Date of Filing : 22 November, 2019
Date of Judgement : 05 June, 2023,
Mrs. Ashoka Guha Roy (Bera), Hon’ble Member.
That the complainant Sri Sanjay Sengupta has filed the instant complaint case under Section 12 of the Consumer Protection Act, 1986 against the opposite parties namely, Axis Bank, alleging, inter alia, for deficiency of service on the part of the Opposite Parties..
The brief fact of the complainant’s case is that the complainant is having his Salary Account bearing No. 916010027182762 with the Axis Bank, Golpark Branch, Kolkata-700019. The complainant was also allotted an ATM-cum-Debit Card bearing no. 4691-9700-0277-9262 by the Axis Bank, the opposite party herein. On 17.10.2018 the complainant went to the ATM of Axis Bank at Garia Branch to withdraw an amount of Rs. 3,000/- from the said account but instead of dispensing the said amount the machine showed “Insufficient Balance”. The complainant was shocked because as per his knowledge he was having balance of Rs. 5,011.50 as on 16.10.2018 after withdrawal of an amount of 2,600/- on 16.10.2018. Since the complainant had to withdraw Rs. 2,000/- and after such withdrawal his account showed a balance of Rs. 11.50. The complainant made a phone call to the Customer Care of the opposite party / bank and after going through records they stated the fact of two withdrawal and suggested the complainant to block the ATM Card immediately and to contact the branch and as per their suggestion the complainant requested them to block his ATM Card immediately and the same was blocked. The complainant lodged a written complaint on 30/10/2018 to the Branch Manager, Axis Bank, Golpark Branch, narrating the fact of two unauthorized withdrawals of Rs, 3,000/- each from his said account, stated to have taken place on 16.10.2018 and 17.10.2018. It was assured by the opposite party no. 1 on 30.10.2018 that within 90 days the said amount of Rs. 6,000/- will be credited to the salary account if found by the bank to be unauthorized withdrawals. After a lapse of 60 days the complainant on several dates contacted the bank over telephone and also personally met to get his hard earned money bank but till date the complainant have not received back his money or at least any letter or phone call till August, 2019. Ultimately the complainant, after waiting for about one year, through his learned advocate sent a legal notice on 19.06.2019 to the opposite party no.1 and after receiving the advocate’s letter on 21.06.2019 the opposite parties sent an undated letter in the month of August, 2019, wherein they have repudiated the claim of the complainant on the ground that the said claim being totally false, fabricated, malafide and made for their illegal gain depriving the legitimate demand of the complainant herein. Since the opposite parties failed to secure the money of the complainant herein, hence the complainant was compelled to file the instant complaint before this commission.
The complainant in support of his complaint files the following documents.
1.Complaint Letter dtd. 30.10.2018 addressed to the Bank Manager Axis Bank
2.Photo Copy of ATM Card.
3.Photo copy of Ist page of Pass Book
4.Statement of Account dtd. 8.7.2016 to 11.2.2017
5.Advocate’s Notice sent to the Opposite Party Axis Bank, Gariahat Branch
The Opposite Parties have contested the case by filing written version mainly denying all contents except the contents specifically admitted to be true. The opposite parties have specifically taken the plea that as per the records of the Opp Bank there were successful transaction without any system error whatsoever and those alleged transactions were all authentic. ATM Machine Report of all transactions effected by the complainant is also reflected in Data sheet as hereunder:
It is a fact that after lodging a written complaint, the OP Bank informed that as per procedure the Bank would give a temporary credit of the disputed amount in the account of the complainant and initiate an internal investigation to verify the authenticity of the disputed transaction. The temporary credit shown transfer to the account of the complainant would be marked as lien pending the internal investigation. If the investigation report suggested any anamoly in the transactions the temporary credit so offered would be reversed by the Bank. Accordingly, the Bank had carried out a detailed internal investigation which revealed no anamoly in the disputed transaction and so the temporary credit was withdrawn from the account of the complainant on 17/6/2019.
It is submitted by the OP that Electronic Journal File in the ATM is the final proof of the authenticity of the transactions accepted across world of all Banks.EJ file reveals that a transaction has been successfully carried out and cash has been successfully withdrawn. The amount in question was dispensed by the ATM machine. It is a known fact that the ATM transaction can only be effected by using original Debit Card and confidential PIN numbers known only to the customer which make virtually impossible for a fraudster to crack the PIN number. Therefore, to put burden on the OP party would cause serious miscarriage of justice. Therefore, it can be that the complainant withdrew amount on several dates as contended by the OP Bank.
The opposite party Bank has placed reliance on various judgments passed by the Hon’ble National Consumer Dispute Redressal Commission in State Bank Of India Vs. K.K.Bhalla on 7th April, 2011, State Bank Of India Vs. Om Prakash Saini on18 Januar,2013 and Raghabendra Nath Sen Vs. Punjab National Bank on 17th Decembert, 2014, and these judgments have relevance with this present case.
Now, on the basis of the case of either parties the following points has been framed for discussion.
1 .Whether there was any deficiency of service or unfair trade practice on part of the OP Bank.
2. Whether the complainant is entitled get any relief as prayed.
Decision with reasons:
We have heard the Ld. Advocates for the complainant as well as the Opposite Parties and have gone through the evidence on record.
Now let us take the point No.1:
It is a well known fact that Bank provides SMS alert to its customers, which the complainant himself has admitted in his reply against the questionnaire filed by the Opps that though SMS is provided to him but he is not sincere in viewing the SMS alert. Since the complainant has not responded to the SMS alert given to him by the OP, the opps are not liable for the loss caused to him.
Moreover, the complainant has admitted in his reply against the questionnaire filed by the Opp Bank that he has never shared his ATM-Cum- Debit Card and PIN with anyone close to him. The complainant confirmed that the ATM Card as well as the PIN Number was only in his personal custody and knowledge which indicates that there is no possibility of unauthorized / fraudulent transaction as because ATM cash withdrawal, transaction can only be effected by using original Debit Card and confidential PIN number known to the customer. Thus without knowing the unique PIN number there is no chance for the fraudster to use the complainant’s card at any ATM for cash withdrawal. Therefore the claim of fraudulent /unauthorized transfer is not tenable. Therefore we cannot also accept the contention of the complainant that the alleged withdrawal transactions were done 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 to him. So it can hardly be accepted that no withdrawal from an ATM can be made unless the ATM Card issued to the Account holder is inserted in the ATM machine followed by use of ATM PIN.
In fact the case before us, this is not a case that the complainant had lost the ATM Card. The said card was duly used at the ATM machine for making the transaction in question. The ATM PIN must have been used since no transaction at ATM machine is possible without use of the PIN.
It is also admitted by the complainant that he had done few transaction at the ATM of Axis Bank Ltd. which as per the records of OP Bank ie. Electronic Journal File showed successful transaction carried out and cash has been successfully withdrawn. The amount in question were dispensed by the ATM Machine without any system whatsoever. The statement of Account of the Complainant between the period from 16.10.2018 to 4.01.2020, is sufficient to prove the statement of the OP Bank. Whereas the complainant miserably failed to file /provide the correct statement between the period when such alleged disputed transaction took place.
It is also a fact that the complainant does not keep any trace of his bank account, as he had stated in his complaint petition that as per his knowledge he had Rs. 5011.50 as on 16.10.2018, but the statement of Account shows that he had clear balance of Rs. 10,611.50 as on 16.10.2018, wherefrom the complainant himself had withdrawn Rs. 3000/- only each on 16,10.2018 & 17.10.2018 together other withdrawal transaction one each on 16.10.2018 & 17.10.2018 leaving a balance of Rs. 11.50 only in his A/C.
Furthermore it is a fact that the Opposite Party Bank on receipt of the written complaint lodged by the complainant, the Bank had carried out a detailed internal investigation which revealed no anamoly in the disputed transaction.
The complainant never requested for CC TV Footage. There is no evidence against the Bank except the complainant’s own statement by his affidavit and has not adduced any single document to substantiate his claim before this Commission to prove the fact that the Opp Bank was deficient in rendering service to the complainant. Moreover, the statement produced by the Bank has not been challenged by the complainant. Thus it can be held that the alleged transactions took place within the knowledge of the complainant.
. Thus, this commission does not find any deficiency or latches on the part of the Opposite Party Bank in rendering service to its custome.. Thus point No.1 is decided against the complainant.
Point No. 2:
The principal issue has been decided above against the complainant. Since, this commission does not find any deficiency in rendering service to its customer on the part of the Bank. Accordingly, it is held that the complainant is not entitled to get any relief in this case. Thus, the Point No. 2 is decided against the complainant.
In the light of the findings on the questions formulated for decision, this Commission does not find any deficiency of service on the part of the Opposite Party Bank. The instant complaint is devoid of any merit and thus liable to be dismissed.
Accordingly, the complaint case fails.
Hence,
Ordered
That the Complaint Case No. CC/616/2019 is dismissed on contest without any cost.
