Delhi

North East

CC/291/2016

MOHD. ASH - Complainant(s)

Versus

AXIS BANK LTD. - Opp.Party(s)

13 Dec 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 291/16

 

In the matter of:

 

		Aas Mohammad S/o Mohd Islam Kirthal, Baghpat. U.P.-250623		Complainant
		Versus
	1.         2.	Axis Bank Ltd Branch, Defence Colony, New Delhi. Branch code-357, B-81, Defence Colony New Delhi.   Axis Bank ATM Ground Floor & Basement, plot No.1, Sector-5, Rajendra Nagar, Sahibabad, Ghaziabad, U.P.		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :		25.10.2016 13.12.2018 13.12.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated, the facts of the present case are that the complainant has savings account bearing no. 91100044035310 with OP1. On 09.09.2016 at around 07:00 PM the complainant had accessed his ATM card at the ATM of OP2, both being that of Axis Bank i.e. the account holding branch as well the ATM i.e. OP1 and OP2 herein to withdraw a sum of Rs. 10,000/-. However, no cash came of the ATM machine of OP2 and the complainant intimated about the same to the guard stationed there and waited for half an hour during which period two other persons also tried to take out money from the said ATM but the transactions were unsuccessful. The complainant called up the customer care of OP and was given complaint no. 1609016834 and was assured that he will get his Rs. 10,000/- remitted back in his account within seven days. The complainant again called up the customer care when the amount was not remitted back in his account but was asked to inquire about the same from OP1 which in turn sent the complainant to defence colony police station which redirected him to go back to OP1 where the complainant asked for CCTV footage for the given date and time but OP1 asked him to first get copy of FIR from the concerned police station. The complainant thereafter went to PS Sahibabad and lodged a police complaint on 15.10.2016 and lodged a formal complaint there and took a copy the same to OP1 but it refused to show the complainant the CCTV footage. Therefore the complainant was constrained to file the present complaint against the OPs alleging deficiency of service and deprivation from giving information and prayed for issuance of directions against the OPs for payment of compensation of Rs. 30,000/- for mental and physical harassment and also for viewing of CCTV footage.

Complainant has annexed copy of salary slip for the month of July 2016, statement of account held with OP Bank highlighting the disputed transaction / debit of Rs. 10,000/- on 09.09.2016 and copy of police complaint dated 15.10.2016 with PS Sahibabad.

2. Notices were issued to OPs and OP1 was served on 28.11.2016 but did not appear and was proceeded against ex-parte vide order dated 02.01.2017.
3. Ex-parte evidence by way of affidavit was filed by the complainant  reiterating his grievance against the OPs of wrongful debit of Rs. 10,000/- from his account despite non receipt of cash.

On proceedings held on 09.10.2017, on perusal of complaint, it was revealed that the address of OP2 was found to be incorrect and was therefore served on the correct and fresh address provided by the complainant and OP2 entered appearance on 21.12.2017 and filed written statement, evidence by way of affidavit and written arguments on 23.01.2018.

OP in its written statement, while admitting the complainant being account holder of OP1, denied the allegations made by the complainant of wrongful debit of Rs. 10,000/- and his contention of cash not having being dispensed by the ATM machine of OP2 in light of the records which showed that on 09.09.2016 at 07:00 hours, the complainant operated his OP1 bank ATM card at OP2 bank ATM machine at Sahibabad for withdrawal of Rs. 10,000/- which transaction bearing no. 1194 was successful carried out and the amount of Rs. 10,000/- was dispensed to the complainant corroborated by Electronic Journal File which is the final proof of the authenticity of the transaction accepted across the world by all banks which cannot be manipulated since the ATM machines are supported by highest technology and excellent surveillance and never fail to show the correct deposit or withdrawal. The OP2 further submitted that in the ATM cash withdrawal the transaction can be effected only by using original debit card and confidential PIN number known only to the customer and assuming not admitting that the complainant would have allowed some outsider to operate the said ATM given access to original debit card and confidential PIN to a third party allowing it to withdraw cash due to his own negligence and thereby suffering the alleged loss for which the OP cannot be held responsible. The OP2 further contended that there is a general printer in the ATM machine which records each and every transaction done through the ATM which are full proof system with reconciling accounts and the four digit combination of PIN is such that it is virtually impossible for a fraudster to crack it and entering the wrong PIN thrice would result in rendering the card unusable for next 24 hours thereby implying that without knowledge of the unique PIN number, no way any fraudster could have use the complainant’s card at any ATM for cash withdrawal. Therefore in light of the above submissions the OP submitted that the evidence and technical details of the transaction confirms beyond reasonable doubt that the complainant had indeed received the disputed cash amount of Rs. 10,000/- from its ATM and there was no deficiency of service or unfair trade practice giving rise to any cause of action against OP due to which reason the complaint is liable to be dismissed. OP placed reliance on the judgment of Hon’ble NCDRC in SBI vs K.K.Bhalla and SBI Vs Om Prakash Saini with respect to findings of Hon’ble National Commission that non supply of video footage has no bearing on the claim of the complainant.The OP placed on record ATM Log/ EJ Log, ATM Cash Balancing Report, ATM Conciliation Report, ATM Cash Dispensation Elaborate Report, ATM Switch Report and No Excess Cash Certificate alongwith the written statement in support of its defence and the same were exhibited as exhibit R1-4 (colly) alongwith the evidence by way of affidavit.

