This Complaint coming up before us for hearing on 27-01-12 in the presence of Sri T. Venkateswara Rao, advocate for the complainant and of Sri D.V. Sainath, advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-  The complainant filed this complaint under section 12 of Consumer Protection Act seeking refund of Rs.39,000/- together with interest @24% p.a., from 22-03-11; Rs.3,00,000/- as compensation towards deficiency of service; Rs.1,00,000/- towards mental agony; Rs.10,000/- towards traveling expenses incurred while attending ombudsman at Hyderabad besides costs.

2.   In brief the averments of the complaint are these:

        The complainant and his wife have an account with the opposite party from March, 2009 vide A/C.No.30718022982.   The complainant also had an ATM card.    Unfortunately, the complainant lost his ATM card on 08-07-09.   The complainant on 10-07-09 during early hours of Bank time complained the loss of his ATM card on a piece of paper.  The opposite party informed the complainant that it will take immediate steps to in operate the lost ATM card.   The opposite party on 23-08-09 furnished another ATM card bearing No.XXX104586 to the complainant on 23-08-09.    The ATM card which the complainant lost earlier gets disabled while another ATM card was issued.  The complainant came to know that an amount of Rs.15,000/-, Rs.4,000/-, Rs.20,000/- on 06-01-10, 09-02-10 and 17-04-10 respectively was drawn by using the lost ATM card.   The opposite party allowing the usage of lost ATM card amounted to clear negligence and irresponsibility on its part.   The complainant on 08-09-10 approached Banking Ombudsman, Hyderabad seeking justice.   The complainant on 13-12-10 appeared before the Banking Ombudsman, Hyderabad as directed.   The opposite party did not obey the directions of the Banking Ombudsman i.e., in paying the amount of Rs.39,000/- to the complainant.    The opposite party threatened the complainant with dire consequences if steps into its premises and used filthy language.   The complainant put to untold mental agony on the attitude of the opposite party.   The complainant lost his reputation in the public on account of insults caused by the opposite party.   The complainant on 06-01-11 got issued a notice furnishing a copy of order of the Banking Ombudsman.   The complainant estimated the mental agony and hardship at Rs.3,00,000/-.   The complainant estimated Rs.10,000/- towards the expenses incurred while attending the office of the ombudsman.     The negligent and callous attitude of the opposite party amounted to deficiency of service.   The complaint therefore be allowed.

3.   The contention of the opposite party in brief is hereunder:

        The opposite party is not aware of the loss of ATM card by the complainant on 08-07-09.   The complainant never gave any report on paper on 10-07-09 or on any day to this opposite party.   The opposite party advised the complainant to give a complaint with toll free number to in operate ATM card which was said to have been lost,  besides giving a return complaint to it.   The opposite party furnished another ATM card to the complainant as it was in practice to issue multiple ATM cards to its customers.   The amounts of Rs.15,000/-; Rs.4,000/- and Rs.20,000/- on 06-01-10, 09-02-10, and 17-04-10 were respectively withdrawn from complainant’s account by using the correct PIN number by using old ATM card and they were successful transactions.   The opposite party will deliver PIN number to any account holder in a sealed envelop against acknowledgement.  So there is no question of knowing PIN number to anybody except the account holder or their authorised persons.   As the account is joint it has to be presumed that the PIN number must be known to both the complainant and his wife.     The banking ombudsman never directed the opposite party to pay Rs.39,000/- to the complainant.  The opposite party never threatened the complainant with dire consequences and never prevented his entry into bank.   There were 16 transactions in total after the alleged loss of the ATM card by the complainant.     Out of them three were zero transactions.   From out of the 13 remaining transactions the complainant is claiming money made in three transactions only.   The above attitude revealed the malafides of the complainant.    The questioned withdrawls were made either by complainant or his wife or their authorized person.   There was no negligence or deficiency of service on the part of the opposite party.   The complaint therefore be dismissed.

4.   Exs.A-1 to A-8, Ex.B-1 and B-2 on behalf of the complainant and opposite party were marked respectively.

5.  Now the points that arose for consideration in this complaint are:

        1. Whether the opposite party committed deficiency of service?

2. Whether the complainant is entitled to compensation and if so              to what amount?

        3. To what relief?

6.     Admitted facts in this case are these:

a. The complainant and his wife are having joint account with           the opposite party vide A/c No.30718022982 (Ex.A-8).

        b. The opposite party provided ATM card to that joint account                   holder.

        c. The opposite party issued another ATM card to the                               complainant.

        d. The complainant approached Banking Ombudsman,                              Hyderabad (Ex.A-3 and A-5).

        e. The Ombudsman on 03-01-11 passed an order and                       communicated it to the complainant and opposite party (Ex.A-6).

