Delhi

North East

cc/163/2013

Shri Hira Lal - Complainant(s)

Versus

Corporation Bank Ltd. - Opp.Party(s)

22 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.  163/13

 

In the matter of:

	Shri Hira Lal S/o Shri Bhondu Lal R/o:- House no. B-6/85, Block B-6 Nand Nagri, Delhi-110095	Complainant
	Versus
1             2	Corporation Bank Ltd. Through Branch Manager Branch-1249, Plot no. 20, Sector-14 Milan Business Space Kaushambi, Ghaziabad   AXIS Bank Ltd. G-12, Opp. J&K Block, Dilshad Garden Dilshad Colony,Delhi-110095	Opposite Parties

 

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

16.05.2013 22.06.2020 22.06.2020

 

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 (Corporation Bank), bearing Account No. 1249/SB/01/000625 and holder of debit card bearing No. 4027411249002783 issued by the said bank. The available balance in the said account as on 10.02.2013 was Rs. 14,691/- The complainant went to ATM of OP2 AXIS Bank on 10.02.2013 around 3:09 PM at its Nand Nagri Branch, Delhi for withdrawing  Rs. 10,000/-. However, the said ATM machine did not work due to being faulty due to which the complainant could not withdraw the said amount and no money was disbursed by the ATM machine of OP2 but the amount of Rs. 10,000/- was shown as debited from his account held with OP1 though no transaction slip came out. The complainant immediately gave intimation to OP1 on its customer care and was assured remittance of said sum back in his account within seven days but till 20.02.2013 no action was taken in this regard. The complainant vide written complaint dated 20.02.2013 to OP2 asked for CCTV footage and also lodged complaints dated 14.02.2013 and 26.02.2013 on its helpline number but the same was rejected by OP1  in casual manner without application of mind.  The complainant asked for CCTV footage and JP log for which OP1  had raised a request vide email dated 15.03.2013 but OP2 vide reply email dated 18.03.2013 to OP1 informed of rejection of the complaint on grounds of transaction in question being successful never provided complainant with any cash reconciliation statement, JP Log etc. Therefore feeling aggrieved at the inaction on the part of OPs who were negligent in rendering proper service to their customer, complainant alleging financial loss, physical and mental agony, he was constrained to file the present complaint against the OPs praying for issuance of directions to refund Rs. 10,000/-with interest @18% into the complainant’s account and to pay Rs. 60,000/- as compensation for mental agony, harassment and damages on account of deficiency in service and unfair trade practice and Rs. 11,000/- towards cost of litigation.
2. Complainant has attached copy of passbook entries with disputed debit highlighted, copy of complaint dated 20.02.2013 by complainant to OP2, copy of rejection of complainant’s application, copy of e-mails dated 15.03.2013 and 18.03.2013 exchanged between OPs pertaining to the disputed transaction.                 
3. Notices were issued to the OPs on 24.05.2013. OP1 entered appearance and filed written statement in which it took the preliminary objection that  the complainant has himself admitted that ATM machine installed by OP2 was a faulty one which nowhere is proof of negligence or deficiency of service on the part of OP1 in providing services to its customer and OP1 denied complainant having made any call to its customer care since complainant has been unable to place on record any reference number or name of customer care representative with respect to the alleged complaint to verify the veracity of his claim which raised a suspicion about the very complaint itself. OP1 denied having assured the complainant of credit reversal of the disputed amount within seven days and submitted that complainant letter dated 20.02.2013 was addressed to OP2. OP1 took the defence that the transaction was successful at the end of OP1 which is why the same was shown again debit entries in the account of complainant. OP1 while admitting complainant having lodged a complaint with it on 11.02.2013 urged that on receiving the same on 11.02.2013 and 26.02.2013, OP1 immediately took up the matter for resolution with OP2 but the claim was rejected by OP2 and OP2 provided EJ log / JP log book to OP1 in which there was a specific entry pertaining to complainant transaction shown as successful. Even otherwise it was not mistake on the part of OP1 and therefore is not bound to pay any amount to the complainant. OP1 submitted that the complainant did not pursue the matter with banking ombudsman and instead had filed the present complaint to extract easy money from OPs and therefore prayed for dismissal of the present complaint for defence so taken.
4. OP1 has attached copy of email correspondence dated 12.07.2013 and 13.07.2013 between OPs whereby OP2 communicated that as per EJ report, the transaction was successful and enclosed copy of ABR, CBR, switch report , EJ log and no excess cash certificate with respected to the disputed transaction alongwith copy of GPA in favor of the competent authority.
