Delhi

North East

CC/436/2015

Md. Shahnawaz - Complainant(s)

Versus

Branch Manager, Central Bank of India - Opp.Party(s)

18 Jun 2020

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.  436/15

 

In the matter of:

	Mohd. Shahanawaz S/o Shri Md. Azimuddin R/o-H.No. D-71, Gali No.-4 Vijay Colony, Third Pusta, Usmanpur Delhi-110053	Complainant
	Versus
1         2       3	Branch Manager Central Bank of India Kumhri Branch, P.O.-Durga Ganj Katihar, Bihar   Central Bank of India DMRC Branch, IT Park Delhi-110053   ICICI Bank B-45/6, Main Wazirabad Road Bhajanpura, Delhi-110053	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

04.11.2015 18.06.2020 18.06.2020

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated, the case of the complainant is that he is an account holder of OP1 bank Central Bank of India (CBI) bearing Account No. 3300254125 located at Katihar, Bihar and holder of debit card bearing No. 5044372820413177 issued by the said bank. The available balance in the said account as on 15.08.2015 was Rs. 21,445.25/-. The complainant went to ATM of OP3 ICICI bank on 15.08.2015 around 07:10 PM at its Jagjit Nagar Branch, Delhi for withdrawing Rs. 5,500/- which amount was received by him from the said ATM alongwith transaction slip. However, the complainant received two messages on his mobile phone of debit of Rs. 15,000/- and of Rs. 5,500/- totaling Rs. 20,500/-. The complainant, on receiving message of debit of Rs 15,000/- transaction not done by him immediately lodged several complaints with OP1 & OP2 ( CBI’s Delhi Branch) on 17.08.2015, 27.08.2015, 06.09.2015, 18.09.2015 and 15.10.2015 urging OP1 & OP2 to remit the amount of Rs. 15,000/- back in his account for the said transaction not done by him but OP1 & OP2 despite repeated requests and several visits made by complainant did nothing in this regard. Therefore, alleging negligence and deficiency of service for failure to discharge their obligation, the complainant filed the present complaint before this Forum praying for issuance of direction against the OPs to remit  Rs. 15,000/- back in his account held with OP1 with interest @ 18% p.a. alongwith compensation of Rs. 11,000/- for mental agony, harassment and suffering and also prayed for cost of litigation.
2. Complainant has attached copy of statement of account issued by OP1 highlighting the debit entries dated 15.08.2015 of Rs. 15,000/- and Rs. 5,500/- for ATM withdrawal from complainant’s debit card, copy of transaction slip dated 15.08.2015 time 19:10:38 issued by OP3, copy of passbook cover of complainant account held with OP1, copy of CBI  request detail #1633092 dated 27.08.2015 with request area ATM reversal for disputed amount Rs. 15,000/- transaction dated 15.08.2015, copy of CBI  request detail #1637312 dated 06.09.2015 with ATM administrator log comment “this is successful transaction trace ID-062469” and copy of hand written complaints dated 06.09.2015 and 15.10.2015 by complainant to OP & OP2 for credit reversal.
3. Notice was issued to the OPs on 13.11.2015, OP1 & OP2 entered appearance and filed their written statement vide which they took the preliminary objection of complainant having concealed a very material fact from this Forum that he had first gone to the ATM of OP1 & OP2 at its Jagjit Nagar, Delhi Branch from where he withdrew an amount of Rs. 15,000/- at about 18:52:18 against transaction ID 7445 which transaction was successful and thereafter the complainant went to the ATM of OP3 from where he made a second transaction of Rs. 5,500/- at about 19:10 PM which was successful as per complainant’s own admission and therefore total amount withdrawn by him on 15.08.2015 was Rs. 20,500/- for which he received two messages on his mobile. But the complainant is trying to mislead and misguide this Forum by not disclosing the transaction made by him of Rs. 15,000/- from ATM of OP1 & OP2 prior to transaction made in OP3 ATM and instead has intentionally filed a false complaint against the OPs. However, OPs being a reputed and nationalized bank, took necessary steps on receiving the complaint from the complainant and after investigation and procurement the relevant documents viz ATM             EJ log / ejection report, ATM switch centre report, no excess cash certificate and C3R report for previous and succeeding cash loading in ATM machine (filed as annexure R1 to R4 respectively alongwith the written statement), came to the conclusion that the transaction in question was successful with remarks / certification dated 25.01.2016 issued by the Assistant Manager of OP1 & OP2 that “this is to certify that as per journal print / electronic journal print log the transaction no 678124062469 dated 15-AUG-2015 at ATM capital + Jagjit Nagar Delhi (F30N127803) is a successful transaction and as per branch ATM replenishment-cum-cash verification records no excess cash found from Txn date to next cash loading date 17-AUG-2015. Previous cash loading date 13-AUG-2015 in the ATM”. For the defence so taken OP1 & OP2 prayed for dismissal of the complaint on grounds of both transactions being successful and complaint filed with malafide intention has also a belated information / complaint by complainant to OPs on 17.08.2015 after a delay of two days of the disputed transaction made on 15.08.2015.
