Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-159/2018
Govinda Biswas,
S/o Sh. Jitender Kumar Biswas,
R/o 4142, Plot no. 307,
Ground Floor, Gali No. 66,
Regharpura, Karol Bagh,
New Delhi-110005 ...Complainant
Versus
OP1: Central Bank of India,
Through its Branch Manager,
Ajmal Khan Road Branch,
Karol Bagh,
New Delhi-110005.
OP2: Axis Bank,
Through its Branch Manager,
Padam Singh Road Branch,
Karol Bagh, New Delhi. ...Opposite Parties
Date of filing: 10.08.2018
Order Reserved on: 08.12.2022
Date of Order: 24.01.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Vyas Muni Rai
ORDER
1. Briefly put, the instant complaint has been filed by Shri Govind Biswas (in short complainant) u/s 12 of the Consumer Protection Act, 1986 impleading;- 1. Central Bank of India through its Branch Manager, Ajmal Khan Road Branch, Karol Bagh, New Delhi-110005 (in short OP1) and 2. Axis Bank, through its Branch Manager, Padam Singh Road Branch, Karol Bagh, New Delhi (in short OP2). It is the case of the complainant that on 26.10.2017 at around 11:30 AM to 12:00 Noon, he used ATM of OP2 at Tank Road, Karol Bagh, New Delhi for withdrawal of the amount of Rs. 5,000/- but the amount was not disbursed by the said ATM despite completion of formalities, though, the account of the complainant was also having sufficient balance at the time of withdrawal.
2.1: Thereafter, on 27.10.2017, the complainant approached OP1 for complaining the said incident of not disbursal of amount aforesaid and he came to know that the said amount of Rs. 5,000/- was debited from the account of the complainant and he was further informed that said transaction was successful, however, the amount was not dispensed by the ATM of OP2.
2.2: The complainant had approached his Banker-OP1 to do the needful and get the matter investigated by checking the video footage of the ATM of the relevant time to know the truth and also to refund wrongly debited amount of Rs. 5,000/- to the complainant. The complaint of the complainant was not redressed by the OP1, a letter was issued by OP1 to OP2 to provide the video footage but same was not provided by OP2 to OP1 as per the information received by the complainant from OP1. Ultimately, the complaint of the complainant was not finally addressed by the OPs.
2.3: After the complaint of the complainant was not addressed by the OPs, feeling aggrieved he had also lodged the police complaint with the P.S. Karol Bagh, New Delhi on 13.06.2018 but of no consequence. The complainant has further alleged deficiency in service as defined in the Act on the part of OPs (copy of police complaint is annexed with complaint at page no. 11).
2.4: It is also the case of the complainant that despite running from pillar to post followed by repeated visits to the OPs, complainant had been put to extreme inconvenience at the hands of OPs for which complainant is liable to be compensated for his suffrage at the hands of OPs.
3: In view of the facts and circumstances aforementioned, the complainant has filed the present complaint before this Commission with the following prayer to:-
(i) Direct to the opposite parties to refund to the complainant the sum of Rs. 5,000/- along with interest @ 18% p.a. from 26.10.2017 till realization; and
(ii) Direct to the opposite parties to pay to the complainant the compensation amounting to Rs. 50,000/- on account of deficiency in service by the opposite parties; and
(iii) Direct to the opposite parties to pay Rs. 11,000/- to the complainant the cost of the present proceedings; and
(iv) Grant any other relief(s) which this Hon’ble Forum may deem fit and proper in the circumstances of the case may also be passed in favour of the Complainant and against the opposite party.
4.1: Central Bank of India (OP1) has filed its reply and in its preliminary submissions it is stated that the complainant, who is an account holder of the answering OP, having account no.-3402523853 approached the answering OP on 27.10.2017 stating that he had tried to withdraw the cash of Rs. 5,000/- through the ATM maintained by Kotak Mahindra Bank, the cash, however, was not dispensed but his account was still debited for Rs. 5,000/-. It is pertinent to state that in the entire complaint, there was not a whisper that he had also used an ATM belonging to OP2, it was only later it transpired that he had also used an ATM belonging to OP2, when the Kotak Mahindra Bank informed that no cash was dispensed from its ATM (copy of the complaint dated 27.10.2017 submitted by the complainant to OP1 has been annexed with the reply of OP1 as Annexure-OP1/1).
