STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Rajnikant Upadhyay S/o Sh. O.P. Upadhyay, resident of House No. 147, Hill View Enclave, Village Dhakoli, Zirakpur, District Mohali (PB)

……Appellant

V e r s u s

1]    ICICI Bank Ltd. through its Managing Director, Registered Office at Land Mark, Race Course Circle, Vadodra (390 007).

2]    ICICI Bank Ltd., through its Branch Manager, SCO-36, Pocket No.1, NAC, Manimajra, Chandigarh (160 101)

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

Argued by:    Sh.Ashok Asuri, Advocate for the appellant.

               Sh.Sandeep Suri, Advocate for the respondents.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 23.11.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint filed by the complainant (now appellant).

2.               The facts, in brief, are that the complainant was having saving a/c No.036201506458, with the Opposite Parties, at Manimajra Branch, Chandigarh. He was also using the Debit Card of the Opposite Parties Bank.  On 7.11.2009, at about 10:25 A.M., the complainant checked his balance account through the ATM of Opposite Party No.2 and found Rs.40,027/- as net balance. At about 10:35 a.m., he took a token inside the Branch of Opposite Party No.2 Bank, for withdrawal of Rs.40,000/-, through cheque, but while, he was waiting for his turn, he received a SMS from the Opposite Parties, regarding withdrawal of a sum of Rs.20,000/,  from the ATM, at about 10:54 A.M. The complainant immediately enquired from the Officials of the Opposite Parties. To his utter surprise, Rs.20,000/- were debited to his account, through the ATM transaction. On the advice of the Executive of the Opposite Parties, the complainant lodged a complaint, having serial No.SR124251587,  with the Customer Care. The Opposite Parties assured the complainant, that the amount wrongly debited, would be credited to his account, as it happened due to some network programming problem. When the complainant checked his account, after two hours, the amount, in question, was not credited to his account.  After several requests, the Opposite Parties, informed the complainant, that the amount had been debited to his account, due to the misuse of ATM on 7.11.2009, at ICICI Bank Ltd., SCO 121, Urban Estate, Phase II, Patiala, Punjab. Thereafter, despite many requests, for credit of the wrongly debited amount, and to provide video footage of the ATM of Patiala Branch, the Opposite Parties, slept over the matter and failed to redress his grievance. Ultimately,  a legal notice dated 06/07.10.2010, Annexure C-5, was got served upon the Opposite Parties, but no response was received. It was  stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for crediting the amount of Rs.20,000/, which was wrongly debited alongwith penalty of delayed amount, as per the Reserve Bank of India Instructions; payment of Rs.1 lac, as damages on account of mental agony and physical harassment suffered by the complainant; interest @24% p.a. on Rs.20,000/- from 07.11.2009, till its actual realization; and litigation costs to the tune of Rs.10,000/-, was filed.

3.               The Opposite Parties, in their amended written version, pleaded that the adjudication of the controversy involved, in the complaint, required extensive evidence, and, as such, the same (complaint), could not be decided, by way of resorting to the summary procedure. It was admitted that the complainant was having his Saving Bank a/c No.036201506458, with Opposite Party No.2. It was also admitted that he had been issued the Debit card. It was stated that the amount, in dispute, had been withdrawn by the complainant on 07.11.2009, by usage of the ATM card, held by him. It was further stated that withdrawal of the amount aforeasid, had been made, after duly putting in the PIN(Personal Identification Number), which was uniquely in the knowledge of the complainant himself.  It was further stated that the ATM card was in the physical possession of the complainant. It was further stated that the ATM card had been presented and the machine had also been keyed in, with the unique PIN code, as had been provided by the complainant himself, on the basis of which, the transaction had been completed.  It was further stated that the transaction, in question, was made from the the ATM installed at Manimajra Branch of Opposite Party No.2. It was further stated that in the Bank record, inadvertently, the location of the ATM ID No.SICN1052, was shown at Patiala, whereas, the same had been transferred to Manimajra, under ATM ID SICN1052, which was operational at Manimajra on 18.09.2009. It was further stated that the statement taken, from the machine, showing the withdrawal of a sum of Rs.20,000/- from the said ATM at 10.45. A.M. on 07.11.2009, from the card, using account no.4667310362065103, was as under:-

“SICN1052 07/11/09       10.45 WOL

4667310362065103                780 000

036201506458                      20000.00

        07/11/09             10.47 SICN1052

        781

4.        It was further stated that the amount of Rs.20,000/- was also withdrawn from the account of the complainant through cheque number 597869. It was further stated that both the transactions had been reflected in the statement of account of the complainant. It was further stated that, in case, the complainant had not used the ATM card, or the amount had been wrongly debited to his account, he could forthwith block the same (card). It was further stated that, no such, instructions were issued by the complainant, to Opposite Party No.2. It was further stated that the complainant even continued using the ATM card after 07.11.2009. It was further stated that the physical presence of the complainant was not a prerequisite, for the purpose of usage of the ATM card. It was further stated that since the transaction was made through the ATM card, which was exclusively in possession of the complainant, and he had the exclusive knowledge, regarding PIN, and it was not the case of the complainant, that his ATM card was stolen, or the same was misplaced, it could not be said that there was any deficiency, in rendering service, on the part of the Opposite Parties, or they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