5. Rejoinder to the written statement of OP1 was filed by the complainant in rebuttal to the defence taken and submitted that the OP1 had duly registered the transaction claim complaint number 12491300005 dated 20.02.2013 with the acquiring bank i.e. OP2 on complainant’s written complaint dated 10.02.2013 with OP1. Complainant denied the transaction number 5037 dated 10.02.2013 of Rs. 10,000/- as being successful as alleged by OP1 alleging that as per EJ log all the previous future transactions were shown as failed due to equipment fault or transaction declined and prayed for issuance of direction to OPs to file exhaustive JP log and CCTV footage for the relevant date and any internal enquiry or FIR lodged by OPs in this regard. The complainant also filed an application u/s 13(4)(i) and (ii) of CPA for direction to OPs to file cash reconciliation certificate, JP log, statement of amount cash filled, CCTV footage, copy of internal complaint and / or FIR all for the relevant date i.e. 10.02.2013 with respect to the disputed transaction. In reply to which OP1 submitted that the EJ log has already been placed on record as OP1 1/1 with its written statement and other documents can only be obtained from OP2 as the ATM machine in question bearing ID no. SPCC88418 belong to OP2 and therefore other documents related to the disputed transaction can only be obtained from OP2 and prayed for dismissal of the complaint. Evidence by way of affidavit was also filed by the complainant exhibiting the documents relied upon as annexure C-1 to C-4.
6. OP2 entered appearance on 10.07.2013 and filed its written statement on 08.08.2013 vide which it took the preliminary objection that the ATM card issued by OP1 had a personal four digit identification number / PIN which is only in the knowledge of the complainant / customer and this card can be used in ATM only by swiping it in the access lodge and inserting the PIN number and this fact is not even dispute by the complainant since he was in possession of both ATM card as well as its PIN number when he had operated the ATM card on the date in question i.e. 10.02.2013 in ATM of OP2 and in view of the elaborate procedure evolved by OP2, it is not possible for money to be withdrawn by anybody else except by authorized holder of the card in question. The ATM machine works by reading the magnetic strip of an ATM or Debit card and on swiping the card in the machine, post verification of information about account number, available balance and identity of the customer when he punches in the PIN, the machine processes the transaction and  all the above processes takes time to dispense money.  Therefore, OP2 submitted in its defence that the contention of the complainant of not having received money after operating his ATM card is absurd, improbable and unbelievable and there is no deficiency of service on the part of OP2. OP2 further urged that the CCTV footage recorded at its ATM showed that the complainant operated his ATM card, money was dispensed but he left the premises without collecting the same which was taken away by the person just behind him in the queue and for which act of negligence of the complainant, OP2 cannot be blamed. Lastly, OP2 urged that the ATM machine in question was loaded with cash and fully operational on the date of transaction i.e. 10.02.2013 without any breakdown as alleged. OP2 relied upon judgment of Hon'ble NCDRC in K.K. Bhalla Vs SBI and prayed for dismissal of the complaint for the defence so taken. No supporting documents were filed by OP2 alongwith the written statement.  Complainant did not file rejoinder to the written statement of OP2.
7. Evidence by way of affidavit was filed by OP1 sworn by its branch manager exhibiting the documents relied upon as Ex OP1W1/1 (colly).
8. No evidence by way of affidavit was filed by OP2 till change of counsel in August 2015 when fresh written statement alongwith evidence by way of affidavit and written arguments were filed all at once / in one go in August 2015. Evidence by way of affidavit exhibited the documents relied upon in the written statement was filed in August 2015 by the present counsel of OP2 whereas written statement of OP2 was already filed in August 2015 by its erstwhile counsel but on scrutiny of case file by this Forum on 07.01.2020, it was discovered that the original written statement filed by the erstwhile counsel of OP2 in August 2015 was unsigned / unattested.
9. Written arguments were already filed by OP1 and complainant on 12.03.2014 and 29.08.2014 respectively in reassertion / reiteration of their respective grievance / defence.
10. In the hearing held on 07.01.2020, the counsel for OP2 was apprised of the originally filed written statement of OP2 on 08.08.2013 and was handed over the original of the same from the court file from removal of defects of signature and attestation since proceedings before this Forum are inquisitorial and not adversarial as held by Hon'ble National Commission in HUDA Vs Smt. Kamaljit Kaur Ahluwalia in RP no. 1051 / 99 decided on 02.06.2005. However, he insisted that his written statement filed in August 2015 be considered as defence of OP2 and the said issue was kept for consideration at the final arguments.
11. 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. The counsel for OP2 argued that the complainant vide annexure C 5A has himself disclosed that vide internal email dated 15.03.2013, OP1 had raise the issue of the disputed transaction made through ATM of OP2 on 10.02.2013 at 15:09 PM in reply to which OP1 vide email dated 18.03.2013 to its Ghaziabad-Kaushambi Branch i.e. OP1 had apprised of rejection of the said transaction by OP2 as successful and EJ log also having been already provided by OP2 in this regard with request to handover copy of the same to the complainant. Therefore, OP2 had already provided the EJ log to OP1 between February-March 2013.

