day and that too with sms alert on his mobile phone. No sms alert was received on withdrawal which exceeded limit of Rs.50,000/-. On 09.08.15 there was withdrawal of over Rs. One lac. The culprit used different ATMs in three days from 09.08.15 onwards and withdrew Rs. 1,62,791/- through different ATMs in Delhi, Gurgaon and other places but he did not receive any sms alert on any of those three days. He lodged complaint with the OP/appellant on 16.08.15.
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Mr. Manish, Branch Manager tried to hush up the matter. Respondent lodged FIR No. 857/15 dated 20.08.15 but no action was taken. He repeatedly requested Manager of appellant to show video recording of ATM to identify the culprit but Manager refused. Till date he had not received any detail from the appellant. Thus it was a case of harassment, unfair trade practice and deficiency in service. He sought directions to the appellant to pay Rs.1,62,791/- alongwith interest @ 18% per annum, damages of Rs. 50,000/- for mental agony, torture, loss of Rs. 25,000/- as cost of litigation.
2. The appellant filed written statement pleading that respondent had NRI savings bank account, ATM card alongwith PIN was delivered o respondent in UAE through exchange office. It immediately took up issue from ATM Cell/ATM nodal office and came to know that amount was withdrawn from AXIS bank opposite Seble Cinema, Badarpur Border, Indus Ind Bank Sector 15, Gurgaon, SBI, ADB Rampur, UP. The respondent did not request for blocking ATM till date of filing WS by the appellant. The respondent did not disclose his geographical location on the date of alleged forged transaction. Indus Ind Bank and AXIS Bank replied that footage was not available with them. The issues involved require consideration of elaborate documents and evidence including oral evidence. So proceedings before consumer forum was not appropriate. Cash from ATM could not have been withdrawn without use of ATM and its PIN which appellant had supplied to respondent. If the respondent did not withdraw cash on disputed dates, his ATM must have been stolen or obtained by some unscrupulous person. Not only that ATM PIN must have been either disclosed by the respondent to a person who withdrew amount from bank or he would not have kept the same in safe custody. There is no deficiency in service on the part of appellant.
3. Complainant filed rejoinder and his evidence by affidavit. Op filed affidavit of Shri Manish Madhukar, AR. Both the parties filed written arguments. After hearing arguments and going through the material on record the District Forum found that appellant allowed withdrawal of Rs. 1,62,729.36 on 9th, 10th& 11thOct., 2015 from different ATMs situated in different directions and states but no sms alert was given to the respondent. It was not the case of the appellant that sms alert service was not active on mobile phone of respondent. It was not in dispute that respondent could withdraw Rs. 50,000/- only in one day but on 09.08.15 the withdrawal amounted to Rs.1,00,163/-. Hence appellant was deficient in providing service. The complaint was allowed and appellant was directed to refund Rs. 1,62,729.36 alongwith interest @ 6% per annum from the date of withdrawal till date of refund. Appellant was also directed to pay Rs. 10,000/- for mental agony and harassment including cost of litigation.
4. We have gone through the material on record and heard the arguments. At the very outset the counsel for appellant pointed out that appellant has moved an application for additional documents such as e-mail sent to respondent to fill up form for information about the alleged transaction and ATM transaction details which were handed over to IO.
5. We have heard on the above application. It is not the case of the appellant that documents now sought to be filed were not available with the appellant at the relevant time or it could not have laid its hands on those documents inspite of exercise of due diligence. It is settled law that additional evidence cannot be received to fill up the gap and remove the lacunae.
6. On merits counsel for appellant emphasized that respondent did not furnish his geographical location. The respondent is NRI and was in UAE. Physical presence of respondent during dates of questioned withdrawal was relevant.
7. AR of respondent submitted that he has already filed copy of his passport in the district forum. He filed another copy in appeal before us. The same shows that respondent came to India on 04.07.15 and went back on 16.08.15. Thus he was very much available in India on the relevant dates.
8. He feels that copy of passport containing endorsement of arrival and departure are fool proof evidence of availability of the respondent in India on the relevant dates that make the argument of counsel for appellant useless.
9. The counsel for the appellant forcefully urged that there is no reason why respondent did not apply
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for blocking of ATM even after the withdrawal in question. Argument is without any merit. The balance left in the account of respondent was Rs. 479/-. No purpose would have been served by blocking ATM.
10. Counsel for the appellant strenuously argued that complicated question of forgery and cheating were involved in the matter which are beyond scope of summary proceedings under Consumer Protection Act. In support of his submission he relied upon decision of Hon'ble Supreme Court in Civil Appeal No.4091 of 2006 titled as Oriental Insurance Company vs. Muni Mahesh Patel decided 12.09.06.
11. The counsel for appellant also relied upon decision of National Commission in UCO Bank vs. S.D.Wadhwa Revision Petition No. 2479 of 2008 decided by National Commission on 24.07.13 and Sri Kishan vs. Dena Bank 2003 (II) CPR 8.
12. Per contra AR of respondent submitted that every case involves disputed questions of facts and law which require determination but that does not mean that consumer foras must return all the cases. It was held by Hon'ble Supreme Court in CCI Chamber Cooperative Housing Society vs. Development Credit Bank AIR 2004 SC 184 that merely because service expert for proving signature and writing are required consumer court cannot refuse to entertain the case. IN Dr. JJ Merchants vs. Srinath Chaturvedi AIR 2002 SC 2931 it was held that where negligence of experts is alleged, case can be decided by consumer court. In Sutlej Textile vs. PNB I (2010) CPJ 312 National Commission took the same view.
13. In Shiv Kumar Aggarwal vs. Arun Tandon II 2007 CPJ 321 NC it was held that Consumer Foras which are presided over by senior judicial officers are competent to decide disputed questions of fact.
14. Lastly counsel for appellant relied upon decision of National Commission in SBI vs. Sansar Chand II (2015) CPJ 135 that if CCTV footage is not provided only compensation and cost can be allowed but not refund. Firstly this authority does not fully help the appellant. Reason being that compensation and cost were still allowed. The decision cited by counsel for appellant is distinguishable.
15. In Revision Petition No. 4868/12 titled as Vidyawati vs. SBI National Commission held that in case of withdrawal from saving funds by foul play, bank is liable to make good loss. In Bhadra M.Dalal vs. Bank of India IV (2011) CPJ 330 National Commission held that when withdrawals through ATM are in excess of limit, the bank is liable to refund the amount with interest.
16. Counsel for appellant did not miss to argue that complaint was bad for non joinder of necessary parties. According to him the banks through ATM of which withdrawal were made were necessary parties. We feel argument is bereft of any merit. In Chera Ram vs. OBC II (2016) CPJ 613 National Commission held that there was no privity of contract between complainant and those Banks, thus said Banks could not be joined as OPs.
17. The present case is squarely covered in the ratio of the said decision. Here also limit of withdrawal on one day was Rs. 50,000/- as pleaded by complainant categorically in the complainant. The same was not denied by the appellant in written statement. Thus the same amounted to admission. During arguments counsel for appellant submitted that later on the limit for withdrawal was enhanced. He sought time to produce copy of notification in that regard which was allowed on 08.01.17 till 10.01.17 but no such notification has been filed.
18. For the foregoing reasons we found that appeal has no merit. The same is dismissed. Copy of the order be sent to both the parties free of cost.
One copy of the order be sent to District Forum for information.
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(ANIL SRIVASTAVA) (O.P.GUPTA)
MEMBER MEMBER(JUDICIAL)
sbm
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