Quorum  : Ms. Rekha Rani, President

                   Sh. Vikram Kumar Dabas, Member                            

                                                              ORDER                                       

Rekha Rani, President

1. Complainant has filed the instant case U/s 12 of the Consumer Protection Act , 1986 alleging therein that :

1. On 27.06.2013 at about 08.30 PM he used his ATM card in PNB ATM Machine installed at Pankha Road , C-1, A- Block, Janakpuri. No security guard was present there. He inserted the card , the machine enquired the PIN number again and again. He tried to enter the same but the button of the machine was not working so he cancelled the transaction  by pressing cancel button several times. When he came out from the cabin of ATM a security guard was available who told him that the ATM machine is out of order whereas there was no indication displayed that the ATM machine was out of order. After some time he received  SMS on his phone that the transaction is successful and accordingly Rs. 15,000/-  had been debited from his account.
2. He was shocked and tried to contact the customer care service of PNB but he was unable to do so as the customer care is service available only between 9.00 AM to 06.00 PM.  On the next day i.e. on  28.06.2013 at about 9.00 AM he lodged  the complaint with the customer care service of the OP vide complaint no. 59952917. On 29.06.2013 he visited the branch of bank and the bank officials assured him that the amount will be refunded  within 7-10 days in his account.  
3. On advice of branch manager of OP he made a complaint to SHO P.S. Janakpuri vide DD no. 27 B dated 16.07.2013. He made a complaint to OP1 on 27.07.2013. He also  asked for CCTV forage but OPs did not provide the same. Since then he is running from pillar to post and ultimately sent legal notice dated 20.02.2014 to both the OPs. He has prayed for direction to OPs to pay him Rs 15,000/- along with interest @ 24% p.a. from 28.06.2013 till  date and Rs. 4,00,000/- for mental agony.

2. Both Ops contested his  claim vide their  joint written statement wherein it is denied that  there was any negligence or fraud on the part of OPs. It is stated that no transaction is possible without use of ATM card and PIN no.  It is also stated that complainant  was not prompt in lodging the complaint with Customer Care Service which is available 24 Hrs 7 days a week. It is also stated that ATM card  was in exclusive custody of the complainant and the PIN is in his exclusive knowledge. Therefore  no negligence can be attributed to the OPs. It is denied that OPs did not provide CCTV footage to the complainant. It is stated that CCTV footage is not preserved after 90 days. It is also stated that complainant knowingly delayed in taking action in the matter for a long period. Any harassment allegedly caused  to the complainant is denied.
3. Arguments addressed by both sides heard.
4. It was submitted on behalf of the complainant that CCTV footage   which is required in respect of   ATM transactions was not made available to him and it’s a serious lapse on the part of the OPs as it violated security and safety in ATMs and accordingly makes out a case of deficiency in service.  
5. It is denied by OPs that the CCTV footage was not made available to the complainant. It is submitted that  CCTV footage is preserved only for 90 days  and that the complainant has deliberately delayed the matter having filed  the instant complaint after about 2 years of alleged accrual of cause of action and now he cannot complain about non-availability of the CCTV footage.
6.  In this regard reference  may be made to a Judgment  dated 07.04.2011 in State Bank of India Vs. K.K. Bhalla  Revision petition no. 3182 of 2008 wherein similar issue  had arisen regarding non-availability of CCTV footage and the Hon’ble National  Commission observed:

“It is not in dispute that the ATM Card was issued to the Respondent and that he had kept the Card in his safe custody. Thus, no one had access to it nor was it ever missing. Further, only the Respondent was aware of the special four digit PIN number which is essential to operate the ATM Card. Despite all these facts, learned fora below ruled in favour of the Respondent only on the grounds that the CCTV footage which was required in respect of ATM transactions was not made available and this was a major lapse on the part of the Petitioner/Bank since it breached the security and safety in ATMs and was thus, clearly a deficiency in service.

We are not convinced by this reasoning of either the District Forum or the State Commission, particularly, in view of the fact that merely because the CCTV was not working on those dates and its footage was thus not available, does not mean that the money could be withdrawn fraudulently without using the ATM Card and the PIN number. In case the ATM Card had been stolen or the PIN number had become known to persons other than ATM card holder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card. 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, we find it difficult to accept the Respondents contention. No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the 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.”

7. Hon’ble National Commission in its subsequent order dated 17.12.2014 in Raghabendra Nath Sen Vs. Punjab National Bank  Revision Petition no. 3973 of 2014 reiterated its verdict as given in  K.K.Bhalla  (supra).  In Raghabendra Nath Sen the facts were that complainant was holding an ATM card checked balance in his account at SBI ATM and found that a sum of Rs.5,000/- had been wrongly  debited in his account. He lodged a complaint with customer care and being a being aggrieved from the failure of the bank to credit the aforesaid amount of Rs.5,000/- to his account, complainant filed a complaint before the concerned District Forum. The District forum decided in favour of the complainant, The District Forum having decided in favour of the complainant, the bank approached the concerned State Commission by way of an appeal. Vide impugned order dated 25.09.2014, the appeal filed by the bank was allowed by the State Commission. Being aggrieved form the order passed by the State Commission, the complainant filed revision petition before National Commission wherein it was observed  :

“It can hardly be disputed that no withdrawal from an ATM can be made unless the ATM card / debit card issued to the account holder is inserted in the ATM machine followed by use of the ATM Pin provided to the customer. The ATM pin is known only to the customer and therefore, it is not possible for a third person to withdraw any cash through the ATM even if he is able to clone the ATM/debit card issued to the customer.

In fact the case before us, this is not the case of the complainant that he had lost the ATM card issued to him by the bank. The said card was duly used at the ATM machine for making the transaction in question. The ATM pin obviously, must have been used since no transaction at ATM machine is possible without use of the PIN.

Therefore, we cannot accept the contention of the complainant that the amount of Rs.5,000/- from his account was withdrawn by a third person and not by him. Even if the said amount was withdrawn by a third person, he would have done it using the ATM card provided to him by the complainant and the ATM pin disclosed by him.”

8. There is substance in the  further submission of the OPs that the  complainant has not been  reasonably prompt in seeking redressal of his grievances in as much as the cause of action arose on 27.06.2013 when he detected allegedly fraudulent withdrawal  of money from his account. He filed the instant complaint only on 13.01.2015. The  complainant has tried to justify the delay by alleging that his mother was unwell. Copy of discharge summary  of his  mother issued by Mata Chanan Devi Hospital is placed on record at page 15 (Annexure –D)   which shows that  she was admitted to the hospital on 23.02.2014 and was discharged on 25.02.2014 and the case was of normal discharge. It does not explain huge delay in seeking redressal. The complainant therefore cannot blame the  OPs for not preserving  the CCTV footage for about 1 ½  years.

9. In view of  the reasons stated above fortified by two judgments of  Hon’ble NCDRC in K.K. Bhalla and Raghabendra Nath Sen (supra)  the complaint  is  dismissed. Copy of this order be sent to the parties as per rules. File be consigned to record room.