PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision is directed against the order dated 06.08.2012 passed by State Commission Haryana, Panchkula in First Appeal No. 318/2012.
2. Briefly stated the facts relevant for the disposal of this revision petition are that the petitioner filed a consumer complaint in District Forum Karnal alleging that she was having a saving bank account with respondent no.1 bank with ATM facility. On 20.03.2009, the complainant visited ATM installed in the premises of Dayal Singh College, Karnal Branch of State Bank of Patiala to withdraw a sum of Rs.8000/-. Due to some technical fault, the complainant could not withdraw the said amount from the ATM machine. Thereafter, the complainant went to the ATM of State Bank of India installed at Nehru Place, Karnal and tried to withdraw Rs.8000/- and at that time she found that sum of Rs.40,000/- has been withdrawn by two transactions of Rs.20,000/- each. On the same day, complainant wrote a letter to State Bank of Patiala seeking refund of Rs.40,000/- wrongfully withdrawn from her account but the respondents / opposite parties failed to oblige. This led to filing of the consumer complaint.
3. The opposite parties no. 1 & 2 resisted the complaint on the allegations that in the account of the complainant there were two transactions of ATM withdrawal of Rs.20,000/- each on 20.03.2009 at 14:28:31 hours and 14:30:25 hours respectively. The opposite parties took the plea that operation under ATM process can be initiated by inserting the ATM card in the machine and, thereafter, by entering the private pin number of the account holder. Therefore, unless the card holder parts with the ATM card and disclose the pin number to third person, no transaction from the account of account holder can be made. It was pleaded that complaint filed by the petitioner was thoroughly investigated, the record was checked and it was ascertained after verification of record that sum of Rs.20,000/-.each was withdrawn from the ATM without there being any foul play. The opposite parties no. 3 & 4 took the similar plea and they further raised a plea that there was no privity of contract between the complainant and the said opposite parties.
4. The District Forum on consideration of the pleadings, allowed the complaint and directed the opposite parties to pay a sum of Rs.40,000/- to the complainant alongwith interest @ 9% p.a. from the date on which the said amount was debited to the saving account of the petitioner / complainant. Relevant observations of the District Forum are reproduced as under: A perusal of the complaint revealed that on 20.03.2009 prior to the two erroneous withdrawals of Rs.20,000/- each from the account of the complainant through ATM machine where no cash was disbursed through the ATM machine to the complainant, an amount of Rs.20,000/- was shown to have been withdrawn erroneously on 20.3.2009 from the account of one Gobind Lal Sharma, who was working as a driver in Haryana Roadways, Karnal. He has also made a complaint in this regard to the Deputy Commissioner, Karnal wherein it was stated by him that Rs.20,000/- were erroneously withdrawn through ATM installed in Dayal Singh College, Karnal Branch of OP no.3 due to technical fault in the ATM machine. A perusal of the document Ex.C5 shows that a letter dated 19/20-3-09 was written by the Branch Manager of SBI, Grain Market, Karal to OP no.3 wherein it was written as under: With reference to above, we submit that we have received complaint regarding non receipt of Rs.40,000/- on 20.3.2009 vide TXN no.455 ANDS-457 STAN50063701 CARD No.622018091230000208 Rs.20,000/- each. Customer withdrawn Rs.20,000/- cash not disbursed and A/c debited with Rs.20,000/- and Rs.20,000/- Two times. Kindly arrange to refund by pay order FVG SMT VIDYAWANTI. Thereafter a reminder dated 8.4.2009 was also issued by the Manager, State Bank of India, Grain market, Karnal to the Branch Manager, State Bank of Patiala Dayal Singh College, Karal Ex./CW-2 dated 8.4.2009. The same reads as under: WITH REFERENCE TO ABOVE WE SUBMIT THAT WE HAVE RECEIVED COMPLAINT REGARDING NON RECEIPT OF Rs.40,000/- on 20/03/2009. VIDE TXN NO.455 ANDS 457 ATM- STAN50063701 CARD NO.6220180912300007271 RS.20000/- EACH CUSTOMER WITHDRAWN RS.20,000/- CASH NOT DISBURSED AND A/C DEBITED WITH RS.20,000/- AND RS.20,000/- TWO TIMES. KINDLY ARRANGE TO REFUND BY PAYORDER FVG.SMT. VIDYAWANTI AND MAIL TO US. A perusal of Ex.C12 shows that a letter was written by one Gobind Lal Sharma to Deputy Commissioner Karnal wherein a it was mentioned that he was having saving account no.10093009330. He was having ATM bearing card no.622018045840003324. On 20.3.2009 he had gone to ATM of State Bank of Patiala, situated at Dayal Singh College, Karnal at about 2.25PM for withdrawal of Rs.25000/-. When he operated the ATM, the screen had become black and the ATM could not be operated. Thereafter he immediately went to the Manger of the Bank and narrated the whole story to him. The Manager had put him off stating that the ATM was defective. He was in great need of money. On that date at about 14.40 PM he had visited the ATM situated in the office of Nehru Place for withdrawal of Rs.20,000/-. After seeing the JP roll, it was found by him that Rs.40,000/- had been withdrawn from his account. Thereafter he had gone to the Manager of OP no.3 who assured him that the amount in question will be credited in his account within three days. He visited his office after three days whereupon he told him that he could pay him only Rs.8000/-. He has also threatened him to implicate him in a false case. An affidavit of said Gobind Lal Sharma has also been produced on the file wherein it has been affirmed that on 20.3.2009 he had visited the ATM installed at Dayal Singh College, OP no.3 for withdrawal of Rs.20,000/-. He had withdrawn a sum of Rs.20000/- but when he received a slip from the ATM, he was surprised to see that an amount of Rs.40,000/- was shown to have been withdrawn. At detailed affidavit running in seven pages, EX.C2/A, of Vidya Wanti has been produced on the file in support of the averments made in the complaint. The affidavit of Sh. Vijay Kumar Chopra, Manager SBI, Grain Market, Karnal in support of the pleadings made in the reply filed by OP no.1 and 2 have been filed. Sh. R.K. Mittal has also filed his affidavit Ex.03/A in support of the reply filed on behalf of OP no.3 and 4.
5. Being aggrieved of the order of the District Forum, the respondent / opposite parties respectively preferred appeals no. 318 of 2012 & 439 of 2012 and the State Commission relying upon the judgment of the National Commission in titled Revision Petition No. 3182 of 2008 decided on 07.04.2011 dismissed the complaint observingState Bank of India Vs. K K Bhalla that the facts in this complaint were exactly similar to the facts before the National Commission in the matter of State Bank of India vs K.K. Bhalla (supra).
6. We have heard the parties and perused the material on record.
7. Petitioner Vidyawanti has taken us through the judgment of the District Forum and submitted that District Forum has taken great pains to analyze the evidence and has rightly concluded that the money in question was unauthorizedly withdrawn from her account by misusing the ATM machine installed at Dayal Singh College Karnal. She has contended that her version also finds corroboration from the fact that on the same day there has been another incident of unauthorized withdrawal from the account of the one Gobind Lal Sharma from the same ATM machine. The petitioner has contended that it is not possible that she as well as Gobind Lal Sharma have both filed a false complaint. Complainant has thus urged us to allow the revision petition and set aside the order of the State Commission and restore the order of the District Forum.
8. Learned counsel for respondent no.1 & 2 as also 3 & 4 have contended that State Commission has rightly dismissed the complaint because ATM machine is an electronic machine which cannot be put in operation unless the ATM card of the account holder is inserted in the machine and followed by punching private pin number. Thus, it is clear that withdrawal from the account could not have been possible unless the complainant had parted with her ATM and disclosed the pin number to someone or she herself operated the account.
9. The contention of learned counsel for the opposite parties appears attractive in the first blush. However, on careful perusal of the evidence, we find that the complainant is not the only person who made allegation of unauthorized withdrawal from her saving account but on the same day, there was another complaint of unauthorized withdrawal by use of same ATM by one Gobind Lal Sharma. That being the case, it is clear that some third person by foul play has manipulated the ATM machine and unauthorizedly withdrawn the amount from the account of the complainant. As the money has been wrongly withdrawn from the account of the petitioner / complainant, the opposite party bank who are in banking business and earning profit out of it are liable to make good her loss. The State Commission without looking into the evidence has hastily relied upon the judgment of the National Commission, which approach in our view, is erroneous. Accordingly, order of State Commission is not sustainable.
10. In view of the discussion above, we allow the revision petition, set aside the order of the State Commission and restore the order of the District Forum. Opposite parties to comply with the order of the District Forum within 30 days failing which the petitioner shall be at liberty to recover the amount by initiating the execution proceedings. ......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER