Heard learned counsel for the appellants. None appears for the respondent.

2.      This appeal is filed u/s 15 of the Consumer Protection Act (hereinafter called the ‘Act’ in short). Parties hereinafter were arrayed as the complainants and OPs as per their nomenclature before the learned District Forum.

3.      The case of the complainant in nutshell is that the complainant being an account holder has got ATM facility in the OPs – Bank. It is alleged inter alia that during travelling from Jammu to Bhadrak on 3.8.2007 at night the ATM card was lost. Thereafter, he intimated Kalyan Kumar Das, advocate who informed the OPs to take necessary step and to lock the ATM facility. It is alleged that on 4.8.2007 at 9.30 AM Kalyan Kumar Das intimated the fact to OPs through Fax to lock the ATM card. The Fax was duly received on the same day at 9.40 AM. It is alleged that on the next day Kalyan Kumar Das went to OP No.1 and disclosed before him about the fact but OP No.1 informed that they have already taken steps to lock the ATM facility. Complainant came to know that on 16.8.2007 Rs.16,000/- has already been  withdrawn from his account at night  from somewhere at Rohtak, Punjab. Complainant alleged that due to inaction of the OPs to lock the ATM facility the money has been withdrawn. Therefore, alleging deficiency in service on the part of the OPs, the complaint was filed by the complainant.

4.      OPs filed written version stating that according to the norms of the Bank the lost or theft of the debit card should be informed immediately by the account holder to the OPs – Banker. OP No. 1 has not received any communication from the complainant with regard to loss of the ATM card till he gets notice from the complainant on 21.8.2007. After duly informed, they have already shortlisted the account of the complainant on 23.8.2007. So, there was no deficiency in service on their part.

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

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The complaint be and the same is allowed on contest against the OPs. The OPs are directed to deposit Rs.16,000/- withdrawn from the account of the complainant on 4.8.2007 at night at Rohtak, Punjab along with the interest in the account of the complainant and to pay Rs.5,000/- towards compensation for mental agony and harassment and to pay Rs.500/- towards cost of litigation within one month hence.”

7.      Learned counsel for the appellants submitted that complainant has not alleged about loss of ATM card immediately and after receiving information, they have taken steps to lock the ATM card. Therefore he submitted to set aside the impugned order by allowing the appeal.

8.      Considered the submission of learned counsel for the appellantsand perused the impugned order including the DFR.

9.      In the impugned order the learned District Forum has categorically observed that the complainant’s brother-in-law has already informed  the fact to the OPs on 4.8.2007 at 9.39 AM vide Annexure – 2 series.It appears from Annexure – 2 series that  there’re is written information by KalyanKumar Das, Advocate  who is brother in law of complainant to the OPs – Banker but it was received at 9.40 AM by the OPs – Banker. The copy of the Annexure – 2 further shows that letter was sent from Kalyan Kumar Das through fax message from the Xerox shop. We have gone through the documents and find that fax message was sent to OP No. 1 on 4.8.2007 at 9.39 AM and received at 9.40 AM by OP. Since the complainant has proved that he has duly informed to OP No. 1 immediately the plea of OP No. 1 that they have not received any  message immediately  after the occurrence is not correct.

10.          Complainantalso  revealedthat on 16.8.2007 cash of Rs.16,000/- has already withdrawn from account on 4.8.2007.  When in the morning fax message was given and it was not locked, the money was withdrawn on the night of 4.8.2007.

10.    From the above discussions, we are satisfied that complainant has proved his case but the learnedcounsel for the appellants submitted that the allegation of the complainant is totally false and the brother-in-law of the complainant came on 5.8.2007 to the OPs but by that time money has already been withdrawn from the account.  Not a single scrap of paper filed by the OPs to prove theirversion that the on 4.8.2007 the brother-in-law of the complainant did not inform the Banker.

11.     Learned counsel for the appellants further submitted that the ATM card and PIN number should be available to withdraw the money. Even if there is ATM card  lost the PIN number would be there but there is no allegationfor stolen of the PIN number. He submitted that without possession of all the  abovematerials there cannot be any withdrawal of money from the account.

12.    The above submission of learned counsel for the appellants does not convince us because it is a theft of ATM Card and inaction on the part of OP No. 1 to stop the payment. Of course, there is no FIR lodged towards loss of the ATM Card but the fact remains that the complainant has lost the ATM card while he was travelling outside Odisha.

13.    In view of above discussion, we are of the view that the complainant has proved the case that  OP No. 1 has not taken step immediately after getting information to lock the ATM card. But the impugned order by directing to pay Rs.16,000/- the amount withdrawn cannot be sustained because the amount of Rs.16,000/- has not been proved by the complainant on production of any pass-book. Even if it is also proved the allegation is about stop payment of the account. While confirming the impugned order in part, we hereby modify the impugned order bydirecting  theappellants not to credit Rs.16,000/- to the account of the complainant. But at the same time for not taking step immediately the compensationfor mental agony of Rs.5,000/- would be payable by the OPs to the complainant. The rest part of the impugned order regarding payment of cost remains unaltered.

14.    The appeal is allowed in part. No cost.

         DFR be sent back forthwith.

       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.