Delhi

North East

CC/280/2013

Mohd. Ashraf - Complainant(s)

Versus

Central Bank of India - Opp.Party(s)

29 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: N-E

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.280/13

 

In the matter of:

 

	Shri Mohd Ashraf S/o Shri Abu Talib R/o X. 209/3 A, Gali No. 11 Brahampuri, Delhi-110053.	Complainant
	Versus
1.	Central Bank of India I. T. Park, Shashtri Park, Delhi-53.
2.	Axis Bank ATM Branch Yamuna Vihar Axis Bank ATM, 3rd Pushta, Jagjeet Nagar, Usmanpur, Delhi-53.	Opposite Parties

 

 

	DATE OF INSTITUTION:	13.09.2013
	DATE OF DECISION      :	29.04.2016

 

N.K. Sharma, President:-

Nishat Ahmad Alvi, Member:-

Ms. Manju Bala Sharma, Member:-

 

ORDER

1.           The facts, in brief, relevant for the disposal of the complaint are that the complainant is the holder of Account       No. 3059014095 in Central Bank of India (OP1) and ATM Card No. 5044373524423223. On 10.01.2013 the complainant went to the ATM of Axis Bank to take out a sum of Rs. 8000/- but neither he got the money nor any transaction slip came out but the amount of Rs. 8000/- was debited from his account. He made a complaint to the Branch Manager of OP1 vide complaint No. 986711. He again made complaint on 30.01.2013 and 14.12.2013. It is further stated that Toll Free No. 18002001911 was given to him who asked if the complainant is not satisfied he may approach RBI. He made a complaint to RBI on 19.12.2013 and after three months he received a reply stating that he has got the money and they cannot ask the Bank to make the payment.  The complainant prayed for refund of Rs. 8000/-, Rs. 9000/-  as compensation for mental harassment and Rs. 5000/- as litigation cost.

 

2.           Notice was sent to both the OPs and both the OPs entered their appearance. On 10.10.2013 OP1 filed a letter alongwith the print copy of the report of the help desk stating ‘transaction successful represented by acquiring bank on 15.01.2013. OP1 neither filed its reply nor entered appearance thereafter. OP2 filed its reply and took preliminary objection that the complainant is saving bank account holder of OP1 and complainant has not paid any consideration directly or indirectly to OP2 for availing any services and the complaint has no cause of action qua answering OP2. On merits it is stated that the complainant has successfully withdrawn the said amount of Rs. 8000/- as per the reports received from ATM Cell like ATM Log, EJ copy, ATM Cash Balancing Report, ATM Switch Report. All these reports show that the transaction was successful and the complainant had got the withdrawal of Rs. 8000/-. It is further stated that the complainant would have allowed some outsider to operate the said ATM and due to his negligence the complainant would have suffered the alleged loss and OP2 cannot be held responsible for the same. It is further stated that the 4 digit pin which is secret to the holder of the ATM makes it virtually impossible for a fraudster to crack it unless the card holder has compromised with the confidence details and if wrong PIN is entered thrice then the card is not usable for the next 24 hours thus the probability of getting the PIN right is zero.

 

3.           Replication to the reply of OP2 filed reiterating the allegation contained in the complaint and specifically denied the allegation that the complainant took help of anybody for withdrawing the amount as he has been withdrawing the same through ATM earlier also. The complainant has further stated in the replication since the complaint of non receipt of amount of Rs. 8000/- was made on the same day to OP1 the bank was duty bound to keep the CCTV footage and produce the same before the forum.

 

4.           Evidence by way of affidavit has been filed by the complainant as well as OP2 reiterating the facts stated in the complaint and reply respectively. The complainant has filed a copy of statement of account showing the debit of Rs. 8000/- on 10.01.2013 through ATM Card. Copy of letter received from the office of the Banking ombudsman, copy of complaint made to OP1 on 10.01.2013 vide complaint No. 986711 alongwith copy of mini statement of account dated 10.01.2013 showing debit of Rs. 8000/- through ATM. OP2 has filed ATM Log/EJ copy, ATM Cash Balancing Report, ATM Balancing Report and ATM Switch Report and marked them as Exhibit R1 to R6 respectively. OP2 has also filed a letter dated 20.11.2013 stating that the CCTV clippings/ images of the said date is not available as confirmed by the outsourced agency that is hired for the maintenance of the AMS that the clipping/images are more than 3 months and old and have been overwritten automatically on FIFO basis.

 

5.           Heard Ld. Counsel for the complainant and OP2 Ld. Counsel for the complainant has stated that the complainant has not received the amount of Rs. 8000/- from the ATM of OP2 and a complaint in this regard was made by the complainant on the same  day after getting mini statement of Account which has been placed on the record and that the OPs have not placed on record the CCTV footage which the OPs were supposed to preserve as the complainant has made a complaint of non receipt of the amount to OP1. Ld. Counsel for OP2 has stated that there is no contract between the complainant and OP2 and that as per the documents placed on record, i.e. Exhibit R1 to R6, are sufficient to establish that the transaction was successful and that the 4 digit PIN of which the holder of the ATM has the knowledge and is confidential unless the holder himself disclose the same to somebody else no person, other than the complainant, can make the transaction. As regards the CCTV footage OP2 has specifically stated that the same was not available as the CCTV clipping / images are more than 3 months old and have been over written automatically on FIFO basis. Counsel for OP2 has relied upon the judgement passed in SBI Vs KK Bhalla in which it has been held by the Hon’ble National Commission:-

 

• In the instant case it is not disputed that the ATM Card or PIN remained in the self-custody/knowledge of the Respondent. In view of elaborate procedure evolved by the Petitioner/Bank to ensure that without the ATM Card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorised person from an ATM. The circumstances of cases where fraudulent withdrawals have happened may not be same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM Card or the PIN number fell in wrong hands. Hence both the Orders passed by the Learned Forum were set aside and the Revision Petition was allowed. ”

 

6.           So far as the question of non furnishing the CCTV footage is concerned it has been held by the Hon’ble National Consumer Dispute Redressal Commission in SBI Vs Om Prakash Saini that the camera is fixed only on the face of the user and not on the keys of ATM and delivery window. In such cases non-supply of video footage had on bearing as the claim of the complainant and on this deficiency claim could not have been allowed.  

 

7.           In view of the judgements cited above we are of the opinion that the complainant has failed to prove its base and that there is no deficiency of service on the part of OPs. The complaint is dismissed with no order as to costs.
8.           Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.

 

9.           File be consigned to record room.

(Announced on  29.04.2016) 

   

 

(N.K. Sharma) President

(Nishat Ahmad Alvi) Member

(Manju Bala Sharma) Member