Delhi

North East

CC/301/2016

SHRI ANKIT TYAGI - Complainant(s)

Versus

CENTRAL BANK OF INDIA - Opp.Party(s)

25 Sep 2020

ORDER

0DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

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

 

Complaint Case No. 301/16

 

In the matter of:

 

	Shri Ankit Tyagi S/o Shri S.N. Tyagi R/o:- C-529, Gali No. 25, C-Block Bhajanpura, Delhi-110053	Complainant
	Versus
1         2	Central Bank of India Head / Central Office: Chander Mukhi Building, Nariman Point Mumbai-400021   HDFC Bank Ltd. Shop No. 111, DLF City Court Sikandarpur, Gurugram-122002, Haryana	Opposite Parties

 

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

04.11.2016 25.09.2020 25.09.2020

 

Mr. Arun Kumar Arya, President (Addl. Charge)

Ms. Sonica Mehrotra, Member

 

 

ORDER

Ms. Sonica Mehrotra, Member

 

1. Brief facts giving rise to the present complaint are that the complainant is an account holder of OP2 bank by virtue of account no. 17191130001021 and was issued an ATM card bearing no. 4854XXXXXXXX4996 by OP2 linked with the said account. On 05.09.2016, the complainant went to the ATM of OP1 located at Punjabi Colony, Bhajanpura Delhi to withdraw a sum of Rs. 10,000/- and swiped his card in the said ATM machine but could not enter the PIN due to dysfunctional key pad of the machine and since  only it side button / key was working, the complainant try to cancel his withdrawal request through the said key by entering wrong PIN no. but the display of the said machine did not show any such entered output and despite repeated attempt, the complainant could not cancel the transaction and exited the ATM kiosk. However, he got a message alert on his mobile through which he acquired knowledge that Rs. 10,000/- was debited from his account held with OP2. The complainant registered a written complaint on Cardholder Dispute Form with OP2 on 07.09.2016 vide complaint ID no. 1139826 but after 23 days, he received reply dated 12.10.2016 from OP2 declining his request for refund with reason of transaction having been successful and attached JP log alongwith the said letter. The complainant lodged a police complaint with PS Bhajanpura Delhi on 23.09.2016 vide diary no. 117B regarding the wrongful debit and was in continuous contact with OP2 vide emails exchanged between complainant and OP2 between 22.09.2016 till 03.11.2016 pertaining to the disputed transaction and also asked for CCTV footage for the given date and time but no resolution was given by OP2 compelling the complainant to file the present complaint against OPs praying for issuance of direction against the OPs to refund the wrongly debited sum of Rs. 10,000/- back in his account held with OP2 alongwith compensation of Rs. 80,000/- for mental torture, agony and harassment and Rs. 10,000/- towards litigation expenses.
2. Complainant has attached copy of bank account statement highlighting the disputed transaction dated 05.09.2016 of Rs. 10,000/-, copy of card holder Dispute Form filled and signed by complainant with receipt acknowledgment stamp by OP2 thereon, copy of reply dated 12.10.2016 by OP2 to complainant informing complaint of the subject transaction being “valid” alongwith JP log for the subject date i.e 05.09.2016 highlighting complainant’s transaction no. 0073 dated 05.09.2016 at 09:26:33 hrs, copy of police complaint dated 23.09.2020 received by Delhi Police Bhajanpura, Delhi and copy of emails exchanged between complainant and OP2 from 22.09.2016 till 03.011.2016 alongwith accompanying certificate u/s 65B of Indian Evidence Act 1872.
3. Notice was issued to the parties on 25.11.2016. None appeared on behalf of OP2 despite service effected on 10.12.2016 and was therefore proceeded against ex-parte vide order dated 13.01.2017.
4. OP1 entered appearance and filed its written statement vide which it took the preliminary objection of having no privity contract with the complainant since the complainant had not been maintaining any account with OP1 and as such had no right, claim or interest against OP1 as is also evident from the documents placed on record by complainant which reveal that his transaction was with OP2 and no transaction had occurred between complainant and OP1 and OP1 prayed for dismissal of the complaint on ground of misjoinder of parties. OP1 further objected to any allegation of deficiency of service or unfair trade practice on its part and submitted that the complainant was not a consumer of OP1 as there was no relationship of ‘consumer’ and ‘service’ provider between complainant and OP1 and therefore no cause of action arose against OP1 for which the said complaint is liable to be dismissed. On merits OP1 resisted the complaint on grounds that the complainant himself has committed the mistake of using wrong keys in the ATM machine and walking out of the ATM kiosk without checking whether the transaction was complete or cancelled. OP1 urged that the disputed transaction was successful and relied upon the JP log and no excess cash certificate report in this regard. For the defence so taken OP1 prayed for dismissal of the complaint. OP1 has attached copy of Board resolution, copy of no excess cash certificate and copy of JP log in support of its contention of disputed transaction having been successful and cash dispensed to the complainant and debited from his account.
