Delhi

North East

CC/50/2016

Jyotsna Pal - Complainant(s)

Versus

HDFC Bank Ltd. - Opp.Party(s)

16 Apr 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. 50/16

 

In the matter of:

 

	Jyotsna Pal D/o Shri Kuwar Pal A/136, New Seelampur, Delhi-110053.	Complainant
	Versus
	HDFC BANK E-51, Naraina Vihar New Delhi-110028. Branch Code -2040.	Opposite Party

 

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

06.02.2016 21.03.2018 16.04.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant is that she is an account holder with OP Bank having saving account No. 20401050004831. The complainant’s grievance is that there were two wrongful deductions/withdrawal made from her above mentioned account without her consent on 22.10.2015 for Rs. 5,500/- and on 01.11.2015 for Rs. 2,500/- from her debit card No. 4854460207730552. The complainant, immediately on knowledge of the same, registered a complaint against OP on 2^nd November 2015 and also charge dispute form was submitted by the complainant on 07.11.2015 with the OP disputing the above mentioned transactions. The complainant further lodged a police complaint with PS Naraiana on 07.11.2015 bearing DD No. 15 B. The complainant has further stated that she was in constant touch with one Mr. Sachin Bansal, PRO of OP bank who had assured the complainant in the first week of December 2015 that the above mentioned fraudulent withdrawal amount of Rs. 8,000/- will be restored in the bank account of the complainant with OP through Axis Bank by 15^th December 2015. However, nothing happen in this regard. The complainant wrote several e-mails to the OP on 4^th November, 6^th November, 27^th November 2015, and lastly on 11^th January 2016 but no response was giving by the OP to these e-mails except standard reply of revert within next few working days by their customer care service support team. The complainant had also sought information under RTI vide application dated 14.01.2016 on the wrongful deduction made from her account held with the OP but vide reply dated 18.01.2016, was informed by the AR of OP that the information sought was outside the purview of RTI since OP was not ‘Public Authority’ as defined under section 2 h of RTI.  Lastly the complainant was constrained to file the present complaint against the OP after exhausting all remedies by way of correspondence, personal visits and follow-ups written and telephonic. Vide present complaint the complainant has prayed for directions to the OP to pay Rs. 21,050/-, the breakup for the same being Rs. 8,000/- towards refund of wrongful deduction made by OP, Rs. 10,000/- towards cost of the case and Rs. 3,050/- expenditure incurred in commute  to OP office, Naraina Police Station.    
2. Notice was issued on the OP which entered appearance on 19.04.2016 and filed its written statement on 14.07.2016. In its written statement the OP took the preliminary objection that as per the allegation of the complainant in the complaint, some fraud transaction had been done from Axis Bank on 22.10.2015 and 01.11.2015. However as per the log report and cash / ATM Balancing Report provided by Axis Bank the disputed transaction were successfully done by the complainant and therefore any grievance of complainant could only be dealt with by Axis Bank.   The OP further took the defence that immediately on receipt of the complaint from the complainant regarding the alleged wrongful deductions on 07.11.2015, the OP had raised the charge back with the acquiring bank / Axis Bank vide reference No. CNI154148 and CBI153015, in response to which the Axis Bank had provided the ATM Log indicating that the funds of the disputed transactions i.e. Rs. 5,500/- and                Rs. 2,500/- had been successfully dispensed on 22.10.2015 and 01.11.2015 respectively. The OP attached the Log reports of the above mentioned dates as Annexure A (colly) alongwith the written statement. The OP further stated that the JP Log reports are authenticated documents which cannot be tampered with. The OP again raised a request with Axis Bank, requesting them to confirm the successful dispensation of the disputed cash amount, in response to which the Axis Bank confirmed again that they did not have excess cash in the ATM on the given dates of the transactions. The OP has attached copy of the cash / ATM Balancing Report provided by Axis Bank as Annexure B (colly) alongwith the written statement. The OP further took the plea that from the perusal of the above mentioned annexures / documents, it has transpired that the complainant had made successful transactions of the ATM of Axis Bank on 22.10.2015 at 17:23 PM and on 01.11.2015 at 15:32 PM through her debit card for sum of Rs. 5,500/- and Rs. 2,500/- respectively.  The OP further submitted that the complainant had approached the banking ombudsman, on which complaint, notice was issued to the OP and OP had filed reply thereto dated 18.02.2016 informing the banking ombudsman interalia that on receipt of the complaint from the complainant, the OP bank had immediately raised the issue with Axis Bank in response to which the JP Log report and no excess cash / ATM Balancing Report were received by OP from Axis Bank indicating that the funds had been successfully dispensed and  communication to this effect was also sent by the OP to the complainant on the same day i.e. 18.02.2016. The OP has attached both the correspondences as Annexure C (colly) with the written statement. In its Para wise reply on merits the OP deny the allegation by the complainant that Mr. Sachin Bansal PRO of OP bank had assured the complainant of restoration of Rs. 8,000/- back to her account by 15^th December 2015 which were wrongfully withdrawn from her account with OP. The OP denied any deficiency in service or liability to pay any amount as claimed by the complainant in the present complaint as the complainant is in receipt of the amount dispensed by the ATM of the Axis Bank and the present complaint is nothing but a device to extract money from the OP and therefore complainant is not entitled to any compensation or damages and prayed for dismissal of the complaint.
3. Rejoinder was filed by the complainant in rebuttal to the written statement filed by the OP alleging that the complainant was a consumer within section 2 (1) d of Consumer Protection Act holding Bank Account with the OP. The complainant further submitted she had suffered loss of money due to deficiency in service by OP and it was the responsibility of OP to compensate the complainant for loss suffered by her due to bad services of OP and it was due to the lacuna on the part of OP that illegal transaction had been made in the account of the complainant without her consent or installed camera not working therefore it was a clear case of fraud committed by OP against the complainant. The complainant further submitted that the complainant had not used her ATM card for transaction of any amount with Axis Bank on the alleged dates of 22.10.2015 and 01.11.2015 and despite SMS alert service activated on the mobile phone of the complainant, no messages were sent to the complainant with respect to the disputed / illegal transactions on the given dates 22.10.2015 and 01.11.2015 on the complainant’s mobile.  Complainant further submitted that OP did not take necessary action to resolve the complaint of the complainant or provide any document pertaining to the disputed transaction on the allege dates to the complainant despite the complainant being regularly in touch with Mr. Sachin Bansal PRO of OP bank via e-mails who kept giving false assurances to the complainant. Lastly the complainant submitted that the OP, on the request of the complainant had again raised the question of illegal transaction made before the acquiring bank Axis bank which confirmed that it did not have excess cash in ATM on the date of transaction and therefore it was not possible for Axis Bank to have provided the ATM Generated Documents of transaction of alleged dates which means that the documents of the transaction of ATM are false and fabricated.
4. Evidence by way of affidavit were filed by both the parties exhibiting the relevant and material documents in support of their case/defence.
5. Written arguments were filed by both the parties. The complainant summarized her complaint and the relief sought in her written arguments. The OP reiterated its defence in the light of the written statement and evidence by way of affidavit filed by it exhibiting Log Report and Cash / ATM Balancing Report and also correspondences dated 18.02.2016 to Secretary Bank Ombudsman and to the complainant to the effect that the disputed transactions as alleged by the complainant were actually successful resulting in dispensation of cash as confirmed by the acquiring bank Axis Bank for sums of                  Rs.  5,500/- and Rs. 2,500/- on 22.10.2015 and 01.11.2015 transacted through Debit card of the complainant. The OP placed on record the judgments relied upon by it passed by the Hon’ble NCDRC in the case of State Bank of India Vs K.K.Bhalla in revision petition no. 3182 of 2008 decided on 07.04.2011  in which the Hon’ble NCDRC dealing with the similar issue of alleged fraudulent withdrawal through ATM from the account of the complainant while the ATM card and PIN were in safe custody of the complainant had held that merely because CCTV Footage was not working on a particular day or its Footage not being available does not mean that the money could be withdrawn fraudulent without using ATM card and the PIN number. The Hon’ble NCDRC had held in the afore mentioned case that in view of the elaborate procedure evolved by the Banks to ensure that without the ATM card and knowledge on PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, it is difficult to accept respondents contentions of ATM and PIN being in his safe custody at the time of transaction. The Hon’ble NCDRC in the case of SBI through Chief Manager, Branch Rewari Haryana Vs Om Prakash Saini in Revision Petition No. 2382 of 2012 had dealt with the allegation by the complainant against the Bank of wrongful debit from the account of the complainant made vide transaction through ATM machine where no disbursal was made but showed successful transaction. The Bank had filed JP Roll showing various other transactions effected on the same day as that of the above mentioned disputed transaction done by various other persons and all of them being successful without any complaints. In this case the Hon’ble NCDRC had held that allowing the complainant merely on the ground that video Footage was not furnished to the complainant by the Bank was not relevant and incorrect and had no bearing on the claim of the complainant and had therefore reversed the decision of District Forum upholding that of State Commission.

