Delhi

North East

CC/306/2017

Umesh - Complainant(s)

Versus

Karur Vysya Bank Ltd. - Opp.Party(s)

16 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. 306/17

 

In the matter of:

 

	Umesh C 175, New Seemapuri Delhi-110095.	Complainant
	Versus
1.         2.	Corporation Bank Ramodevi Building, C-5 North Chajjupur 100ft Road, Shahdara, Delhi.   The Karur Vysya Bank Ltd U-38A, Shakarpur, Laxmi Nagar, Near Metro Station Delhi-110092.	Opposite Parties

 

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

13.10.2017 16.03.2020 16.03.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that he is an account holder of OP2 bank Delhi having savings bank account therewith bearing No. 4113166000000437 and holder of debit card No. 6037414113102955. On 05.04.2017 at around 04:36PM, the complainant accessed ATM of OP1 located at Yamuna Vihar, Delhi to withdraw Rs. 10,000/-. However neither the said ATM machine dispensed any money nor any slip came out therefrom but the complainant’s account held with OP2 was debited by              Rs. 10,000/- . The complainant lodged a complaint with OP2 regarding the wrongful deduction and also lodged a police complaint with PS Laxmi Nagar in this regard. The said amount was credited into the account of the complainant on 17.04.2017. However on 25.04.2017, the amount of Rs. 10,000/- was again deducted from the complainant’s account. The complainant lodged a written complaint with OP2 on 25.05.2017 regarding the wrongful debit asking for CCTV footage and also submitted a claim form / complaint dated 25.05.2017 in this regard but the same went unattended to. The complainant also got a legal notice served on OP2 through his counsel but to no avail. Therefore complainant was constrained to file the present complaint against OPs praying for issuance of directions against OP2 to remit back the wrongly debited amount of Rs. 10,000/-, alongwith compensation of Rs. 60,000/- for harassment and Rs. 20,000/- towards the cost of litigation.

Complainant has attached copy of statement of account for the period 01.04.2017 to 24.05.2017 highlighting debit of Rs. 10,000/- on 05.04.2017, credit reversal of Rs. 10,000/- given on 17.04.2017 and against debited on 25.04.2017, copy of complaint letter dated 25.05.2017 alongwith claim form dated 25.05.2017 filed by the complainant with OP2, copy of EJ Log highlighting transaction No. 4502 made by the complainant on 05.04.2017 at 04:45PM for balance enquiry, copy of police complaint lodged by complainant with PS Laxmi Nagar, Delhi and copy of undated legal notice by complainant’s counsel to OP2.

2. Notice was issued to OPs on 31.10.2017. None appeared on behalf of OP1 despite service effected on 18.11.2017 and therefore was proceeded against ex-parte vide order dated 05.02.2019. OP2 entered appearance and filed written statement,  vide which it took the preliminary objection that on receipt of written complaint / representation from the complainant, OP2 had taken up his cause of grievance with OP1 and the debited amount of Rs. 10,000/- was credited back in complainant’s account by OP1 in good faith as was informed by OP1 to OP2. However, upon detail inquiry, when it was established by OP1 that the disputed amount of Rs. 10,000/- was duly dispensed by its ATM on the relevant date and time, the said amount was again debited from complainant’s account. OP2 further submitted that it had forwarded the complaint of the complainant to OP1 asking for the requisite documents and CCTV footage pertaining to the transaction in question however OP1 failed to provide the same despite persistent persuasion by OP2 in this regard to furnish EJ Log/ JP Log Report, transaction slip, Charged Back Report, Cash Verification/ Cash Balance/ Cash Summary Report, ATM Switch Report, Machinery Break Down Report, if any, Reconciliation Report and CCTV footage which documents would be in the exclusive custody of OP1 being ATM service provider Bank for ascertaining the success or failure of the disputed transaction but OP1 failed to submit any such document for which OP1 alone is liable as also for failure of transaction carried out through its ATM and not OP2 with whom complainant is maintaining savings bank account. OP2 further submitted that the legal notice served upon it by complainant’s counsel is undated and unsigned and without any postal receipt. OP2 relied upon series of e-mails exchanged between itself and OP1 between May 2017 to December 2017. However since the e-mail are unaccompanied by certificate under Section 65B of Indian Evidence Act despite expressed directions issued by this Forum to file the same vide order dated 26.08.2019, the same are inadmissible in law as per the clear legal mandate of Hon'ble Supreme Court for admitting electronic data on record as secondary evidence.
3. Rejoinder to the written statement filed by the complainant in rebuttal to the defence taken therein and alleged deficiency in service on the part of OP2 for having failed to provide transaction related documents as well as CCTV footage. Complainant filed copy of EJ Log provided to him by OP1.   
4. Evidence by way of affidavit was filed by both parties exhibiting the documents relied upon.
5. Written arguments were filed by both parties in reassertion of their respective grievance / defence.

