: O R D E R :

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The present Appeal u/s 15 of the Consumer Protection Act, 1986 has been preferred against the judgment and order dt. 12.12.2012 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas, in C.C.Case No. 51 of 2011, allowing the Complaint on contest with direction to the Appellants-Bank/Ops to ‘debit (sic) Rs.30,000/- to the savings account of the complainant’ within one month from the date of order and also to pay to the Respondent/Complainant Rs. 5,000/- as compensation and further Rs. 5,000/- as litigation cost, apart from paying interest @ 9% per annum during the entire period of default.

          The facts of the case, in a nutshell, are that the Respondent/ Complainant was holding an ATM Debit Card bearing No. 6220 1804 7720 0006070 linked with Savings Bank A/c No. 11246327254 with the Appellants-Bank/Ops.  By using the said ATM card the Respondent/ Complainant on 1.9.2010 at about 12.00 noon withdrew only Rs. 9,000/- from the ATM located in the opposite side of SBI, Picnic Garden Branch, Kolkata, but the Respondent/Complainant found from the Mini Statement of the ATM located at Ballygunge Cornfield Road, Kolkata-19 that on the self-same date, as mentioned earlier, further Rs/30,000/- was withdrawn by some person other than the Respondent/ Complainant himself.  Noticing such allegedly fraudulent withdrawal of Rs..30,000/- by dint of the said ATM card, the Respondent/Complainant on 2.9.2010 and 4.12.2010 informed the Appellants-Bank/Ops about such fraudulent withdrawal of money and requested the Appellants-Bank/OP to credit back the aforesaid Rs 30,000/- to the concerned Savings Bank account of the Respondent/Complainant.  In this matter, a General Diary was also lodged on 2.9.2010 by the Respondent/Complainant with the Tiljala P.S., Kolkata. On receiving such complaint the Appellants-Bank/Ops informed the Respondent/Complainant by a letter dated 3.1.2011 that an enquiry on the part of the Appellants-Bank/Ops revealed that the transaction in question was a ‘successful transaction’, and that ‘Any ATM transaction cannot be successful in absence of both Card and PIN’ and that the safe and exclusive custody of the ATM Card was the sole responsibility of the ATM card-holder.  In this factual background, the Ld. District Forum passed the judgment and order impugned in the manner as mentioned above.  Dissatisfied with such judgment and order the Appellants-Bank/Ops preferred this Appeal.

          Ld. Advocate for the Appellants-Bank/Ops submits that the Respondent/Complainant has not been able to adduce any evidence in support of his claim of non-withdrawal of the amount in dispute, whereas the Appellants-Bank/Ops has been able to adduce evidence of Mini Bank Statement generated from the ATM machine in support of withdrawal of the amount in question.  It is also contended by the Ld. Advocate that none other than the said ATM card-holder could withdraw money in question because the ATM card and the related PIN, without which the amount in question could not be withdrawn, remained within the exclusive custody of the Respondent/Complainant.  In support of such contention the Ld. Advocate refers to the decisions of the Hon’ble National Commission in State Bank of India Vs. K.K.Bhalla, reported in 2011 (2) CPR 26 (NC) and State Bank of India Vs. Om Prakash Saini passed on 18.1.2013 in Revision Petition No. 2382 of 2012.  The Ld. Advocate finally submits that in this position of the case and also in view of the ratio decided in the said decisions, the Appeal should be allowed and the judgment and order of the Ld. District Forum be set aside.

          At the time of hearing none is present on behalf of the Respondent/Complainant to advance argument in support of his case, but upon completion of hearing the Ld. Advocate for the Respondent/Complainant appears and files some documents relating to guidelines of SBI ATM Services along with a decision of this Commission passed on 29.11.2013 in FA/889/2012. 

However, the Brief Notes of Argument (BNA) on behalf of the Respondent/Complainant filed before the Ld. District Forum, as available on records, contains the contention of the Respondent/Complainant to the effect that the absence of arrangement of required security in the enclosure where ATM is installed, as is conspicuous from the installation of two ATMs in the same enclosure without any covering partition in between,  external wall built up with the see-through glasses, the absence of security guard and non-supply of footage of CCTV  to the Respondent/ Complainant, constitute deficiency in service on the part of the Appellants-Bank/Ops.  It was also submitted in the said BNA that no endeavour on the part of the Appellants-Bank/Ops to make good the financial loss of the Respondent/Complainant also contributes to the deficiency in service on the part of the Appellants-Bank/Ops.

          We have heard the Ld. Advocate for the Appellants-Bank/Ops,  and gone through the materials on record including the said BNA of the Respondent/Complainant and the impugned judgment and order.

          The materials on record, as available to this Commission, does not contain any evidence on behalf of the Respondent/Complainant to support the claim of non-drawal of the money in question by the Respondent/Complainant, nor was there any evidence to corroborate that the Respondent/Complainant took the necessary action to prevent the access, by someone else except the Respondent/Complainant himself, to the ATM Card and PIN concerned.  Unless and until a person is in possession of the relevant ATM Card and knows the correct PIN, the ATM Card cannot be used and operated.  ATM card and the PIN are kept under exclusive custody and personal security of the card-holder, the exception of which has not been established in the present case, too.

          In view of the elaborate procedure evolved by the Appellants-Bank/Ops to ensure that without the coincidence of ATM Card and the PIN the withdrawal of money by any unauthorized person from the ATM cannot be possible unless and until the ATM card and the PIN fall in wrong hands, and for which the ATM card-holder, in whose exclusive custody and the personal security the relevant ATM card is kept, cannot shirk his responsibility. 

In this context, we find force in the reliance, as placed by the Ld. Advocate for the Appellants-Bank/Ops on the decisions of the Hon’ble National Commission in State Bank of India Vs. K.K.Bhalla and State Bank of India Vs. Om Prakash Saini (supra).  The decision of this Commission as cited by the Ld. Advocate for the Respondent/Complainant is not of help to the Respondent/Complainant, the facts of the said case being not identical with that of the case in hand.

On the above facts and circumstances of the case, we are not convinced by the submission in the BNA of the Respondent/Complainant, and hence, we are unable to agree with the conclusion of the Ld. Forum below in view of the reliance placed by the Appellants-Bank/Ops, on the decisions of the Hon’ble National Commission as mentioned hereinbefore.  We have, therefore, no option but to set aside the impugned judgment and order of the Ld. District Forum and dismiss the Petition of Complaint.

          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.

          MEMBER                        MEMBER                        PRESIDENT