Delhi

North East

CC/70/2015

Ram Mohan Saxena - Complainant(s)

Versus

ICICI Bank, - Opp.Party(s)

05 Dec 2019

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. 70/15

 

In the matter of:

	Ram Mohan Saxena 1/11615, Gali No. 6 Subash Park Extn. Shahdara, Delhi-110032.	Complainant
	Versus
1.             2.       3.	The Manager ICICI Bank B-19, A-21&B-20 Opposite V3S Mall Maharaja Benquet Laxmi Nagar Delhi-110092.   Branch Manager ICICI Jyoti Nagar Loni Road, Shahdara, Delhi-110093.   The Manager Oriental Bank of Commerce Gandhi Nagar, Delhi.	Opposite Parties

 

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

20.02.2015 05.12.2019 05.12.2019

 

 

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 OP3 bank (OBC) Branch bearing no. 00852010024720. On 23.12.2014 complainant went to the ATM of OP1 to withdraw amount of Rs. 9,000/- and firstly vide transaction number 7388, he checked his account balance which came as Rs. 10,284/- but despite accessing the ATM card twice, could not withdraw the said amount and therefore cancel the transaction and on the monitor screen of the said ATM displaying thanks, complainant came out from the Atm kiosk since a boy behind him was in a hurry to access the said machine.  The complainant was outside the ATM of OP1 when the said boy came out in a rush and run away from the ATM location and a slip fell which the complainant picked up and the same show transaction number 7390 which pertained to complainant’s account and showed withdrawal of Rs. 10,000/-. Thereafter complainant again checked his account vide transaction numbers 7391 and 7392 both of which showed transaction declined and balance left as  Rs. 284.92/- in complainant’s account. Complainant immediately lodged a police complaint with PS Jyoti Nagar, Delhi and lodged written complaint to OP1 vide complaints dated 23.12.2014 and 02.02.2015. the complainant also lodged a written complaint with OP3 on 03.02.2015 regarding the unauthorized withdrawal from his account. The complainant has submitted that in all probabilities, the boy in the ATM kiosk hacked his account and accessed the ATM of OP2 vide transaction No. 7389 since complainant’s transaction was 7388 and 7390. Therefore, complainant filed the present complaint before this Forum praying for issuance of directions to the OPs to provide him CCTV footage and refund the amount of Rs. 10,000/- alongwith compensation of Rs. 10,000/- for mental harassment and Rs. 8,000/- towards litigation charges.

The complainant has attached copy of transaction slips issued by OP2 vide transaction numbers 7388, 7390, 7391 and 7392 and 7416 all dated 23.12.2014 pertaining to balance enquiry and withdrawal.

2. Notices were issued to the OPs on 13.03.2015. OP3 did not appear despite service effected on 24.03.2015 and was therefore proceeded ex-parte vide order dated 02.09.2015. OP1 and OP2 entered appearance and filed written statement in which it took the preliminary objection that ATM transaction being independent done through ATM card and PIN which were in custody and knowledge of the complainant, the liability of transaction is wholly on the complainant and not of the OP1 and OP2 and therefore the complaint is not maintainable against OPs. OPs resisted the complaint on grounds that the transaction dated 23.12.2014 was shown as successful for withdrawal of Rs. 10,000/- and on receiving the complaint the same was duly attended to and no cash difference was found to refund the said amount to him since as per RBI guidelines, ATM are physically tallied once every day and if any excess money / cash difference is found, the same is kept in separate account and on any complaint regarding short payment, after due verification such money is credited in the account of the person complaining for the same. However, in the present case the ATM was tallied and as per no excess cash report, EJ slip, switch report and cash reconciliation report, the transaction was shown as successful with no cash difference found and the same was explain to the complainant as well. Therefore, OPs prayed for dismissal of the complaint in light of having filed EJ log, switch report, cash reconciliation, no excess cash certificate report dated 20.05.2015.   
3. Rejoinder in rebuttal to the defence taken by OP1 and OP2 written statement of OP1 and OP2 was filed by the complainant in which he submitted that the OPs are liable for their negligence and fault of the ATM machine since it did not function properly for which reason some other person manage to withdrawal Rs. 10,000/- from complainant’s account and OPs have not taken any steps for checking ATM machine and preserving CCTV footage and therefore liable losses suffered by the complainant for which OPs took to action despite written complaints. Complainant denied that the transaction in question was successful as averred by OPs since the transaction could not be completed / done. Therefore, complainant submitted that OPs were liable to refund the wrongfully withdrawal money from his account due to faulty ATM machine.
4. Evidence by way of affidavit was filed by the complainant reiterating her grievance made in his complaint. In addition to documents placed on record, complainant filed copy of complaints written by one Mr. Anshul Saxena dated 23.12.2014 written to PS Jyoti Nagar, Delhi and to the Bank Manger of OP2.
5. No appearance was entered by OP1 and OP2 after 09.02.2016 till final arguments stage and its right to file evidence was closed vide order dated 24.02.2016 and were proceeded against ex-parte vide order dated 03.10.2018.  
6.  Written arguments were filed by the complainant in reiteration of his grievance / defence against the OPs. On directions issued by this Forum on 23.01.2019 to file copy of passbook entry highlighting the disputed debit of Rs. 10,000/- from complainant‘s account maintained with OP3 bank, the complainant filed the same on 14.05.2019.
7. During the course of oral arguments a specific query was put to the complainant regarding complaints dated 23.12.2014 (date of disputed transaction) to PS Jyoti Nagar and Branch manager of OP2 written by Mr. Anshul Saxena and his credential / locus to right such complaints in first person for having visited the ATM of OP2 himself whereas the complainant has submitted in his complaint that he had gone to the ATM of OP2 to withdraw and the said complaints mentioned two three persons having withdrawn from the said Atm after the complainant. The complainant submitted that Anshul Saxena is his son but the complainant could not satisfy the Forum on the contradiction between the said letters/complaints dated 23.12.2014 and complaints dated 02.02.2015 and 02.03.2015 written to OP1, OP2 and OP3 respectively whether he had gone to Atm personally or his son had made the said transaction. 
8. We have heard the arguments addressed by the complainant and have perused the documents placed on record.

From the passbook entries filed by the complainant with respect to the account held by him with OP2 bank, it is clear that amount of Rs. 10,000/- was debited from the account of the complainant on 23.12.2014. The same has been corroborated by the passbook entry filed by complainant as well as switch report / EJ Log filed by OP1 & OP2. However, the OP1 and OP2 didn’t provide the CCTV Footage of its ATM to prove whether the complainant had withdrawn the above said money from the ATM.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 7390 on 23.12.2014 and not ‘failed’.

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 journal 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 decided against the complainant on the basis of JP Log, no excess confirmation report filed by OP1 and OP2 which is a computer generated untampered with document.

As far as the role of OP1 and 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 OP1 and OP2 in the present case.As far as the question of the CCTV footage or lack of it is 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.

Therefore, in light of the settled propositions of law regarding documentation filed by OP1 and OP2 which conclusively establish transaction as successful beyond reasonable doubt, no privity of contract between complainant and OP1 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 her.

9. We therefore do not find any merits in the present complaint as regards to deficiency of service alleged against any of the OPs by the complainant and therefore complaint is dismissed with no cost to either side.      
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on 05.12.2019

(N.K. Sharma)     President

(Sonica Mehrotra)  Member