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

2.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.

3.                  The unfolded story   of the complainant,  is that  the complainant  is the SB Account holder under the OP-Bank. It is alleged inter-alia that on 28.11.2012  when the complainant took attempt to withdraw the money from his ATM  and  he found that Rs.1,20,000/-  has been illegally withdrawn from his SB account by some unknown culprit. So, he informed the OP and also informed  the police. Since, the OP did not take any action, the complaint was filed.

4.          The OP No.1  filed written version refuting  all the allegations. They averred that  for operating the ATM account the ATM card and pin number are required and the complainant  is in possession of the same. After receiving   the complaint he has verified the matter and found that a sum of Rs.1,20,000/-  has been withdrawn by using the ATM card with pin number and in no way the OP-Bank is connected with such allegation.  They have also found  from   the CCTV footage   that some persons have withdrawn the money by using the ATM card of the complainant. Therefore, they have no deficiency in service on their part.

5.        OP No.2 filed separate written version challenging the maintainability of the complaint and there is no truth in the allegation of the complainant.

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

                      Xxxx         xxxxx           xxxxxxx

                      “Hence ordered that the complaint petition is allowed in part and the oP No.1 is directed  to credit Rs.1,20,000/- with interest @ 6 % p.a. from 28.11.2012 to the SB account of the complainant and to pay Rs.10,000/- towards compensation and cost to the complainant within 30 days from the date of communication of this order. No orders against OP No.2. “

7.               Learned counsel for the appellant submitted that Learned District Forum has committed error in law by not considering the written version  and the materials filed by the OP with proper perspectives. According to him, the CCTV footage  is clear to show that the ATM card  and the pin number has been used by some unknown person. It is well settled in law that the ATM card with the pin number being in possession of the complainant  and without being shared can not be utilized to withdraw the money. Since, the ATM card and the pin number has been used by some unknown person, it is for the complainant to explain who are those persons. Learned District Forum  having not gone through details and the impugned order should be  set-aside the impugned order by allowing the appeal.

  8.               Considered the submission of learned counsel for the appellant,  perused the DFR and impugned order .

9.                   It is   well settled in law that the complainant  has to prove his case and also deficiency in service on the part of the OP. The complainant has filed the statement of account maintained in the pass book and on perusal of same it appears that Rs.1,20,000/-  has been withdrawn on 28.11.2012  for two times and also the same amount has been withdrawn for two times on 11.12.2012. Further he found that on 23.11.2012  also Rs.20,000/- has been withdrawn for two times. It appears that either  ATM card with Pin number   stolen away or same has been given  to somebody.

10.            On the otherhand from  the transaction slips it appears that all the amount  have been withdrawn by using the ATM card. There is no contention of the complainant that he has either  shared the ATM card and pin number with any person or there is allegation of theft of same. When there is no any sharing of card or theft of same,  the presumption is that the complainant himself has withdrawn  the money through any one else. Moreover, the complainant has not proved the police report to find out the culprit.  In addition to it in the written version it is stated that the Op has found CCTV footage that such amount has been withdrawn.

11.             In view of aforesaid discussion it appears that learned District Forum has  not gone through the matter  in detail and illegally overburdened the OP by directing to pay such amount. On the otherhand,  we found that  the order is not sustainable in law and it is set-aside.

                    Appeal stands allowed. No cost

                  Free copy of the order be supplied to the respective parties or they may download same from the confonet  or webtsite of this  Commission to treat same as copy of order received from this Commission.   

                   DFR be sent back forthwith.

                    Statutory amount be refunded.