Delhi

North East

cc/308/2013

Ashu Kumar - Complainant(s)

Versus

ICICI Bank - Opp.Party(s)

02 Mar 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.  308/13

 

In the matter of:

 

		Ashu Kumar S/o Sh. Dharambir Singh R/o House No. D-1/661, Gali No. 13. Ashok Nagar, Delhi-110093.		Complainant
		Versus
	1.         2.	ICICI Bank Through its Branch Manager 9-A, Phelps Building, Connaught Place New Delhi-110001.   Axis Bank B-36 East Jyoti Nagar, Near Durgapuri Chowk, Delhi-110093.		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :		09.10.2013 02.03.2020 02.03.2020

 

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 (ICICI), bearing Account No. 000701637859 and holder of debit card bearing No. 4181 5700 0724 4663 issued by the said bank. The available balance in the said account as on 01.09.2013 was Rs. 15,189.87Paise. The complainant went to ATM of Central Bank of India (arraigned as OP2 in the original complaint and deleted from the memo of parties on 21.02.2019) on 01.09.2013 at its Ashok Nagar, Delhi branch for withdrawing Rs. 12,500/-. However, the said ATM machine did not work due to being faulty after which the complainant, on cancelling the transaction, approached the nearby ATM of OP3, Axis Bank (now OP2 after deletion of CBI) and duly inserted the ATM card issued by OP1 in the said machine. However, no money was disbursed by the ATM machine of OP2 but the total available balance was shown as Rs. 5189, meaning thereby that Rs. 10,000/- was debited from the account of complainant held with OP1. The complainant immediately gave intimation to OP1 on its customer care but due to server problem a complaint number could not be generated. He did receive an E-mail dated 01.09.2013 from OP1 informing him of use of his debit card having been used for cash withdrawal of Rs. 10,000/- on 01.09.2013. The complainant sent an e-mail on the same date to OP2 resisting his complaint on unsuccessful transaction despite which his account was debited and requested for revert of the said sum and was assured of the same by OP1 within next 7 days. The complainant also lodged a written complaint dated 02.09.2013 with OP1 at its Connaught Place New Delhi branch which was duly received by OP1 under its stamp with endorsement ‘SR already raised by bank. Further matter would be taking care by ATM team and would update you.’ However, to action was taken by OPs despite several request and visits made by the complainant and the complainant merely received an SMS on 10.09.2013 from OP1 on his mobile informing him that ‘disputed transaction of Rs. 10,000/- is successful as per representation of the occurring bank. We regret our inability to reverse the amount.’ OP1 never provided complainant with any cash reconciliation statement, JP Log to be received from OP2 or any details of cash filled in the ATM of OP2 on the said date. OPs failed to lodge any FIR with the concerned police regarding the disputed transaction nor made any internal enquiry regarding the same. 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, 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.

Complainant ahs attached copy of debit card, copy of mini statement and detailed statement, copy of e-mails dated 01.09.2013 and 03.09.2013 exchanged between complainant and OP1 and copy of complaint letter dated 02.09.2013 by complainant address to the manager of OP1 alongwith hand written copy of SMS transcript received on complainant’s mobile sent by OP1 declaring the disputed transaction of Rs. 10,000/- as successful alongwith its typed version. Complainant also filed certificate under Section 65B of Indian Evidence Act in support of e-mails placed on record.

2. Notices were issued to the OPs on 10.10.2013. OP2 entered appearance on 19.12.2013 and filed written statement 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 was not a customer of OP2 even though he was using the ATM of OP2 for withdrawing money and there was no privity of contract between complainant and OP2 and therefore the complainant was not a consumer qua OP2. 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 the records which showed that on 01.09.2013, the complainant operated his OP1 bank ATM card at OP2 bank ATM machine at 09:30AM for withdrawal of Rs. 10,000/- which transaction was successful carried out and the amount of Rs. 10,000/- was dispensed to the complainant 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. 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. OP2 further contended that there is a general printer in the ATM machine which records each and every transaction done through the ATM which are foolproof 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. Therefore in light of the above submissions, 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. In addition to the written statement filed by OP2 the OP2 placed on record the CCTV images provided its ATM cell in form of CD in regard to the said transaction for the relevant date and time. OP2 has annexed copy of ATM Balancing Report/No Access Cash/Shortage Report, Cash Balancing Report, Switch Report and EJ Report under stamp and sign of Competent Authority highlighting the transaction in question shown as successful. 

OP1 filed its written statement vide which it took the preliminary objection that the complaint is liable to be dismissed qua it on grounds that the disputed transaction as alleged was carried out through ATM of OP2 and the ATM and PIN should always be in custody of the consumer/card holder and therefore liability of OP1 in such disputed transaction does not arise since complainant / card holder is wholly responsible for any transition entered through its ATM card. On merits OP1 resisted the complaint on ground that the complainant had accessed the ATM of OP2 for two transaction on 01.09.2013, the firsts one for balance enquiry and the second one for withdrawal of Rs. 10,000/- in support of its defence, OP2 filed copy of J.P. Log, RBI ATM Reconciliation Report and Switch Report highlighting the transaction in question bearing No. 6264 and 6265 on the given date as annexure 1, 2 and 3. Therefore in light of documents so filed, OP1 prayed for dismissal of the complaint.

3. Rejoinder and evidence by way of affidavit was filed by the complainant reiterating his grievance and objected to OP2 having filed the supporting documents without following procedures of Evidence Act or certified as per Banker’s Book of Evidence maintained by Banks.
4. Evidence by way of affidavit was filed by OP2 in reproduction of defence taken.

Despite several opportunities being granted to OP1, it failed to file its evidence and therefore its right to file the same was closed void order dated 23.05.2014.

5. Written arguments were filed by complainant and OPs as synopsis of their respective grievance/defence.
6. We have heard the rival contentions of both the parties and have applied our judicial mind after thorough perusal of documentary evidence placed on record before us.

From the Account Statement filed by the complainant with respect to the account held by her with OP1 bank, it is clear that amount of Rs. 10,000/- was debited from the account of the complainant on 01.09.2013. The same has been corroborated by JP Log / EJ Report filed by both OPs. Even the CCTV Footage shows the complainant in the ATM of OP2. We have screened the 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 6265 on 01.09.2013 through debit card number 4181 5700 0724 4663 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.

7. 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. 

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.

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 02.03.2020

(N.K. Sharma)     President

(Sonica Mehrotra)  Member