5.               The Parties led evidence, in support of their case.

6.               After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order. 

7.               Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

8.               We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 

9.               The Counsel for the appellant, submitted that, in fact, as per the information, originally supplied by the Opposite Parties, it was on account of fault, in the net work programming, that withdrawal of amount of Rs.20,000/-, on 07.11.2009, from the account of the complainant, was reflected through the ATM. He further submitted that originally, the case of the Opposite Parties  was that the withdrawal of the amount of Rs.20,000/- through ATM card, was made at Patiala, but later on, they filed an amended written reply, stating therein, that the transaction took place through the ATM installed at Manimajra Branch of the Bank. He further submitted that the District Forum, was wrong, in coming to the conclusion, that there was no unauthorized withdrawal of amount of Rs.20,000/-, from the account of the complainant, through the ATM. He further submitted that the District Forum, was also wrong, in coming to the conclusion, that the Opposite Parties were neither deficient, in rendering service, nor indulged into unfair trade practice. He further submitted that the order of the District Forum, being illegal and invalid is liable to be set aside.

10.            On the other hand, the Counsel for the respondents/Opposite Parties, submitted that since the ATM card was in the exclusive possession of the complainant, and he was only knowing the PIN, it was he who withdrew the amount of Rs.20,000/-, by using the same. He further submitted that it was not the case of the complainant, that the ATM card was stolen or misplaced somewhere, as a result whereof, it was misused. He further submitted that even after the transaction dated 07.11.2009, through the ATM card, the complainant continued using the same. He further submitted that, as such, there was no unauthorized transaction on 07.11.2009, from the account of the complainant. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.

11.            Undisputedly, the complainant was having his saving Bank a/c No.036201506458, with Opposite Party No.2 i.e.  Manimajra Branch, Chandigarh, of the Bank on the relevant date. There is also, no dispute, about the factum, that the complainant had been using the ATM Card, issued by the Opposite Parties. The grievance of the complainant, was to the effect, that he received SMS from the Branch of Opposite Party No.2, regarding the withdrawal of Rs.20,000/- from his account through ATM and he lodged a complaint, as a result whereof, he was assured by an Executive of the Opposite Parties, that the debit of the amount, in dispute, was on account of some network programming problem and the same  would be credited to his account. It may be stated here that the ATM card could only be used, if the customer inputs his personal four digit identification number, which is selected by him (customer), and not by the Bank. However, in the interest of security, the customer is advised to retain his PIN code, in his memory, so that no one else is privy to this information. The reverse of the ATM card has a magnetic strip and white strip for signatures of the cardholder. The magnetic strip contains the cardholder’s details. This card can be used to gain entry into the ATM enclosure, by swiping it in the access lodge. In other words, unless a person is in possession of the relevant ATM card and knows the four digit PIN code, the same (ATM card) cannot be used and operated. As a matter of further precaution, in case the PIN code is entered wrongly, thrice, in succession, the ATM will swallow the card itself or cancel it permanently. There is no averment, in the complaint, to the effect, that the complainant, lost his ATM card, at any point of time. There is not even a fleeting reference, in the complaint, having been made by the complainant, that somebody had stolen his ATM card and misused the same. In the absence of  such averment, in the complaint, when the ATM card throughout remained in the exclusive possession of the complainant, and he was in exclusive knowledge  of the four digit personal identification number of the said card, the question of misuse of the same, by anybody else, did not at all arise. Not only this, even after the transaction of amount of Rs.20,000/-, on 07.11.2009, which is, in dispute, through ATM card, the complainant continued using the same. In case, the said card had been misused by somebody, and the amount of Rs.20,000/- had been withdrawn from the account of the complainant on 07.11.2009, by him, the safer course for him was to, immediately inform Opposite Party No.2, with a request  to block his ATM card, but he did not do so. Subsequent transactions through ATM card, in the account of the complainant, clearly established that the transaction dated 07.11.2009, in dispute, was made by him. Annexure C-2, is the copy of the statement of account dated 21.07.2010, wherein, on 07.11.2009, withdrawal of amount of Rs.20,000/-, was reflected. The District Forum, was, thus, right in holding that it could not, by any stretch of imagination be said, that there was any unauthorized transaction of Rs.20,000/-,  from the account of the complainant, on 07.11.2009,  through the ATM card, by its misuse. It also could not be said,  that there was a fraudulent transaction  from the account of the complainant, as the transaction could not take place without the use of the ATM card, which was in the exclusive possession of the complainant. In view of the elaborate procedure, having been evolved by the Opposite Parties, regarding the use of ATM card, referred to above, it was not at all possible, to withdraw the money from the account of the complainant, through ATM, by any person other than him.  In State Bank of India Vs. K.K.Bhalla, Revision Petition No.3182 of 2008, decided on 7.4.2011, by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, similar principle of  law, was laid down. In these circumstances, there was neither any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practice. The District Forum, was also right, in holding so. The order of the District Forum, being legal and valid, is liable to be upheld.

12.            No other point, was urged, by the Counsel for the parties.

13.            The order passed by the District Forum, being based on the correct appreciation of evidence, and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

14.            For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.

15.            Certified Copies of this order, be sent to the parties, free of charge.

16.            The file be consigned to Record Room, after completion

Pronounced.

March 21, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg