| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI Udyog Sadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.132/18 Deepak Mandal Son of Shri Bilat Mandal R/o G-9/7, Gali No.9, Block G Sangam Vihar New Delhi-110080 …..COMPLAINANT Vs. Axis Bank Ltd A.T.M. at Ratia Marg Sangam Vihar New Delhi-110080. 2. Manager Indian Overseas Bank I.M.T, Manesar Gurgaon, Haryana…..RESPONDENTS Date of Institution-06.06.2018 Date of Order-24.11.2023 O R D E R RITU GARODIA-MEMBER - The complaint pertains to deficiency in banking service on part of OP.
- Brief facts as outlined in complainant are that complainant has a salary account bearing No.185601000002026 with OP-2 bank. On 08.12.2017 on 7.54 p.m., the daughter of the complainant went to the ATM of OP-1 bank to withdraw Rs.10,000/-. She did not receive any cash from the ATM machine but the same was debited from the complainant’s bank account. She inserted the ATM card again at 8.26 p.m. which was rejected on grounds of insufficient funds. Thereafter, the daughter of the complainant again inserted the ATM card for Rs.2,000/- and duly received the cash. The complainant lodged a complaint with OP-2. The said complainant was closed by OP-2 on 3.02.2018.
- The complainant alleges that OP-1 and OP-2 failed to take any action on his complaint. He prays for refund of Rs.10,000/-, compensation amounting to Rs.20,000/-, financial loss towards visiting offices of OP-1 & OP-2 amounting to Rs.10,000/-, litigation expenses amounting to Rs.15,000/- and an interest of 24% p.a. on the whole amount.
- OP-1, the bank whose ATM machine was used, in its reply states that the complainant has no cause of action nor any locus standii to make a complaint against OP-1 as complainant is not a customer of OP-1 bank.
- OP-1 alleges that complainant has put a cloak on his daughter’s misdeed. OP-1 submits that Rs.10,000/- was withdrawn by complainant’s daughter at 19:54 hrs. at ATM in Sangam Vihar. She tried to withdraw another amount at 20:25 hrs. which was declined due to insufficient balance. Then, she entered a lesser amount of Rs.2,000/- which was duly completed. Thereafter, balance enquiry was made at 20:47 hrs and 21.49 hrs.
- OP-1 imputes that ATM machine was working properly. The ATM log/EJ (Electronic Journal) shows that Rs.10,000/- and Rs.2,000/- was withdrawn. It is clarified that ATM Machine are supported by highest technology and excellent surveillance.
- OP-1 further alleges that ATM/Debit card is non-transferrable and should not have been used by the daughter of the complainant. OP-1 has denied receiving any request for CCTV footage either by the complainant or OP-2 bank. Due to non-receipt of any request within 90 days, the said CCTV footage could not be retrieved. OP-1 prays for the dismissal of the complaint.
- OP-2 in its reply has stated that this Commission has no jurisdiction to entertain this complaint as the saving account of the complainant is maintained in a branch of OP-2 situated at Manesar.
- OP-2 submits that the daughter of the complainant has unauthorizedly used the ATM card. The ATM card is non-transferable.
- The complainant’s account was debited for amounts of Rs.10,000/- and Rs.2,000/- on account of transaction with the ATM of OP-1 installed at Sangam Vihar. OP-1 raised a claim with OP-2 when a complaint was lodged regarding the aforementioned transaction. This claim was rejected by OP-2 bank. A CCTV footage was requested from OP-2 bank on 8.12.2017 but no footage has been received till date.
- The complainant in his rejoinder to OP-1 has highlighted the importance of history report of the ATM machine. The complainant has also submitted that all the transactions carried out by third party ATM machines are chargeable.
- The complainant clarifies that a complaint was made within 90 days of the incident and there was no reason for not producing the CCTV footage.
- The complainant in his rejoinder to OP-2 has again emphasized on the importance of history report. The complainant also submits that the ATM card used by his daughter with bonafide intention.
- The complainant has filed evidence by way of affidavit and exhibited the following documents:
- The photocopy of the Election I. Card is EX.CW-1/A.
- The photocopy of the I. Card issued by the employer of deponents EX.CW-1/B.
- The photocopy of Passbook is EX.CW-1/C
- The photocopy of the complaint slip and closure report is EX.CW-1/D.
- The photocopy of Reference No.67/QMC/D/2018 dated 07.04.2018 is EX.CW-1/E.
- OP-1 has filed evidence by way of affidavit and exhibited the following documents:
- The photocopy of ATM Log/EJ, ATM Cash balance Report is Exhibit-R-1.
- OP-2 has filed evidence by way of affidavit and not exhibited any document.
- We have considered the pleadings and material on record. It is undisputed that the complainant has a salary account with OP-2 bank and was also issued an ATM card. It is also undisputed that the complainant’s daughter used the ATM of OP-1 on 08.12.2017.
- The EP/JP log on 08.12.2017 shows that the complainant’s ATM card was used at 07:54pm (19:54) to withdraw Rs.10,000/-. At 8:25pm (20:25) the card was used for further withdrawal. This transaction was declined due to insufficient funds. At 8:26pm (20:26), the card was used for withdrawal of Rs.2,000/-. At 8:27pm (20:27), the card was used to make balance enquiry. At 9:49pm (21:49), the card was again used to make balance enquiry.
- The sequence of events, as documented in the JP/EJ log, aligns with the complainant's account that his daughter attempted to withdraw money. According to the complainant's affidavit, Rs.10,000/- did not dispense initially, prompting his daughter to make a second attempt half an hour later. The first withdrawal was declined due to insufficient funds, but the second attempt for Rs.2,000/- was successful. OP disputes this narrative, asserting that the withdrawal was indeed successful, and Rs.10,000/- was handed over to the complainant's daughter. OP could have refuted the complainant's claims, by examining the CCTV footage.
- OP-2, the bank holding the account, had informed that a request for CCTV footage was made to OP-1 bank on 08.12.2017. However, as of date, no footage has been received. It is worth noting that there is no supporting documentation or exhibit of the request for CCTV footage provided alongside the affidavit.
- Hon’ble National Commission in State Bank of India Vs. Sansar Chand Kapoor & Anr 2015) CPJ 135 NC has observed that: It is an admitted case that CCTV recording was provided by the respondent No.2-Punjab National Bank to the petitioner State Bank of India but despite request of the complainant a copy of the said video footage was not provided to him. Though according to the petitioner bank the said video footage was shown to the complainant and his son-in-law when they visited the bank, that in our opinion would not be sufficient and considering the fraudulent withdrawal claimed by the complainant the bank ought to have made available a copy of the aforesaid CCTV footage to the complainant. The petitioner bank, therefore, was deficient in rendering services to the complainant, by not making available a copy of the aforesaid CCTV footage to him.
- OPs have also disputed that the ATM card was non-transferable and the complainant’s daughter had unauthorizedly used the card. The OPs have not cited any specific provision that prohibits a family member from using another family member's ATM card with consent. Hon’ble NCDRC in IDBI Bank Ltd. Vs. R. Siva Kumar I (2019) CPJ535(NC) has found the bank guilty of deficiency in service. In this matter, the complainant’s son, who was studying in UK, used his father’s card to pay his accommodation fees. The transaction was declined despite sufficient balance in the complainant’s account. There was no objection as to the ATM card being used by complainant’s son.
- Hence, we find OP-2 guilty of deficiency in service in not asking for CCTV footage of the disputed transaction from OP-1 bank and direct it to refund
- Rs.10,000/- along with 6% interest till its realization
- Pay Rs.5,000/- as compensation for mental agony and physical inconvenience along with litigation expenses.
- File be consigned to record room. Order to be uploaded on website.
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