Present        (1)     Sri Nisha Nath Ojha

         District & Sessions Judge (Retd.)

                                                  President 

                                        (2)     Sri Sheo Shankar Prasad Singh,

                                                  Member    

Date of Order- 23.01.15

ORDER

 Nisha Nath Ojha and

1. The complainants have sought following reliefs:-

1. Recovery of money along with interest and reasonable compensation for the mental and physical harassment.

2. Complainants are expecting Rs. 24,000/-(Fourty thousand only) as relief amounts.

2. The complainants have filed this complaint petition with following averments:-

1. Complainants i.e. Ashok Kumar and Shikha Roy are joint Saving Bank Account holder of State Bank of India Danapur Branch bearing Account No. 10190072017.
2. On 21.05.09 the complainant No.1 tried to withdraw Rs.1,500/-(One thousand five hundred only) from S.B.I, A.T.M sub area Danapur but transaction was unsuccessful.
3. Thereafter within 10 minutes the complainant No.1 tried in the next A.T.M which showed withdrawal of Rs. 12,000/-(Twelve thousand only) from his account. As the complainant did not get money, hence, he complained to nearest S.B.I Branch of Danapur but after few days they said to the complainant that he had taken the money.  
4. The complainants have further stated that while he(Complainant No.1) was trying in S.B.I, A.T.M sub area, one shyamal Singh (SIS Security) was on duty and one boy was interfering with the complainant during transaction process. Hence the complainant expressed doubt about the role of that boy and Security Guard and alleges that they may be instrumental in fraudulent withdrawal from the S.B.I A.T.M referred above.
5. It has been also asserted by the complainant that after the occurrence F.I.R has been lodged in Danapur Police Station and he(Complainant No.1) informed the press and also informed the Bank but up till now nothing happened.

3. On behalf of the Opposite party No.1 written Statement has been filed with following averments:-.

1. The complainant’s case is concocted story and based upon News papers report as complainants have annexed the cutting of paper of Sahara News Paper, which does not disclose the name of culprit or any direct involvement of the Banker or Bank Staff of state Bank of India.
2.  There is no deficiency of the Banker in providing the service to customer nor the said A.TM Machine was faulty in operation as stated in complaint petition. In fact on 21.05.09 at 8:58 AM  the complainant had not entered the correct four digit pin in ATM Machine, therefore ATM slip provided that “Sorry unable to process”, but on the same day at 18:28 P.M the complainant operated the ATM with correct four digit Pin number and then money was provided by ATM machine to  the complainant which fact has been suppressed by the complainant. The complainant has unnecessary made a point to file false case against the Bank for the loss of money due to Banker’s fault which is denied.
3. It is further stated that only customer controls the inserting  of ATM card, the operation of  ATM by entering the secret Pin Number, and there is no hand of Banker behind the operation of ATM in withdrawal of money of customer. It is a self service which is rendered by customers. Therefore it is baseless to say that it is due to banker’s fault.  
4. At the time of providing the ATM card bank provides an instruction that to maintain the secrecy of Pin Number is customer responsibility, bank bears no responsibility if a customer discloses his ATM pin number to others.
5. It is well known to all that entire S.B.I A.T.M machine is working after proper inserting of the ATM card in the machine and after entering the proper Pin Number, then process starts for transaction. In the case of entering wrong Pin Number ATM machine provide slip “SORRY UNABLE TO PROCESS”, so without entering the Pin Number no further transaction or withdrawal process starts, therefore Pin Number is essential for operation of ATM machine so its secrecy has to be maintained by the customer or the ATM cards holder. Bank has no responsibility, if any, customer discloses it or informs to others. Therefore bank provides the printed booklet of Guideline to each customer with ATM cards. In the instant case, the complainant himself states that he has lodged an F.I.R with police with allegation therein that a boy was interfering him during transaction.  
6. The complainant has not informed the call center or the concern branch that his ATM card is missing or stolen, therefore it is presumption of fact that complainant had the ATM card, till date of occurrence. So it is also presumption of law that the burden of proof goes to him that how the ATM was operated from other persons without knowing the Pin Number of ATM.
7. It is stated that before filing the complaint petition, the complainant neither informed the Bank nor had sent any Legal Notice to bank regarding the incident. As per Consumer Law, no any complaint case is filed in forum, unless a Legal Notice is served to the Opposite party and an opportunity to reply is given by the Opposite party. This shows the motive of complainant.  

4. After filing of written statement the complainants have filed Counter Petition in which they have denied several allegation /submission made by the Opposite party no.1. It has been asserted that the Opposite party has neither produced receipts of withdrawal nor footage of C.C.T.V Camera which could have instrumental in investigation of the matter. 
5. On behalf of  the Opposite party No.1 supplementary written statement has been filed with following assertions :-

1. The Opposite party is filing computer print of withdrawal of money from ATM card of the complainant which shows that “Date 05/21/09 BRC GATE Danapur, Time 8.39, Card No. 6220180560500010502, Response Code-000(Successful), Withdrawal-Rs-12000.00, From –Account No. 00000010190072017”.(Vide Annexure-1 of the Supplementary)
2. It is further stated that this computer print of ATM shows that money was withdrawn by card of  the complainant  after entering the Pin Number of the complainant of which secrecy have to be maintained by the card holder as per bank norms and bank bears no liability of customer’s fault in providing the card with Pin Numbers to other person.
3. The complainant has not informed the call center or bank that their ATM card is missing or stolen, therefore it is presumption of fact that the complainant had ATM card till the date of occurrence, so it is also presumption of law that the burden of proof goes on him that, how the ATM was operated from the other persons, without knowing the Pin Number of ATM Card.

We have heard the Learned Counsel for the complainant only because counsel for the Opposite party no.1 was not present but we have carefully perused the entire record.   

The Learned Counsel for the complainants have submitted that facts asserted by the complainants clearly go to show that there is deficiency on the part of the bank and as such this case may be allowed with costs.

6. On behalf of the complainants three documents have been annexed which are as follows:-

1. Photocopy of F.I.R which appeared to have received by Danapur Police on 02.06.09 (Vide Annexure-1).
2. Photocopy of newspaper cutting of Rastriya Sahara (Vide Annexure-2) .
3. Photocopy of complainants application submitted to the Branch Manager, S.B.I, Happy Valley Branch, Shilong which appears to be mailed to S.B.I, Danapur Branch(Vide Annexue-3).

7. On behalf of the Opposite party No.1, besides Written Statement and Supplementary Written Statement, photocopy of computer print of withdrawal of money dated 21.05.09 has been filed. (Vide Annexure-1 of the Supplementary Written Statement).
8. It is the case of the complainants that on 21.05.09 the complainant No.1 tired withdrawal of money to the tune of Rs. 1,500/-(One thousand five hundred only) from ATM in question but was unsuccessful but after ten minutes he(Complainant No.1) again tried to withdraw money  from ATM in question which showed him withdrawal by him to the tune of Rs. 12,000/-(Twelve thousand only) from his account but he did not got any money. Thereafter he complained to nearest S.B.I of Danapur but nothing happened.

From perusal of Photocopy of the F.I.R, it appears that the same was received by police on 02.06.09. Thus the alleged occurrence is of 21.05.09 while the F.I.R has been lodged on 02.06.09 after delay of about 12 days. So for press cutting of Sahara News Paper (Annexure02) is concerned, it has no value in the eye of law. From the Annexure-3 it transpires that instead of directly approaching S.B.I, DanapurBranch, the complainants have filed the same before Branch Manager,S.B.I, Happy Valley Branch, Shillong and this Branch appears to have mailed this to S.B.I. , Danapur Branch. No date is visible on Annexure-3. Hence, there is no any cogent material to prove that the complainant No.1 has approached the Danapur Branch on the same day after the alleged occurrence.

The Opposite party No.1 has categorically stated in para-10 of his written statement that the complainant has not informed the Branch or call center about missing of ATM card after so called occurrence.

The Opposite party no.1in his Written Statement and Supplementary Written Statement had annexed printed booklet of guideline as well as computer print of withdrawal of money (Vide Annexre-1 of the Supplementary Written Statement).

From perusal of the computer print of withdrawal of money it is crystal clear that on 05/21/09 at 8.39 Rs.12,000/-(Twelve thousand only) was withdrawn and balance of Rs. 359/-(Three hundred fifty nine only) remained. The Opposite party No.1 has categorically asserted that the money was withdrawn after using ATM card as well as its Pin Number provided to the complainants. There is no material on the record to show that the aforesaid withdrawal was from other source.

Apart from the aforesaid facts, it is admitted that the complainant No.1 has lodged F.I.R with police and we are not in position to know the result of the investigation. It was duty of the complainants to have informed us with regard to result of the police investigation. As the complainant No.1 has lodged F.I.R, it was the duty of police to obtain C.C.T.V footage of concerned ATM of the alleged occurrence.

After going through the material placed on the record, We find and hold that there is no deficiency on the part of the Opposite party Bank.

For the discussion made above We find no merit in this case and as such this complaint petition stands dismissed but without any cost.

Member                                                    President