5. Rejoinder in rebuttal of defence taken by OP1 was filed by the complainant submitting that OP1 did not follow the right procedure and alleged that OP2 should have approached OP1 for acquiring the CCTV footage but failed to do so. Complainant submitted that he was unable to either cancel or proceed with the transaction since the keypad of the ATM machine of OP1 was not working and nor was there any guard manning the ATM machine.
6. Evidence by way of affidavit was filed by the complainant reasserting the grievance made out in the complaint and also attached the photographs of the ATM key in support of his allegation that the keyboard of the ATM machine was broken.
7. Evidence by way of affidavit was filed by OP exhibit documents relied upon / filed alongwith written statement as RW1/1 to RW1/3.
8. Written arguments were filed by both parties in reiteration of their respective grievance / defence.
9. In hearing held on 09.08.2019 complainant drew attention of this Forum to the JP log transaction no. 0068 and 0071 done on the same day i.e. 05.09.2016 at 9:15 AM of Rs. 10,00,000/- each before the transaction made by the complainant through ATM of OP1 in support of his contention of defective keypad. OP1 was therefore directed to place on record RBI guidelines / rules and regulations pertaining to withdrawal limits through ATM in a single day or a single transaction alongwith supporting affidavit and presence of its authorized bank officer. OP1 in hearing held on 24.01.2020 placed on record affidavit of its Assistant Manager at its Ghonda Branch Delhi, alongwith circular dated 19.12.2015 mentioning the CBI rules and regulations pertaining to debit card withdrawal through RUPAY (EMV) Platinum Debit Card for cash withdrawals through ATM per day limited to Rs. 1,00,000/- and classic card withdrawal limit upto  Rs. 40,000/- and the Assistant Manager submitted voluntarily before this Forum that JP log entries vide transaction no. 68 & 71 depicting Rs. 10,00,000/- withdrawal each at 9:15 AM on 05.09.2016 was a system generated error.
10. We have heard the rival contentions through video conferencing and have perused the documentary evidence placed on record. It is an admitted fact that Rs. 10,000/- was debited from complainant’s account held with OP2 on 05.09.2016 vide transaction no. 73 as is evident from the JP log filed by both sides. The dispute is whether the transaction was successful or not. Even though the JP log is otherwise an admissible and sufficient proof of veracity of transaction supported by no excess cash certificate which documents are normally and procedurally filed by banks in such ATM withdrawal dispute cases, but in the present case, the complainant has submitted that the ATM machine of OP1 had dysfunctional keypad due to which reason he could neither process nor cancel the transaction. The two withdrawal logs of transaction no. 68 & 71 prior to the complainant transaction no. 73 are manifest of the defective keys of the ATM machine of OP1 as admitted by OP1 itself since the transaction made against the said number were of Rs. 10,00,000/- each which amount of withdrawal is not permitted and is not possible through ATM machine on a single day and even OP1’s affidavit of its bank circular dated 19.12.2015 also caps the cash withdrawal on a single day to Rs. 1,00,000/- on a premium card and Rs. 40,000/- on a single day through a classic card. On perusal of emails placed on record by the complainant exchanged between him and OP2, its accounting holding bank of which he was a customer, it can been seen that complainant had been repeatedly asking for providing CCTV footage of date and time in question for which OP2 vide email dated 23.09.2016 informed the complainant that they would initiate the request for the same with OP1 and revert on update in this regard and also informed the complainant and there is no time line for CCTV footage. However, no such mail with copy marked to complainant was ever sent by OP2 to OP1 for requisitioning the same as against standard protocol in such cases where the account holding bank raises the request from the acquiring of the bank on behalf of its customer. Failure of OP2 to appear and put forth its defence has only caused adverse inference to be drawn against it. We therefore find OP2 guilty of deficiency of service and dereliction of duty towards the complainant who was his consumer in having failed to raise the complaint with OP1 despite being under contractual obligation to do so for the complainant and also failure on its part to procure the CCTV footage for the date and time in question from OP1 since it was the duty of OP2 to take up the matter and grievance of the complainant seriously with OP1 whose ATM the complainant had accessed on 05.09.2016 but with whom complainant had no privity of contract. We are guided in this regard by the judgment of Hon'ble National Commission Chenaram Vs OBC II (2016) CPJ 613 (NC) in which the Hon'ble National Commission 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. We therefore direct OP2 to remit back Rs. 10,000/- into the account of the complainant held with it alongwith compensation of Rs. 5,000/- towards mental agony and harassments and inclusive of litigation charges. OP2 shall however be at liberty to recover the said amount from OP1 as per guideline of Reserve Bank of India. Let the order be complied by OP2 within 30 days from the date of copy of receipt of this order. 
11.  Let a copy of this order be sent to each party free of cost as per Regulation  21 (1) of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.   Announced on  25.09.2020.

 

(Arun Kumar Arya)    President(Addl.Charge)

(Sonica Mehrotra)                      Member