MITALI SAHA AND MAYA SAHA vs ANZ Grindlays Bank

THIS is an appeal against the order of the Forum dated 31.1.2000 passed by the District Forum at Barasat. The facts of the matter are briefly stated below :

ONE Shri Amarnath Saha, father of appellant No. 1 (complainant No. 2) had a Savings Bank Account with ANZ Grindlays Bank, Salt Lake Branch. Initially, the account was in the single name of Shri Amarnath Saha, but later on 16.1.1998 it was converted into a joint account with appellant No. 1 as joint holder, with the mandate for operation as "either or survivor". Additionally, Shri Saha had an ATM Card in his name only for accessing the S.B. Account. Shri Saha suddenly died on 21.10.1998 and thereafter the appellant No. 2 advised the Bank on 29.12.1998 about the death of Shri Saha and also asked the Bank to stop payment from the account. However, subsequently, when the Bank furnished the statement of accounts it was found that between 22.12.1998 and 6.1.1999 there were withdrawals from the account through ATM resulting in an overdraft of Rs. 12,453/-. The complainants alleged deficiency of service on the part of the Bank inasmuch as the drawals after the death of Shri Saha were unauthorised and unwarranted. Some correspondences followed. But as the matter was not settled, the complainants approached the Forum for recovery of the loss of Rs. 53,200/- with interest and compensation of Rs. 5,000/-. According to the Bank''s version Shri Saha was obliged to keep his ATM Card in his personal safe custody without disclosing the PIN to anybody including the joint holder. Further from the F.I.R. lodged by the complainant on 15.2.1999 against the driver of Shri Saha it transpired that the said driver used to operate the said ATM Card for withdrawal of money from the account. In view of this the Bank contended that Shri Saha himself had violated the condition of the card by allowing the driver to use the ATM Card together with the PIN. It was the Bank''s stand that the unauthorised withdrawals took place owing to breach of condition by the holder of the ATM Card and hence the Bank was not liable for the unauthorised withdrawals. On hearing the parties and also taking into account the deposition of witnesses both on behalf of the complainant and the O.P. the Forum came to the conclusion that after the Bank was informed about the death of Shri Saha they should have taken necessary steps to stop the operation of the ATM by using the ATM Card of Shri Saha. However, the Forum accepted the Bank''s contention that the withdrawals effected between the death of Shri Saha and the receipt of notice by the Bank about the death were on account of the negligence on the part of card-holder himself inasmuch as he used to allow his driver to withdraw money by using his (card holder''s) ATM Card and PIN. On this basis the Forum concluded deficiency in service on the part of the Bank for the withdrawals after the notice of death of Shri Saha was served on the Bank. But the Forum also held that for other withdrawals before the notice but after the death of Shri Saha were due to the negligence of Shri Saha himself and the Bank was in no way responsible for the same. On this basis the Forum ordered that the unauthorised withdrawals together with interest that took place after the notice should be recredited to the account standing in the name of Shri Saha''s daughter i.e. appellant No. 1. Further a compensation of Rs. 1,500/- was allowed.

The appellants have come in appeal against the above order. The Bank has not filed any appeal and it is understood that they have already complied with the order of the Forum. In the memo of appeal the main grounds taken by the appellant are : (1) In case of joint account holders both holders are required to jointly apply and sign the application for ATM Card. This was not done in the present matter and the ATM Card was issued only in the same of Shri A.N. Saha. (2) From the statement of accounts received from the Bank it was found that there was withdrawal of Rs. 10,000/- on 22.12.1998 whereas as per rules the daily limit for withdrawals from the ATM is Rs. 5,000/-.

On the basis of the above grounds the appellants claimed recrediting of the amounts withdrawn between the date of death and the date of notice. The first ground is of little significance because the said account was converted into a joint account much later and hence the question of joint application for ATM Card does not arise.

DURING hearing the learned Counsel for the appellant practically admitted that withdrawals from the ATM were being done by the driver of Shri Saha by using Shri Saha''s ATM Card and PIN. This was clearly in violation of the terms and conditions of the operation of the ATM as it is the stipulation of the Bank that the ATM Card holder should himself make use of the ATM Card and PIN for withdrawal from the ATM and he must not allow anybody else to do the same on his behalf. This being the situation it is quite clear that there was no deficiency on the part of the Bank in permitting withdrawals between the date of death and date of receipt of notice of death. The Bank was in the dark about the death of Shri Saha and obviously they were not in a position to take any step to stop the operation of the account through the ATM. Any unauthorised withdrawal was clearly the result of negligence on the part of the account holder himself for which the Bank cannot be held liable. The Forum in its order has discussed this aspect in detail and we are in complete agreement with the views of the Forum. In regard to the point made by the appellant that on 22.12.1998 the amount withdrawn was Rs. 10,000/- as against the daily upper limit of Rs. 5,000/-, the learned Counsel for the Bank admittedly could not fully clarify this deviation from the practice. She however, said that sometimes the withdrawals on two different dates are clubbed together and shown as a single amount against one of the two dates. She also could not rule out the possibility of some temporary mal-functioning of the ATM. We have considered this allegation of the appellants, but we are unable to come to the conclusion of any wilful deficiency in service on the part of the Bank in this regard. Even if there was a small departure from the prescribed practice of limiting the withdrawal on a particular day from the ATM that cannot detract from the gross carelessness and violation of the Bank''s terms and conditions on the part of the ATM Card holder. Accordingly in our opinion there was no wilful deficiency in service on the part of the Bank on this score. In view of what has been stated above we are in full agreement with the impugned order of the Forum and we hereby affirm the same. The appeal is without any merit and is dismissed. Appeal dismissed.