In the written arguments filed by OP, it reiterated its defence taken in the written statement and relied upon the judgment aforementioned as well as other judgment of various other Hon’ble State Commissions and argued that the allegation leveled by the complainant are merely oral allegations not corroborated by any evidentiary document whereas the OP has filed its reports in support and that if the complainant had any case of fraudulent withdrawal, the complainant should have been filed before police authority, it being subject matter of forgery requiring thorough police investigation outside the purview of Consumer Forum.

4. Rejoinder to the written statement of OP was filed by the complainant questioning the transactions in the ATM of OP2 before and after his transaction which were unsuccessful and incomplete details of such transactions and reasons thereof and further questioned the absence of transaction no. 1197 from the EJ/JP Log filed by the OP. complainant has placed on record old and new photograph of the ATM of OP2 for comparative purpose specially for CCTV camera positioning.

On the express directions issued by this Forum to OP pertaining to CCTV footage, series of e-mails in January 2018 were filed but it was confirmed from the Mumbai office of OP vide e-mail dated 01.01.2018 that “footage for the same is not available due to technical issue”.

During the course of arguments, a specific query was raised on the counsel for OP with respect to failed ATM transaction as per JP Log to which the counsel for OP drew the attention of this Forum to subsequent transaction no. 1195 and 1196 which were entered into by the complainant himself and both were failed as ‘transaction declined’ due to ‘insufficient funds’ and several other such transactions which were declined for similar reason. Further the counsel for OP stated that the Switch Report is transmitted by intranet to the main controlling ATM centre with respect to only successful transaction which get recorded, the transaction in question being one of them since the same was successful. 

5. We have heard the rival contentions of both the parties and have applied out judicial mind after thorough perusal of documentary evidence placed on record before us.

From the exhaustive list of documents filed by the OP with respect to the disputed transaction of Rs. 10,000/- on 09.09.2016 alleged to have been wrongly debited from the complainant’s account held with OP1 bank for which the complainant has not placed on record any documentary evidence, it is clear that amount of Rs. 10,000/- was debited from the account of the complainant on 09.09.2018 as successful transaction from his debit card no. 5296150005366666. The same has been corroborated by the ATM Log/ EJ Log, ATM Cash Balancing Report, ATM Conciliation Report, ATM Cash Dispensation Elaborate Report, ATM Switch Report and No Excess Cash Certificate filed by OP. However, the OP didn’t provide the CCTV Footage of its ATM to prove whether the complainant had withdrawn the above said money from the ATM.We have screened the JP Log, no excess cash report as well as other documentary evidence which shows that the successful withdrawal of Rs. 10,000/- was made vide transaction number 1195 on 09.09.2016 through debit card number 5296150005366666 and not ‘failed’. The Hon’ble NCDRC in the case of Dinesh Malik V/s State bank of Patiala I (2016) CPJ 550 (NC) had specifically put question to petitioner whether the ATM receipt obtained from the ATM of respondent bank has been filed by petitioner or not to which the counsel for petitioner replied in the negative and the counsel for the bank had argued that the journal printer in the ATM is the final proof of transaction and is accepted worldwide by all banks and cannot be manipulated by any person in any manner whatsoever and the petitioner had not submitted any proof that the money was not disbursed by the Bank ATM. The Hon’ble NCDRC had observed that in view of fact that the petitioner has not filed basic ATM receipt for withdrawal or any other proof in support of his claim to dispute the transaction, we find no force in the assertion of the petitioner and had upheld the order of the order of Hon’ble State Commissioner of Panchkula Haryana in favour of the bank. Therefore, on basis on this judgment, this issue is decided against the complainant in the present case since the complainant didn’t file the transaction slip on grounds of non receipt of the same with respect to disputed transaction/ wrongful debit.

The Hon’ble NCDRC in Satya Narayan Pandey Vs SBI IV (2017) CPJ 199 (NC) held in a similar case of disputed / wrongful debit that in case where the transaction have been found successful as per electronic general file, generally ATM cards and ATM machines are safe and if the transaction is not successful it is shown on the screen of the ATM as well as on the slip issued by the ATM and therefore in view of the documents filed by the bank showing transaction was successful, the Hon’ble NCDRC has upheld the judgment of Hon’ble SCDRC Chattisgarh in favour of the bank. Therefore this issue is also decided against the complainant on the basis of JP Log, no excess confirmation report filed by OP2 which is a computer generated untampered with document.

As far as the question of the CCTV footage or lack of it concerned, the issue has been clearly settled by Hon’ble NCDRC in the case of SBI Vs K.K Bhalla and SBI Vs O.P. Saini in which the Hon’ble NCDRC held that non provision of CCTV footage does not mean that money could be withdrawn fraudulently without using ATM card or pin number. In view of elaborate procedure evolved by banks to ensure that no money can be withdrawn without ATM card and PIN number, there are high chances and increased possibilities / probabilities that these withdrawals occurred either because the ATM card or the PIN number was compromised or fell in wrong hands. Hence, the complainant cannot take shelter of non provision of CCTV Footage to dispute the transactions in the present case also.

Therefore, in light of the settled propositions of law regarding documentation filed by OP which conclusively establish transactions as successful beyond reasonable doubt and no mandatory emphasis/ requirement on CCTV Footage in such cases,we after having bestowed are anxious consideration to the facts at hand are of the considered view that the complainant could not establish that the withdrawal was not successful or failed as alleged by her.

6. We therefore do not find any merits in the present complaint as regards to deficiency of service alleged against OPs by the complainant and therefore complaint is dismissed with no cost to either side.      
7. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
8.  File be consigned to record room.
9.  Announced on 13.12.2018 

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member