PER MR.B.S.WASEKAR, HONBLE PRESIDENT
1) The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, she has saving account with opponent no.1 bank. She is using ATM card issued by opponent no.1. She has given authority to her brother for operating her account. On 02/11/2014 her brother went to ATM centre of Indian Bank at Sion Circle. While operating ATM card, Machine declined the transaction. On enquiry security guard told that there is no money in the machine. Therefore her brother went to ATM centre of Union Bank at Jain Society Sion. Her brother successfully withdrew amount of Rs.10,000/- and the balance was Rs.30907.95. Again on the same day at 18.40 her brother went to ATM centre of Indian Bank at King Cirlce but the transaction was declined. Thereafter her brother went to ATM centre of SBI at Pratiksha Nagar Sion. The machine replied as limit is over. On next day i.e.03/11/2014 her brother went to SBI ATM centre Pratiksha Nagar and withdrew the amount of Rs.10,000/- but receipt was not received. Again on 06/11/2014, her brother went to Indian Bank ATM centre at King Circle. As per mini statement it was revealed that amount of Rs.20,800/- was withdrawn by misusing duplicate ATM card. As the money was withdrawn by duplicate ATM card, her brother visited the opponent no.1. Complaint was lodged. As per reply amount of Rs.10,000/- was withdrawn on 02/11/2014 from ATM centre of State Bank of Travancore Sion Branch and amount of Rs.5,000/- was withdrawn from SBI ATM centre Pratiksha Nagar by unknown person. Again on 03/11/2014 amount of Rs.5,800/- withdrawn from Union Bank ATM centre New Panvel. As the amount was fraudulently withdrawn the complainant filed this complaint for refund of her amount of Rs.20,800/- with interest. She has also claimed compensation of Rs.2,00,000/- towards mental agony.
2) Opponent no.1 is Indian Bank appeared and filed written statement. It is admitted that the complainant has saving bank account and ATM card. All the allegations are denied. Police complaint is already lodged. This opponent is not responsible for withdrawal of amount from ATM centre. There is no deficiency in service on the part of this opponent. The complaint is filed to pressurize this opponent therefore the complaint is liable to be dismissed with cost.
3) Opponent no.2 to 4 remained absent though duly served. Therefore matter is proceeded exparte against opponent no.2 to 4.
4) After hearing the complainant and opponent no.1&2 and after going through the record, following points arise for our consideration. POINTS Sr.no. Points Finding
1) Whether there is deficiency in service? No
2) Whether the complainant is entitled for the relief as prayed ?
3) What Order ? As per final order REASONS
5) As to Point No.1 & 2 :- There is no dispute that the complainant has saving bank account and ATM card issued by opponent no.1. As per complaint, the complainant allowed her brother to operate ATM card. The alleged withdrawal was done by the brother of the complainant and not by complainant herself. It is submitted by the opponents that the ATM pincode is confidential and it should not be disclosed to other person. In this case admittedly ATM pincode was disclosed by the complainant to her brother. The complainant herself has committed breach of the rules. The amount cannot be withdrawn from ATM machine unless ATM card is inserted and pincode is entered. It is alleged by the complainant that the amount was withdrawn fraudulently. At this juncture, we would like to rely upon the judgment of Honble National Commission reported in I (2015) CPJ 254 (NC) in Revision Petition No.3973 of 2014, in the case of Raghabendra Nath Sen & Another Versus- Punjab National Bank, decided on 17th December, 2014. In para 5 of the judgment, the Honble National Commission has laid down as under : Para 5: It can hardly be disputed that no withdrawal from an ATM can be made unless the ATM card / debit card issued to the account holder is inserted in the ATM machine followed by use of the ATM Pin provided to the customer. The ATM pin is known only to the customer and therefore, it is not possible for a third person to withdraw any cash through the ATM even if he is able to clone the ATM/debit card issued to the customer. In fact the case before us, this is not the case of the complainant that he had lost the ATM card issued to him by the bank. The said card was duly used at the ATM machine for making the transaction in question. The ATM pin obviously, must have been used since no transaction at ATM machine is possible without use of the PIN. Therefore, we cannot accept the contention of the complainant that the amount of Rs.5,000/- from his account was withdrawn by a third person and not by him. Even if the said amount was withdrawn by a third person, he would have done it using the ATM card provided to him by the complainant and the ATM pin disclosed by him Identical facts are before us. The Card was with the complainant. She handed over her ATM card to her brother. It was used by her brother. It shows that ATM pincode was disclosed by the complainant to her brother which is the breach of Banking Rules. The amount was withdrawn from the ATM Centre of the opponents. As laid down by the Honble National Commission, the amount can not be withdrawn from ATM Center unless Card is inserted and PIN number is entered. In view of the abovesaid law laid down by the Honble National Commission, the complaint of the complainant can not be accepted.
6) The complaint is based on the fraud. In case of fraud and cheating, it is necessary to prove the fraud and cheating first before arriving to any conclusion. For this purpose, we would like to rely upon the judgment of Honble National Commission in the case of N.Shivaji Rao Versus- M/s. Daman Motor Company & Others, reported in 1993-(001)-CTJ-(0107)-NCDRC. In this judgment, the Honble National Commission has held as under : It is evident from above that it is not a case of supply of defective goods or of deficiency in rendering service. Prima facie it is a case of fraud and cheating as alleged by the appellant- complainant himself. Consequently, the factum of fraud and cheating would have to be established first before a consumer forum can arrive at a finding of deficiency in service. We agree with the view expressed by the State Commission that the Consumer Protection Act and the machinery thereunder cannot be effectively utilized for determining complicated questions of fraud and cheating. The appeal is rejected and the order of the State Commission is confirmed. We would also like to place reliance on the judgment of Honble National Commission in case of Lala Samachar Newspaper Versus- General Manager, Telecom Department, reported in 1998- (006)-CTJ-(0336)-NCDRC and judgment in the case of Reliance Industries Limited Versus- United India Insurance Company Limited reported in 1997-(005)-CTJ-(0688)-NCDRC. In these judgments, the Honble National Commission has held that in case of complicated questions requiring detailed investigation, direction should be given to seek relief in appropriate court. In the instant complaint before us, the complainant has alleged that the amount was withdrawn by fraud. Police complaint was also lodged. There is nothing on record to show the progress of police investigation. As laid down by the Honble National Commission, in case of fraud, detailed investigation is necessary and therefore it is necessary to give direction to the complainant to approach the appropriate court. Therefore, we think it just to give liberty to the complainant to approach the appropriate court. Hence, we proceed to pass the following order. ORDER
1) Complaint stands dismissed.
2) The complainant is at liberty to approach the appropriate court.
3) Parties are left to bear their own costs. Pronounced on 21st January, 2017 [HON'ABLE MR. B.S.WASEKAR] PRESIDENT [HON'ABLE MR. H.K.BHAISE] MEMBER db/-
Comments