DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _109_ OF ___2017
DATE OF FILING : 29.8.2017 DATE OF PASSING JUDGEMENT: _28.6.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Jagabandhu Chakraborty, son of Gajendranath Chakraborty of Rameshwarpur (West), P.S Budge Budge, Kol- 140.
O.P/O.Ps : Branch Manager, State Bank of India, Batanagar Branch, Maheshtala, Kolkata – 141.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Briefly stated, the facts leading to the filing of the instant case by the complainant are that on 17.8.2016 the complainant came to learn from his mobile message that Rs.20,000/- was withdrawn by someone from his Account no. 35035502105 ,maintained with the O.P Bank by using ATM Card issued by the O.P. Then, he brought the incident to the Manager of the O.P Bank and also sent a letter to the O.P, demanding credit of the same amount to his account. His grievance was not at all adhered to by the O.P Bank and, therefore, he has filed the instant case praying for refund of the said amount and also for payment of compensation etc. Hence, the case.
The O.P bank has been contesting the case by filing written statement ,wherein it is stated inter alia that the allegation of the complainant is false, misconceived and it is made for unlawful gain. According to the version of the O.P Bank, no-one can withdraw money from the ATM without using ATM Card and PIN . ATM Card and PIN remain in exclusive possession of the complainant and, therefore, it is none but the complainant who withdrew the money from the ATM by his ATM Card and PIN. There is no cause of action for bringing the case by the complainant and, therefore, the case should be dismissed with cost.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the O.P bank guilty of deficiency in service as alleged?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Complainant and O.P have led their Evidences on affidavit which are kept in the record for consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyers ,appearing for the parties. Perused the complaint, written version and also the materials brought on record by the parties. Considered all these.
It is the grievance of the complainant that Rs.20,000/- has been unauthorisedly debited by using ATM Card from his account maintained with the O.P Bank and that the O.P Bank did not provide the CCTV footage to him in order to detect the culprit who withdrew the money with the help of ATM machine.
It is true that the O.P bank has not produced any CCTV footage before the Forum. Now to see whether non-production of CCTV Footage before the Forum is by itself an act of deficiency in service on the part of the O.P Bank. In this regard we have got some authorities and these authorities are cited herein below:
In the case of State Bank of India Vs. K.K Bhalla reported in 2011(2) CPJ (NC) 106 , it has been held that non-availability of footage does not mean that money was withdrawn fraudulently without ATM Card and PIN number. It was further held therein that it is not possible for money to be withdrawn by an unauthorized person from an ATM without using ATM Card and PIN number.
IN the case of Smt. Mitali Saha and Maya Saha Vs. ANZ Grindlays Bank reported in 2003 (4) CPJ 210, it has been held by West Bengal State Commission that any unauthorized withdrawal was clearly the result of negligence on the part of the account holder himself, for which Bank cannot be held liable.
Reliance has also been placed by the O.P Bank on the case of Arun Deep Vs. HDFC Bank Ltd. reported in 2013(3)C.P.J 174 wherein it has been held by Chandigarh Consumer Disputes Redressal Commission that unless a person is in possession of relevant ATM Card and knows four digits PIN Numbers, the ATM card cannot be used and operated. It was further held therein that fraudulent case of withdrawal is due to fault of the complainant and deficiency in service is not established.
Keeping in mind the ratio propounded by the Hon’ble National Commission and as referred to above, we feel constrained to say that non-production of CCTV Footage by the O.P Bank does not ip-so-facto establish any deficiency in service on the part of the O.P Bank. It has been laid down in the ruling cited above that no-one can withdraw money from ATM counter without using the ATM Card and ATM PIN number. ATM Card and PIN number is the exclusive personal property of the account holder and if any one withdraws money from the account of the complainant, it can be presumed that such money was withdrawn by using the ATM Card and ATM PIN number of the complainant. Such use of ATM Card and PIN number by any person other than the account holder is an unauthorized use of ATM Card and the withdrawal of money is also unauthorized withdrawal of money and such unauthorized withdrawal of money is clear evidence of negligence on the part of the account holder ,for which, the bank cannot be held liable.
Coming to the facts of the instant case, it is found that the ATM Card and PIN number is lying in the custody of the complainant. It is not the case of the complainant that he lost his ATM Card or that his ATM Card was stolen away by someone. Regards being had to all these facts we may presume reasonably that the ATM Card was in the custody of the complainant and, therefore, it was not possible for anyone to withdraw the money from the account of the complainant without using the ATM Card and ATM PIN number. We find no deficiency in service on the part of the O.P Bank in so far as alleged unauthorized withdrawal of money from the account of the complainant is concerned. There is no merit in the case of the complainant and, therefore, the case requires to be dismissed.
In the result, the case fails.
Hence,
ORDERED
That the complaint case be and the same is dismissed on contest against the O.P Bank but without any cost.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
