DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.234/2012
Shri Ashit Kumar Basu Senior Citizen
C/o Shri Narindra Pal Singh (75 years old)
R/o 38, Jagriti Apartments,
Sainik Vihar, Pitampura,
Delhi-110034. ….Complainant
Versus
- Bank of Baroda
Through its Chief Manager
Lajpat Nagar-II Branch
M-II/58, Lajpat Nagar-II,
New Delhi-110024.
- Axis Bank Ltd.
Through its Regional Manager
Northern Zone Office,
Ashoka Estate, 1st Floor,
24, Barakhamba Road,
New Delhi-110001. ….Opposite Parties
Date of Institution : 07.05.15 Date of Order : 12.01.18
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Briefly stated, the case of the complainant is that complainant is account holder of OP-1 vide account No. 32030100000580 having a Debit Card No. 4029850236319023. On 06.12.2011, the complainant made a transaction to withdraw a sum of Rs. 1,000/- from the ATM of OP-2 at Krishna Market Branch, Lajpat Nagar, New Delhi but no cash came out from the ATM machine but a slip of OP-2 came out and the account of the complainant was debited with the amount of Rs.1,000/- thereby showing a balance of Rs.48,029.30p in his account which was reconfirmed by him by another balance check inquiry. Thereafter, complainant made a complaint to OP-1 bank on 07.12.2011. After about 15 days, complainant was informed by OP-1 vide letter dated 19.12.11 that the said transaction was successful and did not credit the amount to the account of the complainant. Thereafter, complainant again made a written representation to OP-1 on 22.12.2011 but he did not receive any response. Complainant lodged a complaint with the office of the Banking Ombudsman and the office of the Banking Ombudsman vide letter No. 11882 dated 28.02.2012 informed that a decision on the disputed transaction requires consideration of elaborate documentary and oral evidence and the proceedings before the Banking Ombudsman are not appropriate for adjudication of such a complaint and the Banking Ombudsman closed his file. A legal notice dated 13.3.2012 was sent to the OPs whereby OP-1 was called upon to credit the amount of Rs. 1000/- to the account of the complainant within a period of 7 days and OP-2 was asked to provide the CCTV footage dated 06.12.2011 of ATM situated at Krishna Market Branch, Lajpat Nagar, New Delhi. Complainant also sent a representation to the Regional Director, Reserve Bank of India on 13.3.2012 but no response was received.
Hence, pleading deficiency in service, negligence and unfair trade practice on the part of the OPs, the complainant has prayed for the following reliefs to direct the OP jointly and severally:-
- To credit a sum of Rs.1,000/- in the bank account of the complainant towards refund of the wrongly debited amount along with interest @ 12% p.a. from 06.12.2011 till its recovery;
- To pay a sum of Rs.50,000/- as compensation/ damages towards mental and physical harassment, humiliation, tensions and agony to the complainant who is a senior retired citizen of 70 years of age.
- Costs of the litigations.
OP-1 in the written statement/reply has inter-alia stated that the complainant has taken service of OP-2 by using ATM machine for withdrawal of money and the Bank of Baroda (OP-1) has been made a party just because the complainant has an account with Bank of Baroda (OP-1). It is submitted OP-1 had duly enquired about the transaction made by the complainant at the ATM machine of OP-2 and informed the complainant vide its letter dated 19.12.11 that as per the record made available by OP-2 with OP-1 the transaction was successful and as per records the amount of Rs. 1,000/- was disbursed from the ATM of OP-2 situated at Krishna Market Branch, Lajpat Nagar, New Delhi under transaction record No. 3587 on 06.12.2011 done on card No. 4029850236319023. On the basis of the records made available by the OP-2, OP-1 did not credit the amount of Rs.1,000/- to the complainant’s account. It is submitted that withdrawal of money from ATM machine happens world-wide and it is a known fact that in case due to some technical issues if the ATM machine fails to disburse the amount, the same get automatically returned within the time period of 7 days. Hence, there is no deficiency in service on its part. OP-1 has prayed for dismissal of the complaint.
Complainant has filed rejoinder to the reply of OP-1. It is stated that it is the responsibility of the issuing bank to compensate the ATM card holder for non-disbursement of the cash from the ATM machine.
OP-2 was proceeded exparte on 08.10.2012.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Ashok Kumar Mishra, Senior Branch Manager has been filed in evidence on behalf of OP-1. However, parties have not marked exhibit Nos. on their documents as per the exhibit Nos. given to them in their respective affidavits.
Written arguments are filed on behalf of the parties. We have heard the arguments on behalf of the Complainant and OP-1 and have also gone through the file.
It is not a dispute that the complainant had saving account No. 32030100000580 with OP-1 and credit card No. 4029850236319023 was issued by OP-1. On 06.12.11, complainant made a transaction to withdraw a sum of Rs.1,000/- from the ATM of OP-2 installed at Krishna Market Branch, Lajpat Nagar, New Delhi. Complainant has filed copy of letter dated 19.12.2011 received from Bobcards Ltd. wherein the authorized signatory, debit card informed OP-1 that “on taking up the matter with the Acquiring bank through NFS we have been informed that the transaction was successful. Copy of the Journal Print received from the Acquiring bank is enclosed.” We mark it as annexure-1 for the purposes of identification. Complainant sent a letter dated 22.12.11 to the OP bank. We mark the copy of same as annexure-2 for the purposes of identification. Vide this letter, he had denied the disbursement of Rs.1,000/- in question and had asked OP-1 to reverse the amount in his bank account. Complainant has also filed a copy of letter dated 28.02.2012 received from the office of the Banking Ombudsman wherein it is stated :-
“Please refer to the captioned complaint lodged with this office
The office had carefully examined the facts and submissions made by both the parties. It was felt that a decision on the disputed transaction(s) requires consideration of elaborate documentary and oral evidence and the proceedings before the Banking Ombudsman are not appropriate for adjudication of such a complaint. Accordingly, the case has been closed under clause 13(c) of the Banking Ombudsman Scheme, 2006.”
We mark it as annexure-3 for the purposes of identification.
Only a copy of General Print stated to be received by the OP No.1 from OP No.2 showing successful transaction has been filed on behalf of the OP No.1. The said General Print had come in the possession of the Complainant on the date of the transaction itself and, therefore, it was not a new document to him.
The Complainant pursued the matter with the OPs very seriously and consistently pleaded that the amount of Rs.1000/- as shown in the General Print had not been received by him vide transaction No.3587. The OP No.1 could have easily proved the factum of the transaction in question being successful by obtaining the Switch Centre Report from OP No.2 bank and also the Cash Reconciliation Statement after the closure of the business of the day. These two documents could have easily proved whether or not the transaction in question was successful vide the General Print showing the withdrawal of the amount as successful via transaction No.3587. Therefore, in our considered opinion, by not filing these two above stated documents OP No. 1 has failed to prove that the transaction in question was successful. Therefore, we hold the OP No.1 guilty of deficiency in service.
In view of the above discussion, we allow the complaint against OP No.1 and direct the OP No.1 to pay Rs.1000/- alongwith with appropriate interest on the saving bank account from the date of transaction in question till the date of payment and Rs.1,000/- towards mental pain and agony including litigation charges to the complainant within 30 days of receipt of copy of this order failing which OP No.1 shall become liable to pay interest @ Rs. 6 % per annum on the amount of Rs.1,000/- from the date of this order till its realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 16.01.2018