4. Rejoinder to the defence taken by OP1 & OP2 was filed by the complainant in rebuttal to defence taken therein and in addition complainant placed on record copy of mobile messages received on 15.08.2015 at 07:09:55 PM and 07:10:54 PM for Rs. 15,000/- and Rs. 5,500/- debited respectively alleging that the timing of transaction given by OP1 & OP2 are wrong and fake and denied having made any transaction from the ATM of OP1 & OP2 on 15.08.2015 urging that if that were the case, the complainant would not have lodge repeated written complaints with OPs in regard to the transaction not done by him and if his grievance was resolved by OPs he would not have been compelled to file this complaint before this Forum and therefore prayed for relief claimed for deficiency of service on the part of OPs.
5. Evidence by way of affidavit was filed by the complainant and exhibited the documents relied upon / filed as annexure A to G.
6. Written statement was filed by OP3 wherein in took the preliminary objection of having no privity of contract with the complainant since he was not holding any account with OP3 but with OP1 & OP2 and had merely used its ATM and relied upon judgment of Hon'ble National Commission in Chenaram Vs oriental Bank of Commerce in RP. No. 307/2016 which has settled the law in this regard. OP3 resisted the complaint on the grounds that for any ATM transaction, the customer is wholly liable / responsible for such transaction made through his ATM card and in the present case the complainant has himself admitted the transaction of              Rs. 5,500/- made trhog0h OP2 ATM on 15.08.2015 as successful and  OP3 submitted that in this regard, the complainant’s earlier transaction on 15.08.2015 for withdrawal of Rs. 15,000/- was also successful and OP3 did not receive and charge back from the complainant’s bank regarding any disputed amount. OP3 relied upon EJ log, switch report and cash tally annexed as annexure 1, 2 and 3 respectively for holding that the transaction no 4952 made by complainant on 15.08.2015 was successful and therefore prayed for dismissal of the complaint taking defence of OP3 not liable.
7. Rejoinder to the written statement of OP3 was filed by the complainant urging that OP3 has cheated the complainant and indulgent deficiency of service and unfair trade practice and was liable and bound to refund the amount disputed since complainant had used ATM of OP3 giving rise to valid cause of action urging that the submission are made by OP3 are vague and escapist. Complainant maintained that he had only done one transaction of Rs. 5,500/- on 15.08.2015 which was successful and not of                      Rs. 15,000/-.
8. Written arguments were filed by the complainant in which he raised the arguments inter alia that the page no. 5 of EJ Roll filed by OP1 & OP2 shows the third entry of transaction #7445 of withdrawal of Rs. 15,000/- at 18:52:18 PM but this entry is not shown in the switch report of OP3 and no entry of Rs. 5,500/- debit  was shown in page 2 of  switch report of OP3 for 19:10 PM but all OPs claim that both transactions were successful and therefore it clearly shown and proves and there in discrepancy in the record  of OPs which are not reliable since one record does not tally with the other. The complainant admitted the receipt of Rs. 5,500/- which even OP3 is admitting release of but finds no mention in the EJ roll filed by OP1 & OP2 and despite complainant disputing the transaction of Rs. 15,000/ on 15.08.2015/-, OP1 & OP2 did not show any such entry in its EJ Roll casting doubt on OP1 & OP2. Complainant denied having visited the ATM of either of OPs at 18:52 PM on 15.08.2015 and disputed any withdrawal of                    Rs. 15,000/-. He submitted that he had visited ATM of OP3 19:05 PM on 15.08.2015 and after failure to withdraw Rs 5,400/- in first attempt, withdrew Rs. 5,500/- successfully and objected that how could OP1 & OP2 be sure that no excess amount was found in the ATM machine of OP3 and have not even placed on record any document of OP3 pertaining to no excess certificate. Complainant further argued that OP1 & OP2 never took the matter on pre arbitration with OP3 and all OPs failed to produce any CCTV footage of the ATM to prove their contention in order to hide their lies and usurp the hard earn money of complainant. Lastly complainant urged that at page 2 of the switch report filed by OP3, only one entry of Rs. 5,500/- is reflected vide transaction no. 4952 for 19:10:38 and no entry or transaction or withdrawal of                      Rs. 15,000- is reflected in the said report for 18:52 hrs alleged by OP1 & OP2 which clearly shows that complainant had not used the ATM of OP3 at 18:52 hrs and mad3e only one transaction at 19:10 hrs of Rs. 5,500/- on 15.08.2015. Therefore complainant prayed for relief claim.
9. Written arguments were filed by all OPs in reassertion of their respective defence.
10. We have heard the rival contentions of all parties and have applied our judicial mind after thorough perusal of documentary evidence placed on record before us.

