Complainant by filing this complaint has submitted that she has her one saving bank account being No.14150000109104385-INR, Customer ID-CCK001345, Mode of operation – self and the op provided an ATM Card for the purpose of enabling her to take cash as and when required in ATM.

          Accordingly the complainant due to urgency of money withdrawn through ATM Card a sum of Rs.10,000/- on 27.01.2012 and by cash deposited of Rs.5,000/- to aforesaid bank account.  But subsequently complainant went to said bank for urgency of money to withdraw amount of Rs.5,000/- but bank authority failed to pay the aforesaid amount to the complainant due to insufficient fund of her account and the complainant when updating her pass book on 26.07.2012 she saw that all the amount of complainant was withdrawn through ATM by someone from the complainant’s account on 23.07.2012 and 24.07.2012.

          Thereafter complainant reported the matter to Bank Manager but the Bank Manager refused to accept the complainant’s letter dated 26.07.2012 and directed to lodge a complain to nearest police station.  Thereafter complainant went to the police station for lodging her complain but Police Authority refused to accept the same and on specifically mentioned that complainant never withdrew the aforesaid amount on 23.07.2012 or 24.07.2012 in fact complainant never visited any ATM for withdrawal and for that reason op practically op/bank acted negligently and due to negligent service of the op that amount was withdrawn by some unknown person and if op would not take proper security and safety in that case such sort of mishap ought not to have been done.  Further it is submitted invariably some papers have been issued by the op otherwise it was not possible to encash the amount from the complainant’s Bank Account and it is no doubt negligent service on the part of the op and complainant never encashed Rs.43,678/- from the Bank Account and ATM Card was always in the custody of the complainant and complainant never handed over it to another person or third party and in the above circumstances, complainant has prayed for refund of the said amount of the complainant withdrawn  (Rs.43,678/-) by some fake person against op.

          On the other hand op/bank by filing written version submitted that complainant herself withdrew all the money by using AXIS Bank and ICICI Bank ATM through her ATM card and for which that transactions were found successful and for which the op has nothing to do and denied all allegations and prayed for dismissal of the same.

                                                   Decision with reasons

          Heard the Ld. Lawyer for the op and also the Ld. Lawyer for the complainant at length and we have gathered that from the pass book of the complainant against account No.14150000109104385, on 23.04.2012 two transactions were made in respect of different amount and on 24.07.2012 many transactions were made, but complainant has stated that practically she used the ATM card on 27.01.2012 and withdrew Rs.10,000/- and no doubt it is found that on 27.01.2012 Rs.10,000/- was withdrawn but thereafter on 23.07.2012 and 24.07.2012 by 15 withdrawals entire balance amount of Rs.43,678/- were withdrawn.  Whereas op by filing written statement has submitted that only in respect of eight transactions they claimed that it was withdrawn through ATM card of AXIS Bank or ICICI Bank.  But there is no denial about the other seven transactions in respect of which there is allegation against the op/bank that it was fraudulently withdrawn by some other person though ATM card was in the custody of the complainant and in this context it is to be mentioned that op has not submitted any detailed report of the transactions slips of the said ATM and no document is produced to show that complainant withdrew it.

          In fact from the evidence of the complainant it is found that complainant never went to the AXIS Bank or ICICI Bank’s ATM.  But that has not been denied.  Then apparently it is found that somehow or otherwise the third person withdrew the same and for which op/bank has failed to produce JP Log, transaction slips etc. and considering the above fact, we are convinced to hold that there is every scope on the part of the third party to withdraw the amount in absence of any ATM card or secret PIN Code if at any point of time when complainant last operated the ATM by using ATM card and such an act was somehow or otherwise pirated or hacked by any third person.  In that case there was every scope to withdraw the amount by third person and in this case considering the withdrawal slip, it is clear that the amount as per pass book it is found that actually Rs.43,768/- was withdrawn by that person and fact is that op by filing written statement has failed to deny about seven transactions, though the complainant challenged about 15 transactions, it indicates that op/bank authority is unwilling to produce the papers before this Forum and also about the transactions of the respective ATM in this regard.

          So, considering all the above circumstances, we have gathered that practically the present type of stealing is generally made by some matured brains (hackers) in such a fashion and in the present case after considering the fact and circumstances and the conduct of the op and also written version we are confirmed that the said amount was withdrawn by some hackers and for which within two days they used that system of hacking and withdrew entire amount.  But it has become a practice of the Bank to show that as because card was inserted in the ATM machine and secret number was placed in the machine, so it was withdrawn and invariably it was withdrawn by the complainant.

          But we do not believe it in view of the fact that there is no good ground to disbelieve the testimony of the complainant in view of the present situation and for which we are no doubt satisfied that complainant has been able to prove that the said amount was withdrawn by some third person and for which bank has failed to produce the JP Log and other papers in respect of the transactions and also failed to deliver at least seven transactions and in respect of the transactions the op has stated about the balance of the transactions and op has nothing to do.  So, in the circumstances, we are convinced to hold that op as custodian of the money of consumer the present complainant did not give any protection and his money was withdrawn from the account by third person when it was within the safe custody of the op and for which we can say without any hesitation that for negligent and deficient manner of service and for not rendering good protection and safety in respect of the money of the complainant op is liable to refund the said amount with interest to the complainant.

          In the result, the complaint succeeds.

          Hence, it is

                                                          ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.2,000/- against op/bank.

          Op/bank is hereby directed to refund and pay the amount of Rs.43,678/- to the complainant and also interest @6% p.a. over the said amount within one month from the date of this order and also shall have to pay the cost which is awarded within that period and if fails to comply the said order in that case, the op shall have to pay interest @ Rs.200/- per day till full satisfaction of the decree and if it is collected same shall be deposited to the State Consumer Welfare Fund and even if op is unwilling to comply the order of the Forum in that case penal action shall be taken against that op.