Date of filing – 02.05.2014
Date of Hearing – 14.09.2016
PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Party no.1 to impeach the Order no.15 dated 31.03.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint no. 142/2013 whereby the consumer complaint initiated by the Respondent no.1 herein under Section 12 of the Act was allowed on contest with cost of Rs.5,000/- with a direction upon the Appellant as well as Respondent no.2 to pay the amount of Rs.10,000/- with 8% interest p.a. thereon, to pay the punitive damages of Rs.10,000/- etc.
The Respondent no.1 herein being Complainant lodged the complaint before the Ld. District Forum stating that he was maintaining a SB Account being no.196300010121167 with the OP no.1 i.e. Punjab National Bank, Garpar Branch along with one ATM-cum-Debit Facility Card. On 21.10.2012 he made two transactions from the ATM of OP no.2 i.e. Axis Bank and to his utter surprise, he found from the mobile message that more than two transactions were recorded in his name and astonished to see that Rs.10,020/- was found missing from his account. Immediately, he rushed to OP no.1/Bank to draw statement and found that Rs.10,020/- was withdrawn from his account. Complainant has stated that he has made only two transactions of Rs.10,000/- and Rs.3,000/- respectively and nothing more on that date. Subsequently, he managed one cassette disc (CD) containing CCTV Footage on 21.10.2012 of the concerned ATM of Axis Bank located at Rajabazar from where the amount was withdrawn. Thereafter, on several occasions, the Complainant approached to OPs for redressal of his grievance, but no action was taken by either of the bank. Hence, the Respondent no.1 approached the Ld. District Forum with prayer for recovery of money of Rs.10,020/- and for compensation of Rs.80,000/-.
The Appellant Punjab National Bank being OP no.1 by filing written version disputed the allegations of the Complainant stating that the Complainant used the ATM of Axis Bank (OP no.2) and if any dispute relating to such transaction occurred, they are not liable in any way.
The Respondent no.2 being OP. no.2 states that Complainant does not come within the definition of ‘consumer’ because the Complainant has ATM card of OP no.1 Bank. According to OP no.2, as there was no privity of contract existing between them and the Complainant, the allegation does not lie against them.
After assessing the materials on record and having heard the Ld. Advocates appearing for the parties, the Ld. District Forum allowed the consumer complaint with certain directions, as indicated above, which prompted the OP no.1 Punjab National Bank to prefer this appeal.
We have scrutinised the materials on record and considered the submission advanced by Mr. G.C. Bandhopadhyay, Ld. Advocate appearing for the Appellant. None appeared on behalf of either of the Respondents. Under compulsion, we proceeded to hear and dispose of the case in absence of them.
Having heard the Ld. Advocate for the Appellant and on going through the materials on record, it would reveal that the Respondent herein had one SB Account with the Appellant Bank at Garpar Branch. On 21.10.2012 the Respondent no.1 has made two transactions of Rs.10,000/- and Rs.3,000/- respectively being Record no.7387 and 7388 at about 18:59 hrs. and 19:00 hrs. respectively at Axis Bank ATM located at Rajabazar. However, it was found that another sum of Rs.10,020/- was deducted from the account of the Respondent no.1 at 19:01 hrs. being Record no.7389. The Respondent no.1 has made it clear that besides two transactions, in respect of Rs.10,000/- and Rs.3,000/- respectively, he did not make any other transaction, particularly in respect of transactions of Rs.10,020/- being Record no.7389 at 19:01hrs. from the ATM of Axis Bank, Rajabazar.
The main allegation of the Respondent no.1 was that the amount of Rs.10,020/- was withdrawn from his account by some other person and in this regard, the CCTV footage on 21.10.2012 of the concerned ATM of Axis Bank, Rajabazar clearly indicates that he has made only two transactions and when CCTV footage does not show the transaction made by him at 19:01 hrs., certainly the amount of Rs.10,020/- was not withdrawn by him. The Ld. District Forum relied much on CCTV footage and has arrived at a conclusion that Bank authority should have been more careful in this regard and when the Bank authority have failed to prove that in their ATM system Anti fraud Technologies were applied, there was deficiency in services on the part of the OPs and passed the order accordingly.
Mr. G.C. Bandhopadhyay, Ld. Advocate appearing for the Appellant has submitted that the Ld. District Forum proceeded in a wrong way without appreciating the actual situation and as such the impugned order is liable to be set aside. The Ld. Advocate for the Appellant has also contended that the absence of Respondent no.1 in CCTV footage at 19:01 hrs. does not mean that the amount was not withdrawn by any other person at the behest of Respondent no.1, particularly when the ATM card and password of the said ATM card was available with the Respondent no.1 himself.
On perusal of the record, we find that it can hardly be disputed that no withdrawal from the ATM can be made unless the ATM card issued to the account holder is inserted in the ATM followed by use of 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 from the ATM even he is availed of clone the ATM card issued to the customer. In fact, it is not the case of the Respondent no.1 that he had lost 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 using of the Pin. Therefore, we cannot accept the contention of the Respondent no.1 that the amount of Rs.10,020/- from his account was withdrawn by a third person in collusion and inconvenience of the Bank Officials. Even if the said amount was withdrawn by a third person, he would have done it using the ATM card provided him by the Respondent no.1 and the ATM Pin disclosed to him.
The CCTV footage, upon which the Ld. District Forum has relied much cannot be said be to a conclusive proof of withdrawal of amount of Rs.10,020/- by using ATM card of Respondent no.1 without his consent or knowledge because unless an ATM card and its password are available to a person certainly, he will not be able to get the amount the amount after inserting the same and by putting the actual password on it. Therefore, merely CCTV footage does not show the presence of the Respondent no.1 in the ATM of Respondent no.2 at 19:01 hrs on 21.10.2012 by itself cannot be the ground to arrive at a conclusion that Respondent no.1 is not in any way responsible for withdrawal of the said amount. Therefore, in these circumstances, the contention of Respondent no.1 that his ATM card was fraudulently used by some other has no basis at all.
We are not convinced by the reasoning advanced by the Ld. District Forum that CCTV footage can be a strong evidence regarding withdrawal of amount from the account of Respondent no.1 by fraudulent means. The Ld. District Forum has discussed much but the same was not done applying the principle of law of evidence.
Keeping in view all these facts, we have no other option but to set aside the order passed by the Ld. District Forum and consequently, the appeal should be allowed but with no order as to costs.
Consequently, the instant appeal is allowed exparte but without any order as to costs. The Order no.15 dated 31.03.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in CC/142/2013 is hereby set aside.
Accordingly, the CC/142/2014 stands dismissed.
The Registrar of the Commission is directed to send a copy of this order forthwith to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
