DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No.250/2017

QUORUM:

Judgment By: Ms. Rashmi Bansal (Member)

JUDGMENT

By the present order, this Commission decides the complaint of the complainant against OP for deficiency in services qua protecting his money from being taken out of his account.

1. It is the case of the complainant that he is saving bank account holder in OP bank and having a Debit Card issued by OP and the same was being used as per instructions issued by OP. It is stated that on 10.06.2017 at 6 PM he went to the ATM of OP situated at Pandav Nagar, Delhi to operate his Debit Card but ATM machine had shown some error and transaction made by the complainant could not be succeeded and at the same time some unknown person, who was standing behind the complainant tried to withdrew the amount for himself but he also could not succeeded in that process on the pretext of help, the said person changed Debit Card of complainant with some other Debit Card  and when he came to the knowledge of change of Debit Card, he immediately informed the helpline number of OP and requested for blocking the same and also called 100 number to the police. The executive of OP, who received the call of the complainant on helpline number immediately blocked the Debit Card of the complainant and also apprised the said fact to the complainant. But despite the said fact, the amount of Rs.1,35,174/- which was lying in his account was withdrawn.  OP also intimated vide written complaint dated 12.06.2016 regarding the misuse of his Debit Card, but despite registering the complaint, no effort was made by Police or Bank to resolve the issue and due to the negligent act, the money continued to be withdrawn from the said Debit Card of complainant and the complainant has lost all his money which was lying in his bank account with OP.
2. Upon notice, the OP has appeared and filed his reply, however, failed to file his evidence despite sufficient opportunities and therefore vide order dated 27.09.2019, has been proceeded ex-parte.
3. Complainant has filed his evidence along with relevant documents consisting of complaint dated 12.06.2017 written to the bank manager/OP, copy of the FIR, details of the transaction enquiry, complaints written to OP with respect to each transaction from his bank account, the copies of CD containing the conversation dated 10.06.2017 with investigation officer and conservation dated 11.06.2017 with executive customer care opposite party.
4. This Commission has heard the arguments of the complainant and have gone through the documents available on record. The bank statement shows that money was withdrawn from the account of the complainant between 10.06.2017 to 12.06.2017 and total amount of Rs. 1,35,174/- in the bank account of the complainant was taken out during that span. The Commission has also gone through the conversation filed in the form of CD by the complainant, perused the voice recording dated 10.06.2017 and 11.06.2017 where the customer care executive has confirmed that the said card was blocked on 10.06.2017, at 6:30 PM itself and he also told that it is not possible that money can be withdrawn from the bank account of the complainant and asked the complainant that he can inform the bank that card was blocked at 6:30 PM on 10.06.2016 itself after the card has been blocked and when the Complainant informed him that card is not blocked and money is still being taken out from his account, but customer care executive re- confirmed that card is already blocked at 6:30 pm. 
5. Since OP has been proceeded ex-parte and failed to file its evidence by way of affidavit, his pleadings, i.e. the contents of written statement cannot be appreciated for the purpose of his defence except those facts which are admitted by him.  As per settled principle of law that pleadings are not evidence and that to prove its case, the OP has not taken any steps as averred in the written statement. Mere pleadings howsoever strong may be cannot take the place of proof. The OP ought to have led evidence to prove its case. Also, OP did not file written arguments or advanced oral submissions. Since the OP has not come forward to file his evidence, therefore the admission of the OP with respect to account of the complainant has been blocked can be looked into being its admission. The complainant on the other hand has been able to prove that he had registered  his complaint with the customer care immediately after having knowledge of the card being swapped with another one i.e. after first transaction of Rs. 10,000/- and lodged an FIR too, and further the voice recording of the customer care executive establish that the said Debit Card was blocked on 10.06.2017 at 06:30 pm despite that OP failed to take warranted steps to stop the withdrawal of the amount from his account, which failure on the part of OP establish that OP is negligent and deficient in its services because of which all the money of the complainant has been withdrawn from his bank account. Therefore, OP is liable to pay the amount taken out from the account of complainant after 6:30 PM on 10.06.2017-12.06.2017.
6. The documents on record, the statement of account show that a total amount in the bank account of the complainant was 1,35,174/- and after taking out 10,000/- by some unknown person the balance remained 1,25,174/-. Thereafter, all the money taken out except Rs.  670/-, the balance left as on 12.06.2017.  Therefore, the loss sustained by the complainant due to inaction of OP is Rs.  1,24,504/- (1,35,000 – 10,000 - 670/- ). Therefore, this Commission find OP as deficient in protecting the money of the complainant, lying in its bank and such is liable to pay 1,24,504/- to the complainant along with interest at the rate of 6% p.a. from the date of filing of the complaint i.e. 04.07.2017 till its actual realisation by the complainant and a compensation of Rs.30,000/-, which shall include litigation cost.
7. The above stated order be complied by the OP within 30 days, failing which the entire amount including compensation shall carry an interest at the rate of 9% per annum from the date of filing of the complaint till actual realisation.   
8. A copy of the order be given to the parties as per CPA, 2019 and thereafter file be consigned to record room. 
9. The order contains 05  pages each bears our signature.
10. Announced on 19.09.2023.