Sri A.K.Patra, President

1. The factual matrix leading to the case of the complainant as emerged from the case record is that, on 07.05.2019 an amount of Rs.49, 500/- was fraudulently withdrawn from his S/B Account vide No.33580810688 from ATM, SBI, Bazar Chowk, Baliguda for which he lodged FIR vide Case No.0071 dt.08.05.2019 at Baliguda PS and requested the OP Bank to supply the CC T V footage of ATM, SBI, Bazar Chowk but after lapse of five months also OP Bank remained silent over the mater. Hence, finding no other option the complainant filed this complaint alleging deficiency in service & unfair trade practice on the part of the Ops and prayed for an order direction the OP/ Bank to recover the said theft amount  and  to pay compensation of Rs.5,00,000/- towards mental agony suffered.

1. To substantiate his claim the complainant has filed the copy of (i) Copy of Application dt.07.05.2019 made to the Chief Manager ,SBI,Baliguda, ii) Copy of FIR No.0071 dt08/05/2019 of Baliguda PS, Dist-Kandhamal,(iii) Copy of application  addressed to IIC, Baliguda (iv) Copy of application to the Chief Manager, SBI, Baliguda,dt.24.05.2019, (v) Copy of application dt.17.10.2019 to the Banking Ombudsman, RBI, Bhubaneswar,(vi) Copy of News Clip,(vi) Copy of account statement dt. 05/05/2019 to 13/05/2019 of SB A/c No.33580810688 of SBI, Bhawanipatna, Dist-Kalahandi. (vii) Copy of details of transfer of fund of Rs.40, 000/- from SB A/c No.33580810688 to SBI A/C No. 381207552839(Evening Branch), Bhawanipatna. (viii) Copy of death certificate of Jyotshnamayee Nayak.  .
2. On being notice, the Op 1 & 3 appeared through their Counsel Shri S.K.Agrawal and OP 4 appeared through Shri S.K.Mishra, Asst.Manager, RBI, Bhubaneswar. The Op 2 did not prefer to contest the case though notice through registered post is properly served.
3. The OP 1 & 3 though appeared but failed to file their written version within the stipulated time period  as prescribed under C.P.Act as such the written version filed at belated stage was not accepted.
4. The OP 4  stated in their written version that, the complainant made a complaint before the Banking Ombudsman about two fraudulent ATM transfer and fraudulent withdrawal of Rs.49,500/-  from his account  and the said complaint was registered in the office of the OP 4 as complaint No.2482/2019-20 dt.23.10.2019 and was forwarded to the concern SBI for their comments . The OP/ Bank replied that, the complainant used the help of a third person to withdraw Rs.2,000/- after which the debit card got exchanged and thereafter the two disputed transactions took place. The concern SBI also submitted the CCTV footage of the disputed transaction. The Banking Ombudsman observed that, the complainant’s card was exchanged and due to which the alleged disputed transactions took place. As per the CCTV image submitted by the SBI, a third person was there with the complainant while withdrawing Rs.2, 000/- on 7.05.2019. The ATM cum Debit card PIN is privy to the card holder only and its safe keeping is the liability of the card holder as such the SBI could not be held liable for the alleged disputed transaction as such no deficiency in service was attributed to the SBI. The complaint of the complainant before the BO was rejected under Clause 13(a). It is further submitted that , Banking Ombudsman is a quasi- judicial body functioning under BO Banking Ombudsman Scheme created by the RBI to enable resolution of complaints of customers of banks relating to certain services rendered by the banks and to facilitate the satisfaction of settlement of such complaints. The complaint of the complainant before the BO was rejected under Clause 13(a ) and  no appeal has been preferred as such it reach to its finality. The alleged matter has already been disposed off before the Banking Ombudsman Hence, prayed to dismiss the complaint against the OP 4 being frivolous and vexations with costs in terms of Section 26 of the C.P.Act, 1986 and the OP 4 may be deleted from the array of the Ops.
5. As per Sec. 38(6) of C.P.Act 2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
6. The complainant led his evidence on affidavit. The facts stated in his evidence affidavit are corroborating with the averments of the complainant petition.
7. The OP 1 all so filed an affidavit evidence of one Neelakantha Behera , the Chief Manager SBI, Baliguda .He also filed  certain documents as per list dt. 18.04.2023 .Though evidence without pleading is not acceptable; the Ops 1 & 3 is allowed to take part in the hearing for proper decision of this complaint.
8. The other Ops have not turned up to filed their evidence affidavit as prescribed under C.P.Act 2019.
9. In the course of hearing the learned counsel for the OP 1 & 3 submitted that, admittedly the complainant is having a Saving Account No.33580810688 in the SBI, Bhawanipatna Branch and the alleged ATM counter was under the OP 1 Baliguda branch .It is further submitted that, the OP Bank supply its customer ATM Card along with booklet   containing the ATM- cum- Debit Rules which consist the various important terms and condition for using  , storage etc of the ATM- cum -Debit Card. Without the use of the four digits ATM Pin a successful transactions at the ATM counter could not be completed and the said four digits PIN is solely lies with the account holder only. Hence, the card holder should not share or disclose the ATM Card and the four digits ATM PIN to any person and should keep all these information and card safely with himself only. In the instant case, the complainant has violated the above important rules and he has admitted in his FIR dt. 08.05.2019 filed by the complainant in Baliguda Police Station, Kandhamal that, while withdrawing  some amount from one ATM on 07.05.2019 at Baliguda  he has taken help of one unknown person and said unknown person has fraudulently changed the ATM Card  and then  withdrawn/transferred total amount of of Rs.49,500/-  from his account illegally. As such, in the above incident, it is only the complainant himself was negligent in handling and using the ATM card and the OP/ bank has committed no deficiency in service in the present matter.  The OP 1 also supplied all the details, including the CCTV footage to the Police for necessary investigation and identification of the suspect vide their letter dt.08.05.2019.  As such there is no deficiency on the part of the OP 1 & 3, so the complainant sans merits need to be dismissed with cost .
10. Heard both the parties. Perused the complaint petition, written version, affidavit evidence and all documents placed on the record by both the parties. The point for consideration before this Commission is that, whether there is any deficiency in service and unfair trade practice on the part of the Ops for mismanagement in keeping security in the electronic banking system causing fraudulent transaction & unauthorized deduction of saving amount from the saving bank account of the complainant resulting financial loss and mental agony to the complainant ?
11. From the totality of the facts and circumstances of the case it stands proved on admission that, the complainant is a Saving Bank Account holder of SBI with   ATM (Debit card) & SMS alert facility.
12. It is not disputed that, the OP/ Bank supplied its customer  ATM Card along with booklet   containing the ATM- cum- Debit Rules which consist the various important terms and condition for using  , storage etc of the ATM- cum -Debit Card. So al so it is not disputed that, without the use of the four digits ATM Pin a successful transactions at the ATM counter could not be completed and the said four digits PIN is solely lies with the account holder only as such  the card holder/complainant  should not share or disclose the ATM Card & the four digits ATM PIN to any person and should keep all these information and card safely with himself only. In the instant case, the complainant has admitted in his FIR dt. 08.05.2019 lodged in the  Baliguda Police Station, Kandhamal stating there in that, while withdrawing  some amount from ATM on 07.05.2019 at Baliguda  he has taken help of one unknown person and said unknown person has fraudulently changed the ATM Card  and then  withdrawn/transferred total of Rs.49,500/-  from his account illegally. In such facts & circumstances we found that, the complainant himself was negligent in handling and using the ATM card and there is no negligence or deficiency in service in attributed there against the 1& 3 /bank authority. 
13. The matter was also put forth before the Banking Ombudsman where upon the Hon’ble Banking Ombudsman observed that, the complainant’s card was exchanged and due to which the alleged disputed transactions took place. As per the CCTV image submitted by the SBI, a third person was there with the complainant while withdrawing Rs.2,000/- on 7.05.2019. The ATM –cum-Debit card PIN is privy to the card holder only and its safe keeping is the liability of the card holder as such the SBI could not be held liable for the alleged disputed transaction as such no deficiency in service was attributed to the SBI and the complaint was rejected under Clause 13(a). Here the complainant has whispered about said  final decision of Banking Ombudsman  rather finding of the Hon’ble Banking Ombudsman remain unchallenged.
14. The Hon,ble Supreme Court of India in Durga Hotel Complex vrs.  Reserve Bank of India ,reported in AIR 2007 SC 1467 = ( 2007 ) 5 SCC120 (as cited by the OP 4) held that ,conceptually an Ombudsman is a non-adversarial adjudicator of dispute ,and when the BO is acting in discharge of a function enjoined upon it under a statutory scheme ,viz  Banking Ombudsman Scheme ,there is no element of hiring of BO’s service by the complainant as defined under clause (o) Section 2 of the Consumer Protection Act . Clause (o) of section 2 of Consumer Protection Act 1986 is corresponding to Clause (11) of section 2 of new Consumer Protection Act 2019.
15. Law is well settled that, complainant is to prove deficiency in service as alleged against the Ops but here the complainant failed to prove any negligence & deficiency of service on the part of the Ops.
16. Based on above facts & circumstances and settled principle of law, we are of the opinion that this complaint sans merits. Hence , dismissed against the OPs on contest. However, no order as to cost.

Dictated and corrected by me

         Sd/-                    

President

                 I   agree.

                                            Sd/-

                                       Member                                    

Pronounced in open Commission today on this 15^th November 2023  under the seal and signature of this Commission. The pending application if any is also disposed off accordingly.

Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.