JAGANNATH BAG, MEMBER 

            The present appeal is directed against the Order, dated 11.08.2015 , passed by the Ld. District Consumer Disputes Redressal Forum, North 24- Parganas , in CC Case No. 281/2014 , whereby the complaint was allowed on contest with cost and punitive damages.

            The complaint case, in brief , was as follows:

            The Complainants being Joint Savings Bank Account holders of the OP Bank , Kakinara Branch , North 24-parganas had withdrawn Rs. 1,000/- and Rs. 1,500/- on 09.09.12 from the ATM (Punjab National Bank) near Reliance Jute Mill , Bhatpara, 24 Parganas-North. But the Complainants  came to know on 18.10.2012 that there was  a wrongful withdrawal causing   ‘debit  of Rs. 13,500/- ‘  on 01.09.2012. The Complainants  lodged a diary with the local Jagatdal P.S and also made a complaint before the Bank Manager , PNB , Naihati Branch and the  Bank Manager PNB , Kakinara Branch, on 18.10.2012 alleging mis-appropriation of the said amount of Rs. 13,500/- by wrong debit from  the Savings Bank Account through ‘the failed ATM transaction’ . The copy of the complaint was also forwarded to the Auto Compliant Booking Centre (ATM) , Delhi . No positive action was taken  for the purpose of recovery of the said money either by providing the CC TV footage or the E.C log . Hence the complaint.

            The complaint was  contested by the OPs , who, in their W.V., stated that the ATM card was issued to the Complainants in the year 2012 and the card was lying in their custody . The Complainants used the ATM card for transactions / withdrawal of money on 01.09.2012 at about 10.55 .08 and 10.55.19 and again at 10.56.12 hours . Two separate ATM machines were installed at the premises and the Complainants had used the same ATM Card in both the machines  . The computerized system shows all three transactions and the amount of Rs. 13,500/- was withdrawn in one of those three transactions . Denying any act of misappropriation of the alleged amount or any wrong debit of the amount , the OPs prayed for dismissal of the complaint.

            Ld. Advocate having considered the material facts and relying upon the rule of the Reserve Bank of India u/S 18 of the Payment of Settlement System Act, 2007, which provides that the banker is required to reimburse to the customers  the amount wrongfully debited for failed ATM transaction within a maximum period of 12 days from the date of receipt of customer complaint, observed that  OPs should have produced CC TV footage to establish as to whether the Complainant or any other person on behalf of the Complainants withdrew the said amount . The complaint was allowed with direction upon the OPs to refund Rs. 13,500/- and to pay litigation cost of Rs. 2,000/- to the Complainant within one month from the date of order, failing which OPs would have to pay Rs. 100 per day as punitive damages from the date of order till  realization and the same should be deposited in the State Consumer Welfare Fund.

            Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the OPs-turned-Appellants have come up before this Commission with prayer for direction to set aside the impugned order.

           The memorandum of appeal has been filed together with copies of the impugned order , the petition of compliant , the W.V. filed by the OPs before the Ld. Forum below , the affidavit-in-chief filed by the Complainant , the examination-in-chief on behalf of the OPs and other documents including the transaction details of the Complainants / Respondents from ATM ID : D2000 on 01.09.2012 txn No. 5555.

            Ld. Advocates for the parties have been heard .

            Ld. Advocate appearing for the Appellant submitted that a complaint about wrongful debit was  lodged  with the Bank after 47 days of the incident of withdrawal and as such there was no question of providing CC TV footage which is preserved for 30 days only as per the extent guidelines of the bank . The CC TV footage dated 01.09.2012 was erased on 01.10.2012.  The Ld. Forum below wrongly held that the bank was duty bound to produce the CC TV footage. It was also argued that non supply of video footage had no bearing on the claim of the Complainant as decided by the Hon’ble National Consumer Disputes Redressal Commission in State Bank of India –vs- Om Prakash Saini ,  reported in 1 (2013) CPJ 749 (2013)  749 (NC) . Though the Complainants admitted having withdrawn Rs. 1,000/- and Rs. 1,500/- from ATM on 01.09.2012 , they disputed withdrawal of Rs. 13,500/- form the second ATM in the same room . In fact, as held by the Hon’ble National Commission in SBI –vs- KK Bhalla , that in view of elaborate security procedure evolved by the bank it is not possible to withdraw money by unauthorized person without proper ATM card and knowledge of PIN . The decision of the Ld. Forum below is erroneous and is liable to be set aside. 

