Delhi

North East

CC/102/2018

Sanpreet Singh - Complainant(s)

Versus

ICICI Bank Ltd. - Opp.Party(s)

19 Apr 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

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

 

Complaint Case No.102/18

In the matter of:

 

	Sh. Sanpreet Singh S/o Sh. Manjeet Singh R/o House No. 1/9424, West Rohtas Nagar, Street No. 7 Shahdara, Delhi-110032	Complainant
	Versus
1.         2.	ICICI Bank Ltd., Through the Manager 1526 B, Rohtas Nagar, Shahdara, Delhi-110032   Axis Bank Through It’s the Manager Parshvnath Mall, Shahdara, Delhi	Opposite Parties

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:                        DATE OF ORDER  :

23.05.2018 09.02.2023 19.04.2023

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

Adarsh Nain, Member

 

ORDER

Anil Kumar Bamba, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that the complainant was having a saving bank account with Opposite Party No. bearing account no. 003101586946 and ATM cum Debit card no. as 5597250031004483 issued by the Opposite Party No. 1. Complainant used to possess his ATM card with himself and has never parted his ATM card nor shared PIN to any third person. Unfortunately, intervening night of 04.11.17 and 05.11.17 Complainant was sleeping at home and he received five SMS at 03:30 a.m in the morning on his mobile from Opposite Party No. 1 with respect to fraudulent withdrawal of Rs. 10,000/-, Rs. 10,000/-, Rs. 10,000/-, Rs. 10,000/- and Rs. 10,000/- (Total Rs. 50,000/-) from his account in five transactions by some unknown person from Opposite Party No. 2 bank’s ATM having ATM NFS/CASHWDL/4.11.17 at Panchsheel Garden, Delhi. Since 05.11.17 being Sunday, account was updated on 06.11.17. Complainant got shocked and immediately blocked his ATM card over mobile and called the police on 100 no.. Complainant also submitted written complaint to SHO, Shahdara. It is submitted that after getting the details of five transacations, it appeared that alleged transactions have been done by some unscrupulous person who has either cloned ATM card of Complainant and had mastered the art of tracking the confidential PIN number or officials of Opposite Parties had transferred the information to third persons. The Complainant had regularly following Opposite Parties bank claiming his Rs. 50,000/- and duly submitted all necessary documents, despite that Opposite Party No. 1 vide letter dated 22.11.17 hurriedly closed the investigation stating that dispute had been resolved in favour of ICICI Bank. It is further submitted that Opposite Party never provided video footage of alleged five transactions to Complainant till date and Opposite Party had admitted in the letter dated 23.01.2018 that “we further wish to state that we have taken up the matter with acquiring bank (Axis Bank)vide e-mail dated 05.12.17. However, we are yet to receive any revert.”  Complainant visited Shahadra police station several times to know the status of his complaint but Complainant was not getting proper response from them. The Complainant had even written several e-mails to ICICI Bank despite that Opposite Parties had denied Complainant’s genuine claim ignoring all the guidelines issued by RBI on 06.07.17 wherein the RBI had given protection to Customer- Limiting liability of customers in unauthorized electronic banking vide circular no. RBI/2017-18/15, DBR. No LEG.BC 78/09.07.005/2017-18 and applicable to all scheduled commercial banks. The Opposite Parties had failed to provide video footage of Axis Bank ATM Panchsheel Garden, Delhi, Which amounts to negligence and unfair trade practice and deficiency in service. The Complainant has prayed to direct the Opposite Parties to pay an amount or Rs. 50,000/- along with interest @ 18 % from the date of claim till date of its actual payment, Rs. 1,00,000/- on account of mental agony and harassment and Rs. 25,000/- on account of litigation expenses.
2. None has appeared on behalf of the Opposite Party No. 1 neither comply the order dated 17.05.2019 nor make payment of Rs. 1,000/-. Therefore, Opposite Party No. 1 proceeded against ex-parte vide order dated 07.12.2022