4.2: It is also the case of the OP1 that on receipt of the complaint it quickly swung into action and lodged the request with DCRS portal enquiring about the status of transaction made at the ATM of Kotak Mahindra Bank and the report of DCRS, which has been filed on record by OP1, stated that cash was not dispensed by the ATM of Kotak Mahindra Bank. On being confronted so with the complainant about DCRS report, the complainant informed that he had also on that day used another ATM of OP2, since the ATM of Kotak Mahindera Bank did not dispense the cash.
4.3: It is also in the preliminary submissions of OP1 that it also lodged a request with DCRS portal enquiring about the status of the transaction made at the ATM of OP2, information returned by the portal revealed that the cash had been dispensed by the ATM of OP2. Once the acquiring bank states that the cash was indeed dispensed then the answering OP1 was left with no choice other than to debit the amount to the said extent, OP1 has further submitted in its reply that it requested OP2 on numerous occasions to provide the CCTV footage of the ATM to put the controversy at rest but OP2 did not provide the CCTV footage to OP1 (a copy of the email dated 15.03.2018 has been annexed and marked as Annexure- OP1/2).
4.4: In its parawise reply OP1 has reiterated the stand taken in its reply under the head ‘preliminary submissions’ and OP1 has denied any deficiency of service on its part depicting further that dispute is only between the complainant and OP2 and has requested for dismissal of the present complaint qua OP1.
5.1: OP2 in its reply under the head ‘preliminary objections’ has denied all the contents of the complaint and has also alleged about the suppression of material facts by the complainant. It has also been replied that the complainant has neither paid any consideration directly or indirectly to OP2-Axis Bank for availing the services nor the complainant has any privity of contract with OP2, hence complainant is not ‘consumer’ qua OP2-Axis Bank. It has also taken the stand in its reply that neither any cause of action has arisen nor the complainant has any locus standi to file the present complaint against OP2. It has also stated that name of OP2 may be struck out from the array of parties under Order 1, Rule 10(2) CPC.
5.2: In its reply on merits OP2 has taken the stand that the complainant had withdrawn a sum of Rs. 5,000/- vide transaction no. 5321 on 26.10.2017 by using the ATM/ Debit Card no. 6072640309009762 as per various reports received from ATM Cell like ATMlog/EJcopy, ATM Cash Balancing Report, etc. and copy of the same has been annexed as Annexure-R-1(colly.) along with the reply. As per OP2, all the reports shows that the transaction was successful and the complainant had got the withdrawal amount of Rs. 5,000/-. It has also taken the stand that the said ATM/ Debit Card is ‘non-transferable’. This shows that averments put forward by the complainant in his complaint are false, misconceived and allegations made are after thought and concocted.
5.3: OP2- the custodian of the ATM has also taken the stand in its reply that it is the negligence on the part of the complainant and has pleaded no deficiency in service and unfair trade practice on its part, as the amount of Rs. 5,000/- was successfully dispensed by the ATM machine maintained by it. It has also denied about receipt of any request/ mail from OP1- Central Bank of India to provide the video footage for the disputed transaction, date and time. It has further been alleged that the request of video footage was made after 90 days of the said date of withdrawal i.e. 26.10.2017, the said footage could not have been retrieved as the same would have been over written by the subsequent days footage. In its defence, OP2 has also referred some judgment/ citation which have also been perused.
6: There is also replication of the complainant to the WS of the OPs, wherein, contents of the complaint has been reiterated/ reaffirmed and contents of the written reply filed by OPs have been denied.
7: The complainant, Shri Govind Biswas has filed affidavit for evidence wherein request details dated 30.10.2017 and 01.04.2018 were issued by the OP1 and photocopies of the same have been exhibited as Ex. CW1/1 and Ex. CW 1/2 along with letter issued by OP1 to OP2 to provide the video footage and the same has been exhibited as Ex. CW-1/3(colly). The copy of the police complaint dated 13.06.2018 lodged by the complainant with P.S. Karol Bagh has also been exhibited as Ex. CW-1/4 alleging no action was taken by the police. However, rest of the contents of the affidavit for evidence are the same as has been portrayed in the body of the complaint.
8: OP1 and OP2 have also filed their affidavits for evidence Mr. Divender Ohri, Chief Manger, Central Bank of India, Karol Bagh, New Delhi has filed the affidavit for OP1. OP1 in its para 7 of the affidavit for evidence has deposed that DCRS report dated 01.04.2018 shows that cash was dispensed by the OP2 (being Ex.-OP1/2). OP1 has also stated in his affidavit that OP2 did not reply to the email of OP1 for providing the CCTV footage. It has also annexed a copy of letter dated 24.01.2018 which is Ex.-OP1/3. Rest of the contents of the affidavit for evidence is the narration of stand taken in reply by OP1.