7.  POINT No.1:-   The complainant filed IA 517 of 2011 seeking production of a) Rules and regulations for issuing ATM cards to SB accounts b) complaint given by the complainant about the loss of his ATM card and c) application for issue of fresh ATM card in the place of lost ATM card.   This Forum partly allowed IA 517 of 2011 directing the opposite party to file rules and regulations for issuing ATM cards and application of the complainant for issue of fresh ATM cards. 

8.   The complainant served interrogatories on the opposite party who answered as follows:

        “1) Did not you receive the complaint from the complainant for                         the loss of the 1 ATM Card?

        A) The opposite party never received any written complaint from              the complainant about the alleged loss of the ATM card.

          2) Did not you block the 1 ATM card basing on the said                            complaint?

 A) As the complainant did not give any complaint and did not follow the procedure to be followed when the ATM card was lost by complaining to “TOLL FREE NUMBER” to in operate the ATM card and by complaining to opposite party in writing, the opposite party is unable to take steps to block the ATM card alleged to have been lost.

        3) Did n’t you issue fresh 2^nd ATM card after blocking the 1 ATM                        card to the complainant?

        A) The opposite party furnished another ATM card to                               complainant, on the request of the complainant.                             However, the 1 ATM card was not blocked either by the                       customer or by the Bank.

        4) How many ATM cards will be issued to one S.B. Account and                        will be functioning at the same time?

        A) Number of ATM cards can be issued to one S.B. Account on the request of the customers simultaneously and they will function simultaneously”.

9.     The complainant is using ATM card bearing No. XXXX 104586 from 29-10-09 as seen from Ex.A-8.   The complainant sought the refund of Rs.39,000/- said to have been withdrawn on 06-01-10,              09-02-10 and 17-04-10 by using the lost ATM card.   Ex.A-8 revealed that a sum of Rs.4,000/- on 09-02-10 and Rs.20,000/- on 17-04-10 were withdrawn by using ATM card bearing No.XXXX 90314.   Ex.A-8 did not disclose the withdrawal of Rs.15,000/- on 06-01-10 by using ATM card bearing No.XXXX 90314.   How the complainant came to know the withdrawal of Rs.15,000/- on 06-01-10 is a myth? As the opposite party admitted the disputed withdrawals its non mentioning of withdrawal of Rs.15,000/- in Ex.A-8 did not make any difference. 

10.   The amounts of Rs.10,000/- on 19-11-09, Rs.5,000/- on                 27-11-09 and Rs.10,000/- on 03-12-09 were also withdrawn by using the debit card bearing  No. XXXX 90314 as seen from Ex.A-8.   The cash balance was known on 05-11-09, 07-11-09, 18-11-09 as seen from Ex.A-8 by using the ATM card bearing No.XXXX90314.   Thus the ATM card bearing No.XXXX 90314 was put to use several times. But the complainant is questioning three transactions only.   The learned counsel for the complainant contended that the complainant is not having all the entries in the pass book.  When the registry took an objection the complainant filed xerox copy of pass book.   The complainant made a representation (EX.A-1) to the Banking Ombudsman on 08-09-10 enclosing a xerox copy of pass book relating to him.    Therefore the contention of the complainant about he not aware of the use of the ATM card bearing No. XXXX 90314 on other occasions prior to filing complaint cannot be accepted. 

11.    The Banking Ombudsman under Ex.A-6 rejected the complaint (Ex.A-1) holding that it requires consideration of elaborate documentary and oral evidence.   In view of Ex.A-6 order the contention of the complainant about the Banking Ombudsman directing the opposite party to return Rs.39,000/- cannot be accepted. 

12.    The reply to interrogatories revealed that the complainant did not make any written application to the opposite party regarding loss of ATM card.   The complainant did not question the other transactions made by using the ATM card bearing No. XXXX 90314 as rightly contended by the opposite party.   The above conduct of the opposite party amounted to acquiescence for use of the ATM card bearing NO.XXXX 90314.  

