Delhi

West Delhi

CC/15/394

JASWINDER KAUR - Complainant(s)

Versus

AXIS BANK - Opp.Party(s)

02 Jun 2022

ORDER

BEFORE THE CONSUMER DISPUTE REDRESSAL commission,

WEST DISTRICT, JANAKPURI,

                                                   NEW DELHI            

 

CC No. 394/2015

In re:-

Mrs. Jasvinder Kaur Nangia

Add; House no. 50 block no. 12,

Ground floor, Subhash Nagar,

New Delhi-110027

                                                                           ………..Complainant

VERSUS

 

1. ATM of Axis Bank, Branch- Shadley Public

        School, Rajouri Garden,

         New Delhi – 110027

 

2. State Bank of India, Branch-Central Market,

        Lajpat Nagar, New Delhi - 110024                    .............   Opposite Party

 

Coram:                                                                             

1. SONICA MEHROTRA (PRESIDENT)
2. RICHA JINDAL (MEMBER)
3. ANIL KOUSHAL (MEMBER)

Date of Institution        :        19.06.2015

Judgment reserved on  :        10.05.2022

Date of Decision  :        02.06.2022

Order by – RICHA JINDAL (Member)

 

ORDER

 

1. That the complainant has filed the complaint under Consumer Protection Act, 1986. The brief facts are that:

1. The complainant is the consumer and has a savings bank account bearing no.20038308445 maintained with O.P. No.2 State Bank of India.

 

2. On 29.10.2014; the husband of the complainant visited the ATM of OP No.1 to withdraw a sum of Rs.6,000/ but he got just Rs.2000/-,whereas thecomplainant got a message of Rs.6000/ withdrawal. The husband of the complainant immediately informed the guard on duty who took him to a lady inside the bank, she said amount hours she said to wait for 24 hrs. and the amount will be complainant refunded, but after 24 hrs, the complainant called up the helpline and after 7 days she got the message that the transaction was successful, and she did not get any amount back till today.

 

3. Thereafter the complainant lodged various complaints and made repeated requests and demands in this regard to the Police authorities as well as concerned bank authorities but to no avail.

 

4. However, despite several efforts made by the complainant, no fruitful result come tothe surface, and she is forced to run from pillar to post.

 

5. According to the complainant, the OPs. are jointly or severally liable for the negligence, deficiency in service, and unfair trade practice and they cannot wriggle out of their lawful and statutory duties towards the customers like the complainant. When the complainant made a complaint to the O.P.2/SBI, in response to that an email dated 15.11.2014 was issued by the Chief Manager, SBI for providing CCTV footage in this context, which will prove the veracity and genuineness of the complaint pertaining to the complainant. Further, the opposite parties, who are the public exchequer of the funds of the public at large and the conduct, acts, deeds and things on the part of the OPS cannot be expected or bearable in any manner whatsoever. The OPS are estopped from conducting and behaving with the innocent citizens like the complainant in cheating and defrauding like the complainant in the present case. Hence this complaint.

 

6. The complainant is entitled to the reliefs as prayed for in the complaint with proper compensation and costs which this Hon'ble Commission deems fit and proper in the facts and circumstances of the case, in the interest of justice and equity.

 

2. After hearing the arguments on admission, a court notice was issued on 06/07/2015 to be returnable on 08/09/2015. However, nobody appeared on behalf of OP No.1 on 8/09/2015 counsel for OP No.2 appeared and filed a reply. Matter was adjourned for filing a reply on behalf of Op No.1 and rejoinder to the reply of Op No.2 returnable on 1/12/2015. Brief facts along with the preliminary objections raised by op no.2 in their reply are as follows: -

 

1. The Complainant has suppressed material facts from this Hon'ble Forum and has not come up before this Hon'ble Forum with clean hands, which even disentitles the Complainant to invoke the jurisdiction of this Hon'ble Commission and seek equity as allegedly claimed in the present complaint.

 

2. That the Complainant is not a customer of the answering Opposite Party, although the Complainant was using his ATM card at the ATM centre of this Opposite Party for withdrawing money. There is no privity of contract between this Opposite Party and the Complainant. That the Complainant does not come within the definition of "Consumer", so this complaint is liable to be dismissed.