9: Evidence by way of affidavit on behalf of OP2- Axis Bank was filed under the signature of Shri Amit Mehrotra, Vice President, Axis Bank, 6-83, Padam Singh Road, Karol Bagh, New Delhi. In the said affidavit for evidence the stand taken in the written reply of the OP2 has been reiterated and the report of ATM Cell like ATMlog/EJcopy, ATM Cash Balancing Report etc. have been Exh.- R-1(colly).
10: We have considered the contention of both sides, expressed in written argument and submitted orally, which are on the pattern of case of parties. However, OP2 fortifies its contentions, while relying upon the case of State Bank of India vs. K.K. Bhalla- Date of Judgment-07.04.2011. The National Commission has held that:
“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 unauthorized person from an ATM. The circumstances of cases where fraudulent withdrawals have happened may not be same as in the 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”.
Similarly the Hon’ble National Commission in case titled as State Bank of India versus Om Prakash Saini reported in I(2013) CPJ 749C has held that:
“Camera is fixed only on the face of user and not on the keys of ATM and delivery window- Non supply of video footage had no bearing on claim of complainant- No other person complained for not receiving money on that day- it cannot be presumed that complainant did not receive Rs. 5,000/- from ATM machine- Impugned order set aside. Revision Petition allowed.”
11: We have perused and considered carefully the contents of the complaint, replies, affidavit of evidence, written arguments followed by oral submission made by the parties and have also gone through the documents submitted on record by the parties.
12.1: To travel further, it is admitted fact by OP1 (Central Bank of India) that complainant is the account holder in its Bank Branch, it is also admitted that the complainant entered into transaction at the ATM of OP2. From the spectrum of the record we find that the only dispute between the complainant and the OP1 and OP2 is that complainant used the services of OP2 on 26.10.2017 for the withdrawal of Rs. 5,000/- and the amount was not disbursed by the ATM installed and maintained by OP2, however, as per the stand of OP2 the said amount was disbursed vide transaction no. 5321 on 26.10.2017 by using the ATM/ Debit Card no. 6072640309009762 as per various reports received from the ATM cell like ATMlog/EJcopy, ATM Card Balancing Report etc. and in support of its stand, OP2 provided slip of serial no. 5321 electronically generated documents for withdrawal of Rs. 5,000/- on 26.10.2017 (Annexure-R-1colly with its reply). Accordingly, OP1 correctly debited from the account of complainant based on the information gleaned from the OP1 as OP1 has no control over the ATM maintained by OP2.
12.2: In sub-para (d) of para (A) of its reply, OP1 has also mentioned that the complainant approached to OP1 on 27.10.2017 stating that he had tried to withdraw the cash of Rs. 5,000/- through ATM maintained by the Kotak Mahindra Bank, however, cash was not disbursed but as his account was debited for Rs. 5,000/- whereas in the entire complaint, there was no whisper that he had also used an ATM belonging to Kotak Mahindra Bank and the Kotak Mahindra Bank informed that no cash was disbursed from its ATM. To substantiate its stand OP1 has also placed on record a letter dated 27.10.2017 written by the complainant addressed to the Branch Manager of OP1 stating therein, inter alia, that on 26.10.2017 complainant went to the ATM of Kotak Mahindra Bank on Tank Road, Karol Bagh, New Delhi between 11:30 AM to 12:00 noon and he did not get any money but his account was showing that he got the money and requested OP1 to do something to recover his money (Annexure- OP1/1). The complainant could mention these facts in the complaint, but he kept mum.
12.3: It is also the stand of OP1 that after lodging the request with DRCS initially qua transaction done with the ATM of Kotak Mahindra Bank and later on also qua the transaction done with the ATM of OP2, OP1 correctly debited the account, since as per the OP1, cash was disbursed to the complainant and stand of the OP2 being same, therefore, in the said eventuality we do not find any deficiency on the part of the OP1 as alleged by the complainant.
12.4: The stand of OP2 is that the complainant is a customer/ account holder of OP1 and as such the complainant has no privity of contract with OP2, consequently, complainant is not a consumer of the OP2. Because of want of relation of banker & customer between OP2 & complainant, both do not come within the definition of “complainant, complaint, consumer and service” as defined in Section 2(b)(i) of the Consumer Protection Act, 1986. For all these purposes, OP2 has relied on judgments which have been dealt in para no. 10 (supra).
