Delhi

North East

cc/230/2013

Shri Virender Kr. Jain - Complainant(s)

Versus

Canara Bank - Opp.Party(s)

20 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.  230/13

 

In the matter of:

 

	Shri Virender Kumar Jain Flat No. 16/S-1, Block-B Dilshad Garden, Delhi-110095	Complainant
	Versus
1.       2.	Canara Bank Dilshad Garden Delhi-110095   Punjab National Bank Dilshad Garden Delhi-110095	Opposite Parties

 

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

19.07.2013 20.06.2020 20.06.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts relevant for disposal of the present complaint are that the complainant is a consumer of OP1 bank by virtue of holding a saving bank account no. 2686101003715 at its Dilshad Garden Delhi Branch and was also issued a debit card no. 5497xxxxxxxx1812 by OP1 for ATM transaction. On 06.08.2011,the complainant went to nearby ATM of OP2 around 7:00 PM to withdraw a sum of Rs. 10,000/- but despite completing all formalities, he could not receive the cash from the ATM machine of OP2 nor any transaction slip and so the complainant cancelled the transaction and then tried for the second time to withdraw Rs. 10,000/- from the same machine and this time the transaction was successful and complainant received the desired amount of Rs. 10,000/- vide transaction no. 2405 reflected on the transaction slip which came out of the said machine. The complainant submitted that there was no security guard posted at the ATM of OP2 at the time of transaction. Thereafter, the complainant used his ATM card in ATM machine of OP1 on 18.08.2011 for obtaining Mini Statement but was surprised to see that his account had been debited twice with Rs. 10,000/- each on 06.08.2011 and the same was further confirmed on passbook updation too. The complainant, vide complaint dated 20.08.2011 to OP1 giving intimation of the anomaly of wrongful debit of Rs. 10,000/- and follow up letter dated 29.10.2011 asking for refund of wrongly debit sum as well as CCTV footage for the relevant time and date to ascertain the veracity of disputed transaction but was informed verbally by OP1 that the disputed transaction no. 2404 was successful. The complainant sent another reminder letter dated 20.01.2012 to OP1 disputing any disbursal vide transaction no. 2404 and asked for CCTV footage again from OP1 (marking a copy of the same to Banking Ombudsman). Thereafter, on instruction of OP1, complainant filed a detailed complaint on the prescribed performa format of OP1 on 23.02.2012 and also requested Banking Ombudsman in the said complaint to order refund of the wrongly deducted sum of Rs. 10,000/- from his account held with OP1. But Banking Ombudsman vide order dated 19.04.2012 attached with covering letter dated 19.04.2012 closed the complaint under clause 13(c) of Banking Ombudsman Scheme 2006 on ground of case requiring consideration of elaborate documentary and oral evidence not possible in proceedings before Banking Ombudsman with liberty to the complainant to approach competent Forum for redressal. The complainant has submitted that the Banking Ombudsman also did not furnish the CCTV footage to the complainant in spite of repeated request. Therefore the complainant, alleging deficiency of service on the part of OPs for failure to refund the sum of Rs. 10,000/- with respect to unsuccessful transaction no. 2404 dated 06.08.2011 and non-provision of CCTV footage causing annoyance, mental tension and loss to the complainant, filed the present complaint praying for issuance of direction against OPs to refund the sum of Rs. 10,000/- alongwith compensation of Rs. 40,000/- as damages and Rs. 20,000/- towards cost of litigation.
2. Complainant has attached copy of transaction slip issued by OP2 for record no. 2405 for successful withdrawal of Rs.10,000/- on 06.08.2011, copy of Mini Statement dated 18.08.2011 procured from ATM  of OP1 highlighting two debit of Rs. 10,000/- each on 06.08.2011, copy of passbook of complainant with respect to account held with OP1 highlighting the debit entries vide transaction no. 2404 and 2405 of Rs. 10,000/- each on 06.08.2011, copy of complaint letter dated 20.08.2011, 29.10.2011 and 23.01.2012 from complainant to OP1 with respect to disputed transaction, copy of internal email dated 05.11.2011 from OP1 holding transaction no. 2404 dated 06.08.2011 at 7:16 PM as “successful and dispute not valid”, copy of complaint dated 22.02.2012 lodged by complainant with Banking Ombudsman on the prescribed performa of OP1 pertaining to disputed withdrawal and copy of order dated 19.04.2012 issued by Banking Ombudsman in complaint case no. 2011 12 014 005580 with covering letter dated 19.04.2012 to the complainant closing the complaint.
3. Notice was issued to the OPs on 24.07.2013. However, none appeared on behalf of either of the OPs despite service effected and were therefore proceeded against ex-parte vide order dated 06.09.2013.
