Rani complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to credit the amount of Rs. 11,500/- in the account of the complainant alongwith interest at the rate of 2% per month from the date of debiting the amount till realization of the amount and to pay Rs.50,000/- as compensation for mental tension, harassment and wastage of time besides Rs.5,500/- as litigation expenses. <br /> 2. The complainant averred in his complaint that she is the holder of Saving account No. 65011184902 with the opposite parties. The complainant was also issued the ATM-cum-Debit Card after some days from the opening of the account from the opposite parties bearing No. 6038455066000002142, so she is the consumer of the opposite parties. The complainant also issued private and confidential pin number by the opposite parties and the complainant since the opening of her account with the opposite parties never operated the ATM-cum-Debit Card either personally or through someone else as she even does not know her PIN number as the envelope containing private and confidential PIN number is still intact and never opened by the complainant to know about the same. On 23/2/2007 an amount of Rs.1000/- was deposited by the complainant with the bank and the balance was Rs. 26,582/- in her account and subsequently on 27/2/2007 the complainant went to her banker for the completion of her pass book and she was met with a surprise when she found that the amount of Rs.7500/-, Rs.1000/- and Rs.3000/- have been shown to have been withdrawn through the ATM card on 23/2/2007, 26/2/2007 and 27/2/2007 whereas in fact the complainant never operated her ATM card. After that she went to the opposite parties alongwith her husband and told her grievance after showing the pass book to the opposite party No. 1 and 2 but instead of providing any assistance or help to the complainant the opposite parties turned her out from the bank in a pitiable condition. The opposite parties have wrongly debited the amount of Rs. 11,500/- in the account of the complainant whereas she has never withdrawn the said amounts and never operated her ATM card. So this is clear cut deficiency in service on the part of the opposite parties. The complainant with her husband many times visited the office of the opposite party No. 1 and 2 and requested them to credit the amounts in question but to no effect. The act and conduct of the opposite parties caused inconvenience, mental tension, harassment and mental agony and complainant also waste her precious time and energy in visiting the offices of the opposite parties in connection with the above matter for which the opposite parties are liable to compensated the complainant to the tune of Rs.50,000/- and Rs.5500/- as litigation expenses. Hence this complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 14/5/2007 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of the notice the opposite parties appeared through Sh. R.P. Goel Advocate and filed written reply taking preliminary objections that the details of the transactions dated 23/2/2007, 26/2/2007 and 27/2/2007 in Saving Bank account No 65011184902 in the name of Smt. Rani the complainant duly maintained with the answering respondent, it has been revealed that complainant has used her ATM card No. 6038455066000002142 and operated the same at the ATM of State Bank of India, Faridkot installed adjoining the ATM of State Bank of Patiala, Main Branch, Faridkot for withdrawing cash so the State Bank of India, Faridkot is a necessary party. The complainant has operated the ATM of State Bank of India, Faridkot for withdrawing the cash as such she is not a consumer of the opposite parties in respect of the debit entries in dispute. All disputes relating to the ATM facility are subject to the jurisdiction at Patiala only. The ATM facility is Governed by all the terms and conditions as mentioned in the application form and these terms and conditions are binding upon the ATM card holders. ATM card holder has agreed to indemnify the the respondent bank harmless against all actions, claims, demands, proceedings, damages costs, charges and expenses whatsoever that the bank at any time incur, suffer, sustain or be put as a consequence and further Breach of any obligation of the facility specified herein and even misuse of the lost or stolen card. Against all these indemnities the dispute referred in the complaint is no dispute and does not call for any cognizance of this Hon'ble Forum. The complainant has no cause of action again the opposite parties. On merits it is admitted that the complainant is a account holder and was issued ATM card but she is not a consumer in respect of the dispute in question and for that she is consumer of State Bank of India. It is also admitted that complainant was issued PIN on 1/12/2006 but it is wrong that the complainant has not operated her ATM card till date. The ATM card in question can be used at all the ATMs of SBOP as well as SBI. As the complainant is having its account at SBOP, KNJ School, Faridkot which do not have its own ATM, so the ATM card was supposed to be used at all other ATMs of SBOP or SBI. In the present complaint complainant has very smartly and in a clandestine manner could knew her PIN number and thereafter used the ATM card at ATM of SBI Faridkot on all the three dates i.e. 23/2/2007, 26/2/2007 and 27/2/2007 and withdraw cash amounting to Rs.7500/-, Rs.1000/- and Rs.3000/- respectively and mischievously kept the envelope/PIN card intact with malafide to file a false complaint on the pretext that she has not used her ATM card and her PIN number envelope is still intact. Copy of the transaction record showing that ATM card has been operated/used on all the three occasions. Transactions have been successful. Even the opposite parties have enquired from SBI, Faridkot who have informed vide their letter dated 30/4/2007 that transaction has been successful and there was no excess cash on the relevant dates. It is wrong that the opposite parties ever turned the complainant or her husband out of the bank. So there is no deficiency on the part of the opposite parties. She is not entitled for any compensation. <br /> 5. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence her affidavit Ex.C-1, copy of pass book Ex.C-2, the envelope containing original ATM card alongwith PIN number(sealed) Ex.C-3 and closed her evidence. <br /> 6. In order to rebut the evidence of the complainant opposite parties tendered in their evidence certificate dated 13/9/2007 Ex.R-1, copies of JP rolls Ex.R-2 to Ex.R-4, letter dated 30/4/2007 Ex.R-5. copies of JP rolls Ex.R-6 to Ex.R-8, affidavit of Manju Galhotra, System Administrator, State Bank of Patiala, Main Branch, Faridkot Ex.R-9, sealed envelope containing a pin Ex.R-10, PIN Ex.R-11, voucher verification report Ex.R-12 to Ex.R-14, relevant entries Mark-A to Mark-C, copy of PIN delivery Ex.R-15, copy of print screen of transaction report Ex.R-16, affidavit of R.K.Jain Senior Manager, SBOP, Faridkot Ex.R-17 and closed their evidence.<br /> 7. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 8. Learned counsel for the complainant has submitted that the complainant did not operate ATM machine of the opposite parties but the amount of Rs.11,500/- have been debited in the Saving account of the complainant illegally by the opposite parties. So complainant is entitled for credit of amount of Rs.11,500/- to be entered in the Saving account of the complainant. The complainant is entitled to compensation and damages on account of harassment and mental tension caused by the opposite parties by their deficient service. <br /> 9. Learned counsel for the opposite parties have submitted that the complainant have operated ATM machine of the opposite parties for withdrawal of the amount of Rs.11,500/- on 23/2/2007, 26/2/2007 and 27/2/2007. Operation of ATM machine is visualized by the ATM card holder. As per the command given to the ATM machine the entire transaction is recorded by the electronic gazettes. There is no visualization by any employee of the opposite parties. Opposite parties have not found excess cash at any times. Complainant have withdrawn the amount specifically so there is no deficiency of services on the part of the opposite parties. <br /> 10. From the perusal of the affidavits, evidence and documents on the file it is made out that complainant has placed on the file sealed PIN number in the envelope Ex.C-3 of Sh. Atul Gupta Advocate counsel for the complainant whereas the ATM PIN number is being dispatched by the bank in the mailing envelope sample of which is Ex.R-10 has been placed on the file by the opposite parties. Even the PIN number is not easy to be seen originally made by the opposite parties to the complainant as per its sample Ex.R-11. The PIN number and ATM card in envelope Ex.C-3 remained in possession and control of the complainant without inserting of the ATM card in ATM machine and giving command for withdrawal of the amount by applying secret PIN number no amount can be withdrawn by any person. <br /> 11. As per terms and conditions under which ATM-cum-Debit Card has been issued by the opposite parties there are instructions for the ATM card holders for their guidance. Para No. (c) is related to operation of the account by applying a pin number. The account holder is required to remember that an unauthorized person can access the ATM services on card holder's account if he gains the card and the PIN. The card therefore should remain in card holder possession and should not be handed over to anyone else. The card is issued on the condition that bank bears so no liability for the unauthorized used of the card. This responsibility is fully that of the card holder. Further the bank will not be responsible for any loss either direct or indirect on account of ATM failure malfunctioning. The complainant have not pleaded specifically if she observed above noted instructions. She accompanied her husband to the bank for lodging the complaint to the bank authorities with regard to the illegal withdrawal of the amount of Rs.11,500/- by operation of her ATM card though she had not operated the card and she had not opened the PIN number. There is no complaint in writing to have been lodged by the complainant with the opposite parties on 23/2/2007, 26/2/2007 or 27/2/2007. This complaint has been filed by the complainant on 11/5/2007 under signatures of Rani in Gurmukhi Script. Signatures also are in zigzag manner. Legal noted has not been served by the complainant on the opposite parties. If there would have been any illegal withdrawal of the amount then complainant immediately must have report the matter to the opposite parties. <br /> 12. There is an foolproof transaction printouts showing withdrawal of the amounts by operating ATM card of the complainant and using PIN number. In this regard JP rolls entries Ex.R-2, Ex.R-3 and Ex.R-4 shows successful transactions. The State Bank of India ATM machine has been used by the complainant, so the opposite parties sought report from