Case of the Opposite Party No. 2

3. The Opposite Party No. 2 contested the case and filed its written statement. It is the case of the Opposite Party No. 2 that the Complainant is a bank account holder of ICICI Bank-Opposite Party Noo. 1, and as such, the Complainant has not paid any consideration directly or indirectly to Opposite Party no. 2 thus Complainant is not a “Consumer” qua the Opposite Party No. 2. Accordingly, the present dispute do not come within the definitions of “Complainant, Complaint, Consumer and Service” as defined in section 2(1) of the C.P Act, and, as such, the present complaint is not maintainable as being beyond the scope of the Consumer Protection Act and is liable to be dismissed qua Opposite Party No. 2. The complaint is therefore liable to be rejected on this count alone as held by Hon'ble National Commission in its judgment titled as Chenaram Vs. Oriental Bank of Commerce has held that S-2(1)(d), 21(b)- Consumer-Privity of Contract-ATM card-illegal withdrawal alleged-District Forum allowed complaint-State Commission allowed appeal, Hence Revision-Complainant had no account with the State Bank of Bikaner and Jaipur (SBBJ)-He was not consumer of said bank-There was no privity of contract between Complainant and SBBJ-Complaint against SBBJ not maintainable. In the present case, the Complainant is the account holder of Opposite Party No. 1 and hence no privity of contract with Opposite Party No. 2, hance complaint is not maintainable against Opposite Party No. 2. It is submitted by the Opposite Party No. 2 that the Complainant had made a withdrawal of Rs. 50,000/- by 5 transactions of Rs. 10,000/- each vide transactions nos. 9204 to 9208 wef 23:55 hrs onwards at ATM ID no. SPCC 5521 by using ATM card as mentioned in the complaint and then again tried to withdraw further amounts which were declined vide transaction nos. 9209, 9210 and lastly 9216 and finely a balance enquiry was made vide transaction no. 9213 which was conducted at about 00.02 hrs on 05.11.2018. This clearly shows that the said ATM machine was working properly and the Complainant would have also received the disputed amounts of Rs. 50,000/- as per various reports received from the ATM Cell like ATM log/EJ copy, ATM Cash Balancing Report, ATM Balancing Report etc. All the reports shows that the transaction were successful and the Complainant had got the withdrawal disputed amount of Rs. 50,000/- by 5 transactions of Rs. 10,000/- each. Furthermore, the said ATM/Debit card is “non-transferable”. This shows the averments put forward by the Complainant in his complaint are false, misconceived and also shows that the allegations made are afterthought and concocted for the purpose of the present complaint. It is further submitted that the Journal Printed (JP/EJ) is the final in deciding factor as far as ATM withdrawals are concerned and also it tallies with the physical cash balance. It is further submitted that the EJ file in the ATM is the final proof of the authenticity of the transaction accepted across the world by all Banks. It cannot be manipulated by any person in any way whatsoever. It is further submitted that the PIN issued to the cardholder will be known only to the cardholder and are for the personal use of the cardholder. In addition, if wrong PIN is entered thrice, then the card is not usable by the customer at the ATM for the next 24 hours or till the end of day cutover of the ATM takes place which is normally at 9 p.m. Thus, the probability of getting the PIN right is 0.0004, i.e. zero. Thus, without knowing the unique PIN number, there is no way any fraudster could have used the Complainant’s card at any ATM for cash withdrawal. It is submitted that there is no deficiency in service and unfair trade practice on the part of the Opposite Party No. 2-Axis Bank. It is specifically denied that neither the Opposite Party No. 1 nor the Complainant had given written request at the Opposite Party No. 2 at its Shahdara Branch situated at Parsvnath Shahdara Metro Tower at any point of time till date hence the question of not submitting the said CCTV footage/clippings do not arise at all. The Opposite Party No. 2 refer and rely on a ratio in the Judgment passed by the Hon'ble National Consumer Dispute Redressal Commission in the case of State Bank of India Vs. K.K. Bhalla- Date of Judgment -07.04.2011. The National Commission had 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 this 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.”

    Hence on this ground the complaint is liable to be dismissed.

 

4. That similarly the Hon'ble National Commission in case titled as State Bank of India Vs. Om Prakash Saini reported in I(2013) CPJ 749NC 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.

5. In the matter of N. Shivaji Rao vs. Daman Motor Company Citation:1993- (001)- CTJ-0107-NCDRC- Where the National Commission held that cases of complicated question of fraud and cheating cannot be entertained at consumer forums.

 

 

     Rejoinder to the written statement of Opposite Party No. 2

6. The Complainant filed rejoinder to the written statement of Opposite Party No. 2 wherein the Complainant has denied the pleas raised by the Opposite Party No. 2 and has reiterated the assertion made in the complaint.