4. Complainant filed ex-parte evidence by way of affidavit exhibiting the documents relied upon / filed along the complaint as Ex CW1/1 to CW1/7. In hearing held on 16.09.2014, counsel for OP2 (PNB) appeared and apprised this Forum that the Hon'ble Delhi State Commission vide order dated 04.08.2014 in FA no. 1083/2013 preferred by OP2 has set aside order dated 06.09.2013 qua OP2 reinstating its defence and therefore liberty was granted to OP2 to file its written statement. Written statement was filed by OP2 vide which while admitting the complainant being its customer and holder of savings account no. 2686101003715 took the preliminary objection that the transaction no 2404 was successful and the complainant had received the amount of Rs. 10,000/- on 06.08.2011 as corroborated by JP log, Switch Report and Cash reconciliation sheet and therefore OP2 was not liable to pay nor is the complaint maintainable and for this reason the Banking Ombudsman too vide order dated 19.04.2012 dismissed the complaint after keen scrutiny of the documents filed by OP2. OP2 further urged that in all such cases of ATM withdrawal, there is a set procedure that complainant is required to make complaint at the toll Free customer care number which registers the complaint under a reference no. given to the customer lodging the complaint and if any wrongful entry is found, the same is reversed within 7 days from the date of incident by the system itself after making reconciliation of cash in ATM done by the reconciliation department of concerned bank at head office level and if required, the bank provides CCTV footage at customer cost within 90 days (as per RBI guidelines from the date of incident). OP2 prayed for dismissal of the complaint for the defence so taken.
5. OP2 placed on record copy of Banking ombudsman order dated 19.04.2012, copy of JP log highlighting transactions no. 2404 and 2405 done on 06.08.2011 at 19:26 and 19:27 respectively from Rs 10000/- with each withdrawal of the said amount in both transactions done against ATM card n. 5497xxxxxxxx1812, copy of switch transaction report dated 06.08.2011 highlighting the transaction no. 2404 and copy of cash reconciliation sheet.
6. Rejoinder in rebuttal to the defence taken by OP2 was filed by the complainant vide which complainant reiterated non receipt of  Rs. 10000/- against transaction no. 2404 and alleged deficiency of service on part of OP2 which has caused financial loss to him and submitted that non receipt of the amount of Rs. 10000/ through transaction no. 2404 could only be verified from CCTV footage but OP2 deliberately did not furnish the same to cause wrongful loss to the complainant. Complainant submitted that Banking Om is only an alternate redressal forum and pass the order dated 19.04.2012 without any merits and necessary requirements of CCTV footage.
7. Evidence by way of affidavit was filed by the OP2 through it Senior manager exhibiting the documents viz copy of email dated 05.11.2011 regarding successful confirmation of ATM transaction no. 2404 dated 06.08.2011, copy of Banking Ombudsman order dated 19.04.2012 copy of cash reconciliation sheet, copy of JP log and copy of Switch report as Ex. RW2/1 to RW2/5.
8. OP1 entered appearance at this stage on 15.12.2014 and filed its written statement, evidence and written arguments between the period December 2014 to March 2016. The matter was reserved by the erstwhile bench on 04.05.2017 but never passed. however, when the present bench took over, it vide detailed order dated 15.04.2019 after keen scrutiny of case file observed that despite OP1 having been proceeded ex-parte on 06.09.2013 which order continued to remain effective and in operation against it, it filed all its defence on record which are inadmissible in law for a party having been proceeded ex-parte and therefore on request of the counsel of OP1 to seek appropriate remedy this Forum had granted liberty to OP1 for seeking redressal before Hon’ble SCDRC. However, OP1 did not take any steps for reinstatement of its defence till January 2020 and therefore order dated 06.09.2013 having attained finality against it all the pleadings filed by OP1 are struck off the record and shall not be considered in defence. Written arguments were filed by OP2 and the complainant in reassertion of their respective defence /grievance.
9. We have heard the rival contention of all parties and have bestowed our anxious consideration to the documentary evidence placed on record by complainant as well as OP2, documents of OP1 being already struck off record as inadmissible. Admittedly, vide transaction no. 2405, complainant had successfully withdrawn Rs. 10,000/- from ATM of OP1 on 06.08.2011. The dispute arose when on obtaining the mini statement and updation of passbook from OP2, complainant discovered that his account held with OP1 has been debited for a sum of Rs. 10,000/- vide transaction no. 2404 on 06.08.2011 which was as per him unsuccessful as no cash was dispensed by the ATM of the OP2 on the said date against transaction no. 2404 despite which Rs. 10,000/- was debited from his account held with OP1. From the passbook entry 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 06.08.2011. The same has been corroborated by JP Log / EJ Report, Switch Report and Cash Reconciliation report filed by OP2. No CCTV Footage was however placed on record by any of the OPs. We have screened the JP Log, switch data, cash conciliation report as well as other documentary evidence which shows that the successful withdrawal of Rs. 10,000/- was made vide transaction number 2404 on 06.08.2011 through debit card number 5497xxxxxxxx1812 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 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 on grounds of non-receipt of the same with respect to disputed transaction/ wrongful debit.

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 un-tampered with document.

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 OP1 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.

10. Therefore, in light of the settled propositions of law regarding documentation filed by OPs which conclusively establish transaction 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 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 OP1 & OP2 by the complainant and therefore complaint is dismissed with no order as to cost.

11.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.   Announced on  20.06.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member