ORDER

Order No.                 .

Shri B. Mukhopadhyay, President.   

This is an application u/s.12 of the C.P. Act, 1986.

            Grievance of the complainant is that though he went to SBI Sealdah Central Metro ATM on 21-10-2011 at 18:47:59 for withdrawal but found that both the machines were out of order.  So, he came out at 18:49:57 with ATM transaction failure report “sorry unable to process” under ATM ID S10A003084026.

            For which he again went to nearby ICICI ATM wherefrom he withdrew some money for some of his very purpose.  Thereafter, lodged a complaint being ticket No.AT17702792993 and against that reply he found that ATM Branch Code (SBI 03084) ATM ID 24/10/11 18:50 (S10A003084025) Card No.6220180199100036847 txn No.1976  withdrawal of Rs.20,000/- from A/c. No.00000020012451087 is successful and after getting such reply he was astonished to see that he lodged against ATM ID S10A003084026 but successful txn No.1976 was found in respect of another ATM ID S10A003084025 and for which he went to Sealdah Central Branch for enquiry and they advised that it was one kind of fraud and he was asked to move any Redressal Forum as there is no such precaution and OP also stated that in numerous occasions such kind of fraud happened in that ATM.  Accordingly, he applied to Bank Ombudsman for natural justice but Bank Ombudsman replied that said complaint cannot be entertained any purview of their power but advised to move to the grievance redressal authority so he applied to Head Office on 16-01-2012 but they also denied to give any relief.  It is further alleged that txn 1976 was taken by some miscreants as per scrutiny of video photograph it as miscreants was present before the ATM before his entry.  Repeatedly that suspicious person had been trying to do something in the ATM Room and no security personnel was present and further there was no auto lock door and there were two ATM machines inside with single door.  But these ATMs are not 0% error free so far and this incident occurred owing to system error in the ATM machine and as per daily newspaper (daily Bartaman) some kind of gum is affixed in the ATM key & system become hazy but in spite that the other key are remain operational and it is a system error, and even such a manner came in use in calculator can be made disorder so, similar process are being continued by the miscreants and that complainant did not withdraw it and only the complainant prayed for redressal.

            Whereas the OP Bank by filing written statement submitted no doubt the complainant is a customer in respect of Account No.20012451087 having ATM debit card being No.6220180199100036847 in respect of Savings Account No. is already stated and no doubt complainant made complaint before the SBI Manager about such alleged withdrawal through his account no.20012451087 on 24-10-2011 through ATM and bank authority after all necessary investigation and enquiry found that on the very date on 24-10-2011 at about 18:50:49 hours a transaction was made in respect of withdrawal of sum of Rs. 20,000/- from his account by using the debit card of the complainant and from ATM machine being No.S1VD7170 and on the same day at 19:03:39 hours further transaction was made in respect of withdrawal of sum of Rs.2,000/- from SB Account No. of the complainant through ATM card of the complainant from ATM Machine S1VD7170 and both transactions were successful and there was no defect of the machine and practically complainant is not entitled in respect of the total claim when both the transactions were found a successful transaction and when ATM card and pin code were in the custody of the complainant and when no other technical difficulty of machine is found then there is no such material in the compliant to entertain the same and practically complainant has failed to prove any sort of fraud practice for the bank and for which the complaint should be dismissed.

Decision with Reasons

Keeping in view of this fact and also hearing the Ld. Council of both the parties and further scanning the evidence and materials of the parties as filed in this case we have gathered that allegation of the complainant that he never used his pin code and ATM Card at any point of time at SBI ATM at Sealdah Central Metro on 21-10-2011 and it is his further submission that the said machine supplied transaction failure report (sorry unable to process) under ATM ID S10A003084026 but undisputed fact that complainant withdrew some money for his very purpose on that date from nearby ICICI ATM.

            So, regarding any transaction dated 21-10-2011 there is no complaint against the OP Bank.

            But main contention is that when he lodged complaint vide ticket No.AT17702792993 against that he got a reply from ATM branch code SBI 03084 ATM ID dated 24-10-2011 – 18:50 (S10A003084025) Card No.6220180199100036847 txn No.1976 withdrawal of Rs.20,000/- from A/c. No.00000020012451087 is successful.  Complainant’s contention is that he lodged compliant in respect of ATM ID S10A003084026 but successful transaction 1976 was found in respect of another ATM ID S10A003085025 and for which that fact is suppressed.  So, from the compliant of the complainant in fact complainant has no grievance against ATM machine having ATM ID S10A003084025 and dated 24-10-2011 and another factor is admitted that in respect of ATM ID S10A003084026 no transaction was made.  So, there was no defect in respect of said ATM.  Now, question is whether the allegation of the complainant is substantiated by any scientific evidence.  Moreover, there is no such allegation in the complainant that at any point of time complainant lost the ATM card or his Pin Code No. was somehow leaked then it is clear that in the custody of the complainant safely his ATM Card with Pin Number was always and still now.  Now, we shall have to consider the scientific procedure of the transaction in respect of ATM machine.  In this regard it is to be mentioned that it is not in dispute that ATM card was issued to the complainant and he kept this card in his custody thus no one had any access to withdraw it nor it was super imposed by one be one and moreover the complainant was aware of the said four digit pin number which is essential to operate the ATM card but despite all these facts complainant has not made any allegation in respect of the ATM Machine from which actually Rs.20,000/- was withdrawn.  But truth is that in respect of withdrawal from that ATM prior to withdrawal of Rs.20,000/-  Rs.2,000/- was also withdrawn on the same date.  But the compliant is silent about that.

            Another factor is that ATM ID S10A00308025 was not handled by the complainant on 24-10-2011 twice in that case there was no chance of withdrawal of any money from that ATM Machine on the ground that without insertion of ATM card and without placing Pin no transaction can be made under any circumstances.  But complainant must have to prove by any expert evidence that without placing ATM card and without any inserting Pin code money can be withdrawn by any hacker or by thief or by dacoit from any ATM machine from any account holder of any bank but that has not been proved.

            However, fact is that whole complaint against the Bank is in respect of the non-functioning of the ATM machine of Sealdah Central SBI Metro ATM on 21-10-2011 but it is found that no anomalies is found in respect of the ATM machine of that Post.      

            Further on evaluation of the argument of the complainant himself and his Ld. Lawyer if we say that by fraudulent practice the withdrawals were made by some miscreants then invariably there must be such allegation before this Forum by the complainant that his ATM Card and Pin code went to the hand of wrong persons or same were stolen when it is withdrawn but no such case is alleged in the complaint.

            Further fact is that complainant in his complaint has stated some story as published in the Delhi Publication to substantiate the ATM machine was tampered and money was withdrawn.  But to that effect no positive evidence is adduced and we cannot rely upon such publication and daily newspaper story if in this case such sort of fact are not proved by the complainant and practically complainant has failed to prove any such sort of story in this case and for which we are convinced to hold that in the present complaint complainant has failed to search out any sort of deficiency or negligent manner of service on the part of the OP Bank.  In the result, the complaint fails.

Hence,

Ordered

That the complaint be and the same is dismissed on contest without cost against the contesting OPs.