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3. The factual matrix giving rise to the present appeal is as follows:-

The complainant is a customer having savings bank account in his name with the opposite party bank from 20.04.2007 under Account No.1006101061964. The complainant found missing of Rs.39,000/- in his account on 28.02.2012. He verified the bank account and found that on 27.02.2012 a sum of Rs.10,000/- was drawn from the ATM machine belongs to branch of Andhra Bank at Chittoor and on the same day another sum of Rs.10,000/- and Rs.5,000/- were drawn from the same ATM machine and on the same date from the ATM belongs to Canara Bank at Thiruppathy a sum of Rs.10,000/- was also drawn on the same day and Rs.4000/- was drawn from the same ATM. The complainant approached the opposite party and filed a complaint. The opposite party replied that it would be resolved within the period of one week. Afterwards, they have not taken any steps to find out the missing amount. The opposite party failed to perform their duty to find out the missing amount belongs to the complainant and hence he filed a complaint on 01.03.2012. The complainant issued a pre-suit notice to which a reply was received from the opposite party informing the complainant to lodge a complaint before Cyber Crime Police. Since the opposite party failed to find out the missing amount the complainant filed a consumer complaint alleging deficiency in service on the part of the opposite party for a direction to them to pay the stolen amount of Rs.39,000/-

with interest and to pay a sum of Rs.2,00,000/- towards compensation for deficiency in service with costs.

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4. The opposite party filed a written version by contending inter alia that the card holder can withdraw the amount through ATM only by using the ATM card issued to him and also PIN number assigned to him. It is the duty of the complainant to prove by whom the amount was drawn from ATM machine is only known to the complainant himself. The complainant is also duty bound to inform the opposite party to whom he revealed his PIN number and to whom he is suspicious. Without taking any steps, the complainant has blamed the opposite party. The complainant ought to have lodged a complaint before the Cyber Crime Police when the amount was stolen from his account. After filing FIR alone the opposite party can investigate the matter. Without filing any complaint before the police, the complainant alleged that the opposite party has committed deficiency in service. As it is found that the amounts drawn on through ATM Machine which belongs to Andhra Pradesh Bank, the Andhra Pradesh Bank is also necessary party to the proceedings. The complainant did not take any steps to implead them as a party in the complaint. The opposite party is not liable to pay any compensation and therefore the complaint is to be dismissed.

7. The point for consideration is;-

(1) Whether the order passed by the District Commission, Dindigul in C.C.No.38/2012, dated 03.08.2015 is sustainable under law or not?

8. Point: - It is the admitted case of both parties that the complainant is a having a savings bank account in the opposite party bank. He found that a sum of Rs.39,000/- was stolen by unknown persons from his savings bank account by using ATM machine at Chitoor, the ATM machine belongs to Andhra Pradesh Bank. The unknown persons used the ATM on 27.02.2012 in three times drawing a sum of Rs.10,000/- + Rs.10,000/- Rs.5000/- = Rs.25,000/- and also drawn another sum of Rs.10,000/- + Rs.4,000/- = Rs.14,000/- by using another ATM machine belongs to Canara Bank at Thiruppathy. The complainant found that unknown person stolen a total sum of Rs.39,000/- from his account through ATM machines belonged to two different banks. He lodged a complaint before the opposite party on 01.03.2012 to which they instructed the complainant to lodge a complaint before the Cyber Crime Police to file an FIR and investigate the matter. The complainant approached the District Commission without filing any complaint before the Cyber Crime Police. The District Commission held that the opposite party committed deficiency in service as they had not taken any steps on the complaint lodged by the complainant and passed the impugned order in favour of the complainant.

- National Insurance Company Ltd., (Reported in 2010 CT 12 (Supreme Court). The above citations are not applicable to the facts of the present case. The above citations are only related with referring the parties to approach the Civil Court whereas the present case is with regard to stealing the amount through ATM machine. As per the case of the complainant, he has nowhere stated that the ATM card was stolen by any unknown person. The main allegation raised by the complainant is only with regard to withdrawal of the money from ATM machine by unknown person from his account. When the money was withdrawn by using the ATM machines, the unknown person can only draw the amounts either by using the ATM card belongs to the complainant or by using bogus ATM card. But, at the same time there is no possibility of drawing the amount without supplying the PIN number assigned to the complainant which should be maintained secretly by him. Without knowing the PIN number, the unknown person could not use the card to withdraw the money from the account. Therefore, it requires detailed and elaborate investigation by the Cyber Crime Police which was constituted for that purpose only. They can investigate and find out as to whether the amount was drawn by using the ATM card given to the complainant or by using any bogus ATM card and also the possibility of leakage of secret PIN number belongs to the complainant. Without lodging a complaint before the Cyber Crime police, the complaint filed by the complainant is premature. The complainant ought to have filed a complaint before the Cyber Crime Police but he has not filed any complaint even after instruction given by the opposite party. Without following the instruction, the complainant has filed a consumer complaint before the District Commission blaming deficiency in service against the opposite party. The District Commission without considering the facts in perspective manner passed the impugned order erroneously and directed the opposite party to pay the amount of Rs.39,000/- with interest at the rated of 9% per annum from 27.02.2012 till the date of payment and also to pay Rs.10,000/- as compensation for mental agony with costs of Rs.5000/-. Therefore, the order passed by the District Commission is not sustainable under law and the point is answered accordingly.