Judgment:
Oral Order: (Thota Ashok Kumar, Member)
1. The opposite party no.1 is the appellant. For convenience sake the parties as arrayed in the complaint are referred to hereunder.
2. The complainant is an account holder with the Opposite Party having Savings Bank Account No.30165121208 with Internet banking, mobile banking and ATM Card facilities. On 06.05.2011 at about 06-21 pm, the complainant received two messages on his mobile phone in respect of debit of his above said account by Rs.40,000/- in two different transactions of Rs.20,000/- each. The complainant accessed his bank account on internet and came to know that there were withdrawals. To prevent any further such incident on 7.5.2011 at 12.31 a.m. the complainant immediately rushed to the nearest ATM at Balanagar near BBR Hospital and withdrew the balance amount of Rs.24,760/- from his account i.e. about 70 minutes after the unauthorized withdrawal at 11-21 p.m. on 06.05.2011 at Bangalore. Similarly another withdrawal of Rs.9,300/- was also made by some one on 04.05.2011 at 06-22 am from the ATM at Somajiguda Petrol Bunk which the complainant could not notice. Thus, a total amount of Rs.49,300/- was withdrawn from his account without his knowledge. The complainant did not go to Bangalore during the period of the above withdrawals. He also gave a written complaint to the Opposite Party on 07.05.2011 and also lodged an online complaint to the Banking Ombudsman, Hyderabad upon which he was directed to approach the local head office of the Opposite Party at Koti, Hyderabad. Accordingly, he submitted a complaint through email to the local head office. But in vain. In spite of lodging complaint, the Opposite Party neither refunded the illegally withdrawn amount nor credited the same to his account. In such circumstances, the involvement of the staff of the Opposite Party cannot be ruled out. The Opposite Party is legally bound to safeguard the money deposited by the complainant. The Opposite Party not only negligent to safeguard the money of the complainant but also made the complainant to suffer a loss of Rs.49,300/- by not refunding the same to him. Thus, the complainant has suffered a great loss due to the deficiency in service by the Opposite Party. Hence the complainant filed the complaint before the District Forum seeking direction to the opposite party to pay Rs.49,300/- with interest @ 24% p.a. and also pay compensation of Rs.45,000/- and costs of Rs.5,000/-.
3. The Opposite Party resisted the case contending that the complainant has been maintaining and operating the Savings Bank Account No.30165121208 with their Bank at HAL Campus Branch, Balanagar, Hyderabad with a cheque book, online and ATM Card facilities. The transactions pertaining to the two withdrawals of Rs.20,000/- each on 06.05.2011 was successful by swiping the ATM Card and entering into a valid PIN Number vide Transaction Nos.5041 and 5042. Likewise, the withdrawal of Rs.9,300/- on 04.05.2011 was a successful transaction by swiping the ATM Card and entering into a valid PIN Number vide Transaction No.6141. A person can withdraw the amount entered by him only after swiping the ATM Card and entering into valid PIN Number. After receiving the complaint, they verified about the transactions pertaining to the above said three amounts and found that as per the Electronic Journal Log, the three transactions were successful. The complainant already filed a complaint before the Banking Ombudsman, Reserve Bank of India, Hyderabad and their Banks submitted its reply dt.30.05.2011 and also submitted relevant Electronic Journal Log in that regard. After considering the matter, the Banking Ombudsman, Reserve Bank of India, Hyderabad by order dt.15.07.2011 closed the complaint stating that there is no deficiency of service on the part of their Bank. There is no negligence on their part and the complainant has been operating his Savings Bank Account even after the above alleged transactions. Therefore the opposite party prayed for dismissal of the complaint.
4. The complainant filed his affidavit and the documents, Exs.A1 to A4 were marked. On behalf of the opposite party, its Chief Manager filed his affidavit and the documents, Exs.B1 to B3 were marked.
5. After hearing the Counsel for the parties, and considering the evidence on record, the District Forum, dismissed the complaint on the premise that the statement of account of the complainant show that an amount of Rs.24,700/- was withdrawn at Hyderabad by using ATM card for three times but does not disclose the timings of the withdrawal and that the complainant did not choose to produce any documentary evidence to show the actual time of withdrawing the balance amount at Hyderabad on 7.5.2011
6. Feeling aggrieved, the instant appeal has been filed by the complainant contending that the District Forum erred in concluding that the complainant is in the habit of handing over his ATM card to third parties without there being any cogent evidence and that at the interval of mere 70 minutes it is highly impossible for person to withdraw money from Bangalore and Hyderabad using the same ATM Card and that no CCTV images were filed by the opposite party in the District Forum or to the Banking Ombudsman.
