O R D E R

 SMT.SMARITA MOHANTY, MEMBER

            This appeal has been filed by O.P.-Bank against the impugned order dated 30.1.2015 passed by District Forum, Malkangiri in C. C. Case no. 134 of 2014.

          The background facts of the complaint case are that complainant and his brother are joint account holder under the O.P.-Bank bearing account no. 31559670071 along with ATM facility. On 9.8.2014 complainant received one mobile message stating that an amount of Rs.22,090/-has been withdrawn from his account by an unknown culprit through an illegal transaction. The said matter was reported to O.P. and also the complainant filed a written complaint requesting to enquire into the matter and preserve the CCTV footage for the purpose of enquiry. He also lodged an FIR before the local Police Station on the same day. Thereafter complainant filed a complaint case before the Forum below for gross negligence and deficiency in service seeking direction to O.P. to pay Rs.22,090/- along with 18% interest and to award Rs.50,000/- as compensation and Rs.5,000/- towards cost of litigation expenses.

          O.P. appeared through its counsel and filed written version. It contended that the said complaint was not maintainable and there is no deficiency in service on the part of O.P. and without using the Card no. and ATM PIN no. transaction cannot be possible at PoS and as such prayed for dismissal of the complaint.

          After hearing the parties learned District Forum directed the O.P. to pay Rs.22,090/- with 9% interest to the complainant within 45 days from the date of receipt of the order failing which the O.P. shall be liable to pay Rs.100/- for each day of delay till the payment was made.

          Being aggrieved by the said order O.P. filed this appeal before the Commission on the grounds that the complaint petition has been filed by respondent only. He has not made his brother a party as the said account is a joint account. Further it is stated that District Forum has erred in law by taking the noting of letter and a report annexed by complainant (Exhibit-4) which does not fit into the present case and has passed an erroneous order which is liable to be set aside.

          We heard Mr. P. V. Balakrishna, learned counsel for the appellant. None appeared on behalf of respondent on call on the date of hearing and hence set ex parte.

          We perused the record, documents available on record, impugned judgment and order as well as the LCR.

          Admittedly respondent and his brother opened a joint account in O.P.-Bank along with ATM facility. It was alleged that on 9.8.2014 respondent received one mobile message that an amount of Rs.22,090/- was withdrawn from his joint account which is illegal. He requested O.P. to enquire into the matter.

          Appellant vehemently opposed the allegation made by respondent. It was submitted that on verification through electro-mechanism process it was ascertained that the transaction was successful on Point of Sale (PoS), where appellant is no way liable for the same.

          On perusal of the record it is seen that there is no material on record to show that money was withdrawn from his account by some unauthorised person. Further it is seen from the statement details given by the appellant-Bank that the amount has been debited from respondent’s account on Point of Sale. As per the terms and conditions provided by the Bank for the use of ATM Card, the responsibility is fully on the Card holder for its misuse.

          In case of State Bank of India vs. K. K. Bhalla reported in 2011 CPJ 106 (NC), National Commission held that without the ATM Card and knowledge of the PIN number, it is not possible for withdrawal of money by some unauthorised person from an ATM.

          In the instant case the allegation of unauthorised withdrawal of money is not sustainable as the ATM Card and the PIN number was in the self custody of respondent.

          Keeping in view of these facts, we have no option but to set aside the orders of the learned District Forum below.

          In the result, appeal is allowed setting aside the order dated 31.1.2014 passed by learned District Forum, Malkangiri in C. C. Case No. 170 of 2012.

          Records received from the District Forum be sent back forthwith.