Order-12.

Date-28/08/2015.

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that complainant is a holder of ATM CARD No.6070770489001487 issued by UBI, Chowringhee Branch against the Savings Bank Account No.0489010081451 at UBI branch.  On 24-07-2014 at about 7.24 p.m. complainant went to the ATM of OP1 (ATM ID AKL 1026U) and punched the ATM card into the ATM machine and noted the Pin number in the said machine but no pin code has been displayed in the said ATM machine.  Complainant tried again to withdrew the money but in vain, due to some mechanical problem reason best known to the OP1 complainant compelled to cancel the transaction and left the place but after 2 minutes from departure of the ATM Counter received an SMS in his phone displaying that an amount of Rs.10,000/- has been debited from the complainant SB A/c.  after receiving the sms complainant rushed to the said ATM Counter and found that a person aged about 25 years was piercing in the ATM machine.  On enquiry that person told the complainant that he had tried to remove either match sticks or pin from the ATM machine.  The said person is working as canteen boy under OP1.  Thereafter, complainant a diary on 04-08-2014 to the O.C. Bowbazar P.S. stating all the incidents and also reported the matter to the bank about the incident and in fact no security person on behalf of the OP was in the said counter.  Complainant had an opportunity to view the CCTV footage at the head office of the OP and the CCTV footage reveals that some unknown person was using the said ATM machine at the material point of time and by that act OP neglected to give proper service at the time of handling the same by the complainant and for which complainant has suffered loss and also suffered mental pain and agony and in the above circumstances, complainant prayed for refund of Rs.10,000/- along with interest and compensation.

          On the other hand OP by filing written statement submitted that the entire complaint is false and fabricated and fact remains after withdrawal of money from ATM machine, there will be automatically machine generated sms send to the customer’s mobile noted in the machine.  The complainant suppressed the truth and complainant no doubt lodged the complaint to local police station Bowbazar after 11 days and it is further submitted that a fraud took place due to disclosing password on the part of the complainant and for such foolishness of the complainant it was withdrawn by some other person.

          OP further submitted that no doubt complainant went to Head Office of UBI and observed the CCTV footage and could not explain the reason behind the invitation of unknown person at the ATM counter and disclosing password to unknown person.  Complainant suppressed the truth in the complaint and practically loss suffered due to the fault of the complainant himself and there was no fault on the part of the security of the ATM counter and practically complainant reported the matter to the OP1 after a long period and in fact the entire allegation of the complaint is false and fabricated for which the complaint should be dismissed.

Decision with Reasons

On proper consideration of the complaint and the written version and also considering the evidence in chief of both the parties and the answers of questioners it is clear that complainant went to the said ATM room along with his son and from the CCTV footage it is proved that some unknown person is present in the ATM room at the material time and OP has admitted that fact and OP has submitted the CCTV footage wherefrom it is submitted that some unknown boy withdrew the amount ultimately but from CCTV footage it is clear that at the time of operating the machine by the complainant, no amount was withdrawn by the complainant.  Complainant has also submitted that after receipt of the SMS when he went to the ATM room he found one boy handling the ATM machine and on query complainant learnt that he tried to remove some match sticks or pin from the ATM machine but when he was doubtful about the persons of that fact.  Fact remains that, that fellow withdrew the amount.  Whatever it may be in his written version it is admitted by the OP that fraudulent transaction was made but their plea is that complainant supplied the ATM pin number and that was used by the 3^rd party and withdrew the amount but after considering the CCTV Footage 5 pages with 12 photographs we have gathered that a fellow was observing everything behind that complainant when he was operating the machine and ultimately that fellow withdraw the amount at 19:24:29 hours but complainant was found up to 19:23:17 hours when the said money was not delivered to the complainant so, it is clear that this said ATM kiosk or room was not properly guarded.  There was no safety and in fact at the time of operating the said machine the said fellow adopted such hacking procedure so that the complainant may not withdraw the amount and it is one kind of tactics to control the machine at the time of operating the ATM machine by the customers and no doubt it is evident from the video footage of dated 24-07-2014 having hours 19:24:29 that one fellow from 19:24:23 to 29:24:29 withdraw the amount.   When from the video footage it is found that complainant was not within the said ATM room so, it is clear that this fellow is nothing but a hacker and he was loitering the inside the ATM room and fact remains when there was no guard he entered into the room and as there is no restriction to enter any person who are waiting outside the ATM room entered one after another to withdraw the money no doubt said fraudster entered into the room and using some hacking material stopped working of the machine and in the present case it is clear that ATM pin was not disclosed to any third party who withdraw the money but he was hacker who observed everything and invariably placed some device to control the said operation made by the complainant for withdrawal and in fact complainant did not get the money but that hacker adopted some procedure and placed it prior to complainant’s entering into the ATM room and thereafter he along with other public entered into the room when complainant was operating the same and considering the video footage and admission of the OPs it is proved that amount was withdrawn by some unknown person and invariably he was the fraudster and he is knew well how to control the ATM machine at the time of operating by other customers and no doubt he was loitering within the periphery for withdrawing fraudulently the amount after controlling the machine and, in fact, in this case it is proved complainant did not withdraw the amount and it is also proved from the said video footage that complainant left the place at 19:24:17.  Thereafter, the said fraudster adopted his process of withdrawing the amount from 19:24:18 to 19:24:23.  So, in view of the above materials on record we are convinced to hold that complainant never disclose the ATM Card pin number to the 3^rd party and but the third party who withdrew the sum is nothing but the hacker who observed everything and controlled the machine by putting some hacking materials and that procedure is adopted in most of the cases, sometime gums is used, sometime pin is used and sometime some parts the device is used after pressing inside his pocket. 

          Considering all the above facts we are convinced that the allegation of the OP that complainant disclosed the pin code to the 3^rd party is completely false.  Fact remains there was no FLS that is anti-device against the hacking process in the said machine for which entire machine was controlled by the fraudster at the time of operating the machine.  Complainant did not get the money lastly and after his departure at about 19:24:17 that fraudster withdrew the amount by operating the ATM by using the hacking device at about 19:24:29 hours and considering that fact it is clear that customers are not safe inside the said ATM room, many persons entered into the room when one person operating the machine.  There is no administration to check on flow or in flow of person inside the ATM room.  There was no security guard to maintain the queue outside the ATM room and considering all the above facts we are convinced that there was clear negligence and deficiency on the part of the OP to maintain the ATM Room and in the present case it is proved that complainant failed to get the money and after his departure practically the fellow whose face is found in the video footage withdrew the amount and invariably adopting some hacking procedure withdrew the amount.  So, we are inclined to hold that clear negligence and deficiency on the part of the OPs is proved and it is also proved that OP did not take any positive measure to give safety to the customer at the time of withdrawal of the money and, in fact, there was no safety or there is no security for which the fraudster entered into the room and controlled the machine and withdrew the money.    

          In the light of the above observation we are convinced to hold that complainant has proved the allegation against the OP and OP shall have to compensate for that when Rs.10,000/- has been deducted from his account and that was withdrawn by the fraudster and that is admitted by the OP in their written version and no doubt the negligence, deficiency on the part of the OPs are well proved by the complainant for which the complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.2,000/- against the OPs.

          OPs are hereby directed to refund a sum of Rs.10,000/- to the complainant along with banking interest from the date of fraudulent withdrawal by the fraudster and till its full payment to the complainant.

          OPs are directed to comply the order within one month from the date of this order failing which OP shall have to pay penal damages  at the rate ofRs.100/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.

          Even if it is found that OPs are reluctant to comply the order in that case penal proceeding u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.