SRI NAYANANANDA DASH,MEMBER:-

                          The Present case refers to deficiency of service by the OP-Bank by causing financial loss of Rs.40,000/-(Rupees Forty thousand)only to the account holder by intimating the account holder/ATM card holder of a drawal of Rs.40,000/- although it was not drawn by him.  

2.                       Brief facts of the case is such that one Mr. Baishnab charan Jena, Vill/Po:- Kalapada,Dist:-Kendrapara reportedly working in Sasastra Seema Bal and being posted in Uttar Pradesh was enjoying two Nos. ATM cards supplied by SBI., out of which one was under the category of para military salary package and the other a normal ATM card. The card under PMSP was handed over to his wife namely Mrs. Prajapati Jena aged 31 years who was staying in the village along with her daughter and mother in law while Mr. Baishnab charan Jena was staying at his work place in Uttar Pradesh almost 10 months in a year. The ATM card was being operated by Mrs. Prajapati Jena since 2011 and the ATM card was reportedly being kept carefully and periodical change of PIN was being done. On dtd.23.11.2014 the complainant had been to Kendrapara to get her daughter treated at the Kendrapara Hospital and after finishing the hospital work went to nearby SBI ATM at Keshpur Bazar to draw some money. When she tried to withdraw money, no money came out but only a message came on the Screen i.e. “unable to process”. There was no security guard near the ATM Room. Being unable to get money, the complainant  returned home empty handed. The complaint states that she had neither given the ATM card to anybody nor had informed anybody regarding the ATM. During that period, the husband of the complainant Mr. Baishnab Charan Jena who happens to be the real ATM card holder was on duty to Jammu & Kashimir for duty in the State Assembly election. On dtd.26.11.2014 Mr. Baishnab charan Jena reportedly telephone to the complainant about the withdrawal of Rs.40,000/-from his account. The complainant immediately rushed to Kalpada ATM and brought one mini statement and was came to know that Rs.40,000/- had been withdrawn on dtd.23.11.14 as per her husband’s information which was not withdrawn by the complainant or any member of her family. The complainant lodged written information/complaint with the bank and also Kendrapara Town Police Station. Mr. Baishnab charan Jena after returned from his work place on leave went to Police Station on dtd.23.11.2014 and enquired about the case but to his astonishment found that the police station could not enlighten him about this as the officer who had received the complaint had been transferred to another place and there was no record of any such incident. So, Mr. Baishnab Charan Jena lodged a fresh complaint with the police. Meanwhile after about 8 months after the incident CD was available from the bank which was not clear as the photograph quality was very poor. Therefore the complainant has stated that due to poor quality CC TV camera installed in the ATM and also absence of security guard in the ATM has resulted in herself not getting any result and for which the SBI main branch is fully responsible. She further states that the Video clip reveals that one person while talking with someone with a mobile phone has withdrawn Rs.40,000/- and she further apprehends that some bank staff is involved in such incident. Therefore she has filed this case with a request to get back Rs.40,000/- along with interest and also Rs.20,000/- towards physical and mental agony and Rs.2000/- towards litigation cost.

                          On being noticed, the OP-Bank appeared and filed their written statement and refuted all the allegations of the complainant.

                 The OP-Bank has questioned the  locus standi of the complainant to file a case since she can not be a consumer in the strict sense of the terms. Further the OP-Bank has defined the use of ATM card with the knowledge of secret no. by the complainant as unauthorized and violates the terms and conditions as specified in the user’s manual. The user’s manual clearly states that the account holder should not handed over the card and disclose the secret PIN no. to anyone including a family member  the user’s manual states “Giving card to any other person and disclosing the PIN is like giving a blank signed cheque”. The manual clearly states that bank bears no liability for the unauthorized use of the card and the responsibility is fully of the card holder. In the present case the husband of the complainant namely Baishnab Charan Jena being the customer of the bank was supplied with atM card with secret Pin no. The OP states that there was no such contract between the bank and the account holder that his ATM card with PIN shall be used by his wife nor any permission was obtained by the account holder to hand over the card along with PIN to his wife for use. Therefore, the Ops states that the ATM card has been sufficiently mis utilized  since 2011 by handing over the same to his wife and as such a clear case of unauthorized use of the card for which the complainant is not entitled to any relief prayed for. The OP-Bank has also dismissed the charge of the complainant regarding non deployment of security guard since there is no such contract between the bank and the account holder. The OP-Bank lays emphasis upon the use of card when there is no other person and taking precaution so that no one can have any glimpse of operation of card by one person. The OP-Bank is emphasizing on the fact that no money can be withdrawn in absence of concerned ATM card and secret pin no. The OP Bank further states that since there was one person inside the counter as mentioned by complainant she might have taken the help of that person to withdraw money and that person knowing the secret  no. might have succeeded to take amount in a fraudulent manner for which the complainant can not blame the OP-Bank for her own negligence of maintaining the secrecy of ATM facility. Further, the OP states that the complainant did not lodge the complaint with the police properly. Although FIR was lodged with the policy on dtd.27.11.2014 as   stated   by the    complainant, that   was   not followed up and ultimately transpired that there was no FIR at all and again the husband of the complainant lodged FIR afresh on dtd.23.12.14. Further no police investigation report is available.                                                                                              

                       Taking into consideration all the facts produced before us by both the parties, one thing is clear is that the operation of ATM card with secret PIN no. is of utmost importance and no withdrawal of money  is possible without somebody taking possession of it along with secret PIN Number. The very fact that money has been withdrawn and the holder of ATM card has not handed over the card to anybody or the secret PIN number not being known to anybody through any means is such a matter which require thorough police investigation. Taking into consideration all the above facts, it can not be presumed that OP-Bank was in any way responsible for the loss and in any deficiency in service.

                       Hence, the case is dismissed on contest without any cost.

                          Pronounced today in the open Court this 24th day of January,2017.