Delhi

North East

CC/103/2014

Smt. Sapna Sharma - Complainant(s)

Versus

ICICI Bank - Opp.Party(s)

07 Aug 2020

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. 103/14

 

In the matter of:

	Smt Sapna Sharma D/o Shri Anil Kumar Sharma R/o:- H.No. 484, Gali no. 3 Chanderlok colony, Shahdara Delhi-110032	Complainant
	Versus
1         2	ICICI Bank Ltd. ICICI Bank Tower, NBCC Place Bhishma Pitamah Marg, New Delhi-110003   Indian Bank B-125, Hardevpuri, Shahdara Delhi-110093	Opposite Parties

 

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

18.03.2014 07.08.2020 07.08.2020

 

Mr. Arun Kumar Arya, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1.  Brief facts culled out in the present complaint shorn of unnecessary details are that the complainant was an account holder in OP2 bank by virtue of having a saving bank account bearing no. 6163346961. On 17.11.2013, at around 9:00 PM, the complainant went to ATM of OP1 located at Durgapuri, Delhi for withdrawal of sum of Rs. 10,000/-. The ATM machine showed transaction as successful as per the transaction slip which came out but actually did not dispense any money. The complainant retried to withdraw  Rs. 10,000/- but met with the same fate. However, her account held with OP2 was debited by sum of Rs. 20,000/-. Despite complainant’s request to OP1 to provide CCTV footage and to OP2 to refund the wrongly debited sum of                Rs. 20,000/- back into her account, both OPs refused to address the grievance of the complainant except for providing copy of JP log pertaining to transactions allegedly undertaken by complainant in OP1 ATM and intimation of rejection of her complaint generated by ATM service center claim dated 21.11.2013 pertaining to transaction / sequence no. 252855 and 252857. Therefore complainant alleging deficiency in service on the part of OPs filed the present complaint praying for issuance of direction against OPs to refund the wrongly debited sum of Rs. 20,000/- and pay compensation of Rs. 10,000/- towards mental pain and agony and Rs. 10,000/- towards cost of litigation.
2. Complainant has attached copy of passbook of account held with OP2 highlighting two debit entries of Rs. 10,000/- each from her account on 17.11.2013 copy of transaction slip generated from ATM of OP1, copy of JP log pertaining to five transactions made through complainant’s debit card no. 5044339983081039325 between 20:56 PM to 21:16 PM on 17.11.2013 and copy of ATM service center claim detail of rejection of refund request by OP1 on 21.11.2013 for the sequence numbers 252855 and 252857.
3. Notice was issued to the OPs on 24.03.2014. OP2 entered appearance on 24.04.2014 through its Assistant Manager when he was handed over copy of the complaint. OP2 placed on record certain documents in the nature of Journal Record obtained from OP1 bank and copy of ATM service center claim details of the disputed transaction / sequence numbers 2522855 and 252857 in response to original letter dated 17.12.2013 written by complainant to OP2 seeking explanation for rejection of her claim by OP1. However, OP2 failed to appear thereafter and also did not file its written statement and was therefore proceeded against ex-parte vide order dated 08.05.2014.
4. OP1 entered appearance and filed the written statement vide which it took the preliminary objection that the present complaint is without any of cause of action or deficiency of service on the part of OP1 as the disputed transaction was not only successful but also the card and its PIN remained in possession of the complainant and therefore liability of OP1 with respect to any such disputed transaction does not arise and even otherwise if any fraud has been committed on such account, such case of fraud cannot be adjudicated upon by Consumer Forum. OP1 took the defence that the complainant has misled this Forum by not apprising it of the actual facts that she had entered into five simultaneous transactions on the given date of 17.11.2013 from the ATM of OP1 which can be ascertained from the EJ log annexed by complainant herself alongwith the complaint which was provided to her by OP1 on her complaint and the said transactions also feature in the passbook entries in the account held by complainant with OP2. The first transaction entered at 20:56 hrs on 17.11.2013 was for balance enquiry, second transaction for Rs. 10,000/- vide sequence no. 252855 at 20:59 hrs was successful as per records, third transaction of Rs. 10,000/- vide sequence no. 252857 at 21:01 hrs was also successful, fourth transaction of Rs. 3,000/- vide sequence no. 252859 at 21:15 hrs was also successful and lastly fifth transaction was again for balance enquiry at 21:16 hrs. Since all transactions were reported as successful, therefore no question of reversing the amount debited vide such transaction arise in favour of the complainant. OP1 further averred that no extra cash was found in the subject ATM at the time of its refilling and urged that in view of the transaction having been shown as successful and amount dispensed by the ATM machine to the complainant, there is no deficiency in service and therefore prayed for dismissal of complaint as non-maintainable.  OP1 has attached copy of EJ log and copy of switch report with two disputed transactions of Rs. 10,000/- each shown in bold.
5. Rejoinder and evidence by way of affidavit was filed by the complainant in reassertion / reiteration of her grievance of wrongfully debited sum of  Rs. 20,000/- on 17.11.2013 from her account.
6. Evidence by way of affidavit was filed by the OP1 sworn by its Manager (Legal).
7. Written arguments were filed by the both parties to reemphasize their respective stands. Complainant filed additional written arguments raising objection of non-provision of CCTV footage to her by OP1 and OP1 not having filed complete statement of ATM center for three days prior and subsequent to the date of alleged failed transaction in violation of RBI guidelines. Complainant further took objection of evidence by way of affidavit filed by OP1 without exhibiting the documents filed / relied upon in written statement and prayed for relief claimed.   
8. The arguments were heard and order was reserved by the erstwhile bench on 31.03.2016 but was not passed. On the relisting of the matter before the present bench in 2019, OP1 filed an application for substitution of Authorized Representation alongwith copy of power of attorney. This Forum, on hearing held on 04.10.2019 directed OP1 to explain the annexure 1 and 2 filed alongwith the written statement in the nature of switch report and cash balancing as there were few blank entries and discrepancy in switch withdrawal figure. In compliance of the said order, OP1 vide affidavit dated 24.02.2020 deposed that the dots mentioned in few transactions in the switch report were for the reason that complete account number are not captured during the transaction because it differs from bank to bank while performing transaction as to whether the other bank from whose account withdrawal is done sent the message with full account number or masked account number to ICICI switch.
9. We have heard the arguments address by both sides through video conferencing and have keenly perused the pleadings and documents placed on record by all parties.

The dispute arose when on obtaining the transaction slip and updation of passbook, complainant discovered that her account held with OP2 has been debited for a sum of Rs. 20,000/- vide transaction no. 252855 and 252857 on 17.11.2013 which was as per her were unsuccessful as no cash was dispensed by the ATM of the OP1 on the said date against the said transactions despite which Rs. 20,000/- was debited from her account held with OP2. From the passbook entry filed by the complainant with respect to the account held by her with OP2 bank, it is clear that amount of Rs. 20,000/- was debited from the account of the complainant on 17.11.2013. The same has been corroborated by JP Log / EJ Report, Switch Report and Cash Reconciliation report filed by OP1 and EJ log filed by complainant too. No CCTV Footage was however placed on record by any of the OPs. We have screened the JP Log, switch data, cash conciliation report as well as other documentary evidence which shows that the successful withdrawal of Rs. 20,000/- was made vide transaction numbers 252855 and 252857 of Rs. 10,000/- each between 20:59 hrs and 21:01 hrs on 17.11.2013 through debit card number 5044xxxxxxxx9325 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 herself has filed the transaction slips showing successful transaction, she cannot claim 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 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 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 OP1 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 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.

10. 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 OP1 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. 
11. 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 order as to cost.      
12.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
13.   File be consigned to record room.
14.   Announced on  07.08.2020

 

(Arun Kumar Arya)      President

(Sonica Mehrotra)  Member