Delhi

North East

CC/83/2014

Sh. Pramod Verma - Complainant(s)

Versus

Bank of Baroda - Opp.Party(s)

27 Mar 2017

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. 83/2014

 

In the matter of:

 

	PRAMOD VERMA S/O SHRI BASUDEV R/O H.NO. A-3/268, GALI NO. 15 HARSH VIHAR, DELHI-110093	Complainant
	Versus
1	BANK OF BARODA MAIN ROAD, MANDOLI SHAHDARA, DELHI-110093
2	ICICI BANK Through BASE BRANCH MANAGER 9-A, PHELPS BUILDING  CONNUAGHT PLACE, NEW DELHI-110001	Opposite Party
Order

 

	DATE OF INSTITUTION:	04-03-2014
	DATE OF DECISION      :	27-03-2017

 

Nishat Ahmad Alvi, Member:-

 

1. Complainant has filed the complaint thereby alleging non-receipt of Rs. 10,000/- out of ATM of OP2 and deficiency in service on behalf of both the OPs. Facts of the case are that complainant a saving bank account holder of OP1 vide No. 06430100044595 and holder of ATM facility vide Card No. 4029850317947957 on 4.2.2014 tried to withdraw an amount of Rs. 10,000/- from ATM of OP2 by inserting the debit card and completing the formalities. But the ATM hanged due to some fault therein and even after waiting for some minutes, the amount sought for withdrawal could not be received by him. Not only this the ATM did not even dispense any receipt for the said failed transaction. On trying another nearby ATM complainant was shocked to know that ATM was showing a debit entry of Rs. 10,000/- in his account. Complainant also received an SMS on his phone showing withdrawal of Rs. 10,000/-. Complaint thereof was immediately lodged to OP1 at its customer care number, which issued complaint number as 2014020412584285. Written complaint whereof was also given to OP1 same day i.e. 4.2.14 which also provided complaint number as 06430100044595, assuring refund within 7 days. In addition complaint to Banking Lokpal dtd 8.2.14 was also lodged by the complainant. Thereafter, complainant approached OPs banks time and again but officials there paid no heed. Request, for providing cash reconciliation statement, JP Log, statement regarding date and amount of filling cash in the ATM prior and after the disputed transaction and as to whether at the time of refilling after the transaction any excess amount was found in the ATM or not, was not even responded to by the OPs. OP1 only replied that they have already filed a claim with OP2 vide complaint no. 201402041 and 2584285 and sent an email dated 13.02.2014 to the complainant, allegedly received from OP2, stating that customer has received money from ATM and the claim has been rejected by OP2. Complainant’s request for providing copies of complaints lodged by OP1 to OP2, or of FIR if lodged by OPs with police and of any internal enquiry, was also not responded to by the OPs and no such document / information was supply by OP1 to complainant. Pleading deficiency in service and adoption of unfair trade practice, on the part of both the OPs, complainant has prayed for directions to OPs for refund of Rs. 10,000/- with compensation of Rs. 50,000/- and 11,000/- litigation cost. Complainant has also prayed for the directions to RBI, Chairman / MD / CO of all banks to make separate mechanicism for disbursement of slip / receipt even in cases of hanging of ATM, power failure and preserve CCTV footage relating to disputed transaction and footage, of process of first opening of ATM for refilling cash after disputed transaction, and of internal / cash tray.
2. OP1 by replying the complaint has alleged that it immediately sent the query to operating department whose reply that transaction was successful was duly supplied to complainant. According to reply of operating department, customer received money from ATM.  But simultaneously put the onus on OP2 to prove through his ATM CCTV footage that customer received cash or not. OP1 also states that it had provided all available informations as and when asked by complainant. Hence, there is no deficiency on its part.
3. OP2 in its reply challenging the status of the complainant as its consumer has submitted that on complaint inquiry was carried out, records, pertaining to transaction in question, checked and it was found that the alleged transaction was successful and the amount was duly received by complainant. Hence, there is not deficiency in service on the part of OP2. It is a case of fraud to which this forum has no jurisdiction. As per EJ Role, switch report, cash reconciliation report transaction was successful. There was no excess cash in ATM and as per settled law when the ATM card is with customer question of deficiency of bank does not arise as without the knowledge of PIN transaction can’t take place.
4. In Rejoinder complainant denying all the defences of the OPs has reiterated contents of the complaint.
5. All the parties have filed their respective evidences and the documents in support of their contentions.
6. Heard and perused record.
7. Admittedly transaction was made by complainant at the ATM of OP2 – ICICI Bank on 4.2.14. As per complaint ATM hanged on inserting debit card and not only money but even any receipt for the particular transaction was not disbursed by ATM. With respect to complaints to OP1, OP2 and Banking Lokpal there is no dispute only dispute is with respect to service to be provided by OPs. As per OP1 immediately after receipt of complaint it referred the same to operational department whose reply that transaction was successful was also delivered to complainant without any delay. While complainant states that it is difficult in service by not providing statement of date and the amounts filled prior to disputed transaction and of the case found when the ATM was opened first time after disputed transaction and the CCTV footage. OP neither denied this allegation  nor gave any reason for not providing these particulars/ documents. However, it categorically states that it is OP2 to prove through its CCTV footage as to whether consumer got the cash or not. With respect to service of OP2 it has neither asserted that aforesaid records were delivered to complainant nor gave reasons for not providing the same. However, OP2 has filed on record JP Log, switch report, cash reconciliation statement which are objected to by complainant as not admissible being not provided as duly certified documents as per Banker’s Book evidence Act.
8. With respect to CCTV footage neither the same is placed on record by OP2 nor any excuse for not providing the same is given by it which creates doubt of the bonafide of OP2. Beyond evidence OPs have referred SBI vs K.K. Bhalla which says- ATM Transactions are independent transactions and in the cases of no report of loss of card and PIN, successful transaction cannot be covered under deficiency of service. This case is not applicable as it is not a case of loss of ATM and the PIN. Thus, though OP1 has established that it took all steps in time to redress grievance of complainant, but OP2 failed to give proper and timely service by giving any response to complainant’s complaint by providing all records of the transaction to complainant especially CCTV footage thereof. Therefore, though the transaction is proved successful but we find OP2 guilty for deficiency in service and holding it for the same we direct OP2 to pay compensation of Rs. 8,000/- to the complainant alongwith Rs. 5,500/- as litigation cost.   
9. This order shall be complied within 30 days on the receipt of this order failing which the awarded amount  shall carry interest  thereon @12% p.a. till final realization.
10. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11. File be consigned to record room.
12. Announced on  27.03.2017

 

(N.K. Sharma) President

(Nishat Ahmad Alvi) Member