Heard Learned Counsel on behalf of both parties.   

            2. This appeal has been filed U/S-41 of Consumer protection Act 2019 (Here in after called the Act) against impugned order passed by Learned District C.D.R, Commission, Ganjam, Berhampur. The parties are referred in complaint case may be read as same in this appeal for convenience.

                              3. The case of the complainant in brief is that the complainant is a S.B account holder of O.P Bank. It is alleged interalia that he being a ATM card holder had tried to withdraw the Rs. 10,000/- from A.T.M counter at Unit-2 at Berhampur Main Branch at about 12.58 noon, but the balance was shown 350/- rupees only. On the same day he had received the salary into his account and then tried to withdraw Rs. 10,000/-. The ATM disbursed the receipt showing withdrawal of Rs. 40,000/- . The matter was informed to O.P No.1 vide complaint dated 02-05-2012 but the O.P No.1 informed him regarding operation of ATM   on that day by withdrawal of Rs. 40,000/- which was successful.

                    But complainant submitted that he has not withdrawn such Rs. 40,000/- and as such complained before Ombudsman, Bhubaneswar who rejected the complaint on 11-06-2012. According to the Complainant there is limit of withdrawal of Rs. 15,000/- maximum on one transaction and withdrawal of Rs. 40,000/- is impossible. As there was no action taken to get refund of the amount by the O.P, the complaint was filed by the complainant.

               4.    O.P No.1 & 3 filed written version showing allegation of the complainant as misconceived, false and untenable. It is averred that the ATM card being issued to the complainant is his completely possession to protect his own interest and money. Since, in the instant case there is no allegation of ATM card sharing, the allegation of the complainant is false and complaint should be dismissed.

                   5.       After hearing of both parties Learned District Forum pass the following order.

                      “In view of the above and considered to the facts of the case from all its ramifications, we direct the O.Ps jointly and severally to reiomburse a sum of Rs. 40,000/-

                  (Rupees forty thousand) only in favour of the complainant. Considering the circumstances of the case, we are not inclined to allow any compensation in favour of the complainant as claimed. However, a sum of Rs. 1000/- (Rupees one thousand) is awarded towards cost of litigation in favour of the complainant to meet the ends of justice, which the O.P are to pay to the complainant. The above order as above has to be complied within 30days from the date of receipt of this order.”

                  6.     Learned counsel for the apellant submitted that the Learned District Forum committed error in law by not considering the written version with proper prospective. Acording to him the ATM card with pin No. being in possession of complainant for being not shared and or stolen away can not make withdrawal of Rupees 40,000/- as false. In the instant case, since there is successful transaction of Rs. 40,000/- as per transaction slip at that time, the allegation has no basis being unreasonable. Therefore, he submitted to set aside the impugned order by allowing the appeal.

                          7.  Learned counsel for the respondent submitted that they have ontained copy under  R.T.I and found that per day there is limit of withdrawal of rupees 40,000/-  by use of ATM card. It is not possible to withdraw of Rs. 40,000/- at a time and therefore the suspicion is drawn against the O.P Bank for such withdrawal of money from his account. So he supports impugned order.

               8. Considered the submission by both parties, perused the DFR & impugned order.

               9. It is well settled in law that the complainant is to prove the case of the complainant and deficiency in service on the part of O.P. From the copy received under R.T.I it appears that in single day Rs. 40,000. /- can be withdrawn but the complainant stated that only 15,000/- can be withdrawn in one day. The statement of the complainant is not correct. So Rs.40, 000/- can be withdrawn. It is also settled in law by

     this commission in several cases that the person in possession of ATM card and unless Pin number is shared or stolen away he is presumed to have withdrawn  money because ATM card or Pin No can not be transferred to any other person.  In this case we have gone through the copy of the pass book and transaction slip and found no mistake in successful of Rs. 40,000/- in single transaction on 28-04-2012. The only contention of the complainant is that no single transaction of Rs. 40,000/- can be withdrawn but he is not able to show the legal document. On the other hand there has become successful withdrawal by use of ATM card and pin Number.  The complainant is to explain whether he has withdrawn the amount by using ATM Card & Pin number. Learned District Forum has not analysed the case as per above observation. Therefore, the complainant has failed to prove the deficiency in service on the part of the O.P and the impugned order is set aside.   

             10. Appeal stands allowed .Stautory amount be refunded

             11. The case is disposed of accordingly. No cost.

              Free copy of the order be supplied to the respective parties or they may download same from the confonet or website of this Commission to treat same as if copy of order received from this commission.

                   DFR be sent back forthwith.