PER MR.H.K.BHAISE, HON’BLE MEMBER

1)                The present Complaint has been filed by the Complainant under section 12 of the Consumer Protection Act, 1986. According to the Complainant, he is having Savings Account No.0187104000038465 with the Opponent/Bank. ATM Card was issued to him by the Opponent/Bank.  On 22^nd March, 2013, the complainant withdrew the amount of Rs.1,000/-.  He received the slip and found the balance amount of Rs.837.17/- only.  It was found that the amount of Rs.50,000/- was withdrawn from his account.  He took the bank statement and found that the amount was illegally withdrawn on 21^st March, 2013 by five transaction of Rs.10,000/- each.  He lodged Complaint with the bank and also with the cyber police station, Bandra-Kurla Complex, Bandra.  The opponent/Bank did not reimburse the complainant. Therefore, the complainant has filed this complaint for recovery of the amount of Rs.50,000/- with interest. He has also claimed compensation of Rs.50,000/- towards mental agony and Rs.10,000/- as litigation cost.

2)                The Opponent/Bank appeared and filed written statement.  It is admitted that the Complainant is having savings account and ATM Card with the Opponent/Bank.  On 21^st March, 2013, the Complainant had withdrawn the amount by using ATM Card and the amount was debited. There was no wrong debit.  The PIN details of the said debit card are known only to the cardholder. Unless and until the physical card is inserted in the ATM machine slot followed by typing of the PIN, no money can be withdrawn by the holder of the card. The SMS alerts though sent to the complainant’s registered mobile number were failed for the reason not within the control of the opponent/Bank.  It is a case of fraud.  Since, fraud has been alleged, the complaint is not maintainable before this Forum. The opponent/Bank denied the allegations made by the complainant to pay the said amount of Rs.50,000/- to the complainant since there is no deficiency in service on the part of the opponent/Bank.  Therefore, the complainant is not entitled for the relief as prayed and the complaint may be dismissed with cost.

3)                After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

4) As to Point No.1 & 2 :- There is no dispute that the Complainant is having savings account and ATM Card.  It is also not disputed that on 22^nd March, 2013, he had withdrawn the amount by using ATM Card.  At that time, he came to know about the withdrawal of Rs.50,000/- on 21^st March, 2013.  According to him, the said amount of Rs.50,000/- was not withdrawn by him.  Therefore, he lodged complaint with the opponent/Bank.  But, the opponent/Bank refused to reimburse it.  According to the Opponent/Bank, no amount can be withdrawn from the ATM unless Card is inserted and PIN number is entered.  It was responsibility of the Complainant not to disclose the PIN Number to anybody.  Unless, PIN Number is disclosed by the complainant, nobody can withdraw the amount by using ATM Card and PIN Number of the complainant.  The learned advocate for the opponent has submitted that the no amount can be withdrawn unless the ATM Card is inserted and PIN Number is entered.  For this purpose, he has placed reliance on the judgment of Hon’ble National Commission reported in I (2015) CPJ 254 (NC) in Revision Petition No.3973 of 2014, in the case of Raghabendra Nath Sen & Another –Versus- Punjab National Bank, decided on 17^th December, 2014.  In para 5 of the judgment, the Hon’ble National Commission has laid down as under :

Para 5:  It can hardly be disputed that no withdrawal from an ATM can be made unless the ATM card / debit card issued to the account holder is inserted in the ATM machine followed by use of the ATM Pin provided to the customer.  The ATM pin is known only to the customer and therefore, it is not possible for a third person to withdraw any cash through the ATM even if he is able to clone the ATM/debit card issued to the customer.  In fact the case before us, this is not the case of the complainant that he had lost the ATM card issued to him by the bank.  The said card was duly used at the ATM machine for making the transaction in question.  The ATM pin obviously, must have been used since no transaction at ATM machine is possible without use of the PIN.  Therefore, we cannot accept the contention of the complainant that the amount of Rs.5,000/- from his account was withdrawn by a third person and not by him.  Even if the said amount was withdrawn by a third person, he would have done it using the ATM card provided to him by the complainant and the ATM pin disclosed by him.

In view of the abovesaid law laid down by the Hon’ble National Commission, no amount can be withdrawn unless ATM Card is inserted and the PIN Number is entered.  Admittedly, ATM Card was with the complainant.  It is not his case that his ATM Card was lost.  The facts before us are identical to the facts in the abovecited judgment of Hon’ble National Commission. In view of the abovesaid law laid down by the Hon’ble National Commission, there is no deficiency in service on the part of the opponent.  Therefore, the complainant is not entitled for the relief as prayed.  Hence, we proceed to pass the following order.

ORDER

1. Complaint stands dismissed.
2. Parties are left to bear their own costs.
3. Inform the parties accordingly.

Pronounced on 20^th January, 2016