IMPORTANT POINT
Where while opening a new account a consumer applied for ATM card which was not delivered to him and someone withdrew money from account, Bank would be deficient in service in absence of establishing that ATM card was delivered to complainant.

Bhanwar Singh, President—Heard Sri Mahesh Chandra, learned counsel for the State Bank of India and Sri Prem Mohan, learned counsel for the respondents.

2. This appeal is directed against the judgment and order dated 22.10.2005 passed by the District Consumer Forum, Allahabad in complaint case No 258/2004. By virtue of the judgment in appeal the District Consumer Forum, Allahabad has directed the State Bank of India to pay the sum of Rs 2,79,000 along with interest at the rate of 9% per annum to the complainant. According to the complainant, he opened a Savings Bank Account No. 491 with the State Bank of India, Telephone Industry, Naini Branch, Allahabad and in order to operate the said account a cheque book was issued to him. He had deposited in the aforesaid bank account the entire money he received at the time of his retirement. As advised by the Bank authorities he filled up a form for operation of the bank account through ATM facility but he had never received the ATM card and as such there was no question for him to have withdrawn any money through the ATM facility. On February 13, 2004 he got a new cheque book issued to him and it was on that date he had come to learn from the bank authorities that a sum of Rs 2,79,000 had been withdrawn from his bank account through ATM card. According to the bank authorities the ATM card was handed over to M/s Skypak Courier Agency, but there is no proof that the said agency had ever delivered the card to the complainant. The complainant lodged a report with the police about the fraudulent withdrawal of his money and filed a complaint with the District Consumer Forum with the allegation that the withdrawal of the aforesaid sum could take place by some mischievous elements with the help and collusion of the bank employees.

3. The bank authorities filed their written statement and pleaded that it being a case of fraud, the complaint should have filed a civil suit. The State Bank of India, however, conceded in paragraphs 15 and 17 of its written statement that the ATM card had not been delivered to the complainant and it appears that the card fell into the wrong hands who had mischievously and fraudulently withdrawn the aforesaid amount. As a matter of fact and as pleaded, however, it had a bona fide belief that the money might have been withdrawn by the complainant.

4. On having scanned the merits of the respective averments of the two parties, the District Consumer Forum arrived at a conclusion that the complainant neither received any ATM card nor operated his savings bank account through any such card and also that it was not the complainant who had withdrawn the sum of Rs. 2,79,000. On the basis of these findings the District Consumer Forum had allowed the complaint and directed the State Bank of India to pay to the complainant the sum of Rs. 2,79,000 along with interest at the rate of 9% per annum. Litigation charges to the tune of Rs. 500 were also awarded to the complainant.

5. We have heard learned counsel for the parties and perused the record. It is, indeed, clear that the complainant never received the ATM card to operate the Savings Bank account nor he had withdrawn a single penny out of his bank account through any such facility. The State Bank of India has miserably failed to establish by cogent piece of evidence that either the complainant was handed over the ATM card or he had withdrawn the amount in question by utilizing the ATM facility; rather in its written statement (paragraph 15 & 17) the Bank has admitted that the ATM card was never handed over to the complainant. It is implied in this admission that the complainant could not have operated his account with the facility of the ATM card. As a matter of fact it appears that the courier service and the bank employees entered into a collusion and the withdrawal of the complainant’s large sum of Rs. 2,79,000 was the result of such fraudulent act.

6. More than three years have elapsed ever since the matter was r