Heard learned counsel for the complainant.

2.        Captioned appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.        After going through the pleadings of both the parties, it is found that the complainant is a account holder of opposite party and on 20.5.2012, he has visited the ATM counter, SBI, Berhampur to withdraw some money and after withdrawal of Rs. 2100/- he found from the Mini statement as available from the ATM counter that an amount of Rs. 47,927/- and Rs. 499/- have  been withdrawn on different dates respectively, but he has not made withdrawal of such amount. Therefore, he immediately informed to the opposite party but no action was taken. He has also informed the police.

4.        The opposite party filed written version denying the allegations made in the complaint. According to opposite party when the ATM Card and Pin have not been shared or stolen away, the money might be withdrawn by the complainant himself or through his relative.

5.        After hearing the parties, learned District Forum passed the following order:-

              “xxx   xxx   xxx

              We direct the Opposite Parties to pay Rs.47927/- (Rupees Forty Seven Thousand Nine hundred twenty seven) only with usual interest to the complainant. The O.Ps are further directed to pay Rs. 10,000/- (Rupees ten thousand) only as compensation for harassment suffered by the complainant and Rs. 2,000/- (Rupees Two Thousand) only as litigation cost to the complainant within 30 days from the date of receipt of this order failing which the O.Ps shall be liable to pay 18% (Eighteen percent) interest per annum on the awarded amount from the date of this order till the payment is made.

              A free certified copy of this order be made available to the learned counsel for the parties/parties free of cost as per the statutory requirements.”

6.        Learned counsel for the appellant submitted that learned District Forum committed error in law by not following the procedure. He submitted that both the transactions as alleged have been made through online transactions by the complainant himself and later Rs.499/- has refunded to his account. All these facts are available from the statement of accounts which he produced today. Moreover, unless ATM card and pin number are shared, there is no chance of use of same by any other person. Learned District Forum ought to have considered all these facts and law. Therefore, learned counsel for the appellant submits that impugned order should be set aside by allowing the appeal.

7.        We have considered the submissions, perused the DFR including the impugned order.

8.        It is admitted fact that the complainant is a account holder and a consumer under opposite party. It is admitted fact that he visited the ATM counter and found that some amount has been withdrawn from his account. The statement of account shows that on both the occasion, there was POS duly used by the complainant himself through his ATM Card or the ATM card must have been handed over to somebody for use. It is also available from the statement of accounts that during the course of their enquiry, the complainant admitted that his major son used the ATM card for withdrawal of the money. Now, going through all these documents and settled law that unless the ATM Card and Pin number are shared or stolen, it cannot be utilised by any other person.

9.        In view of the above discussions, we are of the view that since on both the occasions, the ATM card being used by the complainant or his relative at the POS, there is no deficiency in service on the part of the appellant proved. Learned District Forum have not applied the judicial mind to the material facts and law. Therefore, the impugned order is liable to be set aside and is accordingly set aside.

10.     The appeal stands allowed. No cost.

 DFR be sent back forthwith.

            The statutory amount deposited be refunded to the appellant with interest accrued thereon if any, on proper identification.

          Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.