(BEFORE       :-          PRESIDENT :-          Smt. Pranali Sawant                 )

                                    MEMBER       :-          Smt. Sujata Patankar               )

 

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Complaint No. : APDF/178/2007

                                                           

                                                                        Date of filing      :-   15/11/2007

                        Date of decision :-    05/12/ 2011

 

 

1.Mr. Bhalerao Ulhas Laxman,                                   ..          )

2. Mrs. Smita Ulhas Bhalerao,                                    ..          )

Address :- J,B, 3/302, Ajmera Housing Complex,     ..          )

Pimpri, Pune – 411 018.                                             ..          )… COMPLAINANT

1. Manager,                                                                 ..          )

    Cosmos Co.Operative Bank Ltd.,                         ..          )

    Ajmera, Pimpri Branch, Pimpri,                             ..          )

    Pune – 411 018.                                                     ..          )

                                                                                    ..          )

2. Manager (Information Technology),                       ..          )

    Cosmos Co.Operative Bank Ltd.,                         ..          )

    269/270, Shaniwar Peth,                                         ..          )

    Pune – 411 030.                                                     ..          )

                                                                                    ..          )

3. Chairman,                                                                ..          )

    Cosmos Co.Operative Bank Ltd.,                          ..          )

    269/270, Shaniwar Peth,                                         ..          )

    Pune – 411 030.                                                     ..          )… OPPONENT

 

            For Complainant         :           In person

            For Opponent              :           Adv. S.D. Panchpor

 

Per : Smt. Sujata Patankar, Member

 

 

 

1)         Main demand              :-                      Rs.12,600/-

2)        For mental Agony        :-                      Rs.25,000/-

3)         cost of proceedings     :-                      Rs. 5,000/-

 

During the proceedings,  the Complainant filed the amendment application dtd.7/4/2011 for including his wife Mrs. Smita Ulhas Bhalerao as the Co-Complainant.  This Forum by order dtd. 7/4/2011 allowed         this application. Accordingly, the Complainant has carried out the amendment. Alongwith the complaint application, the Complainant filed documents, such as, letter sent to the Opponent dtd.18/8/2006, reply letter sent by the Opponent to the Complainant dtd. 22/8/2006, the letter sent by the Complainant to the Opponent dtd.28/8/2006 as also 12/9/2006. FIR, letter sent by the Opponent to the Complainant dtd.23/3/2007 with concerned transaction report, letter sent by the Opponent to the Complainant dtd.23/4/2007 etc.. 

 

[2]                    After receipt of the notice, the Opponent is present before the Forum, filed their written statement and denied the complaint. The Opponent has admitted that the Complainants opened joint account bearing No. 033204201210009 in the Ajmera Branch of the Opponent Bank.  It is also further contended that the Complainant filled up necessary details in the Saving Account opening form and the consents to abide by the terms and conditions imposed by the Bank while operating the said saving account.     Upon written request by the Complainant, the Opponent Bank issued the ATM card  to the Complainant. It is further stated that in order to avail ATM service the customer has to open a saving or current account as per his convenience with the Opponent Bank and then make an application in prescribed format to Opponent Bank for ATM card. After verification of the application it is processed by ATM cell of Opponent Bank and thereafter ATM card is generated with the code number which is called as the PIN NUMBER The ATM card and the PIN Number are generated automatically through the system and there is no possibility of manipulation or manual intervention in it. The ATM card and the PIN Number are given to the customer personally by verifying and confirming his identity. Thus there is through security of the PIN NUMBER. The Opponents further stated that the card holder has to destroy the PIN NUMBER immediately after he has memorized the same. Therefore till the card holder discloses PIN Number to anybody by himself, the same cannot be known to anybody and the card cannot be misused by any third person. Therefore, it is the duty of the card holder to preserve the secrecy and in case of loss of the same, it has to be intimated to the Bank immediately so that Bank will freeze the account of the customer to prevent any malpractice. The Opponent also further submitted that in the procedure of withdrawal the card holder swaps his card, enter his PIN NUMBER and unless the PIN Number and the ATM card are matched the transaction is not allowed by the system. The essentials of the withdrawal are The Physical ATM card and the PIN NUMBER which run concurrently. In absence of anyone the system does not allowed any transaction therefore the person who has the physical ATM card and PIN  NUMBER only can carry the transaction. It is also further submitted by the Opponent that when the ATM card holder swaps his card and enter his correct PIN NUMBER only then the transaction is processed and as soon as the  withdrawal is made it is reflected to his saving or current account immediately by system tress audit No.. It is also further stated that Opponent Bank is taking precaution to maintain the secrecy of the customer ATM cards and his/her PIN Number. For the withdrawal of amount with the help of ATM card the two essential factors are ATM card and PIN Number. The Complainant in his complaint has himself admitted that the ATM card was in his possession and as far as pin number is concern, it is generated automatically to the system and same is informed only to the person holding the ATM card and therefore unless Complainant gives ATM Card and PIN Number to any third person withdrawal is not possible. In the present case, as the account was and is jointly standing in the name of the Complainant and his wife so there only the Complainant and his wife can withdraw the amount from the said account. Wife of the Complainant who is holding the same account alongwith Complainant has never lodged any complaint with the Bank in respect of present withdrawal.  Therefore according to the Opponent, the alleged amount is withdrawn by the person who is having physical ATM card and who knows PIN Number of the said ATM card. It is further stated that from time to time the detailed information and copies of statement showing successful and unsuccessful transactions related to ATM card of the Complainant are supplied. It is also further contended that as per instructions of the Complainant, Opponent Bank has already deactivated his ATM card. On all these grounds and as stated in the written statement, the Opponent has prayed for dismissal of the complaint. Alongwith the written statement, the Opponent has also filed affidavit in support of the written statement. The Opponent has also filed copy of transaction details regarding successful and unsuccessful entries of the account of the Complainant from 7/6/2006 and 9/8/2006, Guidelines for issue of ATM-cum-Debit Cards by UCBS, details of 7/6/2006 and 9/8/2006 (total pages 9) etc ..              

 

[3]                    After filing of the written statement, the Complainant has filed affidavit in the form of observations and stated therein that the Complainants do not have the proof of withdrawal from ATM except entry in Savings Bank passbook as also further stated that the Complainants might not lodged police complaint on 8/3/2007. The progress of police investigations not known to us. We have also gone through the written notes of arguments of the Opponent. On the date of hearing, the Complainant and the Opponent both do not argue the matter.                               

 

[4]                    Taking into consideration, the complaint, say, documents on the record and the written notes of arguments of the Opponent, the following points arose for our consideration :

 

                        Points                                                                                 Answers

 

1)   Whether the Opponent  has rendered deficiency

       in service to the Complainant?                                                     …      No.

2)   What order?                                                                      … As per final order.

 

[5]                    Both the Complainants are having Joint Saving Account with the Opponent Bank.  And also the Complainant used the facility of the ATM card of the Opponent Bank. These contents are not denied by the Opponent in their written say and affidavit. Therefore, the Complainant is a “consumer” of the Opponent Bank is undisputed fact in the present case.

 

[6]                    It is the case of the Complainant that the Complainant and his wife having Joint Saving Account bearing No. 033204201210009 with the Opponent Bank. On the request of the Complainant, the Opponent Bank provided ATM card facility to the Complainant. In the written statement of the Opponent, the Opponent contended that the Opponent availed ATM service for which the customer has to open the Saving or Current account as per their convenience with the Opponent Bank. In the present case, the Complainants made an application in prescribed format to the Opponent Bank for ATM card. After verification of the application, it is processed by ATM cell of the Opponent Bank and thereafter ATM card is generated with the code number which is called as PIN number. The Card holder has to describe PIN number immediately after he has memorized the same. Therefore till the Card Holder discloses PIN number to anybody by himself, the same cannot be known to anybody and the card cannot be misuse by any third person. Therefore, it is the duty of the Card Holder to preserve the secrecy in case of lost of the same.  It means that when the Bank provided ATM facility to the Complainant, it is the duty o the Complainant to keep their ATM card and PIN number safely and to secure ATM Card and PIN number. But in this case, the Complainant stated that the unknown person withdrawn the amount by ATM  because of auto generated system in the ATM machine. It is necessary to swipe the card and enter the PIN number and thereafter the amount entered will be withdraw by the Complainant. In absence of ATM Card and PIN number, it is not possible to unknown person  to withdraw the amount as per system of the Opponent Bank. But in the case of the Complainant it happened. In our opinion the Opponent stated about ATM Card facility and procedure, auto generated system of the machine is one of the important aspect in the present complaint, on which we can rely upon. As against this the Complainants have not denied in toto.    Therefore, in the present circumstances, there is no any negligence seen on the part of the Opponent Bank. The Opponent filed some documents with their written statement as a regulation of RBI, guidelines for issue of ATM card by UCBS, the copy of transaction details dtd.7/6/2006 and 9/8/2006.  On 14/10/2011, the Opponent filed copy of all transaction details of 7/6/2006 and 9/8/2006.    After perusal of  all these documents, it is crystal clear that the withdrawal transactions details filed by the Opponent which shows that whenever the person / ATM Card Holder swap their card and insert PIN number then and then only the ATM machine will process and the ATM Card holder will receive the money. As per record filed by the Opponent it shows that on 7/6/2006 and 9/8/2006, the amount of Rs.100/-, Rs.5,000/- and Rs.7,500/- were withdrawn on account No. 033204201210009. The Complainant on 18/8/2006 complained about the transactions dtd.7/6/2006 and 9/8/2006 to the Opponent. On perusal of the record it is evident that the Opponent Bank from time to time sent reply in detail.   As per the direction of the Complainant, the Opponent closed the ATM Access on 19/8/2006. The Complainant filed FIR regarding their ATM transactions but as per their contentions in rejoinder reveals that the progress of police investigations not known to us.  It means that the Complainant also not chased with the concerned police station for his own complaint and also failed to take information regarding the same.     

 

[7]                    On going through the Guidelines for issuance of ATM-CUM-Debit Cards by UCBs, especially under (5) terms and conditions for issue mentions as follows :-

 

As per the terms and conditions of the UCBs, it is duty bound to the Complainant to keep the card safely and also to secure the PIN Number. Therefore in our opinion, it reveals that the Opponent is not liable for the loss of the Complainant.      

 

[8]                    It is pertinent to note that in the entire proceedings and even in the complaint application the Complainant has never stated that from when he is using the ATM Card facility. It is not the case of the Complainant that after swap of his card and insert PIN number, he had not received the money. But after perusal of all these documents on the record, the ATM Card is in the custody of the Complainant. There is no any case of the Complainant that the ATM card is lost by the Complainant. It means that when the ATM card is with the Complainant.  For that period if there are any transactions through ATM on the Saving Account. In that situation only the Complainant is responsible for those transactions himself. Hence the Opponent would not be liable for transactions as per record filed by the Opponent.  In the present case, it is clear that the disputed amount withdrawn by the joint saving account of the Complainant through ATM card. The Complainant failed to show how the Opponent is responsible for withdrawal of the disputed amounts through ATM of the joint saving account of the Complainant. Therefore we opined that there is no deficiency in service rendered by the Opponent to the Complainant.                  

 

[9]                    The Complainant filed this complaint in the year 2007 but did not proceed further.   On 1/11/2010, the Complainant himself present before the Forum and gave an application and thereafter the notice is issued to the Opponent and the matter is continued for further proceeding. Hence now the matter is disposed off.

 

 

(3)      Certified copies of this order be furnished to the    

       Complainant   and   the Opponents free of costs.

 

 

 

 (Smt. Sujata Patankar)                                             (Smt. Pranali Sawant)

          MEMEBR                                                               PRESIDE NT

 

ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PUNE.

 

Place : Pune                                                   

 

Date : 05/12/2011