O R D E R
BABU LAL, PRESIDENT
The complainant has filed the present complaint against the O.Ps u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant is having a saving bank account No. 2727 with Jammu & Kashmir Bank, Pitam Pura Branch, Delhi i.e. OP-1 with ATM card facility. On 15.04.2014 at about 12:30 P.M. complainant alleged that the four telephonic intimation/message were received from the OP-1 regarding amount of Rs.4,000/- debited from complainant’s account, 2nd message was for Rs.4,000/-, 3rd message was for Rs.5,000/- debited from complainant’s account and 4th message was for Rs.6,000/- debited from his account and leaving the balance as Rs.303/-. It is alleged that the complainant contacted the Bank Manager and asked him about the said transactions and complainant was told that the transactions have been made by complainant or any of complainant relatives by using the ATM card but since the card was under complainant custody in his locker, it was not possible to use ATM Card. It is also alleged that O.P-1 told the complainant the exact number of his ATM Card which is engraved on his ATM Card and is also in the records of J & K Bank. It is alleged that in the meantime complainant submitted an application in the P.S. Pratap Nagar, Delhi and requested for lodging an FIR in the matter but complainant was told to get the footage from the bank after that the case will be registered. It is also alleged that neither the bank nor the Police authorities take any quick step. Complainant has been told to wait till the video footage will be received by O.Ps and more than a week has already been passed. On these facts complainant prays that O.P be directed to pay/return amount of Rs.11,000/- which was illegally debited through ATM of O.Ps, apart from cost and compensation as claimed.
2. O.P-2 appeared and filed written statement. It is alleged that there is no privity of contract between the complainant and the O.P-2 as such no cause of action has been arisen against the O.P-2. It is also alleged that complainant have not sent any legal notice to the Central Bank of India, Subzi Mandi Branch, Delhi which shows that he has no grievance against the O.P-2 which is evident from the certificate dated 17.09.2014 issued by the Central Bank of India, ATM Department, Central Office, M.G. Road Fort, Mumbai-400023 thereby certifying that no excess cash found in relevant period in question. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit in evidence testifying all the facts as alleged in the complaint. He has also proved documents exhibited as Ex. CW-1/1 to CW-1/3. On the other hand Sh. R.K. Singhal, Senior Manager of OP-2 has filed his affidavit in evidence on behalf of O.P-2 reiterating all the facts as alleged in written statement. Written submissions have also been filed by the parties.
4. We have carefully gone through the record of the case and also heard submissions of complainant and Ld. Counsel for the O.P-2.
5. It has been argued on behalf of the complainant that he has been maintaining saving bank account with the ATM Card facility but the ATM Card has been kept by him in the locker, therefore, there are no chances of the same being misused by another person hence withdrawal of the amount from his account without his consent is legal and deficiency of service on the part of O.Ps. On the other hand it has been argued on behalf of the O.P that ATM Card was in exclusive possession of the complainant, the ATM secret pincode number was exclusively within his knowledge and unless the secret pincode has been passed by him or by some other person came to know about that it was not possible to conduct the transactions. Therefore, it is argued, there is no deficiency of service on the part of the O.P-1. Secondly, it is argued that no request for footage was made by the complainant within one month and after one month the same is deleted, therefore, there is no deficiency of service on the part of the O.P-1.
6. It is admitted case that complainant was in exclusive possession the ATM Card. It is not disputed that apart from the ATM Card the complainant was required to make a secret pincode to utilize the ATM facility without which the money could not have been withdrawn. The secret pincode always remains within the exclusive knowledge of holder of the ATM Card because it is he who had invented the same. Without secret pincode number ATM account cannot be operated. Therefore, either the complainant failed to protect his secret pincode number or somebody manage to procure the same from him. In either of the situations no fault can be attributed to the O.Ps.
7. In State Bank of Patiala Vs. Ritu Lakhan Pal IV (2014) CPJ (CN) (UT Chandigarh) relying upon a judgment of Hon’ble National Commission in State Bank of India Vs. K.K. Bhalla II (2011) CPJ 106 (National Commission) it was held that in view of elaborate procedure evolved by bank without ATM card and the knowledge of Pinconde, it is not possible to withdraw the money from ATM and if money is withdraw the bank cannot be held liable for deficiency of service. In view of judgment referred above, we hold that there is no deficiency of service on the part of the OPs, hence complainant is not entitled for any relief. Complaint is dismissed accordingly.
Copy of the order be sent to the parties by Registered post and file be consigned to record room.
Announced this 2nd day of May, 2015.
( BABU LAL) (D.R. TAMTA) (SHAHINA)
President Member Member
