12.04.2016

MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.

                 Instant Appeal has been filed by the Appellant/OP Bank u/s 15 of C P Act, 1986 challenging the judgment and order dated 13/06/2014 passed by the Ld. District forum, North 24-Paraganas in C C Case No.-467/2013 allowing the complaint with cost against the Appellant/OP-1 and dismissing the complaint against the Respondent-2/OP-2 ex-parte. The directions passed in the impugned order are as under:-

               “That the case be and same is allowed against the OP-1 on contest, with a cost of Rs.6000/-and dismissed against the OP-2 ex-parte.

                The OP-1 is directed to repay/recredit a sum of Rs.10,000/-to the SB a/c of the complainant, within30 days from the date of this order, failing which a punitive damage @ Rs.100/-per day for each day’s delay, will be imposed for disobeying Forum’s order and the same shall have to be paid to the State Consumer Welfare Fund.”

               The facts of the case, in brief, are that on 20/04/2013, the Respondent 1/Complainant who is the holder of a salary Account in Appellant/OP-1, being the ICICI Bank, Rishikesh, used her ATM debit card against the said salary Account for withdrawing money from the SBI, ATM at G D Market, Saltlake, as alleged, twice for two unsuccessful withdrawals which, according to the corresponding withdrawal slips, the machine was unable to process.

               The Respondent 1/Complainant, thereafter, on the same day, visited the HDFC, ATM counter at G D Market, Saltlake and withdrew Rs.40,000/. On checking the balance in its Account on the same day, the Respondent/Complainant came to know that an amount of Rs.50,000/-was debited from its Said salary Account.

              The Respondent/Complainant lodged an immediate complaint against the debiting of Rs.10,000/- in excess than the amount actually withdrawn with the customer care of the ICICI Bank. There being no fruitful result, the Respondent/Complainant, after expiry of two months, filed a complaint with the Banking Ombudsman, Kolkata which was rejected. Meanwhile, the Appellant/OP 1 Bank made a communication to the Respondent 1/complainant to the effect that the State Bank of India, the Respondent 2/OP 2 Bank, with a supporting transaction slip, confirmed the withdrawal of Rs.10,000/ from the said salary Account  and accordingly expressed its inability to reverse the said amount to the salary Account of the Respondent 1/Complainant.

            The aggrieved Respondent 1/Complainant filed the complaint before the Ld. District Forum which the impugned judgment and order relates to.

           Heard Ld. Advocates on behalf of the Appellant/OP 1 and the Respondent 1/Complainant in person. The Ld. Advocate on behalf of the Appellant/OP-1 submitted that the Respondent-1/Complainant made six successive attempts, not two as claimed, for withdrawal of money from the subject SBI ATM of which the sixth one was successful. The Ld. Advocate drew the notice of the Bench to the Annexure-A of the written version of the Appellant/OP 1 (running page 29), being the J P Log of the Respondent 2/OP 2 Bank wherefrom it appears that the ATM machine was unable to process the first five commands for the desired transaction. It also appears that withdrawal of an amount of Rs.10,000/-was successfully transacted in the sixth and last attempt.

          The Respondent/Complainant, as the Ld. Advocate contended, has, in fact, brought no allegation against the Respondent 2/ OP 2 Bank from whose ATM the transaction in question was operated. It was further contended that the Ld. District Forum, in the impugned order has not clarified the reasons for disregarding the documentary evidence put forward by the Respondent 2/OP 2 Bank corroborating the withdrawal of the amount in question.

          It was submitted that the CCTV footage which might have helped detect the way the transaction in question had taken place, was  not supplied  by the Respondent 2/OP 2 Bank.   

          Moreover, as it is submitted, barring the prayer for awarding justice and to identify the Bank actually at fault for the allegedly wrongful debiting of the amount in question, there was no specific prayer for compensation in the complaint.

          The Ld. Advocate, in view of the circumstances narrated above, prayed for allowing the Appeal setting aside the impugned judgment and order.

          The Respondent 1/ Complainant, on the other hand, in course of her argument, read out her BNA and emphasized upon the fact of her two times use of the ATM card  in SBI ATM and not six times, as contended by the Ld. Advocate for the Appellant/OP 1. Debiting of Rs.50,000/- from its salary Account against an actual withdrawal of Rs.40,000/-is, as the Respondent Complainant submitted, a gross deficiency on the part of the Appellant/OP 1 Bank and accordingly, she prayed for dismissal of the Appeal affirming the impugned judgment and order.

         There was none to represent the Respondent 2/OP 2 Bank.

          Perused the papers on record. ATM LOG of the Respondent 2/OP 2 Bank clearly indicates that there were altogether six attempts for withdrawal of money of which first five were futile as the ATM  could not process the commanded transactions, but the command for sixth and last transaction for withdrawal of an amount of Rs. 10,000/-was successfully carried out. The documentary evidence adduced in the form of J P LOG corroborating the withdrawal of the aforesaid amount needs to be given overriding consideration in arriving at the decision. 

          In this context, we may refer to the decision of the Hon,ble National commission reported in 2011 (2) CPR 26 (NC) [State Bank of India – vs. K. K. Valla] wherein it has been unambiguously held that in view of the elaborate procedure evolved by the bank, it is not possible for money to be withdrawn by any unauthorized person from ATM without ATM card and knowledge of the PIN. Therefore, it can be concluded that the amount in question has either been withdrawn by the Respondent 1/Complainant herself or by anybody else who was supplied with the ATM card and to whom the secrecy of the PIN was divulged which can only be done by the holder of the ATM card. It has also been held in the said decision that the absence of the CCTV footage does not indicate conclusively that the amount in question was fraudulently withdrawn.

          Relying on the aforesaid decision and also having heard both sides, we are of the considered view that the entries in the ATM LOG of the Respondent 2/OP 2 Bank cannot be called in question. The Respondent 1/Complainant is, therefore, not entitled to get any relief.

       The Appeal is allowed. We set aside the impugned judgment and order. The petition of complaint is also dismissed. We make no order as to the costs.