The petitioner herein had filed a consumer complaint before the District Forum alleging deficiency in service and unfair trade practice against the respondent/OP Bank. Her case was that she was having Bank account no.000110100003955 with the OP Bank. One day, she found that from her savings Bank account, an amount of Rs.45,090/- was debited indicating that there was withdrawal made from ATM by using the ATM card given to her. According to the complainant, she never used her ATM card for cash withdrawal on 28^th, 29^th and 30^th August, 2006 but she found that there was debit of cash withdrawals on these dates amounting to Rs.15/-, Rs.15,025/- and Rs.15,025/- and again an amount of Rs.15,025/- respectively withdrawn from her Bank account as shown in the entries made in the passbook. She noticed these withdrawals when she got her passbook updated on 2.9.2006. She, therefore, immediately made a complaint on the same day before the Bank Manager of the OP Bank who promised that the matter would be investigated and decision to give credit of Rs.45090/- would be taken by the General Manager of the Bank on 5.9.2006. She also lodged an FIR at Azad Maidan Police Station. Later on, it is her contention that General Manager of Bank of India informed her that the said amount has been credited to her account with the remark “Fraudulent with in ATM Refunded” and this credit entry was recorded in her passbook on 5.9.2006 (this fact has not been disputed by the counsel for the respondent before us). However, she submitted that she separately received a letter from the OP Bank stating that the Bank has no responsibility or liability in respect of cash withdrawal and that the said credits were reversed, which has also been recorded in her passbook. It is the case of the complainant that there were two withdrawals on 28.8.2006 amounting to Rs.15/- and Rs.15,000/ whereas the Bank rules permit a maximum withdrawal of Rs.15,000/- (this statement has not been disputed by the respondent). In view of this, the petitioner submitted that it was a case of fraudulent withdrawal as the Bank did not prevent excess withdrawal on the same day. Pleading negligence on the part of the OP Bank in not properly maintaining and operating ATM because of which she suffered a loss of Rs.45,090/-, the petitioner claimed compensation for mental harassment and cost of the proceeding in addition to the loss suffered by her. On appraisal of the issues and the evidence adduced before it by the parties, the District Forum by its majority decision partly allowed the complaint filed by the petitioner and directed the OP Bank to pay Rs.15,025/- along with interest @ 9% p.a. from 28.8.2006 till realization. Rest of the claim of the petitioner/complainant was rejected granting liberty to her to approach the appropriate court for redressal of her claim. Appeals were filed by both the parties - by the petitioner/complainant for enhancement of compensation and the respondent OP Bank seeking quashing of the award passed by the District Forum. The State Commission by its impugned order dated 16.7.2010 allowed the appeal of the OP Bank and dismissed the complaint and the appeal of the complainant/petitioner and set aside the order passed by the District Forum. It is against this impugned order that the present revision petition has been filed by the complainant/petitioner.

 

2.         The case of the OP Bank is that withdrawal of cash is not possible without inserting ATM card and without entering the confidential PIN number given to every customer. It was also pleaded by the Bank that it is the duty of every customer to keep the PIN number as secret and confidential and not to divulge it to anybody. However, it has not been disputed by the OP Bank that initially the Bank did credit the amount of Rs.45,090/- on the ground that it was a fraudulent withdrawal from the ATM but later on because of the direction from the Head Office of the Bank, the entry was reversed and the OP Bank pleaded that there was no deficiency on its part and since a police complaint had already been lodged, necessary action will be taken by the police and the question of payment by the Bank did not arise and hence the complaint should be dismissed.

 

3.         During the course of hearing, counsel for petitioner has submitted that it is the case where somebody has fraudulently withdrawn the money from her account through the ATM because of the negligence of the OP Bank. In the absence of CCTV camera, the OP Bank could not provide the footage in respect of person who actually operated the machine and withdrew the money from her account through the ATM. The counsel further argued that even through there was no independent evidence with the petitioner to prove as to who withdrew the money from her account, the fact remains that not only there was negligence in maintaining CCTV cameras in the ATM room but the ATM system operated by the OP Bank wrongly permitted withdrawal of amount exceeding Rs.15,000/- in one day against the rules which obviously facilitated the withdrawal of the amount fraudulently from her account. The counsel continued her argument by submitting that keeping in view these aspects which are not under dispute, it appears that initially the OP Bank credited the amount in question but later on under pressure from Head Office reversed the entry without any justification or basis. She submitted that the State Commission erred in not taking notice of these important aspects while unsuiting the claim of the petitioner. In response to a query from us, counsel for the respondent could not offer any explanation as to why the amount in question claimed by the petitioner while reporting the matter to the OP Bank regarding the alleged fraud, was credited into her account in case the OP Bank felt that there was no fraud and the complainant herself was to be blamed for the withdrawals in question. Non-availability of the CCTV footage at the time of ATM withdrawals and the rule regarding the limit of Rs.15,000/- in respect of withdrawal on any particular day from the ATM have not been disputed by the counsel for the respondent. Learned counsel for the OP Bank, however, submitted that even though the CCTV footage in respect of the transactions in question was not available with the Bank, the regular procedure for withdrawals from the ATM is quite elaborate and has been designed especially to ensure that unauthorized and fraudulent transactions do not take place and hence there is no force in the revision petition which deserves to be dismissed and the impugned order has to be upheld. In this context, he relied on the recent order dated 7.4.2011 of the National Commission in the case of State Bank of India Vs. K.K. Bhalla in Revision Petition No.3182 of 2008 by which the revision petition of the OP Bank was allowed and the orders of the fora below accepting the complaint in that case were set aside. He, further, contended that in any case there is no justification for award of interest to the petitioner on the amount of withdrawals in question.

 

4.         We have considered the contentions raised by the counsel for parties and perused the record. It has not been disputed by the OP Bank that even though there is a rule which prohibits withdrawal of more than Rs.15,000/- on any particular day from the ATM, this limit was exceeded in the present case. In view of this important aspect, though there is no evidence on either side to show as to who actually withdrew the money from the ATM account, the peculiar facts and circumstances do point out to a possibility of collusion on the part of some employee of the OP Bank with the person committing this fraud. We have gone through the case of State Bank of India Vs. K.K. Bhalla (supra) relied upon by the OP Bank but in that case there was no contention regarding the violation of the rules regarding withdrawals by the complainant whereas in the present case the contravention of the specific rules laid down by the Bank regarding such withdrawals has not been disputed by the OP Bank. It also needs to be noted that the petitioner was quite vigilant in bringing the whole matter to the notice of the Bank immediately and also lodging an FIR in this regard. It appears that the Bank was apparently convinced about the bonafides of the complaint of the petitioner when the amount of the withdrawals in question was credited into her account but later the credit entry was reversed on instructions from the Head Office. In view of this, the order of the National Commission (supra) will not get attracted to the facts and circumstances of the present case.

 

5.         Under the circumstances, we find merit in the complaint and claim of the petitioner and hence direct the OP Bank to reimburse the amount of Rs.45,090/- to the petitioner along with interest at the rate applicable to the Savings Bank account from 28.8.2006 till actual realization. There is no case for higher rate of interest since the money belonging to the petitioner was in her with Savings Bank account, and but for the alleged withdrawals, would have continued there till actual withdrawal by her either through the ATM or otherwise. We direct the OP Bank to comply with this order within a period of six weeks failing which, it shall be liable to pay interest @ 9% p.a. on the amount of withdrawals in question along with interest. The revision petition accordingly stands allowed in terms of these directions. The parties shall bear their own costs.