 

3. That the present complaint against the answering Opposite Party has been filed without any cause of action as no cause of action has ever accrued in favour of the complainant to Institute the present complaint against the answering Opposite Party. The present complaint is against the process of the court and deserves dismissal with exemplary costs.

 

4. The Complainant in her endeavour to harass and humiliate the answering Opposite Party has not only concealed the material facts from this Hon'ble Forum but has also misrepresented the material facts before this Hon'ble Forum. The Complainant being guilty of Suppressioveri and suggestion falsi have no right of maintaining the present complaint and the present complaint is liable to be dismissed.

 

5. The complainant has failed to produce even a single document to substantiate the allegations made against the Opposite Parties. The complainant has failed to establish any deficiency on the part of the answering Opposite Party.

 

6. The allegations levelled by the complainant are false and frivolous. The transaction details clearly show that Rs 6,000/- was withdrawn from Card No.4591530000975899 at 10:46 on 29.10.2014 and the transaction was successful according to the JP log. The averments of the complainant that her husband received only an amount of Rs.2,000/- instead of Rs.6,000/- is false and frivolous more so since no excess cash was found in the ATM machine and because the machine was functioning properly as no complaint has been received from any other customer.

 

7. That when the Opposite Party no.2 i.e., contacted the answering Opposite Party in this regard, the Opposite Party investigated the matter and provided all the details possible and available to the Opposite Party no.2. It is apposite to mention here that as per RBI guidelines, ATM cash withdrawal disputes have to be raised by the affected customers with their respective banks only and that the answering Opposite Party could provide any information only when opposite party no.2 would raise any query.

 

8. That there has been no misappropriation of the amount by the answering Opposite Party and it has been successfully withdrawn from the said ATM. It is submitted that no excess cash has been found in the ATM on that day. Thus, the present complaint is not maintainable against the answering Opposite Party. It does concern the opposite party as to who withdrew the funds. The only matter of concern is that there has not been any deficiency of services on the part of the answering Opposite party nor there has been any negligence on the part of the answering Opposite Party.

 

1. The complainant has not filed even a single document which substantiates losses suffered by him.

 

10. It is denied that the complainant met any lady in the answering Opposite Party Bank and that she said the complainant to wait for 24. hours for getting her money back. It is respectfully submitted that the alleged transaction was successful and the same is evident from the fact that no excess cash was found in the ATM. Further, no other complaint from any other customer has been received in this regard which confirms that the ATM was working fine. The Complainant is not a customer of OP, although the Complainant was using his ATM card at the ATM centre of OP 2 for withdrawing money. There is no privity of contract between the OP and the Complainant. That the Complainant does not come within the definition of "Consumer". so, this complaint is liable to be dismissed on this ground only.

 

11. It is vehemently denied that the complainant is suffering from any mental harassment and that she is entitled to any amount of compensation from the answering Opposite Party.

 

3. On 1/12/2015 counsel for OP No.1 appeared to filea reply. The matter adjourned for filing a rejoinder to the reply of OP No. 1 and OP No. 2 returnable on 7/04/2016. Brief facts along with the preliminary objections raised by op no.1 in their reply are as follows: -

 

1. The Complaint is without any cause of action against the O.Ps. because the O.P 2 and/or O.P. No. 1 has not committed any deficiency, negligence and/or unfair trade practice, whatsoever, in the services rendered to the Complainant. The complaint is vexatious and deserves to be dealt with as per the provisions of the Consumer Protection Act, 1986; as amended up to date.

 

2. That no liability, whatsoever, can be imputed and fastened on the O.Ps. in case the customer (Complainant) has been negligent, whether knowingly or unknowingly, and due to his acts of omission and/or commission has himself facilitated the misuse of his ATM card having compromised with the security of the ATM card (which was never reported lost and admittedly was always in custody/possession of the Complainant) and its PIN and on this ground alone the complaint filed before the Hon'ble Forum is liable to be dismissed with exemplary costs against the Complainant.

