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:267/17
W/o Sh. Hariwansh
K-17/381, Sangam Vihar (South)
New Delhi-110062. …..COMPLAINANT
Vs.
Syndicate Bank
F-2/145, Ratiya Marg
Opposite KSK Public School
Sangam Vihar, New Delhi-110062.
Axix Bank Ltd
D-Block, Gali No.1, Ratiya Marg
Sangam Vihar, New Delhi-110062. …..RESPONDENTS
Date of Institution-17.08.2017
Date of Order- 26.07.2024
O R D E R
RITU GARODIA-MEMBER
- The complaint pertains to deficiency in banking service on part of OP-1 and OP2.
- The complainant is a housewife and her husband is a security guard. Brief facts as stated by the complainant are that she has an account bearing No.91892250064349 with OP-1 bank. On 08.09.2016, the husband of the complainant tried to withdraw sum of Rs.10,000/- from the ATM of OP-2 Axis bank in Sangam Vihar. He did not receive any amount or paper slip from the ATM or any message. On 19.09.2016, the complainant became aware that Rs.10,000/- has been deducted from her account.
- A complaint was made on 20.09.2016 and 05.10.2016. OP directed the complainant to get her account closed. The complainant requested OP-1 and OP-2 for CCTV footage. OP-2 informed the complainant that the footage will only be given on a written request of OP-1. It is alleged that OP-1 refused to make a written request.
- The complainant prays for refund of Rs.10,000/- with 18% interest and Rs.50,000/- towards compensation.
- OP-1 in its reply submits that first two ATM transactions are free of charge and hence the complainant is not a complainant under consumer protection act.
- On merit, OP-1 states that the matter was referred for pre-arbitration with OP as per banking norms. The complainant claim was rejected in pre-arbitration on 21.10.2016 because as per records of Axis bank the transaction on 08.09.2016 was successful.
- OP-1 also submits that a request was made to OP-2, Axis bank, to provide the relevant CCTV footage vide letter dated 16.01.2017. The request was rejected for technical reasons vide email dated 10.02.2017.
- OP-2 in its reply submits that the complainant has not paid any consideration as he is an account holder of OP-1 bank. On facts, OP-2 submits that the husband of the complainant made a balance enquiry from the said ATM machine vide transaction no.9346 and then withdrew a sum of Rs.10,000/- vide transaction no.9347 on 08.09.2016 by using the ATM/Debit card. There was balance of Rs.3257.72 in the account of the complainant.
- OP-2 further submits that PIN of card has four digit and there are 6561 combination making it impossible for fraudster to crack the pin code.
- OP-2 further submits that it has not received any request from OP-1 for the CCTV footage for disputed transaction. OP-2 clarifies that any request made after 90 days become infructuous as the footage is over written.
- The complainant in its rejoinder to OP-1 states that no CCTV footage has been provided till date and no message of the withdrawal of amount was sent to the complainant on SMS.
- The complainant in her rejoinder to OP-2 has denied that disputed transaction was successful.
- Complainant has filed its evidence by way of affidavit and exhibited the following documents:-
- Copy of passbook of Syndicate bank is exhibited as Ex-CW 1/1.
- Copy of account statement is exhibited as Ex-CW1/a.
- Copy of complaint to the bank is exhibited as Ex-CW1/b and 1/c.
- Copy of the receipt of claim is exhibited as Ex-CW 1/d.
- OP-1 has not filed any evidence by way of affidavit despite repeated opportunities.
- OP-2 has filed evidence by way of affidavit of Sh. Sandeep Kashyap, Deputy Vice President and has exhibited the following documents.
- Copy of reports received from the ATM Cell is exhibited as Exhibit-R-1.
- The Commission has considered the documents and material on record. It is undisputed that the complainant is an account holder of OP-1 bank and ATM of OP-2 bank was used for disputed transaction. The complainant has filed her passbook which shows Rs.10,000/- was withdrawn from her bank on 08.09.2016. A written complaint was made to OP-1 bank on 05.11.2016. An email was sent to OP-1 bank on 05.11.2016 with the same complaint.