The Hon’ble NCDRC in recent judgment of Satyanarayan Pandey Vs SBI IV (2017) CPJ 199 (NC) had held that transactions found successful as per Electronic General File, complainant not having filed ATM slips/ receipt which comes out of the ATM after using the ATM card to show any proof that he did not receive the money when he used his ATM card and General Standard Practice of ATM card and ATM machine being safe and if transactions are not successful the same are displayed on the screen of ATM as well as on the slip issued by the ATM are sophisticated procedures and therefore the Hon’ble NCDRC upheld order dated 23.09.2015 passed by Hon’ble State Commission, Delhi dismissing the appeal of the complainant’s / appellant challenging wrongful debit through ATM Mechanism.

The complainant has filed judgments passed by SCDRC Chandigarh (Punjab and Punchkula) in cases of S.C.Galhotra Vs Mohali Bank and Ors and Dr. Subash Chandra Vs SBI, facts of which cases are not relevant in the present case and are not of any consequence.

6. We have heard the arguments addressed by both the parties and have carefully perused the case file and documents placed on record by both the parties with their respective pleadings and have given our thoughtful consideration and applied out judicial mind to the facts and circumstances of the case. The balance of convenience and settled provision of law tilts heavily in favour of the OP in view of the exhaustive documentary evidence placed on record by the OP alongwith its evidence as also the case laws in support. The Log report and Cash /ATM Balancing Report provided by Axis Bank clearly establish that the debit card was transacted on two dates at Sadhna Medicos for 22.10.2015 and 01.11.2015 and no excess cash in the ATM machine was found on the given dates and the issue of non availability of CCTV Footage has also been put to rest in the light of judgment passed by Hon’ble NCDRC on the issue cited above and relied upon by the OP.
7. We therefore, do not find any merits in the present complaint and no case of deficiency of service or unfair trade practice has been made out by the complainant against the OP. Accordingly, the complaint is dismissed with no order as to cost.
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.
10.   Announced on  16.04.2018   

 

(N.K. Sharma)             President

(Sonica Mehrotra)              Member

(Ravindra Shankar Nagar)                Member