BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

F.A.No.1109 OF 2009 AGAINST C.C.No.56 OF 2008 DISTRICT FORUM NELLORE

Between:

The Andhra Bank
rep. by its Branch Manager
Ganga Temple Street, Gudur
Nellore District

                                                                Appellant/opposite party

                A N D

Mannuru Dhanunjaya Reddy
S/o late M.Pulla Reddy
Dr.No.3-173-4, Durjati Nagar
Gudur, Nellore Dist.

                                                                Respondent/complainant

Counsel for the Appellant                     Sri V.Raghu

Counsel for the Respondents                Sri V.Roopesh Kumar Reddy

        QUORUM:   HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT  
                              SMT M.SHREESHA, HON’BLE MEMBER

                                                AND

SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

TUESDAY THE NINETH DAY OF AUGUST

                                TWO THOUSAND ELEVEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.     The opposite party has preferred the appeal against the order of the District Forum which directed to pay an amount of `10,000/- to the complainant with interest @ 9% per annum besides `5,000/- towards compensation and `2,000/- towards costs.

2.     The respondent is the customer of the appellant bank with savings bank A/c No.ABJ 588.  The respondent had been operating the account since 6.1.2006.  The respondent stated to have requested the appellant bank in regard to withdrawal of a sum of `10,000/- from his account on 8.5.2007 and he had submitted representation to the appellant bank whereupon he had issued notice which did not evoke any response from the appellant bank and resulted in filing of the complaint against it.

3.     The appellant bank resisted the claim stating that on verification of the respondent’s account it was found that on the night of 7.5.2007 at 21.32 hours he had withdrawn an amount of Rs.7,000/- by using his ATM Card bearing No.468817014019170 from the ATM at Railway Station, Gudur.  The withdrawal of Rs.7000/- is reflected in the statement of account.  It is contended that the ATM does not disburse cash unless proper ATM card is inserted  and account holder        typed the secret code.  The appellant bank invited the respondent after he had sent notice and a letter dated 6.9.2007 and explained him about the enquiries made and showed him his account details. 

4.     The respondent has filed his affidavit and the documents marked as Exs.A1 to A9.  The Senior Branch Manager of the appellant Bank has filed his affidavit and got marked the Statement of Account of the respondent as Ex.B1.

5.     The appellant bank filed the appeal on the ground of disbursement of cash in ATM on insertion of ATM card and feeding PIN which is not known to anybody except the ATM card holder.

6.     The point for consideration is whether the respondent is entitled to the amount of `10,000/- from the appellant bank?

7.     The respondent is the Savings Bank Account holder of the appellant bank.  The appellant bank had issued passbook in favour of the respondent.  The respondent had obtained ATM card and begun to utilize the ATM card withdrawing amount from his savings Bank account.  The respondent had addressed letter dated 6.9.2007 informing the appellant that on verification of his account on 4.9.2007 he came to know that he had withdrawn an amount of `10,000/- on 8.5.2007 and informed the appellant bank that he had not utilized his ATM card on 8.5.2007. 

8.     The respondent has got issued notice on 3.1.2008 reiterating the contents of his letter sent on 6.9.2007.  The respondent attributes to the appellant bank misuse of his ATM card.  The appellant bank had issued reply on 26.3.2008 acknowledging receipt of the respondent’s earlier letter and for submission of declaration in regard misuse of ATM card.  The appellant bank has also informed the respondent that they had obtained a copy of receipt from their ATM Hyderabad cell and requested the respondent to submit declaration for forwarding it to the ATM Cell.  The statement of account shows that the respondent had made several transactions by using the ATM card and the transaction for withdrawal of `10,000/- on 8.5.2007 failed since the balance amount available  was `1,786/-. 

9.     It is not the case of the respondent that some other persons had stolen ATM card or the personal identification number nor is it his case that despite having sufficient balance in his account, the complainant could not withdraw the amount.  The inconvenience caused in responding to the complaint of the respondent by itself would not be a ground for the respondent to claim the amount of Rs.10,000/- unless he succeeds in proving that by fraudulent means, the amount of Rs.10,000/- was withdrawn from his account.  In this regard, the National Commission recently held that the ATM card holder should establish negligence on the part of the bank.  In State Bank of India Vs K.K.Bhalla reported in C.P.J (2011) held that:

We are not convinced by this reasoning of either the District Forum or the State Commission, particularly, in view of the fact that merely because the CCTV was not working on those dates and its footage was thus not available, does not mean that the money could be withdrawn fraudulently without using the ATM Card and the PIN number.  In case the ATM Card had been stolen or the PIN number had become known to persons other than ATM card holder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card.  In the instant case it is not disputed that the ATM Card or PIN remained in the self-custody/knowledge of the Respondent.  In view of elaborate procedure evolved by the Petitioner/Bank to ensure that without the ATM Card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, we find it difficult to accept the Respondent’s contention.  No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM Card or the PIN number fell in wrong hands. 

10.    The respondent had made several transactions before and after the transaction in question and he had not complained of the withdrawal of `10,000/-.  However, the appellant bank, it is observed that had not responded to the grievance of its customer and the respondent had addressed letters on 6.9.2007 and a notice on 3.1.2008.  The appellant bank had invited the respondent to its office and explained him of the account statement and withdrawal of the amount by using the ATM Card.  In view of the aforementioned discussion, we are of the opinion that the appellant bank is not liable to pay any amount to the respondent.  Accordingly, the order of the District Forum is set aside.

11.    In the result the appeal is allowed.  The order of the District Forum si set aside.  Consequently, the complaint is dismissed.  There shall be no order as to costs.

                                                                              Sd/-

                                                                        PRESIDENT

                                                                             Sd/-

                                                                         MEMBER

                                                                            Sd/-

                                                                         MEMBER

                                                                      Dt.09.08.2011

KMK*