Delhi

North East

CC/40/2014

Jagdish prasad - Complainant(s)

Versus

Axis Bank - Opp.Party(s)

25 Jul 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. 40/14

 

In the matter of:

 

	Jagdeesh Prasad S/o Shri Ram Singh C-11/285, Bhajanpura, Delhi-110053.	Complainant
	Versus
1.       2.	Axis Bank Shop No. 2A, 2B, Khan Market,                   Delhi-110003.   Union Bank of India D-240, Gali No.16, Gamri Extn. Khasra No. 329, Bhajanpura, Delhi-110053.	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

05.02.2014 24.07.2018 25.07.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated the case of the complainant is that on 05.04.2013 at around 09:00 AM he had visited OP2 Bank ATM located near Bhajanpura Police Station, New Delhi to withdraw Rs. 20,000/- through his ATM card however he neither could get the transaction slip nor the money for which he tried again but the transaction failed for the second time also. The complainant cancelled the transaction and went to  another ATM at Main Market Bhajanpura, New Delhi to withdraw the 20,000/- cash where the transaction was successful and he received a message in his mobile to that effect too. However, immediately on leaving the main market ATM of OP2 Bank, the complainant received a message on his mobile that his account held with OP1 bank has been debited with Rs. 10,000/- whereas actually the complainant had tried transacting twice for Rs. 20,000/- at the ATM of OP2 which got failed. The complainant lodged a complaint with the OP1 branch located at Yamuna Vihar Delhi on 05.04.2013 and 06.04.2013 vide complaint number 1304-005477 and also with OP1 at Khan Market on 15.04.2013 as also with banking ombudsman with RBI but did not receive his money wrongfully debited to the tune of Rs. 10,000/-. Therefore the complainant was constrained to file the present complaint before this Forum praying for issuance of directions against the OP to credit Rs. 10,000/- back to the account of the complainant alongwith compensation for mental harassment and litigation cost.

Complainant has attached copy of complaint slip, copy of JP Log for card number 4688051200803645 used at OP2 Bhajanpura for Rs. 10,000/- as ‘transaction successful’, copy of order of banking ombudsman dated 12.12.2013.

2. Notice was issued to the OPs. OP1 failed to appear despite service effected on 25.02.2014 and was therefore proceeded against ex-parte vide order dated 11.04.2014. OP2 filed objections to the complaint on 19.05.2014 in which the OP2 placed on record copy of e-mail dated 27.09.2013 exchanged between OP2 branch and CBS in which as per excess cash confirmation report dated 27.09.2013 pertaining to transaction number 9233 dated 05.04.2013, the cash was dispensed successfully as per branch ATM replenishment – cum- cash verification records and no excess cash amount was found in the said ATM according to Journal Print / Electronic Journal Print Log. The OP2 further placed on record copy of complaint form dated 18.09.2013 submitted by the complainant with banking ombudsman, letter dated 29.07.2013 by OP1 to complainant in reference to his complaint stating that as per the advice of Centralized Department of OP2 regarding the dispute ID 1304-005477, the said transaction was successful and the EJ Log was enclosed therewith.
3. Complainant did not file evidence by way of affidavit. OP2 filed evidence by way of affidavit on 09.07.2014 and exhibited copy of authorization letter dated 01.04.2014, copy of banking ombudsman dated 12.12.2013, copy of receipt of transaction in question and copy of e-mails dated 27.09.2013 to AJM ATM cell, Mumbai regarding no excess cash found on 05.04.2013 in the concerned ATM thereby showing transaction successful and letter dated 27.09.2013 from OP1 to the complainant.
4. Written arguments were filed by complainant on 16.08.2017 and despite several opportunities granted to OP2 to appear and file written arguments for which cost was also imposed on OP2 however it failed to comply with the order and stopped appearing after August 2014 and was therefore proceeded against ex-parte vide order dated 06.03.2018.

In the written arguments filed by the complainant, the complainant has filed in addition to the annexures already filed alongwith the complaint, copy of passbook entries highlighting the disputed transaction / wrongful debit of Rs. 10,000/- from the complainant’s account on 05.04.2013 and transaction details for account number 120010100364614 held by the complainant with OP1 bank highlighting the disputed transaction and the subsequent withdrawal of Rs. 20,000/- both on the same date i.e. 05.04.2013. Lastly the complainant placed on record Police Complaint with SHO PS Bhajanpura on 15.01.2014 regarding the wrongful debit from his account maintained with OP1 from ATM of OP2.

5. We have heard the arguments of complainant and also have gone through documentary evidence placed on record complainant as well as OP2. From the passbook entries filed by the complainant with respect to the account held by him with OP1 bank, it is clear that amount of Rs. 10,000/- was debited from the account of the complainant on 05.04.2013 The same has been corroborated by the passbook entry filed by complainant as well as JP Log / EJ Report filed by OP2. However, the OP2 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 9233 on 05.04.2013 through debit card number 4688051200803645 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 general 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,& 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 role of OP2 is concerned, the Hon’ble NCDRC in the decided case of Chenaram Vs OBC II (2016) CPJ 613 (NC) held that since the complainant had no account with this ATM machine of the bank accessed, there was no privity of contract between the complainant and the ATM bank and as such the complainant was not entitled to approach the District Forum against the ATM bank. Therefore in view of the settled law, no relief to the complainant can be granted against OP2 in the present case.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 (relied upon by OP2) 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 OP2 which conclusively establish transactions as successful beyond reasonable doubt, no privity of contract between complainant and OP2 and no mandatory emphasis/ requirement on CCTV Footage in such cases,we are of the considered view that the complainant could not establish that the withdrawal was not successful or failed as alleged by him.

6. We therefore do not find any merits in the present complaint as regards to deficiency of service alleged against OP1 & OP2 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 25.07.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member