13.    Ex.B-2 is the terms and conditions for ATM cards along with application form.   Clauses (C) and (D) in Ex.B-2 are extracted below for better appreciation:

        “(C) The PIN:

              The card holder is initially allotted a computer generated 4 digit PIN (Personal Identification Number) which will be in a secured and sealed envelope.   The Card Holder is advised in his own interest to change this PIN to any other four digit number of his/her choice.   For this purpose, he may use in PIN change option available at the SBI-ATMs.   While selecting a PIN, the card holder is advised to avoid a PIN which can be easily association with him/her (eg. Telephone number, date of birth etc.) Besides, the selected PIN value should not comprise.

• A sequence from the associated account numbers
• String of the same number
• Historically significant dates

Please remember that an unauthorized person can access the ATM services on card holder’s account if he gains the card and the PIN.   The card, there, should remain in Card Holder’s possession and should not be handed over to anyone else.   The card is issued on the condition that the Bank bears no liability for the unauthorized use of the card.  This responsibility is fully that of the card holder.

d) LOSS OF CARD:

        The card holder should immediately notify ATM branch from where he/she has obtained the card, if the card is lost/stolen or the PIN is accidentally divulged.   The card holder should also forward a copy of the FIR lodged with the police station concerned in case the Card has been stolen/misplaced/not traceable.

        Any financial loss arising out to unauthorized use of the card till such time the Bank records the notice of loss of card will be to the Card Holder’s account.

        Fresh card will be issued in replacement of lost/damaged card at a fee”.

14.   The complainant on 30-01-12 filed written arguments after the matter was being posted to orders along with a memo of user’s manual of ATM cards by State Bank Group Banks.   In that booklet terms and conditions under which the ATM/Debit Card has been issued were mentioned.  The relevant portion of the terms and conditions is extracted below for better appreciation:

        a. The PIN:

      The PIN is used for withdrawing cash at an ATM or for purchasing goods and services at a Merchant Establishment.   The card holder is advised in his own interest to change his PIN to any other four-digit number of his/her choice.   For this purpose, he may use the PIN change option available at Networked State Bank Group ATMs.   The PIN should be safeguarded carefully.   Usage of wrong PIN three times would invalidate the card for the rest of the day.   While selecting a PIN, the card holder is advised to avoid a PIN which can be easily associated with him/her (eg. Telephone number, date of birth etc.,) Besides, the selected PIN value should not comprise.

• A sequence from the associated account numbers
• String of the same number
• Historically significant dates

Since an unauthorized person can access the ATM services on the card holder’s account if he gains the card and the PIN, the card should remain in card holder’s possession and should not be handed over to anyone else. The bank bears no liability for the unauthorized use of the card.  This responsibility is fully that of the card holder.   The PIN is sent in a Pin Mailer.   It is the card holder’s responsibility to ensure that the knowledge of the PIN/PIN Mailer does not fall into any other person’s hands.

       b) Loss of card: The card holder should immediately notify the customer branch or contract centre by letter or by a phone call followed by confirmation in writing if the card is lost/stolen.   Any financial loss arising out of unauthorized use of the card till such time as the Bank hotlists the card, will be to the card holder’s account.  Fresh card will be issued in replacement of lost/damaged card at a fee of Rs.200/-.

15.   In State Bank of India vs. K.K. Bhala 2011 (2) CPR 27 (NC) it was held that without the ATM card and knowledge of PIN number it is not possible for an unauthorized person to withdraw money from ATM. 

        Taking a clue from the above decision we opine that an ATM card cannot be put to use without knowing the PIN number.   The complainant did not question the other transactions which arose out of use of the ATM card bearing No.XXXX 90314.    It can therefore be inferred that the complainant did not lost the ATM card bearing No. XXXX 90314 but might have been misplaced and the misplaced card might have been put to use by the complainant.   Mere issue of another ATM card did not infer that the earlier card was lost.   Under those circumstances, the contention of the complainant about the opposite party committing deficiency of service cannot be accepted.   In view of the afore mentioned discussion we answer this point against the complainant.

16.  POINT No. 2 :-   In view of above findings, the complainant is not entitled to any compensation.   We therefore answer this point also against the complainant. 

17. POINT No.3:-   In view of above findings in the result the complaint is dismissed without costs.

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 31^st day of January, 2012.

MEMBER                                             MEMBER                                 PRESIDENT

  APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant :

For Opposite Parties: 

                                                                                                                  PRESIDENT