         Ld. Advocate also cited the decisions of this Commission in First Appeal No. A/516 /2015 and First Appeal No. FA/33/2014 with reflection of the views of the Hon’ble National Commission in cases of identical nature.

            The Respondent No.1 in person and Ld. Advocate appearing for the Respondent No. 2 submitted that inspite of filing compliant  in the matter of unauthorized withdrawal of Rs. 13,500/- from the savings account of the Respondents, no action was taken by the OP Bank. The OPs failed to produce the CC TV Footage and EC LOG  . Had the CC TV footage been produced by the OP , it could have been ascertained who the person was at the ATM machine  withdrawing the sum of Rs. 13,500/- at the material time , but no such CC TV footage was produced before the Ld. Forum below. In fact , no evidence in support of withdrawal of the said amount from the second  machine by the Complainants was produced which establishes the deficiency in service on the part of the OP . The amount wrongfully debited from the failed ATM transaction was required to be settled by the OP bank within 12 days from the date of receipt of the complaint as per Section 18 of the Payment of Settlement System Act, 2007 . Ld. Forum below decided in a reasoned manner and the order should be up held.

                        The point for consideration is whether the impugned order suffers from any material irregularity or infirmity.

Decision with Reasons:

            There is no dispute that the Complainants being Joint Savings Account holders of the OP Bank possessed an ATM Card by which they were authorized to withdraw money from their savings account through ATM .

            The transaction of Rs. 13,500/- was disputed to have been withdrawn unauthorizedly by some person other than the said account / card holders. The discrepancy in regard to the balance amount lying with the account was reported after 47 days. The CC TV footage as insisted upon by the Respondents / Complainants was not to be preserved for more than 30 days as per the guidelines of the bank.  There is no challenge in respect of the contention of the OPs that the CCTV footage is not preserved beyond 30 days  from the material date of transaction through ATM .  As such, the insistence on production of the CC TV footage of the ATM centre can not be appreciated .  

         Further, Ld. Forum’s observation that Complainants by producing several documents have tried to established that they did not withdraw the amount of Rs. 13,500/- from the ATM machine on 01.09.2012 is not supported with mention of any specific document / paper.  In that position, the point whether the withdrawal of Rs. 13,500/- was done by some unauthorized person does not appear to have been proved .

         The decision of the Hon’ble National Consumer Disputes Redressal Commission, as reported in I (2013) CPJ 749 (NC) , State Bank of India - vs- Om Prakash Saini  ,  holding that non-supply of video footage does not have any bearing on the claim of the Complainant is fairly applicable in the present case . Further , as held by the Hon’ble National Consumer Disputes Redressal Commission, in SBI -vs- KK Bhalla, reported in 2011 (2) CPR 20 (NC) , in view of elaborate security procedure evolved by the Bank , it is not possible to withdraw money by an unauthorized person without  proper ATM card and knowledge of PIN.   The only reasonable inference in regard to the withdrawal of the said amount of Rs. 13,500/- by using the ATM card is that either of the Complainants, himself or herself , had withdrawn the money or handed over the card with disclosure of the PIN to some other person who had withdrawn the money.  Ld. Forum’s reliance upon Section 18 of the Payment of Settlement System Act, 2007 for reimbursement of the amount wrongfully debited by failed ATM transaction appears to be erroneous in so far as no wrongful debit due to failed ATM transaction has been proved and the OP Bank was not mandated by any order  to preserve the CC TV footage of 01.09.2012 beyond 30 days  there from.

            There is no hesitation to hold that the impugned order suffers from material irregularity and legal infirmity. In the result, the appeal succeeds . Hence,

                                                            Ordered

that the appeal be and the same is allowed on contest . The impugned order is set aside. The complaint stands dismissed. There shall be no order as to costs.