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 10.02.2013. The same has been corroborated by JP Log / EJ Report filed by both OPs. No CCTV Footage was however placed on record by any of the OPs. We have screened the JP Log, ATM cash balancing report, switch data, ATM conciliation report and No Excess Cash certificate as well as other documentary evidence which shows that the successful withdrawal of Rs. 10,000/- was made vide transaction number 5037 on 10.02.2013 through debit card number 4027 4112 4900 2783 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 untampered 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 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.

In so far as the written statement of OP2 earlier filed on 08.08.2013 and later filed afresh by some other counsel in August 2015, the law is unequivocally settled in this by Hon'ble Supreme Court by five Judge Bench in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage passed on 04.03.2020 in CA no. 1094110942 whereby Hon'ble Supreme Court held that as per Section 13(2)(a) of Consumer Protection Act, the OP shall file its response to the complaint within 30 days of its receipt of such extended period not exceeding 15 days and consequences for non-compliance of the same has been provided u/s 13(2)(b)(ii) of the said Act and once consequences are provided for not filing the response to the complaint within the time specified, the time provided u/s 13(2)(a) has to be read as mandatory and not directory and shall not be called in question. Therefore, for having speedy trial, the legislative mandate of not giving more than 45 days in submitting written statement is required to be adhered too as was earlier laid down by Hon'ble Supreme Court in its land mark judgment of Dr. J.J. Merchant Vs Shrinath Chaturvedi AIR 2002 SC 2931 holding that when an act provides the time within which a particular act has to be done with time limit fix under the act, then obviously the time period stipulated in the provision will be considered to be mandatory.In light of the settled preposition of law by the Hon’ble Apex Court the written statement filed by OP2 in August 2015 is clearly time barred as the earlier written statement filed in August 2013 was within the mandatory stipulated period of 45 days as per the requirement of the statute (copy of complaint received on 10.07.2013) and only that written statement would be considered as defence of OP2. Accordingly, evidence by way of affidavit filed by OP2 exhibiting the documents relied upon in the written statement filed in August 2015 shall also not be considered as part of record. Nonetheless all the requisite documents viz EJ log, Switch Data, ATM cash reconciliation report and no access certificate had already been exhibited by OP1 alongwith its evidence and therefore admitted on record.

12. 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. 
13. 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.      
14. Let the copy of this order be sent to all parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
15.  File be consigned to record room.
16.  Announced on  22.06.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member