Delhi

North East

CC/222/2014

Sumit Kalra - Complainant(s)

Versus

Bank of Baroda - Opp.Party(s)

10 May 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.222/2014

 

In the matter of:

 

	Sumit Kalra S/o Shri Satendra Kalra R/o D-146, Maujpur Main Road, Delhi-93.	Complainant
	Versus
1.       2.	Bank of Baroda Through Branch Manager Village Ghonda, Shahdara, Delhi-53   Canara Bank Through Branch Manager Yamuna Vihar, Shahdara, Delhi-53.	Opposite Parties

 

	DATE OF INSTITUTION:	09.06.2014
	RESERVED FOR ORDER:	01.05.2018
	DATE OF DECISION:	10.05.2018

 

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 he had saving bank account no. 33140100007427 with OP1 bank. The complainant had visited the OP2 ATM near OP1 to withdraw Rs. 10,000/-. However, due to the server being down, the complainant could not withdraw the said sum but still his account was debited with Rs. 10,000/- as per the transaction slip which came out from the said ATM of OP2. The complainant immediately lodged a complaint telephonically with customer care of OP1 vide complaint no. 221403251264303 and 2014041612677847. The complainant visited the OP1 bank which assured the complainant that the sum of Rs. 10,000/- wrongfully debited shall be credited back into his account within a week and he was made to fill up a complaint form with assurance that the OP1 is forwarding request to OP2 to investigate into the matter. The complainant gave a written complaint to OP1 on 01.05.2014. However, no action was taken by the OPs and the complainant lodged a written police complaint with PS Jafrabad, Shahdara vide DD No. 43B dated 06.05.2014. The complainant had further submitted that OP2 didn’t provide CCTV footage of the given date of 15.03.2004. Therefore, the complainant after being harassed by OP1 & OP2 due to no action taken by them to address his grievance to remit back the wrongful debit of Rs. 10,000/- into his account despite assurance, was constraint to file the present complaint before this Forum alleging deficiency in service and mental, physical and financial exploitation by the OPs and has prayed for issuance of directions to the OPs to remit back / credit               Rs. 10,000/- back into the account of complainant and has paid for Rs. 50,000/-towards financial, physical and mental torture and damages and Rs. 10,000/- as litigation charges from the OPs. The complainant has attached copy of saving bank passbook of account held with OP1 highlighting the disputed debit entry dated 15.03.2014 for a sum of                     Rs. 1,00,22.47/-, copy of written complaint by the complainant lodged with the Branch Manager of OP1 regarding wrongful debit of Rs. 10,000/- from his account, copy of police complaint dated 6.5.14 lodged by complainant with P.S. Jafrabad.
2. Notice were issued to OPs and served. However, despite service effected on OP1 on 12.07.2014, it failed to appear and was therefore proceeded against ex parte vide order dated 18.09.2014. OP2 appeared and filed written statement  on 14.11.2014 wherein it took the objection that the complaint was hopelessly time barred  as it has been filed after time gap of ten years from the date of alleged cause of action and as per section 24-A of CPA 1986 which permitted the complaint to be filed within time span of two years from the cause of action, the same was liable to be dismissed in view of the fact that it had been filed in May 2014 whereas the transaction alleged by complainant pertains to March 2004. The OPs further took the objection that no time of day or location of OP2 ATM from which the alleged transaction was made by the complainant has been mentioned anywhere in the complaint and the complainant has randomly selected date from his passbook to file a false case to extort illegal money from OP2. Further, the OP took the objection that no ATM Card No. or transaction slip which is a crucial piece of evidence has been filed by complainant to substantiate the alleged incident and further contended that the complainant or his ATM card bearer has taken the cash and then raising false and incorrect pleas with malafide motive to beget unjust enrichment to himself by dishonest means. The OP2 further took the defence that the complainant’s ATM card was used at Maujpur, Delhi ATM on 15.03.2014 at 6:31 hrs. and withdrawal of cash sum of Rs. 10,000/- from the said ATM of OP2 had taken place successfully vide ATM ID No. 1581609 vide SEQ / Transaction ID No. 751 and there was no server error in the said transaction. The OP2 filed SW Data of OP2 bank alongwith the written statement as annexure R1.
3. Rejoinder to written statement of Op2 was filed   by the complainant stating that the date of transaction mentioned as 15.03.2014 is a typographical mistake and the actual date of transaction was 15.03.2014 and therefore, the complaint is within limitation. The complainant further rebutted the allegation of OP2 as transaction of Rs. 10,000/- being unsuccessful withdrawal since the complainant never withdrew any amount from the ATM of OP2 due to error in the server and the said transaction was unsuccessful due to the said error and infact the transaction slip is in the record of OP2 itself. The complainant further stated that OP2 has intentional and deliberately not supplied the CCTV footage of ATM and cannot be allowed to take undue advantage of its own wrong.
4. Evidence by Affidavit was filed by complainant reiterating his grievance in the present complaint wherein he mentioned that he had visited the ATM of OP2 near OP1 bank where the slip of transaction was received by him showing deduction of Rs. 10,000/- whereas no money was received by him.
5. Evidence by way of Affidavit was filed by OP2 reiterating its defence taken in the written statement and SW data was exhibited as RW1/1. The OP2 stated in its evidence that the complainant deliberately didn’t demand the CCTV footage with regard to the date of transaction in dispute from OP2 with a mischievous motive despite being fully aware that the said footage would be over written after 180 days and is now relying on the same during the proceedings before this Forum with knowledge that the said footage cannot be produced before this Forum and in support of his contention, placed reliance on the judgment of SBI V/s K.K. Bhalla passed by Hon’ble NCDRC in R.P. No. 3182 of 2008 in which the Hon’ble NCDRC clearly observed and ruled that merely because CCTV footage was not working or footage not available doesn’t mean that the money could be withdrawn fraudulently without using ATM Card and PIN and in view of elaborate procedure evolved by the banks to ensure that without both it is not possible to withdrawal the money by any unauthorized person from ATM, allegation of fraudulent withdrawal cannot be accepted since such withdrawal can only occur  either because of the ATM Card or the PIN fall in wrong hand.