Evidence of the Complainant

7.  The Complainant in support of his case filed his affidavit wherein he has supported the assertions made in the complaint.

Evidence of the Opposite Party No. 2

8. To support its case Opposite Party No. 2 has filed affidavit of Shri Amit Malhotra, Deputy Vice President, Axis Bank, Parsvnath Metro Tower, Opposite Shahdara Metro Station, Shahdara, wherein, he has supported the case of the Opposite Party No. 2 as mentioned in the written statement. The case of the Complainant is that

Arguments & Conclusion

9. We have heard the Ld. Counsels for the Complainant and Opposite Party No. 2. We have also perused the file and written arguments filed by the Opposite Parties. The case of the Complainant is that he is having a saving bank account with Opposite Party No. 1 along with ATM cum Debit card. Complainant used to possess his ATM card with himself and has never parted his ATM card nor shared PIN to any third person. On intervening night of 04.11.17 and 05.11.17 While the Complainant was at home he received five SMS at 03.30 a.m in the morning on his mobile phone from the Opposite Party No. 1 with respect to five fraudulent withdrawal of Rs. 10,000/- each from his account by some unknown person from the Opposite Party No. 2 bank’s ATM at Panchsheel Garden, Delhi. Since 05.11.17 being Sunday, his account was updated on 06.11.17 and he immediately blocked his ATM cared over the phone and called the police. He also submitted a written complaint to SHO Shahdara. As per complaint, it appeared that alleged transactions has been done by some unscrupulous person who has either cloned ATM card and had mastered art of tracking the confidential PIN number or officials of Opposite Parties had transferred the information to third person. The Complainant had regularly following the Opposite Parties bank claiming Rs. 50,000/- and duly submitted all necessary documents, despite that Opposite Party No. 1 vide letter dated 22.11.17 closed the investigation. It is further submitted by the Complainant that Opposite Party had never provided video footage of alleged five transactions to the Complainant till date. The Complainant had even written several e-mails to Opposite Party No. 1 despite that Opposite Parties had denied Complainant’s genuine claim ignoring all the guidelines issued by RBI wherein RBI had given protection to customer. Opposite Party had failed to provide video footage of Opposite Party No. 2 ATM which amounts to negligence and unfair trade practice and deficiency in service.

4. The case of the Opposite Party No. 2 is that the Complainant is having bank account with Opposite Party No. 1, hence the complaint is not maintainable against the Opposite Party No. 2. It is further submitted by the Opposite Party No. 2 that the Complainant had made  a withdrawal of Rs. 50,000/- by five transactions of Rs. 10,000/- each by using his ATM card and all the reports shows that the transactions were successful and Complainant received the disputed amount of Rs. 50,000/- by five transactions of Rs. 10,000/- each. Furthermore, the said ATM/Debit card is non-transferable and probability of getting the PIN by third person is zero, there is no way any fraudster could have used the Complainant’s card without valid PIN at any ATM for cash withdrawal. Hence, there is not deficiency and unfair trade of practice on part of the Opposite Party No. 2.
5. It is clear from the above facts that the money was withdrawn from the said ATM by using ATM card and as per evidence submitted by the Opposite Party No. 2 money was dispensed by their ATM and the Complainant himself is saying that five transactions was made by some unknown person and fraudster withdrawn the said amount. As per the law laid down by the Hon'ble Supreme Court of India in the case of The Chairman and Managing Director, City Union Bank Ltd. & ANR Vs. R. Chandramohan reported in 2023 Line Law (SC) 251, such complaint cannot be entertained by this Commission. The relevant portion of the said judgment is as under:-

 “12. The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the case involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/ Commission under the Consumer Protection Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal act or tortious act. There could not be any presumption with regard to wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and the manner of performance in service, as contemplated in the Consumer Protection Act.  The burden of proving the deficiency in service would always be upon the person alleging it. “

 

10. Therefore, in view of the above judgment, the complaint cannot be entertained and the complaint be dismissed accordingly.
11.  Order announced on 19.04.2023.

Copy of this order be given to the parties free of cost

File be consigned to Record Room.

(Anil Kumar Bamba)           Member

(Adarsh Nain) Member

(Surinder Kumar Sharma) President