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State Bank Of India Mini Secretariat Through Its Branch Manager Hisar Haryana v/s Sukh Dass


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    Revision Petition No. 213 of 2015

    Decided On, 21 July 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR.JUSTICE ANUP K THAKUR
    By, PRESIDING MEMBER

    For the Petitioner: Aditya Vikram Gupta, Advocate. For the Respondent: Mohd. Zaryab J. Rizvi, Advocate.



Judgment Text


Anup K. Thakur

1. This Revision Petition No.213 of 2015 challenges the impugned order of the State Commission dated 01.09.2014. Vide this order, the State Commission had dismissed F.A. No.168 of 2014 against the order of the District Forum dated 17.01.2014 which had allowed the complaint, and directed the petitioner/OP (OP hereafter) to remit Rs.91,896/- to the complainant’s account with 9% interest, from 1.5.2012 till the date of the remittance with Rs.10,000/- as compensation for mental agony and Rs.1100/- as costs.

2. Briefly, the facts are that the respondent/complainant (complainant hereafter), on 1.5.2012, found, to his surprise, that the balance was only Rs. 70/- when he wanted to use his ATM card. On his visit to the Bank the next day, he was informed of two withdrawals, of Rs. 49,896/- at about 11:45 p.m. on 30.4.2012 and Rs. 42,000/- at 1:00 a.m. on 1.5.2012. Aggrieved, and not finding any favorable response from the Bank, he filed a consumer complaint. This was resisted. The OP held that the impugned payments had been done through ATM card and that the complainant had filed a case with Economic Cell of Haryana Police and that the outcome of that case had to be awaited.

3. The District Forum, after hearing arguments and considering the record, concluded that “wrongful withdrawals from saving account of the customer of the Bank for no fault on his part, is certainly deficiency of services on the part of the bank.” Resultantly, the District Forum allowed the complaint. On appeal, the State Commission after hearing arguments and considering the record, on the ground that the OP had failed to bring any document on record to show to whom the impugned payments had been made, found negligence in service on the part of the OP. Concluding that the findings of District Forum could not be disturbed, the State Commission had dismissed the appeal. Hence, this revision petition.

4. The matter was heard on 14.07.2020.

5. Learned counsel for the OP, after reciting the basic facts of the two impugned withdrawals from the complainant’s account, argued that no withdrawal through ATM card was possible except by use of the secret PIN, known only to the complainant. He submitted that even if a bank official knew about the PIN issued to the complainant at the time of issuance of the ATM Card, there was no way the PIN, after having been changed by the complainant/customer, could be known to any one in the Bank. He further submitted that a complaint had also been registered with the cyber crime cell of Haryana police. Still further, he submitted that online payment could be made on e-commerce site through debit card which however also required a PIN which, again, was known only to the complainant. Thus, he argued that the lower fora had erred in their findings of negligence against the OP and that the orders of the State Commission and the District Forum be set aside, and this RP be allowed with cost.

6. Counsel for the respondent/complainant made the following submissions. He argued that the findings of the lower fora were concurrent, and as such, it was not the case that the State Commission had exercised a jurisdiction not vested in it by law or had failed to exercise a jurisdiction so vested, or had acted in the exercise of his jurisdiction illegally or with material irregularity. As such, he argued that this revision petition could not have been filed under Section 21 (b) of the Act as there was no jurisdictional error and the revisionary jurisdiction was limited. He further drew attention to two computerized summary statements of the complainant’s account, at pages 64 and 65 of the paper book, to argue that it appeared that the two impugned transactions had been fabricated/manipulated. He submitted that it seemed that the petitioner had separated the transactions after filing of the consumer complaint. He drew attention to RBI circulars, of Feb. 2009 and Aug. 2011, to the effect that in case of any online transaction above Rs. 5,000/- and any Card Not Present (CNP) transaction, alerts to the account holder was mandatory. Further, if on receiving such an alert, the account holder denied the transaction, the same was bound to be reversed. He concluded by submitting that there was no irregularity in the order of the State Commission which was well reasoned.

7. After having heard the learned counsels, I am inclined to agree with the impugned order of the State Commission, on a total view of the entire case.

8. It is apt to reproduce the relevant portion of the State Commission’s order, para 7 and para 8 thereof as below:

“7. Learned counsel for the appellant/opposite party vehemently argued that from the perusal of Annexure R-1, R-2. and R-3, it is clear that ATM card of the complainant was used for payment and it was switch/swap for making payment. First payment was made on 30.4.2012 at 11.45 PM and second was on 1.5.2012 at 1.00 a.m. Either complainant used ATM card for shopping or gave his ATM card to someone and told password number etc. There is no deficiency or fault on their part.

8. There is no dispute that ATM card has been used for making payments. It is called as ATM switch/swap for purchases, which is clear from Ex.R-1, R-2 and R-3. The appellant debit this amount from the account of the complainant but it has failed to show that in whose account this amount was credited when the amount is debited from the account of the complainant, it must have been credited in someone's account and this can only be explained by the opposite party. Appellant has not brought any document on record till today to show that to whom this payment was made. It is only the bank who can tell that after debiting amount from the account of the complainant in whose account it was credited. The complaint was filed on 10.4.2014 and much water has flown down the ganges. It shows that there is negligence in service on the part of the appellant/opposite party. Learned District Forum rightly allowed the request of the complainant. The findings of District Forum cannot be disturbed.”

9. There appears to be merit in the finding of the State Commission, in para 8 above, that the petitioner/OP had failed to bring any document on record to show qua the impugned payments as to which party had been paid. From the arguments today by the learned counsel for the petitioner, it did appear that according to him the bank was not in a position to say precisely which party had received the payment. The only information he could give was that e-commerce site had been used which showed that the payment was made to India Plaza.com; beyond this, he could not furnish more information. According to him, in such online transactions, it was perhaps not even possible to identify the party which had been paid. In this view, it would seem that the petitioner bank itself was a victim of technology, a position that cannot be accepted. A service cannot be offered which cannot provide basic information on the transaction such as the beneficiary party. This, if true, would have to be categorized as a deficient service. Finally, without going any further into this aspect, it has to be noted, as pointed out by the learned counsel for the complainant, that at the stage of revision, jurisdiction is limited. The National Commission cannot go into the facts of the case afresh. Revisionary jurisdiction is limited only to errors apparent of jurisdiction, fact or law. No such errors apparent have been brought out by the petitioner. Law on revisional powers has been clearly laid down by the Apex Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654, as under:

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, ma

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y the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b)of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.” 10. In view of the discussion above, this revision petition is dismissed.
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