Section 2(b) of the Act, 1986 “complainant” also includes a ‘consumer’ and word “consumer” has been defined in Section 2 (d) as:
(i) xxxxxxxxxxxxxxxxx.
(ii) 1[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 1[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 2[but does not include a person who avails of such services for any commercial purpose].
3[Explanation.- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment;]
In Section 2(o) “service” means service of any description which is made available to potential 2[users and includes, but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, 3[housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
12.5: Therefore, if we read carefully the definition of word “complainant, complaint, Consumer and Service” as defined in Section 2(1) of Consumer Protection Act, 1986, the present dispute manifestly do not come within definitions of these words qua OP2 and defence taken by OP2 in its written reply in this regard seems to be correct, so far “service” provided to the complainant by OP2 is concerned. OP2 has further taken the stand that the complainant has not paid any consideration directly or indirectly to OP2- Axis Bank for availing the service of any kind from OP2 as the complainant is the account holder with the OP1 Bank, if that is so, the credence goes in favour of the defence taken by OP2. However, there may be in all certainty, a reciprocal arrangement between bankers OP1 and OP2 regarding levy of charges/ fee for using the ATM facility by the customer/ Account holder of OP1, for which in normal course of such transaction consumers/ customers are not aware.
12.6: It is also the case of OP2 that it has no privity of contract with complainant. For this, OP2 has taken the defence by citing a case titled ChenaRam vs Oriental Bank of Commerce and Anr. decided by National Commission, New Delhi on 11.01.2016 [II (2016) CPJ 613 (NC)]. Briefly put, the complainant in the above cited case was having a saving bank account with Oriental Bank of Commerce, District- Nagore. He was issued an ATM card by the bank which enabled him to withdraw money from his account not only at the ATM of Oriental Bank of Commerce but also at the ATMs with other banks with whom Oriental Bank of Commerce had a reciprocal arrangements for use of ATM facility and the complainant used his ATM card at the ATM of State Bank of Bikaner and Jaipur, District-Nagore. It was held by the Hon’ble National Commission that “it is an admitted case that the complainant had no account with State Bank of Bikaner and Jaipur, therefore, he was not consumer of the said bank and there was no privity of contract between him and State Bank of Bikaner and Jaipur. Complainant, therefore, was not entitled to approach the District Forum against State Bank of Bikaner and Jaipur….”
12.7: Further, OP2’s case is also reinforced by judgment of National Commission in the case titled State Bank of India vs. Sansar Chand Kapoor and anr., in RP No. 2889/14 decided on 15.01.2015, wherein Hon’ble National Commission observed as under:
“We are in agreement with the learned counsel for the petitioner that no cash from the account of the complainant could have been withdrawn without use of the ATM card which the petitioner bank had issued to him along with use of the pin which the bank had provided to him. If the complainant himself did not withdraw cash from the bank on 10.11.2011, as is claimed by him, his ATM card must have been stolen or otherwise obtained by some unscrupulous person. Not only that, the ATM pin must have been either disclosed by the complainant to the person who withdrew cash from the bank or he would not have kept it in safe custody as a result of which the person who withdrew the money through the use of the ATM could lay his hand on the said pin and later feed the pin in the ATM machine while using the ATM card issued to the complainant. Therefore, no deficiency in services is made out on account of the alleged fraudulent withdrawal of Rs. 10,000/- from the bank account of the complainant on 10.11.2011.”
13.1: Generally, when a customer use the ATM card and if the transaction is not successful, it is shown on the screen of ATM as well as on slip issued by ATM. Even if some money is transacted but not delivered, same is reversed to account of ATM card holder and in the instant case complainant had not filed any proof that when he used his ATM card, money was not transacted. On the other hand, OP2-Axis Bank has proved that the transaction was successful. But the complainant failed to prove any material document that when he used the ATM of OP2, his transactions failed and money was not delivered.
13.2: From the aforementioned discussions and deliberations, it is amply clear that OP2- Axis Bank (ATM operator) has proved its case that the transaction made on 26.10.2017 with the ATM of OP2 by the complainant was successful and consequent thereof OP1 Bank, account holder of the complainant debited the transacted amount from the account of the complainant correctly. Therefore, OP1 and OP2 have proved their case successfully.
13.3: The totality of circumstances discussed & analyzed, the complainant failed to establish his case, even preponderance of probabilities are in favour of OPs. Therefore, complaint fails, it is dismissed. The parties are left to bear their own costs of litigation.
14: Announced on this 24th of January, 2023. Copy of this order be sent/provided to the parties free of cost as per Regulations.
