ORDER

Per : Md. Shamim Akhtar, Member

Dated- 02.05.2024

1. The Appellants have filed the appeal against the order dated 08.03.2022 passed in complaint case no- 32/2016 by the Learned District Consumer Forum, Vaishali whereby and where under the appellants have been directed to pay Rs. 40,000/- (Rupees forty thousand only) with interest @ 4% p.a. which was   deducted  from  the account of the complainant and also to pay Rs. 10,000/- and Rs. 5,000/- only towards mental  agony  and cost of  litigation  respectively to the complainant within 60 days from  the  date  of the receipt   of the order  failing which  the a foresaid amount will  be payable with interest @ 9% p.a.
2. The case of the Respondent-complainant in brief as stated in the petition of complaint is that the complainant has a savings account no.- 33646987258 in  the State Bank  of India,  Branch, Hajipur with ATM facility. Further case is that he used his ATM Card on 20.09.2015 at Chaksikandar ATM ID no.- GFBU000088038  of State Bank of India at 12.12 Pm. and got knowledge that the balance in his account is Rs. 1,25,898/ and the complainant used his ATM Card with  his   confidential PIN  but the ATM failed to activate and thereafter the complainant went to Bidupur Station and Used ATM ID-GFBU000088024 on the same day i.e. 20.09.2015 at 12.25 P.M. but the machine indicated “Sorry unable to process”. Then the complainant again tried at 13.09 Pm. and the balance shown was Rs. 85,898/-.Further case  is that  the complainant again  tried at 13.10 P.M. on 20.09.2015 but due to the defective machine  Rs. 40,000/- was deducted and thus the complainant suffered loss of Rs. 40,000/-. The complainant made contact from the Hajipur Branch but no response was taken by the Branch Manager. Further  case is that  on 16.10.2015  the complainant sent a  registered letter but no action has been  taken by  the Branch Manager and on 08.02.2016 a legal notice  was also  sent by registered post but no reply was given and hence the  complaint.
3. The Branch Manager, State Bank of India, Hajipur (O.P. no-1) appeared and filed his written statement in which he denied and disputed the claim of the complainant. The case of the O.P. no-1 in brief as stated in the written statement is that as a matter of  fact the complainant  visited  the State Bank  of India ATM at Chaksikandarpur where two ATM  bearing code  no.- GFBU000088038 and GFBU000088017  are working in  a single room. After enquiry it was found by the  Bank officials that the  complainant started transaction on 20.09.2015 at 12.10.25 with ATM code no.- GFBU000088038 and the transaction ended at 12.12.27 but he did not get the  money due  to technical fault but on 20.09.2015 itself at 12.14.47,the complainant  started transaction with another ATM bearing code no.- GFBU000088017 which was   situated  in  the same room for Rs. 40,000/- and he succeeded to get the  money at 12.15.49.Further case is that  from the verification of cash   statement of  ATM bearing  no.- GFBU000088017 no any excess cash was  found on  20.09.2015 and thus it is clear  that the complainant got the money from the ATM and  he falsely stated a story of nonpayment  of the withdrawal amount. Further case  is that the  complainant got  his money  from  the ATM Machine which is  completely working with computer software and no  any person is involved  in the matter and therefore there  is no  question of  deficiency committed by any person/Bank officials. Prayer is made to dismiss the case.
4. After hearing both the sides the Learned District Commission passed the impugned order.
5.  Being aggrieved  and dissatisfied   with the impugned order the appellants have filed the present appeal mainly on the grounds that  the impugned order is bad in law  as well as on facts and the Learned  District Commission ignored  the material fact that any transaction  made by  ATM after  using the four digit PIN  is within  the knowledge of the complainant only  and  hence the allegation  of  illegal withdrawal is far away from the truth. Further ground is that the Learned District Commission failed to consider the fact that card and PIN are within the custody of the complainant and admittedly he operated   the ATM and  it is evident from E.J. log  and  the impugned order has got  no merit  and is fit to be set aside.
6. We have heard   the learned counsels for both the sides. Also perused the records including the written notes of argument filed by the parties.
7. The case of the complainant as per the petition of complaint is   that on 20.09.2015 at Chaksikandar ATM ID no.- GFBU000088038 of the State Bank of India at 12.12.P.M. he  used  his ATM Cards and came to know that the balance  in his account is Rs. 1,25,898/- and thereafter the  complainant endorsed his ATM confidential No. but unfortunately ATM Machine failed to activate. Thereafter, the complainant went to Bidupur Station and used ATM ID no. - GFBU000088024 on the same day i.e. 20.09.2015 at 12.25 P.M. and the ATM Machine responded as “Sorry unable to process” and thereafter the complainant again tried at 13.09 P.M. On the same day i.e. 20.09.2015 and then the   ATM Machine shown the balance as Rs. 85,898/-. According to the complainant he again tried at 13.10 P.M. on 20.09.2015 but due to the defective machine his Rs. 40,000/- has been deducted from his account and thereby the complainant was put on loss of Rs.  40,000/-.
8. On the other hand the O.P. no-1(SBI, Hajipur  Branch) in   its  written statement says  that on the  relevant date the complainant  visited the SBI ATM at Chaksikandar where two ATM  bearing code no.- GFBU000088038 and GFBU000088017  were working in a single room and  after enquiry it was found  that  the complainant on 20.09.2015 at 12.10.25 used the ATM bearing code no.- GFBU000088038 and  the transaction ended at 12.12.2017 but he did not get the money and  it is admitted by both the sides. According to the complainant thereafter he went to Bidupur Station and used ATM ID GFBU000088024 on the same day at 12.25 P.M. and also tried at 13.09 P.M. and also at 13.10 P.M. and his balance in the account was shown at Rs.  85898/- and thus his Rs. 40,000/- was deducted by the defective machine. The O.P. no-1 (SBI Branch Hajipur) in its written statement says that at Chaksikandar there  are  two ATMs of the Bank and on 20.09.2015 itself at 12.14.17 the complainant made transaction with another ATM Code no.- GFBU000088017 which is situated in  the same room and he succeeded in withdrawal of money of Rs. 40,0000/- at 12.15.49. But the complainant in  his complaint petition has concealed the fact that there are two ATM Machine in the same room at Chaksikandar. The complainant  in his petition of complaint  has not explained as to why he did not use the another ATM bearing code no- GFBU000088017 kept  in the same room rather he proceeded to Bidupur Station  and used  ATM ID no.- GFBU000088024. The xerox copy of the relevant page of the  Passbook of  the Bank relating to  the complainant which is filed  at page no- 21 of the paper book, shows that on the relevant  date Rs. 40,000/- was withdrawn from the ATM situated at Chaksikandar itself.
9.  Thus in the light of the above discussions of the materials available on the records, we find that the case of the complainant as stated in the petition of complaint does not inspire confidence. The impugned order is thus requires interference. We therefore set aside the impugned order dated 08.03.2022 passed in complaint case no.- 32 of 2016 passed by  the Learned District Commission, Vaishali, Hajipur. The appeal is allowed. No costs.  
10.    A copy of this order be supplied to both the parties free of cost as mandated by the Consumer Protection Act, 2019. The order be uploaded forthwith on the confonet of the State Commission.

Let the file be consigned in the record room along with copy of this order.

(Md. Shamim Akhtar)                                                                   (Gita Verma)

   Jud. Member                                                                              Jud. Member

Anita