6. Written arguments were filed by complainant in which the complainant raised arguments in form of questionnaire pertaining to the subject matter of the complaint relating to “Failed Transaction” done by complainant through ATM of OP2 due to which his account maintained with OP1 Bank was debited. The complaint further argued that bare perusal of SW data shows that it start with disputed entry pertaining to the complainant at 06:31 hours and the second entry was made at 14:36 hours i.e. after more than 08 hours thereby meaning that there was no cash withdrawal transaction in the intervening period between 06:30 to 14:30 hours. Whereas after 14:36 hours, there are regular and frequent transaction made uptil 21:49 hours from which a logical inference can be drawn that either the server of bank was down or no cash was available in the ATM for those eight hours. Moreover, complainant argued OP2 didn’t file any cash reconciliation statement for the relevant date 15.03.2014 which has been suppressed in a bid to conceal the truth from this Forum as also statement of ATM Centre of Maujpur for three days prior and subsequent to date of alleged failed transaction. The complainant further argued that the evidence by affidavit filed by OP2 doesn’t disclose designation of the deponent nor has he stated on oath that he is competent witness to swear or in personal knowledge of facts or deposing on basis of official records. Moreover, the complainant has objected to denial by OP2 witness of the transaction being unsuccessful on grounds that neither was he a competent witness to depose for the same nor was he present at the said ATM center at given time. He further argued that case laws of S.B.I V/s K.K. Bhalla was not relevant to the present complaint and prayed that the complainant  deserved relief.
7. The OP2 filed written arguments summarize the defence taken in its written statement and evidence by affidavit. The OP2 argued that the complainant asked for CCTV footage after expiry of 180 days time when it got erased automatically and even otherwise there is no obligation of Op2 to provide CCTV footage to complainant directly as there was no privity of contract between OP2 and complainant and complainant was not a customer of OP2. The OP2 further argued that the complainant had failed to prove by way of any document or communication that it had demanded CCTV footage of OP2 and argued that neither OP1 bank nor complainant ever demanded CCTV footage from OP2. The OP2 further argued that in cases of disputed transactions in 3^rd party ATM the complaint has to be lodged with the bank of which the complainant is a consumer and thereafter that bank will request the acquiring bank i.e. the bank whose ATM such as transaction has occurred for providing CCTV footage pertaining to disputed transaction.  The OP2 further argued that no time or day or location of ATM has been mentioned anywhere by the complainant in the complaint and no transaction slip has been filed by the complainant and that if the complainant had any grievance, he should press the same with police authorities as the matter is criminal nature and not civil as it requires detailed enquiry / investigation and placed reliance on judgment passed by SCDRC Chandigarh in State Bank of Patiala Vs Ritu Lakhanpal dealing with similar case of alleged fraudulent withdrawal. OP also prayed that in absence of privity of contract between complainant and OP2, OP2 may not be held liable for present complaint. In rebuttal arguments, OP2 further argued that there was no server error at the time when the transaction was done by the complainant in the ATM of OP2 at 6:30 AM on 15.03.2014 as per already generated SEQ No. 751 which is a computerized data and conclusive proof (held in similar case of K.K.Bhalla Judgment by Hon’ble NCDRC pertaining to such documents). OP2 further argued that at no point of pleadings has the complainant challenged the veracity of annexure R1/ exhibit RW1/1 except at the stage of evidence and that the complainant after being aware of a probable no cash available / server error in ATM tried to take the advantage the same by filing the present false and frivolous complaint.  
8. We have heard the arguments of complainant as well as OP2 in the matter and also gone through evidence put forth by both the parties. 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 15.03.2014 The same has been corroborated by the passbook entry filed by complainant as well as SW data 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 or not on grounds that the footage gets automatically erased after 180 days and neither the complainant nor OP1 demanded the same from it. We have screened the SW data as well as other documentary evidence which shows that the successful withdrawal of Rs. 10,000/- was made 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, we 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 despite admitting in its complaint that he had received the transaction slip from the ATM of OP2 after the disputed transaction/ wrongful debit.
9. 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 SW data filed by OP2 which is a computer generated untampered with document.
10.  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 established that the withdrawal was not successful or failed as alleged by him. 
11.  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. The counsel for OP2 indulged in irrelevant arguments exceeding his brief and defence and wasted considerable judicial time of the Forum. He further disrupted and interrupted the court proceedings in other matters. He is therefore cautioned to refrain from meandering into legal discourse of CPC and CRPC and to strictly confine his arguments to defence taken in accordance with drafted pleadings in future keeping in view that the proceedings before this Forum are summary proceedings and not criminal trial or civil proceedings entailing admission /denial  or examination in chief / cross examination otherwise the Forum shall be constrained to pass structure against such indiscipline of disrupting court proceeding and wasting judicial time.  
12. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
13. File be consigned to record room.

(Announced on 10.05.2018)     

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member