 

3. That Complainant admittedly has compromised with the security of her ATM card by giving it to her husband for use as has been purported to be used on 29/10/2014 by husband of the Complainant. The Complainant herself has not seen that only Rs. 2000/- were given by ATM of O.P.1. It is only the husband's version that he received a lesser amount. The Complainant is relying on hearsay only. From the log of O.P.1, it is seen that the actual transaction made was for Rs. 6,000/-. Further, as per the log of the machine of O.P.1; the transaction was successful, posting of the transaction in the books of O.P.2 is for a sum of Rs. 6.000/-; as per Reserve Bank of India directives cash once dispensed by an ATM is not taken back thus it is explicit that the husband of the Complainant either has been negligent to drop Rs. 4,000/ or has lied to Complainant and has not rendered true account of money withdrawn by using ATM Card of the Complainant. For lapse/dishonesty of husband of Complainant, the O.P.2 cannot be made liable in any manner whatsoever as is being tried to be made out by the Complainant. Even otherwise O.P. 2 is not liable in any manner to make a refund of any amount because neither ATM of O.P. 2 has been used nor O.P. 2 can be made liable for any defect/disservice if any on ATM of O.P.1.

 

4. That from the entry that came to be posted in Savings Bank account no. 20038308445 on 29.10.2014 which is attached by the Complainant it is inferred that the ATM card issued to Complainant was used vide transaction 1365 to withdraw a sum of Rs. 6,000/- from Savings Bank account no. 20038308445 on 29.10.2014.

 

5. since there is no cause of any deficiency in service, negligence and/or unfair trade practice on part of the O.Ps., and because of the aforesaid humble submissions of the O.P. 2, this Forum is most respectfully prayed, in interests of Justice, to dismiss the complaint filed before the Hon'ble Forum with exemplary costs against the Complainant to deter misuse of the process of law in future. The Forum in the interest of justice is also prayed to pass appropriate order(s) as deemed fit in the facts and circumstances of the case.

 

4. The complainant filed a rejoinder to both OPs on 7/04/2016 and evidence by way of an affidavit on behalf of the complainant as well her husbandShri Pintu Kumar Nangiaaffirming the facts alleged in the complaint on 21/09/2016. The complainant has filed his evidence as CW1/PW1 by way of his affidavit and he has proved the following documents.:

 

1. The complaint dated 03.12.2014 to SHO P.S. Rajouri Garden is Ex.CW1/1,
2. Complaint dated 01.01.2015 to DCP West Zone, Rajouri Garden, Delhi is Ex.CW1/2:
3. The complaint dated 15.11.2014 made to OP No.2 is Ex.CW1/3.
4. An e-mail dated 15.11.2014 sent by OP no.2 to OP No.1 for procuring CCTV Footage and information etc. is Ex.CW1/4.

 

5.  OP No.2 also filed their evidence by way of affidavitalong with their written arguments on the same day, but OP No.1 did not appear, hence proceeded ex-parte vide order dated 21.09.2016.

 

6. The complainant filed his written submission on 22/02/2017. Finally, oral arguments were heard on 10/05/2022. We have carefully gone through the record of the case and have heard submissions from the complainant.

 

7. The complainant has supported his claim only by heras well as her husband'saffidavit but has not adduced any other evidence to substantiate his claim. We observed that the first and foremost question before this Forum is whether the affidavit of the complainant should be relied upon or the slip of the ATM Machine? Normally, the machine does not lie but a man may do so. But it also varies from man to man.Every person cannot be presumed to be a liar. Still while deciding the case, we should go by the material placed on record.

 

8. When many other persons had withdrawn money from that ATM on that day and none complained about not receiving money it cannot be presumed that the complainant did not receive Rs.6,000/- from the ATM machine. The complainant has not proved any written protest made to the bank authorities immediately and has based his claim only based onthe information given on a toll-free number of the opposite party. Exactly what message was given is also not on record.

 

9. The Hon’ble NCDRC in the case of Dinesh Malik V/s State bank of Patiala I (2016) CPJ 550 (NC) had specifically put the question to the petitioner whether the ATM receipt obtained from the ATM of the respondent bank has been filed by the 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 because the petitioner has not filed a 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. since the complainant didn’t file the transaction slip-on grounds of non-receipt of the same with respect to the disputed transaction/ wrongful debit.