7. Heard both side counsel in this appeal.
8. Now the point for consideration is whether the order of the District Forum is vitiated either in law or on facts?
9. The contention of the complainant is that the amounts of Rs.9,300/-, Rs.20,000/- and Rs.20,000/- were withdrawn by some other person from his account maintained with the Opposite Party Bank on 04.05.2011 at Hyderabad and on 06.05.2011 at Bangalore respectively without his knowledge.
10. On the other hand, the Counsel for the respondents/Opposite Parties, submitted that since the ATM card was in the exclusive possession of the complainant, and he was only knowing the PIN, it was he who withdrew the amount by using the same. He further submitted that it was not the case of the complainant that the ATM card was stolen or misplaced somewhere, as a result, it was misused.
11. Undisputedly, the complainant was having his saving Bank A/c No. 30165121208, with Opposite Party Bank on the relevant date. There is also, no dispute about the fact that the complainant had been using the ATM Card, issued by the Opposite Party. The grievance of the complainant, was to the effect, that he received SMS from the Branch of Opposite Party regarding the withdrawal of Rs.20,000/- each from his account through ATM and he lodged a complaint with the opposite party and also to the Banking Ombudsman. It may be stated here that the ATM card could only be used, if the customer inputs his personal four digit identification number, which is selected by him (customer), and not by the Bank. However, in the interest of security, the customer is advised to retain his PIN code, in his memory, so that no one else is privy to this information. The reverse of the ATM card has a magnetic strip and white strip for signatures of the cardholder. The magnetic strip contains the cardholders details. This card can be used to gain entry into the ATM enclosure, by swiping it in the access lodge. In other words, unless a person is in possession of the relevant ATM card and knows the four digit PIN code, the same (ATM card) cannot be used and operated. As a matter of further precaution, in case the PIN code is entered wrongly thrice, in succession, the ATM will swallow the card itself or cancel it permanently. There is no averment in the complaint to the effect, that the complainant lost his ATM card at any point of time. There is not even a fleeting reference, in the complaint having been made by the complainant, that somebody had stolen his ATM card and misused the same. In the absence of such averment, in the complaint, when the ATM card throughout remained in the exclusive possession of the complainant, and he was in exclusive knowledge of the four digit personal identification number of the said card, the question of misuse of the same, by anybody else, did not at all arise. In case, the said card had been misused by somebody, and the amount of Rs.9,300/- had been withdrawn from the account of the complainant on 4.5.2011, by him, the safer course for him was to, immediately inform Opposite Party with a request to block his ATM card, but he did not do so. Subsequent transactions through ATM card, in the account of the complainant, clearly established that the transaction dated 6.5.2011, in dispute, was made by him. The District Forum, was, thus, right in holding that it could not by any stretch of imagination be said, that there was any unauthorized transaction from the account of the complainant on 4.5.2011 and 6.5.2011, through the ATM card by its misuse. It also could not be said that there was a fraudulent transaction from the account of the complainant, as the transaction could not take place without the use of the ATM card, which was in the exclusive possession of the complainant. In view of the elaborate procedure, having been evolved by the Opposite Parties, regarding the use of ATM card, referred to above, it was not at all possible to withdraw the money from the account of the complainant through ATM by any person other than him. In State Bank of India v. K.K. Bhalla, II (2011) CPJ 106 (NC)=Revision Petition No. 3182 of 2008, decided on 7.4.2011, by the Honble National Consumer Disputes Redressal Commission, New Delhi, similar principle of law was laid down. The statement of account of the complainant show that an amount of Rs.24,700/- was withdrawn at Hyderabad by using ATM card for three times but does not disclose the timings of the withdrawal and that the complainant did not choose to produce any documentary evidence to show the actual time of withdrawing the balance amount at Hyderabad on 7.5.2011. In these circumstances, there was neither any deficiency in rendering service on the part of the Opposite Party nor did they indulge into unfair trade practice. The District Forum was also right in holding so. The order passed by the District Forum, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
12. For the reasons recorded above, the appeal, being devoid of merit, must fail and the same is liable to be dismissed.
13. In the result the appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs.