Heard learned counsel for the appellant.None appears for the respondent.
2. This appeal is filed u/s 15 of the Consumer Protection Act (hereinafter called the ‘Act’ in short). Parties hereinafter were arrayed as the complainants and OPs as per their nomenclature before the learned District Forum.
3. The factual matrix leading to the case of the complainant is that the complainant is an account holder under the OP. It is alleged inter alia that on 5.1.2010 the complainant has gone to the ATM counter to check his balance and found that there was Rs.23,885.04in his credit as per mini statement received by him. It is alleged inter aliathat on 8.1.2010 complainant again went to the ATM counter to up to date entry in his pass book and found that there is withdrawal of Rs.20,000/- on 5.1.2010. Thereafter, the matter was informed to the OP and the police. But no action was taken for which the complaint was filed.
4. OP filed written version stating that the complainant has got ATM facility in his account. After receiving complaint on 8.1.2012 OP No.1 verified the ATM generated record and found Rs.20,000/- has been withdrawn from the ATM counter near Govt. Hospital, Sundargarh vide transaction No. 1993 at 16.25 hours. They found that operation was successful. Since the ATM card and PIN number was under the possession of the complainant, the allegation of the complainant was baseless. Therefore, there is no deficiency in service on their part.
5. After hearing both the parties, the learned District Forum passed the following order:-
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Thus under the circumstances we direct the OPs to pay Rs.20,000/- to the complainant within 30 days from the date of receipt of this order. The OPs are further directed to pay rs.5,000/- to the complainant as litigation cost in the above period failing which the OPs would be liable to pay 12% (Twelve percent) interest per annum on the awarded amount after 30 days of receipt of this order till the date of actual awarded amount after 30 days of receipt of this order till the date of actual payment.”
6. Learned counsel for the appellant submitted that the learned District Forum committed error in law by not going through the written version with proper perspectives. According to him when the ATM card was used with PIN number as per the guidelines the complainant has got exclusive possession of ATM card and PIN number. He also submitted that this Commission has passed order with regard to use of the ATM card and PIN number in various matters. Further, he submitted that the learned District Forum havefailed to apply judicial mind to the facts and law. Therefore, he submitted to set aside the impugned order by allowing the appeal.
7. Considered the submission of learned counsel for the appellant and perused the impugned order including the DFR.
8. It is true that the complainant is required to prove his case and deficiency in service on the part of the OP. It is admitted fact that the complainant has got ATM facility with PIN number to be operated in his account. It is also not in dispute that the complainant has checked the pass book on 5.1.2010 and found that there was balance of Rs.23,885.04 in his credit. It is only disputed that whether he has withdrawn money of Rs.20,000/- from the account. As per this submission, it is well settled in law and consistent view of this Commission that if there is no allegation of transfer of ATM card and PIN number to any other person or same has been stolen away, it is only presumption u/s 114 of the Evidence Act that complainant has used the ATM card with PIN number. Since the complainant has only simply alleged that there was withdrawal of Rs.20,000/- by using ATM card of the complainant who is exclusive possession of ATM card with PIN number, there is no deficiency in service on the part of the OP. Therefore, we are of the view that the impugned order should be set aside and it is set aside.
9. 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.
