ORDER

Date of order:  08-03-2018

S.K.Sinha,President       

                   The impugned order directs the appellant to credit a sum Rs. 89727/- with interest in the saving bank account of the complainant with compensation and litigation cost of Rs. 3000/- each within a period of three months failing which interest 8% shall be payable.

    The complaint is nut shell is to the effect that even though he did not withdraw or made transaction with his ATM card on 25.07.2013 and 26.07.2013 a sum of Rs 89,727/- was debited against online transaction. The complainant alleged that online transaction was done fraudulently. The complainant could learn the above debited account on 14.08.2013 when the complainant no. 1 got his passbook of the bank account updated the complainant made the complaint with the bank alleging above fraudulently withdrawal. The bank on receiving the aforesaid complaint informed the police with the available material to register the case of fraudulent withdrawal and do needful for recovery of the amount. The complainant alleged that bank did not protect the money of the complainant properly resulting to unauthorized transaction as such there is the deficiency in service and filed the complaint claiming its money with compensation. The bank denied the claim stating that the facility avail by complainant with card number and PIN is inclusive knowledge of the complainant only with the PIN which remains in the possession the transaction could be made by the account holder only. However on the complaint of the complainant allegedly fraudulently withdrawal the bank informed the police for the necessary action. The complainant in support of his case filed their evidence on affidavit photo copies of the document which were marked as annexure 1,2,3. The appellant (opposite party) filed the evidence of the Chief Manager and the Deputy Manager of the bank as also two documents, Which were marked exhibit A and B. The District Forum considering the respective case and the evidence as also the letter dated 23.01.2014 annexure 4. It was fraudulently made and withdrawal were fraudulently done. The Forum held deficiency in service on the part of the bank for its failure to safeguard and protect the money of their customers accordingly the passed the impugned order.

Appellant as also respondent filed written notes of argument.

We have considered the case of the parties, materials on record, terms and conditions of the ATM services as also the impugned order. It could not be disputed the facility of ATM to the account holder is optional. In case it in availed it has to be abided by terms and conditions duly signed by account holder. The ATM card remains inclusive in possession of the account holder without use of card in the PIN withdrawal could not be effected. In case as alleged the transactions were not fraudulently done in such circumstances deficiency in service in proceedings under Consumer Protection Act cannot be validly held against the appellant however with respect to the money claim it is up to the complainant to take recourse of general law in the moneys claim to be determined as per the evidence under the Evidence Act.

The District Forum did not consider this aspect of the matter in correct perspective, while passing the impugned order. The impugned order is thus set aside.

The result, the appeal stands allowed.

.

Renu Sinha                               Upendra Jha                          S.K.Sinha

Member (F)                               Member (M)                          President

           Anita