 

10. The National Commission in the matter of Satyanrayan Pandey v. State Bank of India &Ors. IV (2017) CPJ 199 NC has held in a similar factual matrix as under: -

 

" Generally, ATM cards and ATM machines are safe and if the transaction is not successful, it is shown on the screen on the ATM as well as on the slip issued by the ATM. Even if some money is transacted but not delivered, the same is reversed to the account of the ATM cardholder. As the documents of the bank showed that the transactions were successful and Rs. 20,000 was delivered to the person using the ATM card and no proof, on the contrary, has been filed by the complainant/petitioner, it is difficult to find any fault in the order dated 23.9.2015 of the State Commission.”

 

11. Hon’ble State Consumer Disputes Redressal Commission, Delhi in a case titled “State Bank Of India vs P.N. Sinha” in First Appeal No.542/2014 decided on 9 January 2019 held that

“No evidence on record by respondent/complainant to show that the said amount was not dispensed from ATM except self-serving affidavit of respondent/complainant. The appellant/OP has placed ample evidence as discussed above to show that the aforementioned sum had been dispensed from the ATM machine and collected by the respondent/complainant. The respondent/complainant has not filed any proof to show that when he used his ATM card for the first time as is alleged when money was not dispensed.”

 

12. As far as the question of the CCTV footage or lack of it is concerned, the issue has been settled by Hon’ble NCDRC in the case ofState Bank Of India vs K.K. Bhalla decided on 7 April 2011 in REVISIONPETITION NO. 3182 OF 2008 reported in 2011 (2) CPR 26 (NC) held that

 

“non-provision of CCTV footage does not mean that money could be withdrawn fraudulently without using an ATM card or pin number. In view of the elaborate procedure evolved by banks to ensure that no money can be withdrawn without an 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.”

 

13. Further in State Bank of India Vs Om Prakash Sainireported in I 2013 CPJ 749in which the Hon’ble NCDRC held that

 

• “non-supply of video footage had no bearing on the claim of the complainant and this deficiency claim could not have been allowed by the learned District Forum and upheld by the learned State Commission.”

 

14. In the case in hand, it is admitted fact that the complainant operated the ATM machine of Axis Bank- OP No. 1. The Axis Bank as well as State Bank of India also admits the fact that the transaction was made by the complainant on 29.10.2014 for withdrawal of Rs. 6,000/- from the ATM machine of OP No.1/Axis Bank. Record of OP No.2 shows that the complainant used his ATM card No.4591530000975899 at 10:46 on 29.10.2014 with his wife’s card. Transaction No. 1365 was successful for withdrawal of Rs. 6,000/- (This record of the transaction was filed by the complainant herself along withthe complaint).

 

15. It is admitted case that the complainant holdsan SBI ATM card, but he used it in the ATM of Axis Bank It was also admitted that the ATM of Axis bank had shown that the money of Rs. 6,000/- was withdrawn by Complainant. Although sincethe inception of the complaint, Complainant demanded CCTV footage from OP No.1/Axis Bank., Axis Bank had miserably failed to provide CCTV footage to him, thus, in case there is any deficiency of service committed, it was committed by Axis Bank.  But it was a successful transaction according to the record of both banks and even if CCTV footage was provided to the complainant the also video camera fixed in the ATM only sees the face of the person who operates the ATM machine and not the keyboard. Therefore, the OPs had not committed any deficiency in service.

 

16. Merely because the CCTV was in place and its footage was not available, does not mean that the money could be withdrawn fraudulently without using the ATM Card and the PIN. In case the ATM Card had been stolen or the PIN had become known to persons other than the ATM cardholder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card. In the instant case, it is not disputed that the ATM Card or PIN remained in the self-custody/knowledge of the Complainant. Hence, the complainant cannot take shelter fromthe non-provision of CCTV Footage to dispute the transactions in the present case.

 

17. Therefore, considering the settled propositions of law regarding documentation filed by OP which conclusively establishes transactions as successful beyond reasonable doubt and no mandatory emphasis/ requirement on CCTV Footage in such cases,we after having bestowed our 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.

 

18. We, therefore, do not find any merits in the present complaint as regards the deficiency of service alleged against OPs by the complainant and therefore complaint is dismissed with no cost to either side.

 

19. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.

 

20. File be consigned to record room. Announced on 10.05.2022

 

 

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President