- The pre-arbitration Order dated 20.12.2016 rejected the complainant’s claim on the basis of EJ log which shows successful transaction.
- OP-1 has placed on record a letter dated 16.01.2017 to the Axis Bank, OP2, regarding the disputed transaction and requested for CCTV footage for the disputed transaction. OP-2 vide email dated 10.02.2017 replied that the CCTV was not available due to technical reasons. OP-2 has placed on record EJ log which shows that the transaction was successful.
- It is undisputed that the transaction took place on 08.09.2016 and the complaint was made on 05.11.2016. The CCTV footage was requested from OP-2 bank by OP-1 bank on 16.01.2017. It has been clarified by OP-2 bank that CCTV footage is overwritten in three months.
- Hon’ble National Commission in Sansar Chand Vs. SBI in Revision Petition No.2889 of 2014 decided on 15.01.2015 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.
Also, in FA No. 59/2017 titled as “ICICI Bank Ltd. vs Ms. Nalini Sirohi & Anr.” decided on 13.10.2022, it has been observed by the Hon’ble Delhi State Consumer Disputes Redressal Commission that:
13.We are of the view that the Appellant has failed to discharge its duty as the concerned official of the Appellant failed to provide any of the above-mentioned report or CCTV footage of the concerned ATM to the Respondent No.1 and even failed to file any evidence relating to the same before the District Commission as well as before this Commission to prove that money had been collected by the respondent No.1 on the subject day.
- The factum of withdrawal of cash by complainant or any third person would have been clear if CCTV footage was examined but OP1 bank failed to perform its duty and make a request for the footage from OP-2 bank.
- OP has submitted that this complaint is not covered under CPA, 1986. Hon’ble Supreme Court in “Arun Bhatiya Vs HDFC Bank” decided on 08.08.2022 has made a following observation:
8 A bench of this Court in Vodafone Idea Cellular Limited v. Ajay Kumar Agarwal 7 (of which one of us, Dr Justice DY Chandrachud, was part) explained that service of every description will fall within the ambit of the definition of ‘services’ under section 2(1)(o) of the 1986 Act. The relevant extract reads as follows:
“12. The definition of the expression “service” is couched in wide terms. The width of statutory language emerges from the manner in which the definition is cast. Parliament has used the expression “service of any description which is made available to potential users”. The definition employs the “means and includes formula”. The means part of the definition incorporates service of “any” description. The inclusive part incorporates services by way of illustration, such as facilities in connection with banking, finance, insurance, transport, processing, supply of electrical and other energy, board or lodging and housing construction. The inclusive part is prefaced by the clarification that the services which are specified are not exhaustive. This is apparent from the expression “but not limited to”. The last part of the definition excludes (i) the rendering of any service free of charge; and
(ii) services under a contract of personal service. Parliament has confined the exclusion only to two specified categories.
The initial part of the definition however makes it abundantly clear that the expression “service” is defined to mean service 7 (2022) 6 SCC 496.
of any description. In other words, a service of every description would fall within the ambit of the statutory provision.” 19 The respondent bank does not dispute that the appellant, along with his father, opened a joint FD with the bank. A person who avails of any service from a bank will fall under the purview of the definition of a ‘consumer’ under the 1986 Act. As a consequence, it would be open to such a consumer to seek recourse to the remedies provided under the 1986 Act. Hence, the complainant in the present case is the consumer. Thus, the complaint is covered under CPA, 1986.
- Hence, in the facts and circumstances of the case, the Commission finds OP1 guilty of deficiency of service and unfair trade practice and following directions are passed:-
- OP1 is directed to pay Rs.10,000/- with interest @9% from the date of withdrawal till realization.
ii. OP1 is directed to pay an amount of Rs.5,000/- as compensation for the mental agony and the discomfort caused due to deficiency in service inclusive of litigation expenses.
- Order to be uploaded and file be consigned to record room.
