Heard learned counsel for both the sides.
2. Captioned appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. The unfolded story of the complainant in nutshell is that complainant was working as a teacher, opened one Savings Bank Pass Book Account in the State Bank of India, Balipadar for drawal of salary and other retirement dues. It is alleged inter alia that the complainant’s dues was credited by the Education Department. According to the complainant on 29.1.2010 the complainant has withdrawn a sum of Rs. 5000/- at the ATM counter at Buguda(Ganjam) of State Bank of India by 2.15 P.M. by using the ATM Card. After drawal of Rs.5000/- only on 29.1.2010, the balance money was Rs. 1,44,512.27 in the said SB Account of the complainant. He also submits that an amount of Rs.51,785/- was credited by the District Inspector of Schools on 3.2.2010 making the total of Rs. 1,96,297.27. On that date there was refund of Rs. 15,000/- only to the said SB Account of the complainant and the total became Rs. 2,11,297.27. On 3.2.2010, there has been credit of Rs. 5353/- making the total of Rs. 2,16,650.27. It is alleged that on 27.2.2010, when the complainant went to the State Bank of India, Ballipadar for drawal of Rs.40,000/- by cheque due to urgency, but the opposite party no.1 instead of making payment of Rs.40,000/- intimated the complainant that he had only balance of Rs. 50.27 paise. It is alleged by complainant that on 27.1.2010, no money was withdrawn from his account, but the complainant found that only Rs.50/- was available in his account. Further, it is alleged that he had been to the opposite party no.1 to make his passbook upto date. But then the passbook was made upto date showing details which were not visible.
4. It is alleged that an amount of Rs. 15000/- was credited to the SB Account of the complainant on 10.3.2010 but ATM Machine indicated ‘ATM rectify’. It is alleged by the complainant that although there was only provision for withdrawal of money up to Rs.40,000/- per day, but there has been showing of drawal of Rs. 70,000/- on 30.1.2010 which is neither possible nor feasible. Further, the complainant requested the opposite party to credit the defaulted amount to his account but that request was not acceded to. Therefore, complaint was filed.
4. The opposite party filed written version stating that the complainant has SB Bank account opened in Ballipadara Branch for his financial transactions. The complainant also withdrew Rs. 5000/- through ATM counter at Buguda. The account of the complainant will reveal regarding credit of Rs. 51,785/- on 3.2.2010 as well as the total balance amount. The opposite party no.1 took the plea that the ATM card which was produced before the opposite party actually belongs to Ratnakar Mohapatra but not to the complainant. After receipt of necessary objection, transaction was verified by the opposite party and it appears that the amount was withdrawn from their ATM counter. This fact was intimated to the complainant. Thereafter, the complainant filed a FIR at Buguda P.S. The opposite party stated that before the police that the complainant has admitted that on 29.1.2010 at about 2.15 P.M. while he was withdrawing a sum of Rs. 5000/-, another person was instructing him from his back side in spite of his protest. The police has registered a case under Section 379 and 420 IPC. The opposite parties have denied their fault. So there is no deficiency in service on the part of the opposite party.
5. After hearing the parties, learned District Forum have passed the following order:-
“xxx xxx xxx
In the result the complaint petition is allowed against the opposite parties who are jointly and severally liable. Therefore the opposite parties are ordered to credit a sum of Rs. 1,86,650/- ( Rupees One lakh eighty six thousand six hundred fifty) only with as usual of the interest of the Bank to the complainant’s A.B. Account No. 11010996245 within one month of receipt of this order. We further ordered to O.Ps to pay compensation and cost of Rs. 2000/- (Rupees Two Thousand) only to the complainant within one month of receipt of this order. This case is disposed of accordingly.”
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by directing the opposite party no.1 to pay money when it is clear that the ATM card was in possession of the complainant but it belongs to Ratnakar Mohapatra. Further, he submitted that once the complainant was having the ATM card and was aware of the pin number, the complainant is presumed to have withdrawn the money through his account. He also submitted that the complainant knows the instructions about the manner of withdrawing the money, the order of the learned District Forum directing the opposite party is a wrong one. So he submitted to set aside the impugned order by allowing the appeal.
7. Learned counsel for the respondent appearing through V.C. submitted that the complainant is a teacher and has got a Savings Bank Account and the money was credited to his account from different sources. Since he has not withdrawn any money and there is only Rs. 50/- remained as balance, it is for the bank to take necessary action. So he supports the impugned order.
8. Considered the submissions, perused the DFR including the impugned order.
9. It is admitted by both the parties that the complainant being a Account Holder has got account with the opposite party with ATM facility. It is admitted by both the parties that the complainant has got money from different sources to his account credited. It is also admitted that the complainant has withdrawn Rs. 5000/-. But when he went to the withdraw Rs.40,000/-, he could find Rs.50/- only to his credit. It is also not in dispute that police has been informed by the complainant. It is admitted fact that drawal of money has been done through ATM Card. There is no allegation in this case about theft of ATM Card but it is also fact that the ATM Card is not in possession of actual account holder as same belongs to Ratnakar Mohapatra. The complainant is not sure about the use of the ATM Card or use of the ATM card. This Commission held in similar matters that the ATM Card holder knows the Pin number and he is presumed to have withdrawn the money. Unless the allegation of theft of ATM Card or sharing the pin number with any other person, we are of the view that since the complainant has not proved the case that the ATM Card has been stolen or there is sharing of the ATM Card Pin number, accusation of the complainant is definitely on wrong footing. Learned District Forum without appreciation of the evidence available on record directed that the appellant is responsible for the loss of the money. Therefore, we are of the view that the impugned order of the learned District Forum is improper and liable to be set aside and is accordingly set aside.
10. The appeal stands allowed. No cost.
The statutory amount deposited be refunded to the appellant with interest accrued thereon if any, on proper identification.
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.