the SBI Branch. The Manager, State Bank of India, submitted report Ex.R-5 with JP rolls entries Ex.R-6, Ex.R-7 and Ex.R-8. Voucher verification report for customer account Ex.R-12, Ex.R-13 and Ex.R-14 shows successful withdrawal of the amounts by the complainant by operating ATM card issued by the opposite parties which has been used by the complainant in ATM machine of SBI. Microsoft Internet Explorer printout Ex.R-16 shows successful transaction by operating ATM card and PIN number by the ATM card holder. <br /> 13. As per statement of Smt. Manju Galhotra Deputy Manager, System Administrator, State Bank of Patiala, Main Branch, Faridkot the pin was not in the pin mailer envelope in which it was given to the customer rather it was without the envelope. When the PIN number is in possession of the complainant alongwith ATM card than it is impossible for any person to withdraw the cash by using pin number if ever is known to any person. Without inserting the ATM card in the ATM machine operation cannot be found successful so arguments of the learned counsel for the complainant to the effect that the PIN number card stands sealed on the file in his envelope is of no help to the complainant. In such like circumstances statement of Smt. Manju Galhotra to the effect that pin was found opened from the side from where the pin number was clearly readable is not required to be taken into consideration though it may be true . It is very important to make out from evidence of Smt. Manju Galhotra that condition of the ATM card was such which suggests that it had been swiped in any ATM machine or POS terminal i.e. point of sale terminal as the magnetic strip on the ATM shows the lines of use. Learned counsel for the complainant during cross-examination of Smt. Manju Galhotra could not bring on the file fact of non users of the ATM card by the complainant or any other person. In such like circumstances it is held that there is no possibility of phishing of the ATM card by any other person. Phishing only is possible when a card is used at least once. If the card has not been used by the complainant then there is no possibility of phishing of ATM card of the complainant. So complainant or her representative or any other person having possession over the ATM card and pin number might have used the same for withdrawal of the disputed amount. There is no deficiency of services on the part of the opposite parties. <br /> 14. In such like circumstances a report of Global ATM Frauds- Business Reports Collection page-1 relied upon by the learned counsel for the complainant is not helpful to the complainant in any manner. As per this report introduction of Internet have been used by unscrupulous individual to commit ATM frauds, in the present case Internet transaction is not possible as the complainant have never used ATM card and pin number as per version of the complainant. <br /> 15. J.P.Sharma Vs. ICICI Bank Ltd. reported in 2007(2) CLT-534 relied upon by the learned counsel for the complainant is not helpful to the complainant in any manner. This authority is related to not delivery of money to the ATM card holder on operation of ATM machine though the amount has been shown to have been withdrawn, on taking of the matter the entry was reversed after a period of two months by the bank but this case is different than that of the above noted authority so this authority is not helpful to the complainant. <br /> 16. The complainant is a consumer of the opposite parties as per Standard Chartered Bank Ltd. Vs. Dr. B.N.Raman reported in 2006(3) CLT-346 relied upon by the complainant. <br /> 17. With regard to territorial jurisdiction of this Forum to decide the matter in dispute the complainant has placed reliance on 2003-2 The Punjab Law Reporter page-605 United India Insurance Co. Ltd. Vs. New Moga Transport Co. Udaipur and others, as per this authority insertion of clause of jurisdiction only at particular place does not carry any weight at least when there is a branch office or an institution and where the transaction took place. So this Forum has jurisdiction to try and decide the present complaint. <br /> 18. As per State Bank of India Vs. P. Balakrishnan and another reported in 2005(2) CLT-110 drawer of cheque is not a necessary party to the proceedings in case the cheque is lost. However the complainant is having account with the opposite parties. The complainant if have used ATM machine of State Bank of India then it does not make out if the SBI is a necessary party. Entire transactions are with the bank having saving account of a customer. So SBI is not a necessary party in this case. <br /> 19. There is no security lapse in any manner on the part of the opposite parties. So D.S.Sachar Vs. Punjab and Sind Bank 2005 (3) CLT-164 relied upon by the learned counsel for the complainant is not helpful to the complainant in any manner. <br /> 20. Since the matter in dispute can be decided by the Consumer Dispute Redressal Forum even if the proceedings are of summary nature effectively as per P.K. Transport Corporation Vs. Bhilwara Synthetic Ltd. reported in 2006(3) CLT-493 the matter is not required to be referred to the Civil Court. <br /> 21. In view of the aforesaid facts and circumstances there is no deficiency of service on the part of the opposite parties, so the complaint being devoid of merits is dismissed. However there is no order as to costs due to peculiar circumstances of the case. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 4/12/2007<br /> <br />