We have heard the arguments addressed by the complainant and have carefully perused the case filed and material documents placed on record therewith. The debit entry of Rs. 10,000/- on 05.04.2017, credit reversal given on 17.04.2017 and again debited on 25.04.2017 is clearly established from the statement of account furnished by OP2 and filed by the complainant. The said debit credit and debit has also been admitted by OP2. However to the specific query put by this Forum to OP2 during the course of oral arguments to corroborate any such e-mail purportedly written by OP1 to OP2 pertaining to credit of amount Rs. 10,000/- and debit of the same again by OP1 upon ‘detailed enquiry’, OP2 could not place any cogent proof in support of its contention for either of defence taken in its written statement. E-mail placed on record since unaccompanied by mandatory certificate are not being dealt with or considered. The complainant had made sincere efforts by way of lodging prompt complaint with OP2. OP2 cannot shirk its responsibility and duty towards its customer but it failed to place on record any Switch Report, No Excess Cash Certificate, JP Log / E- Journal which in such cases are mandatorily required and recognised / admissible defence for the bank in disputed ATM transaction cases. No documentary evidence has been filed by OP2 in the present case in sheer act of callousness and irresponsibility towards the complainant. OP2 also failed to place on record any enquiry report or any documentary evidence despite knowledge of relevance / importance of such documents. On perusal of JP Log filed by the complainant, it is seen that between 16:25 Hours transaction No. 4500 and 16:45 Hours transaction No. 4502 on 05.04.2017 there were no transactions in the ATM of OP1 barring transaction no. 4501 shown as SST in Suspend Mode/ SST Out of Suspend Mode. Thus there were no transactions for 20 minutes made through the ATM machine of OP1 and it is between this period that the complainant has claimed to have transacted for withdrawing Rs. 10,000/- at 16:36 PM but the same is not reflected in JP Log and the transaction No. 4502 at 16:45 PM made on 05.04.2017 by the complainant is that of balance enquiry after which there are series of transaction between 16:46 PM to 17:03 PM in quick succession and continuity.

The bald assertion made by OP2 of complainant’s transaction as being successful is defeated on the concept of ipse dixit (an assertion made without proof). OP1 did not come forth with any defence by way of any investigation or assistance extended to OP2 for any enquiry made in this regard and also whether the ATM machine was defective or functional for the relevant time period between 16:25 to 16:45 PM for the relevant date 05.04.2017.

6. We therefore find both OPs deficient in service in having failed to address the problem of the complainant and find merit in the case of complainant and give him benefit of doubt in the absence of any cogent evidence or enquiry report or the requisite documents in the nature of EJ Log, Switch Report, Cash Reconciliation Report, No Excess Cash Certificate and CCTV footage.
7. We accordingly direct the OP1 to credit the sum of Rs. 10,000/- wrongly debited from his account. OP1 shall be at liberty to recover the said amount from OP2 as per guideline of Reserve Bank of India. We further direct both OPs jointly and severally to pay a sum of Rs. 5,000/- as compensation towards mental harassment inclusive litigation charges to the complainant. Let the order be complied by both OPs within 30 days from the date of copy of receipt of this order. 
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 16.03.2020.

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member