No ATM card issued to consumer -money withdrawn from his account-Who is responsible?

 In the instant case, when we made enquiry with the learned counsel for the bank as to what is the proof of supplying ATM card through which the alleged withdrawals were made, the counsel failed to show any piece of material tendered in evidence on record to substantiate their case of issue of such card.  We further made an enquiry from the learned counsel as to prove the acts alleged by them about supplying of new PIN on request of the complainant to which the bank refering to one e-mail dated 17/04/2006 alleged to be sent by the complainant requesting for the same.  However, no such e-mail is on record or could be pointed out by the learned counsel.  On the contrary, the counsel referred to a copy of letter on record purported to be written by the complainant asking for allotment of new PIN.  Such is not a case of the Bank. Further, there is no proof of sending any new PIN to the complainant as per said letter.  Furthermore, if any new PIN is supplied to the complainant, then the bank ought to have possessed the record thereof.  No such record is produced.  On the contrary, it is submitted that the record is destroyed (without any part thereof).  It is pertinent to note that the bank failed to show that after alleged issue of ATM card bearing No. 5081251103025508, it was used at any time during the period of year 2004 and prior to 22/11/2006.  Absence of such record only corroborates the case of the complainant that he never possessed any ATM card relating to his saving bank account or used it at any time.  Under the circumstances, since apparently the transaction as shown of withdrawal from ATM of `6,00,000/- in question pertains to an ATM card which was never issued and possessed by the complainant, inference drawn by the forum cannot be faulted with.  Learned counsel for the appellant relied upon the decision of the National Commission in the matter of State Bank of India vs. K.K.Bhalla, II (2011) CPJ106 (NC).  However, the facts of the present case are different.  It was a case about ATM card issued and possessed by the customer while in the instant case the issuance of ATM card itself is in dispute. We find the appeal is devoid of any substance.  Holding accordingly, we pass the following order.

BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI

First Appeal No. A/12/783 (Arisen out of Order Dated 05/03/2012 in Case No. 201/2007 of District DCF, South Mumbai)  CITIBANK, N. A. ...........Appellant(s) Versus  MR RATILAL VELJEE ISRANI, ...........Respondent(s)

BEFORE: HON'BLE Mr. S.R. Khanzode PRESIDING MEMBER HON'BLE MR. Dhanraj Khamatkar Member HON'BLE MR. Narendra Kawde MEMBER

Citation;2014(2) ALL M R(JOURNAL) 59

......for the Respondent

(1)               This appeal takes an exception to an order dated 05/03/2012 in Consumer Complaint No.201/07, Citibank, N.A. Vs. Mr.Ratilal Velje Israni , passed by District Consumer Disputes Redressal Forum, South Mumbai (‘Forum’ in short). (2)               Undisputed facts are that:-                    Respondent (complainant herein) Ratilal Veljee Israni (herein referred to as ‘the complainant’) is one of the customers of appellant, Citibank N.A. (hereinafter referred to as ‘the bank’) and he has a saving bank account with it.  On receiving monthly statement of his account on 07/12/2006 from the bank, it was noticed by the complainant that during the period from 22/11/2006 to 05/12/2006, `6,00,000/- were shown as withdrawn using ATM card.  It is the case of the complainant that he never had an ATM card relating to his saving bank account and in fact an earlier occasion in the year 2004, the bank on their own when sent two cards of Diners Club as well as one master card of Indian Oil and one Citi Card bearing No.5081251103025508, all those cards were returned by the complainant tearing them into pieces on 24/04/2004. He never had or possessed any ATM card relating to his savings bank account with the bank and, therefore, further alleging that it was a fraudulent act on the part of the bank officials to debit the account for the amount claimed to be withdrawn by using ATM card.  He even lodged police complaint and also filed the consumer complaint. The bank resisted complaint stating that the amount of `6,00,000/- withdrawn using ATM card and therefore there is neither negligence nor deficiency in service on their part.  The forum did not accept the contention of the bank and allowed the complaint and directed the bank to pay compensation of `6,00,000/- along with interest @9% p.a. w.e.f. 01/12/2006, further awarded compensation of `10,000/- towards mental torture and `5,000/- as costs.  Feeling aggrieved thereby bank preferred this appeal. (3)               Both the parties are heard.  Perused the record.  (4)               In the instant case, when we made enquiry with the learned counsel for the bank as to what is the proof of supplying ATM card through which the alleged withdrawals were made, the counsel failed to show any piece of material tendered in evidence on record to substantiate their case of issue of such card.  We further made an enquiry from the learned counsel as to prove the acts alleged by them about supplying of new PIN on request of the complainant to which the bank refering to one e-mail dated 17/04/2006 alleged to be sent by the complainant requesting for the same.  However, no such e-mail is on record or could be pointed out by the learned counsel.  On the contrary, the counsel referred to a copy of letter on record purported to be written by the complainant asking for allotment of new PIN.  Such is not a case of the Bank. Further, there is no proof of sending any new PIN to the complainant as per said letter.  Furthermore, if any new PIN is supplied to the complainant, then the bank ought to have possessed the record thereof.  No such record is produced.  On the contrary, it is submitted that the record is destroyed (without any part thereof).  It is pertinent to note that the bank failed to show that after alleged issue of ATM card bearing No. 5081251103025508, it was used at any time during the period of year 2004 and prior to 22/11/2006.  Absence of such record only corroborates the case of the complainant that he never possessed any ATM card relating to his saving bank account or used it at any time.  Under the circumstances, since apparently the transaction as shown of withdrawal from ATM of `6,00,000/- in question pertains to an ATM card which was never issued and possessed by the complainant, inference drawn by the forum cannot be faulted with.  Learned counsel for the appellant relied upon the decision of the National Commission in the matter of State Bank of India vs. K.K.Bhalla, II (2011) CPJ106 (NC).  However, the facts of the present case are different.  It was a case about ATM card issued and possessed by the customer while in the instant case the issuance of ATM card itself is in dispute. We find the appeal is devoid of any substance.  Holding accordingly, we pass the following order. ORDER 1)       Appeal stands dismissed. 2)       Appellant shall bear its own costs and to pay costs of `5,000/- to the respondent. 3)       Inform the parties accordingly.  Pronounced on 5th December, 2012.

[HON'BLE Mr. S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR. Dhanraj Khamatkar] Member [HON'BLE MR. Narendra Kawde] MEMBER

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