Reserved
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Appeal No. 2666 of 2015
Union Bank of India, Union Bank Bhawan,
239, Vidhan Bhawan Marg, Nariman Point,
Mumbai & its Branch Office at Main Branch,
Takia, Azamgarh-2223223 through its Branch
Manager. ...Appellant.
Versus
1- Dr. Aftab Ahmed (Dead) through his legal heirs
i) Nazma Khatun w/o Late Dr. Aftab Ahmed,
ii) Mohd. Amir s/o Late Dr. Aftab Ahmed,
iii) Miss. Uzma Aftab d/o Late Dr. Aftab Ahmed,
(Minor through her mother Nazma Khatun)
iv) Mohd. Yasir s/o Late Dr. Aftab Ahmed,
v) Miss Mantsa Aftab d/o Late Dr. Aftab Ahmed,
(Minor through her mother Nazma Khatun)
All R/o Mohalla, Raghunathpura Kalyan Sagar,
Sahar, Pargana and Tehsil, Maunath Bhanjan,
District, Mau. ..Respondents.
Present:-
Hon’ble Mr. Rajendra Singh, Presiding Member.
Hon’ble Mr. Viksas Saxena, Member.
Mr. Rajesh Chaddha, Advocate for Appellant.
Mr. Sanjay Kumar Dubey, Advocate for respondents.
Date: 13.7.2023
JUDGMENT
Per Mr. Rajendra Singh, Member: The present appeal has been filed against the judgment and order dated 6.2.2015 passed by the Ld. District Forum, Mau in complaint case no.194 of 2013.
The brief facts of the appeal are that, that the respondent no.1/complainant filed a complaint before the ld. District Forum with the allegation that he has having savings bank account with the appellant bank and also has an ATM facility having ATM card. On 21.2.2013 he withdrew 4 times Rs.4,000.00 each, total Rs.16,000.00 through ATM card and thereafter, the balance in his account came to Rs.1,68,947.00. After that he did not use his ATM card on 21, 22 and 23 January, 2013. He did not make any purchase through ATM.
It is further alleged that on 21.1.2013 Rs.25,000.00 (by way of Rs.5,000.00 five times) debited from his account and it has been also alleged that Rs.24,000.00 was debited on 22.1.2013 and Rs.25,000.00 was debited on 23.1.2013 from his account. He came to know about these wrongful transactions on 24.1.2013. Thereafter, he stopped his ATM facility. It is also alleged that later on, Rs.24,000.000 has been credited in his account on 29.1.2013. He sought the relief for payment of Rs.24,000.00 and Rs.10,000.00 as cost.
The appellant was not served with the summons, hence he was prevented from appearing and the complaint was ultimately allowed ex-parte against him.
The complainant/respondent is the holder of ATM card and ATM is being issued in a sealed envelope having the ATM card number and PIN number and this envelope was only opened by the addressee. So it is the responsibility of the card holder to maintain its secrecy. The appellant has no way to access the ATM card. The complainant withdrew Rs.16,000.00 by way of 4 withdrawl transactions of Rs.4,000.00 each on 21.1.2013 but disputed the ATM transactions made on 22.1.2013 and 23.1.2013. The transaction is carried out by way of a pass-word. So it is wrong to allege that some fraud has been done against him. If in an ex-parte judgment the allegations are not rebutted, it is the duty of the concerned court to look into the matter that ATM card cannot be used without PIN and PIN is exclusively remains in the possession of the ATM card holder. The impugned judgment is based on presumptions and assumptions. The ld. District Forum did not consider this tact that the PIN always remains with the ATM card holder and without entering the PIN, no transaction can be made. So the impugned judgment is liable to be set aside.
We have heard the counsel for the appellant Sri Rajesh Chaddha. None appeared for the respondents. We have perused the pleadings, documents and evidence.
In this case, it has been alleged that first 4 transactions of Rs.4,000.00 each was carried out by the complainant on 21.2013 but later on he denied the rest transactions. These transactions were performed through the use of ATM and we know that unless and until PIN of ATM card is not entered into ATM machine, no transaction is carried out. The PIN remains in excusive possession of the ATM card holder. If he does not disclose the PIN number to anybody, nobody can access his account. So it is the duty of the ATM Card holder to keep the PIN number secret. The complainant has not mentioned as to when the ATM card was issued to him and when did he generate the PIN. It is also no clear whether the PIN is changed after six months or one year or not. If some- one has ATM card and PIN in his possession, how can other persons use his ATM and PIN. ATM card may be cloned but as far as PIN number is concerned, it cannot be copies unless and until discloses by the ATM card holder. The ld. District Forum should have taken this fact into consideration but he did not take this fact into consideration. As far as, the footage is concerned, there a limit of retaining the footage in the video recorder. It is automatically disappeared after one month, 3 months or 6 months, as is set by the user. Hence, the judgment of the ld. District Forum is liable to be set aside and also the complaint is liable to be dismissed.
ORDER
The appeal is allowed. The judgment and order dated 6.2.2015 passed by the Ld. District Forum, Mau in complaint case no.194 of 2013 is set aside and the complaint dismissed.
If any amount is deposited by the appellant at the time of filing of this appeal under section 15 of the Consumer Protection Act, 1986, may be returned to the appellant as per rules alongwith accrued interest upto date.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh)
Member Presiding Member
Jafri, PA I
Court 2
Judgment dated/typed signed by us and pronounced in the open court.
Consign to record.
(Vikas Saxena) (Rajendra Singh)
Member Presiding Member
Dated 13.7.2023
Jafri, PA I
Court 2
