26.04.2016

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 is directed against the judgment and order dt. 25.11.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in C.C.No. 273 of 2012, directing the OP-Bank ‘to refund and pay’ the amount of Rs. 43,678/- to the Complainant with interest @ 6% per annum and also to pay to the Complainant Rs. 2,000/- as cost within one month from the date of the order, failing which the OP-Bank shall have to deposit with the State Consumer Welfare Fund Rs. 200/- per day as interest for the entire period of default.

          Facts of the case, as emanating from the materials on records, are, in brief, that the Complainant/Respondent obtained from the Appellant/OP-Bank an ATM Card related to Savings Bank Account No. 14150000104385 of the Respondent/Complainant.  It is revealed from the Petition of Complaint that the Respondent/Complainant last withdrew Rs. 10,000/- on 27.1.2012 and thereafter deposited Rs. 5,000/- by cash in the said Savings Bank Account.  But on 26.7.2012 when the Respondent/Complainant attempted to withdraw, through the Appellant’s/OP’s-Brach counter, Rs. 5,000/-, the Appellant/OP-Bank did not allow the withdrawal of the same showing the ground of ‘insufficient fund’.  After such event, the Respondent/Complainant came to know upon updating the Passbook of the concerned Savings Bank Account that an aggregate amount of Rs. 43,768/- was withdrawn on 23.7.2012 and 24.7.2012 from the said Savings Bank Account through the ATM Card concerned, although the Respondent/ Complainant did not withdraw any amount through ATM Card after 27.1.2012 as averred in the Petition of Complaint.  Then the Respondent/Complainant lodged a complaint with the Appellant/OP-Bank with a request of refund of Rs. 43,678/-, but without any success.  With this factual background, the Respondent/Complainant filed the Complaint concerned before the Ld. District Forum, which passed the impugned judgment and order in the aforesaid manner.  Aggrieved by such order the OP-Bank has preferred the instant Appeal.

          The Ld. Advocate for the Appellant/OP-Bank, filing BNA, submits that the Ld. District Forum erred in passing the impugned judgment and order without properly appreciating the well-settled principle of law in the matter to the effect that no money can be withdrawn from ATM Card without coincidence of ATM Card and PIN which remain under the exclusively personal and confidential custody of the ATM card-holder and for access to which no person other than the ATM card-holder is solely responsible.

          The Ld. Advocate also submits that the last credit balance of Rs. 32,567/- in the said Savings Bank Account before 23.7.2012 increased to Rs. 43,768/- by reverse credit of Rs. 10,000/- on 23.7.2012 when the attempt by the Respondent/ Complainant for withdrawal of Rs. 10,000/- through ATM did not succeed and also by depositing of Rs. 5,000/- by cash by the Respondent/Complainant meanwhile.

          The Ld. Advocate further submits that the observation by the Ld. District Forum in respect of ‘hacking’ is not based on proof, which is a mere presumption, and hence, the same is not tenable in the eye of law.

          The Ld. Advocate also adds that the failure on the part of the Appellant/OP-Bank to furnish the JP Logs concerned is due to the withdrawal of money in question from the ATMs of Axis Bank and ICICI Bank but not of the Appellant/OP-Bank.

          The Ld. Advocate finally submits that in view of the aforesaid facts and submissions, the instant Appeal should be allowed, the impugned judgment and order be set aside and the Complaint be dismissed.

          On the other hand, the Ld. Advocate for the Respondent/Complainant submits that in the written version, as filed before the Ld. District Forum, the Appellant/OP-Bank did not state the fact as stated at this stage and it is a settled principle that no new fact can be raised at the belated stage.

          The Ld. Advocate further submits that it is well-settled by the Hon’ble National Commission in State Bank of Patiala Vs. Sumit Kumar & Anr., reported in IV (2013) CPJ 249 (NC),  that if amount is not disbursed but debited from the account, then deficiency in service on the part of the bank arises.

          The Ld. Advocate also submits that the refusal by the Branch Manager concerned of the Appellant/OP-Bank to receive the Complaint by the Respondent/Complainant regarding fraudulent withdrawal of the money in question also amounts to deficiency in service, apart from deficiency in service arising on the failure to keep the money of the Respondent/Complainant under safe and secured custody.

          The Ld. Advocate finally submits that in view of the aforesaid submission and also of the decision of the Hon’ble National Commission as stated above, the instant Appeal should be dismissed with cost and the impugned judgment and order be affirmed.

          We have heard both the sides, considered their respective submission and perused the materials on records.

          The copies of the Bank-statement for the period from 16.8.2010 to 24.7.2012, as available on records, exhibit the withdrawal of the amount in dispute through ATM on 23.7.2012 and 24.7.2012 on a number of occasions.

          The ratio in the matter on hand is well-settled by a series of decision of the Hon’ble National Commission to the effect that in view of the elaborate procedure evolved by the Bank to ensure safety of the money of the customer of the Bank, it is not possible for money to be withdrawn by an unauthorized person from ATM without the ATM card and knowledge of PIN.  In this connection, reliance is placed on the following decisions of the Hon’ble National Commission:

             (1)     State Bank of India Vs. K.K.Bhalla, reported in 2011 (2) CPR 26 (NC),

(2)     State Bank of India Vs. Om Prakash Saini, decided on 18.1.2013 by the Hon’ble National Commission in Revision Petition No. 2382 of 2012,

(3)     Raghabendra Nath Sen & Anr. Vs. Punjab National Bank, decided on 17.12.2014 by the Hon’ble National Commission in Revision Petition No. 3973 of 2014, and

(4)     State Bank of India Vs. Subhasis Chowdhury, decided on 18.2.2015 by the Hon’ble National Commission in Revision Petition No. 545 of 2013.

          In view of the plethora of consistent decisions of the Hon’ble National Commission, as referred to above, the decision  as referred to by the Ld. Advocate for the Respondent/Complainant, the facts of which are not squarely identical with the facts of the case on hand as its fact of delivery of slip by ATM concerned with noting ‘Sorry, unable to process’ is absent in the case on hand, is of no help to the Respondent/Complainant.

          In view of the above discussion and the series of decisions of the Hon’ble National Commission, as referred to hereinbefore, we have no option but to allow the Appeal and set aside the impugned judgment and order of the Ld. District Forum, which appears to have been passed against the settled principle of law in respect of the matter on hand. 

          In the result, the Appeal is allowed and the impugned judgment and order is set aside.  The Petition of Complaint is dismissed.  No order as to costs.