From the statement of account filed by the complainant with respect to the account held by him with OP1 bank, it is clear that amount of Rs. 15,000/- and Rs. 5,500/- were debited from the account of the complainant on 15.08.2015 through ATM withdrawal. The same has been corroborated by JP Log / EJ Report, ATM switch center report, no excess cash certificate, C3R report for cash loading and cash tally report individually filed by all OPs. No CCTV Footage was however placed on record by any of the OPs. We have screened the JP Log / EJ Report, ATM switch center report, no excess cash certificate, C3R report for cash loading and cash tally report which shows that the successful withdrawals of Rs. 15,000/- was made vide transaction number 7445 on 15.08.2015 through debit card number 5044 3728 2041 3177 from ATM of OP1 & OP2 located at Jagjit nagar Delhi at 18:52 PM and of Rs. 5,500/- made vide transaction no 4952 from ATM of OP3 also located at Jagjit Nagar Delhi at 19:10 PM and both transactions were ‘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 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 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 of the first transaction of Rs. 15,000/- on order to conceal the same and making it appear to be the allegation of OPs that both transactions were done through the same ATM of OP3 which is not the case though both ATMs located in same area but were of different banks i.e CBI and ICICI.

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 JP Log, no excess confirmation report filed by OP2 which is a computer generated untampered with document.

As far as the role of OP3 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 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. The Hon'ble National Commission in SBI Vs Om Prakash Saini I (2013) CPJ 749 (NC)  while observing that the CCTV camera is fixed only on the face of the user and not on the keys of ATM and delivery window held that non supply of video footage has no bearing on claim of complainant. 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.

11. Therefore, in light of the settled propositions of law regarding documentation filed by OPs which conclusively establish transaction of Rs. 15,000/- made on 15.08.2015 at 18:52 PM from ATM of OP1 & OP2 vide transaction no. 7445 as successful beyond reasonable doubt, no privity of contract between complainant and OP3 and no mandatory emphasis/requirement on CCTV Footage in such cases, we are of the considered view that the complainant could not establish that the withdrawal was not successful or failed as alleged by him. 

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

12. Let the copy of this order be sent to both parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
13.   File be consigned to record room.
14.   Announced on  18.06.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member