12.06.2015

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The present Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OP Nos. 1 & 2-Bank challenging the judgment and order dated 6.6.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Howrah, in Complaint Case No. HDF 17 of 2013, directing the OP Nos. 1&2/Appellants-Bank to refund, within 30 days from the date of the order,  to the Complainant/Respondent No. 1 Rs. 5,000/- ‘in consultation with’ the OP No. 3 and also to pay to the Complainant/Respondent No. 1 Rs. 5,000/- as compensation and Rs. 1,000/- as litigation cost.

          Facts of the case, in a nutshell, are that the Respondent No. 1/ Complainant was having a salary account (No. 072010100125932) along with an ATM card (No. 5267010720034566) with the OP No. 3/Bank.  On 12.8.2012 when the Complainant/Respondent No. 1 attempted to withdraw Rs. 5,000/- from the ATM counter of OP Nos. 1 & 2/Appellants located opposite to People’s Nursing Home, Howrah, the Complainant/ Respondent No. 1 found to his utter surprise that Rs. 5,000/- was debited from his salary account although the ATM concerned failed to deliver the said amount due to some fault in the machine as alleged.  Noticing such false transaction in the ATM the Complainant/Respondent No. 1 wrote on 21.8.2012 to the OP No. 4/Respondent No. 3-Bank, with which was lying the salary account of the Complainant/Respondent No. 1, wherein the amount of false transaction was debited, but the concerned bank did not respond.  Then the Complainant/Respondent No. 1 moved the Banking Ombudsman, but without any success.  Meanwhile, the Complainant/Respondent No. 1 lodged on 17.10.2012 a Complaint with the Bantra Police Station.  Thus, the Complainant/ Respondent No. 1 having got no redressal from any authority, as stated hereinabove, approached the Ld. District Forum for redressal, which passed the impugned judgment and order in the manner mentioned above.  Aggrieved by such order the OP Nos. 1 & 2 have preferred the instant Appeal.

          The Ld. Advocate for the Appellants/OP Nos. 1& 2 submits that the Ld. District  Forum erred in law in passing the impugned judgment and order on the basis of presumption and assumption that the transaction in question was not done by the Respondent No. 1/Complainant despite there being evidence of debit of the amount in question in the salary account lying with the Respondent No. 3/OP No. 4-Bank.

          The Ld. Advocate continues that the Ld. District Forum ought to have considered the letter/certificate of the bank concerned about the transaction in question having been successful.

          The Ld. Advocate also submits that the Ld. District Forum erred in considering the failure on the part of the Appellants/OP Nos. 1 & 2 to provide to the Respondent No. 1/Complainant the CCTV footage as deficiency in service since there was no arrangement of CCTV in the concerned ATM counter.

          The Ld. Advocate further submits that as per elaborate banking procedure, no ATM can favourably be used until and unless the ATM card coincides with the PIN concerned, which is kept under secured, confidential and personal custody of the ATM card-holder and for sharing of which with others none but the card-holder, i.e. the Respondent No. 1/Complainant, should be responsible.

          The Ld. Advocate concludes that in view of the submission so put forward the instant Appeal should be allowed, the impugned judgment and order should be set aside and the Complaint be dismissed.        

          The Ld. Advocate for the Respondent Nos. 2 & 3/OP Nos. 3 & 4 filing BNA submits that the Respondent No. 1/Complainant had involved the Respondent Nos. 2 & 3/OP Nos. 3 & 4 in the instant case with unfair motive to extort money from them since the concerned ATM counter did not belong to the Respondent Nos. 2 & 3/OP Nos. 3 & 4 and hence, they have nothing to do with the misuse, if any, of the ATM card in question.

          The Ld. Advocate further submits that until and unless the ATM card concerned coincides with the PIN concerned, which is confidentially kept under the secured and exclusively personal custody of the card-holder, i.e. the Respondent No. 1/Complainant herein, and for sharing of which with others, none but the card-holder, i.e. the Respondent No. 1/Complainant herein, remains liable, no transaction can be successful through ATM. 

          The Ld. Advocate continues that non-supply of CCTV footage had no bearing with the claim of the Respondent No. 1/Complainant.  In this context, the Ld. Advocate refers to the decisions of the Hon’ble National Commission in State Bank of India Vs. Om Prakash Saini, reported in 1 (2013) CPJ 749 (NC) and Raghabendra Nath Sen & Anr. Vs. Punjab National Bank, reported in 1 (2015) CPJ 254 (NC), wherein it was held, “Even if amount was withdrawn by third person, he would have done it using ATM provided to him by complainant and ATM Pin disclosed by him”.

On the other hand, the Ld. Advocate for the Respondent No. 1/Complainant submits that the ATM Log Sheet, as relied upon by the Appellants/OP No. 2, is in text form, which is vulnerable to alteration and hence, the same cannot be relied upon as true and correct. 

The Ld. Advocate further submits that the failure of the Appellants/OP Nos. 1 & 2 to provide to the Respondent No. 1/Complainant the CCTV footage of the transaction in dispute to substantiate their defence for correctness of the transaction in question by the Respondent No. 1/Complainant, indicates the liability of the Appellants/OP Nos. 1 & 2 in respect of the false transaction in question.

          The Ld. Advocate concludes that in consideration of the submission so advanced the impugned judgment and order should be sustained, it being just and proper.

          We have heard the Ld. Advocates for the parties, considered their respective submission and perused the materials on records.

          It is not in dispute that the ATM card in question had been kept in the safe and exclusively personal custody of the Respondent No. 1/Complainant and that there was no report of missing of the ATM Card.  There is no dispute also that  only the Respondent No. 1/Complainant was aware of the PIN, which is essential to operate the ATM card.  Non-supply of CCTV footage, which is relevant for identifying the user of the ATM card when such card is theft, has no bearing with the case on hand as in the instant case there was no whisper about the theft of the ATM card in question. 

          In view of the foregoing discussion we are constrained to hold that the Ld. District Forum erred in allowing the complaint against the Appellants/OP Nos. 1 & 2. 

          For the reasons stated above and also relying upon the decisions of the Hon’ble National Commission in State Bank of India Vs. K.K.Bhalla, decided on 7.4.2011 in R.P.No. 3182 of 2008 and State Bank of India Vs. Om Prakash Saini (supra), the Appeal is allowed.  The impugned judgment and order is set aside and the Petition of Complaint is dismissed.  No order as to costs.