11-09-2015 – Due to long and uncertain period of absence of the Members, single member bench of President is functioning in their absence, in view of the order of Hon’ble National Commission in Revision Petition No. 4434 of 2014, in the matter of Mr. Netaji Surrendra Mohan Nayyar -vs- Citibank; and the judgement passed by Hon’ble Kerala High Court in the W.P. (C) No. 30939 of 2010 (N) P.K. Jose -vs- M. Aby & ors.

2.       Learned counsel for the appellant submitted that this appeal has been filed within time from the date of supply of free copy of the order under appeal. He appears to be correct.

3.       On merits, he assailed the impugned order and submitted that the Bank is custodian of the money of appellant- complainant and therefore liable to return the amount wrongfully withdrawn from her account through ATM machine.

4.       The present complaint case has been filed alleging that on 18.6.2011 a sum of Rs. 40,000/- has been withdrawn through the ATM machine at Banglore when she was at Ranchi. On the next day she filed a complaint with the Bank. When there was no response, she approached the Regional Headquarter of Reserve Bank of India at Patna. On 12.7.2011, she was advised to put her grievance before the Banking Ombudsman. Accordingly, she made a complaint which was registered. She received a letter from the Bank informing that her complaint was forwarded to C.M.S. She gave final notice to the Bank and as no intimation was received, this case was filed.

5.       According to the Bank, on receiving the complaint, the Bank made enquiries and found that the transaction in question was made by using the complainant’s ATM card and Pin number as per the J.P.log, which is conclusive proof of the status of every ATM card transaction. The saving Bank account of the complainant is joint account with her son Rohit Tiwari, who or some other person might have withdrawn the amount by using the ATM card and the ATM Pin number, for which the Bank cannot be blamed.

6.       The learned District Forum accepted the contention of the Bank. Bank also contended that if the withdrawal has been made fraudulently, such complaint cannot be looked into by this Forum. The Bank relied upon I (2009) CPJ 75, I (2004) CPJ 101 (NC) and III (2004) CPJ 227 and also judgement of this Commission passed in F.A. No. 203/11.

7.       The learned District Forum after carefully hearing the parties and going through the materials on record and the said judgements, interalia held that transaction was made through ATM successfully by using the ATM card and Pin number of the complainant. It further held that, if it was a case of fraud it could not be adjudicated in the summary proceeding under the Consumer Protection Act. Thus, it held that the complaint is not maintainable. However, it observed that the dismissal of the complaint will not come in the way of the complainant in case, she approaches the Civil Court or other appropriate Forum for the reliefs claimed.

8.       After hearing, learned counsel for the appellant at length and perusing the materials brought on the record, in my opinion, no grounds are made out for interfering with the impugned order.

9.       Accordingly, this appeal is dismissed. However, the order of learned District Forum or this order will not stand in the way of the complainant in approaching other appropriate Forum in accordance with law.

          With this observation, this appeal is dismissed.

Issue free copy of this order to all concerned for information and needful.

             Ranchi,

     Dated: 11-09-2015