Delhi

North East

CC/446/2012

Krishna Prasad - Complainant(s)

Versus

Dena Bank - Opp.Party(s)

26 Oct 2018

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. 446/12

 

In the matter of:

 

	Krishna Prasad H.No. 85/76, Gali No.1 Saboli Bagh, Delhi-110093.	Complainant
	Versus
1.         2.	Dena Bank Subzi Mandi Branch 24/156, Shakti Nagar Delhi-110007.   Axis Bank Plot No. 22, L.S.C, Mayur Vihar, Phase-II Delhi-110091.	Opposite Parties

 

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

19.11.2012 25.10.2018 26.10.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts of the present case as narrated by the complainant are that he is a home guard having savings account with OP1 Bank, Shakti Nagar Delhi Branch since 2008 and as on 1^st May 2012 he had a balance of Rs. 15,434/- in the said account. On 02.05.2012 at around 08:30 PM, the complainant had accessed the ATM machine bearing No. 5676782 of OP2 located at Mata Vaishno Devi Mandoli Delhi through his ATM card of OP1 to withdraw Rs. 500/- which withdrawal was successful but the machine got hung and no transaction slip came out. The complainant went to the nearby Bank of Baroda ATM to check his balance but discovered that the balance remained Rs. 4,934/- in his account meaning thereby that there was a deduction of Rs. 10,500/- from his account held with OP1. The complainant called up the customer care of OP2 which asked them to contact his account holding OP1 branch which he telephonically informed the next day of wrongful debit of Rs. 10,000/-. Thereafter the OP1 kept assuring the complainant that his wrongfully debited amount would be remitted back in his account after some days but was later on informed that as per e-mail received, the transaction was shown as successful and nothing could be done in the matter. The complainant submitted that due to repeated visits to OP1 he had to take leave from work and spent Rs. 7,000/- on conveyance on travel. The complainant thereafter visited OP2 I.P. Extn. Madhu Vihar, New Delhi branch and gave an application to the Manager who informed him after 2-3 months that they have received the video clip which shows that the complainant has not withdrawn the money from the ATM. When the complainant asked to see the video clip, OP2 refused to show him the same on the pretext that they did not have a monitor and that they have sent the video clip to the Head Office for necessary action but nothing was done in the matter. Therefore, finding no other recourse since the complainant was immersed in debt, the complainant was constrained to file the present complaint praying for issuance of directions to OPs to remit Rs. 10,000/- back in his account with OP1 alongwith interest @ Rs.100/- for six months i.e. Rs. 18,000/- (Rs. 10,000/- + 18,000/-) alongwith Rs. 22,000/- as compensation for loss of work due to leave taken from work thereby totaling Rs. 50,000/- as cumulative compensation.

Complainant has attached copy of savings account no. 012910024517 held by the complainant with OP1 by way of passbook entry thereof maintained with OP1 bank highlighting the disputed transaction dated 02.05.2012 of Rs. 10,000/-, copy of e-mail dated 10.05.2012 from OP1 to ATM of OP1 regarding debit of Rs. 10,000/-, copy of e-mail dated 28.05.2012 from ATM IBR to OP1 confirming successful transaction as per JP Log and no excess cash and e-mail dated 04.06.2012 from ATM IBP to OP1 regarding no excess cash confirmation, copy of complaint dated 23.05.2012 by the complainant to OP2 requesting of remit of wrongful debit ofRs. 10,000/-, copy of transaction receipt issued by Bank of Baroda ATM on 02.05.2012 regarding balance enquiry in account of the complainant and copy of transaction slip of OP2 dated 11.10.2012 for balance enquiry.

2. Notice was issued to OPs on 26.11.2012. OPs entered appearance. OP1 filed its written statement in which while admitting the complainant having savings bank account no. 012910024517 and ATM card issued against the same, took the preliminary defence that after the complainant had reported the disputed non remittance of Rs. 10,000/- of transaction dated 02.05.2012, the matter was referred to the ATM department at Mumbai and after thorough investigation with OP2, the concerned department vide reply dated 10.02.2012 submitted that the transaction was successful and the money was successfully withdrawn from the ATM of OP2 proven by the reconciliation sheet sent by OP2 in this regard which OP1 placed reliance upon in the written statement and further stated that as per the reply of OP2 no excess cash was found in the ATM machine on the date of incident and the machine and card were in proper working condition since the withdrawal of Rs. 500/- was admittedly successful. Therefore OP1 prayed for dismissal of the complaint disputing any negligent act or deficiency in service on its part entitling complainant any relief against OP1. OP1 has attached copy of reconciliation sheet / no excess cash found report as annexure A with its written statement.
3. Written statement was filed by OP2 on 21.08.2013 in which it took the preliminary objection that in view of the complainant being account holder of OP1 and having being provided its ATM card, the complainant had not paid any consideration directly or indirectly to OP2 for availing its services and therefore was not a consumer qua OP2 having no cause of action against OP2 and its name be struck off from array of parties under Order I Rule 10 (2) of CPC since the complainant himself had admitted that he had savings bank account with OP1. The OP2 took the defence that the OP1 had rightly informed the complainant that the alleged disputed transaction of Rs. 10,000/- was reported as successful and the same was informed by officers of OP2 as well to the complainant who had shown him the documents / information / reports received from the ATM cell like ATM Log/ EJ copy, ATM Cash Balancing Report, ATM Reconciliation Report, ATM Cash Dispensation Elaborate Report, ATM Switch Report and No Excess Cash Certificate all showing successful transaction and withdrawal of Rs. 10,000/-. OP2 further submitted that the complainant allowed some outsider to operate the said ATM and suffered the alleged loss due to his own negligence which is clear from the CCTV Footage that he allowed someone to withdraw cash by giving access to his original debit card and ATM PIN in most negligent manner. OP2 denied the allegations made by the complainant of wrongful debit of Rs. 10,000/- and his contention of cash not having being dispensed by the ATM machine of OP2 in light of submission that there is a Journal printer in the ATM machine which records each and every transaction done through the ATM which are full proof system with reconciling accounts and the four digit combination of PIN is such that it is virtually impossible for a fraudster to crack it and entering the wrong PIN thrice would result in rendering the card unusable for next 24 hours thereby implying that without knowledge of the unique PIN number, no way any fraudster could have use the complainant’s card at any ATM for cash withdrawal corroborated by Electronic Journal File which is the final proof of the authenticity of the transaction accepted across the world by all banks which cannot be manipulated since the ATM machines are supported by highest technology and excellent surveillance and never fail to show the correct deposit or withdrawal. The OP2 further submitted that in respect of sharing of ATMs with different banks, the banks have laid down procedure and systems for ATM transactions reconciliation to avoid fraud and to protect the interest of customers vide which the bank of the aggrieved party should lodge a complaint with the other bank whose ATM machine was used to effect the transaction. The OP2 further submitted that in the ATM cash withdrawal the transaction can be effected only by using original debit card and confidential PIN number known only to the customer and assuming not admitting that the complainant had not use the said debit card, somebody having close relation with the complainant may have used the said debit card and confidential PIN number to withdraw the amount in question in act of mischief. The OP2 relied upon the ratio laid down by Hon’ble National Commission in SBI vs K.K.Bhalla passed on 07.04.2011 in which the Hon’ble National Commission held that in view of elaborate procedure evolved by bank to ensure that without ATM and PIN Number withdrawal of money by any unauthorized person is not possible, the circumstances of cases where such fraudulent withdrawal have happened have occurred either because the ATM card or PIN Number fell in wrong hands.
4. Therefore in light of the above submissions the OP2 submitted that the evidence and technical details of the transaction confirms beyond reasonable doubt that the complainant had indeed received the disputed cash amount of Rs. 10,000/- from its ATM and there was no deficiency of service or unfair trade practice giving rise to any cause of action against OP2 due to which reason the complaint is liable to be dismissed under Section 26 of CPA. OP2 placed on record CCTV Footage by way of CD, copy of JP Log, copy cash balancing report, ATM balancing report, cash dispensation elaborate report, switch report, letter dated 24.04.2013 to reconciliation team of OP2 by AVP- Recon the conciliation OP2 regarding no physical excess cash on 02.05.2012 and copy of SBI Vs K.K.Bhalla Judgment.   
5. Rejoinder to the written statement of OP2 was filed by the complainant in rebuttal to the defence where the complainant reiterated his grievance of unsuccessful transaction / wrongful debit of Rs. 10,000/- from his account with OP1 via ATM transaction of OP2 and submitted that for accessing ATM machine other than the account holder bank’s ATM machine nominal charges of Rs. 10 to 20 is levied / deducted from the account holder’s account and therefore consideration was paid to OP2. Complainant further submitted that initially the manager of OP1 had informed him that the transaction was unsuccessful but after the e-mail exchanged between OP1 and OP2, changed his version. The complainant further questioned the authenticity of document received from ATM cell of OP2 and also denied having allowed someone else to operate the ATM machine on his behalf to withdraw money as baseless allegation, misleading and misrepresenting. The complainant further averred that the OP2 instead of realizing its mistake that their ATM machine was defective and getting hung, was by willful misconduct causing mental, physical & monetary loss to the complainant.
6. Evidence by way of affidavit was filed by the complainant in reiteration of his grievance in the complaint.
7. Evidence by way of affidavit was filed by OP1 and OP2 in reiteration of their respective defences and written arguments were filed by all the parties. The complainant in his written argument submitted that the OP2 has deliberately filed false and fabricated CCTV Footage of another ATM machine which neither shows face of the complainant nor transaction from the ATM. OP2 placed on record the judgment of Hon’ble National Commission in Chenaram Vs OBC and Anr II (2016) CPJ 613 (NC) and Mr. Sukh Pal Vs Axis Bank of India passed in Revision Petition no. 3857 of 2014 to buttress its defence.
8. We have heard the rival contentions of both the parties and have applied out judicial mind after thorough perusal of documentary evidence placed on record before us.

From the passbook entries 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 02.05.2012. The same has been corroborated by the passbook entry filed by complainant as well as JP Log / EJ Report filed by OP2. The CCTV Footage provided by OP2 of its ATM also proves that the complainant had withdrawn the above said money from the ATM.We have screened the CCTV Footage, JP Log, no excess cash report as well as other documentary evidence which shows that the successful withdrawal of Rs. 10,000/- was made vide transaction number 7187 on 02.05.2012 through debit card number 4695680129400074 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.

9. Therefore, in light of the settled propositions of law regarding documentation filed by OP2 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. 
10.  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 cost to either side.      
11.  File be consigned to record room.
12.  Announced on 26.10.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member