31.08.2015

MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.

The instant appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred by the Appellant/O.P. against the judgment and order No. 18 dated 30.04.2012 passed by the Ld. District Forum, Kolkata, Unit – I in the Complaint Case No. 209/2010.  The Ld. District Forum in the said impugned order, while allowing the complaint with cost against the Appellant/O.P., directed the Appellant/O.P. to “reverse the sum of Rs.5,000/- (Rupees five thousand) only and the interest as against the said sum inclusive all the interest accrued thereto till the date of compliance”.  It was further directed that the Appellant/O.P. was “to pay to the Complainant a sum of Rs.2,000/- (Two thousand) only for his harassment and mental agony and litigation cost of Rs.1,000/- (one thousand) only within 45 days from the date of communication of this order, i.d., an interest @ 9% shall accrue over the entire sum due to the credit of the Complainant till full realization”. 

The facts of the case, in a nutshell, are that the Respondent/Complainant was a holder of the Savings Bank Account No. 11074528165 in Southern Avenue Branch of the State Bank of India, the Appellant/O.P.  The Appellant/O.P. issued one ATM Card, named Maestro Debit Card No. 4283760150500279 in favour of the Respondent/Complainant against the said bank account.  The Respondent/Complainant, as he claimed, withdrew once an amount of Rs.5,000/- only from ICICI Bank ATM booth on 14.01.2010, but it was shown in the mini statement received by him on 24.01.2010 that Rs.5,000/- was debited twice from his savings bank account, which, as claimed by the Respondent/Complainant, was contrary to the fact of his only one time withdrawal of Rs.5,000/- from the ICICI Bank ATM.

The Respondent/Complainant, thereafter, visited the SBI, Southern Avenue Branch, the Appellant/O.P., and was informed by the Appellant/O.P. that there was withdrawal of a further amount of Rs.5,000/- from the ATM of Union Bank of India, Kolkata Municipal Corporation Building on the same day i.e. on 14.01.2010.  The Respondent/Complainant claimed that he had never visited the said ATM of Union Bank of India.  Respondent/Complainant informed the same to Appellant/O.P. on 12.01.2010 and further on 05.04.2010 requesting refund of the amount of Rs.5,000/-, debited in excess, from his savings bank account, but no refund was made by the Appellant/O.P. 

The Respondent/Complainant issued one notice by his Ld. Advocate to the Appellant/O.P. seeking refund of the amount of Rs.5,000/- only, debited in excess from his savings bank account but the said letter remained unresponded from the Appellant/O.P. 

With this backdrop of event, the Respondent/Complainant filed the complaint case No. 309 of 2010 in the Ld. District Forum praying for (a) direction upon the Appellant/O.P. to pay to the Respondent/Complainant a sum of Rs.5,000/-, (b) further direction upon the Appellant/O.P. to pay an amount of Rs.5,000/- for damage, harassment, mental agony and dereliction of duty on the part of the Appellant/O.P. and (c) passing any such order/orders as may be deemed fit and proper.

Being aggrieved by the impugned judgment and order as indicated hereinbefore in the said complaint case No. 309 of 2010 in the Ld. District Forum, the Appellant/O.P. preferred the instant appeal.

Heard the Ld. Advocates of both sides.  The Ld. Advocate on behalf of the Appellant/O.P. pointed out that there had been withdrawal twice of the same amount of Rs.5,000/- from the said SBI S/B Account on 14.01.2010.  One was withdrawn from ICICI Bank ATM which was admitted by the Respondent/Complainant.  The other one was withdrawn from the Union Bank of India ATM located in Municipal Corporation Building which was denied by the Respondent/Complainant.  The issue, therefore, was related to the questionable withdrawal of Rs.5,000/- from the ATM of Union Bank of India.  The Ld. Advocate drew our notice to the J.P. Log of the Union Bank of India which indicated a withdrawal of Rs.5,000/- from the ATM of Union Bank of India under order No. 3040 using the ATM Card No. 4283760150500279, the one issued in favour of the Respondent/Complainant by the Appellant/O.P.  It was pointed out by the Ld. Advocate that transaction through ATM Card was not possible unless the person using the ATM card did not have the knowledge of the secret PIN in respect of the said ATM Card which only the holder of the ATM card was supposed to know.  In this context the Ld. Advocate on behalf of the Appellant/O.P. referred to the decision of Hon’ble National Commission in State Bank of India – vs. – K. K. Bhalla, reported in 2011(2) CPR 26 (NC).  The Ld. Advocate concluded that in view of the stated circumstances, the appeal should be allowed and the impugned judgment and order passed by the Ld. District Forum should be set aside and the complaint should be dismissed, the same being unjust and improper.

The Ld. Advocate for the Respondent/Complainant, on the other hand, emphatically submitted that on 14.01.2010 the amount of Rs.5,000/- only was withdrawn by the Respondent/Complainant from the savings bank account for once and that too from the ICICI ATM.  He categorically denied any withdrawal of further amount of Rs.5,000/- for the second time on the same day from the ATM of Union Bank of India.  He pointed out that the Appellant/O.P., in his written objection in respect of the complaint case before the Ld. District Forum, has recorded the time of the questionable transaction on 14.01.2010 at “about 12.34 hours”.  This indicates that the Appellant/O.P. did not have any knowledge about the exact time of withdrawal of the amount through the questionable transaction.  It was further pointed that on 14.01.2010 an amount of Rs.5,000/- was withdrawn  from the ATM of ICICI Bank and as it would be evident from the JP Log of ICICI Bank that the time of withdrawal was 12.23 hours.  The J.P. Log of Union Bank of India indicated the time of questionable transaction as 12.24 hours on the same day, that is to say, two different transactions were made from the two ATMs of two different banks within a period of one minute which is practically not possible.

The Ld. Advocate on behalf of the Respondent/Complainant also submitted that the prayer of the Appellant/O.P. attracted adverse inference in the District Forum because of its failure to produce the CCTV footage and concluded that in view of the narrated circumstances the Ld. District Forum had rightly upheld the prayer of the Respondent/Complainant in the complaint case in consideration of the deficiency of service on the part of the Appellant/O.P. and passed the impugned order which was to be affirmed.

Perused the papers on record.  On 14.01.2010 the Respondent/Complainant had admittedly withdrawn an amount of Rs.5,000/- from the ICICI Bank.  The ATM Log of the Union Bank of India also indicated that a further amount of Rs.5,000/- was withdrawn using the same ATM Card on the same day at 12.24 hours.  In this connection the decision of the Hon’ble National Commission reported in 2011 (2) CPR 26 (NC) is squarely applicable 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 for any unauthorized person from ATM without ATM Card and knowledge of PIN.  Besides, the non-production of the CCTV footage on the part of the Appellant/O.P. cannot sbustantiate that the money was withdrawn fraudulently without using the ATM card and PIN number. 

Relying on the aforesaid decision of the Hon’ble National Commission, we are of the considered view that the entries made in the ATM Log of Union Bank of India in respect of the questionable transaction cannot be called in question.  The Respondent/Complainant, therefore, is not entitled to get any relief.

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