BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No.CC/09/1055 of 28.12.2009 

                                                Decided on:          27.9.2011

Rajinder Singh son of Bhag Singh aged about   years r/o VPO Allowal, Tehsil Nabha, District Patiala.

                                                                             -----------Complainant

                                      Versus

1.                 Sh.S.S.Kohli Managing Director, Punjab National Bank, 7 Bhikhaji Cama Palace, Africa Avenue,New Delhi 110066.

2.                 Regional Manager, Punjab National Bank Circle Office Sector 17-B,Chandigarh.

3.                 Branch Manager, Punjab National Bank, Bhadson Road, Patiala.

4.                 Managing Director ICICI Bank, Towers, Bandra-Karia Complex,Mumbai 400051.

5.                 Branch Manager, ICICI Bank Ltd.,28-29,Prem Heights,Ajit Nagar,Patiala.

6.                 NCR Corporation India Pvt.Ltd.having its Regd.office at Niton,II,Palace Road, Banglore 560052.Cooperate Office:501-A,Landmark,Suren Road Chakla,Andheri East,Mumbai 400093.

7.                 Securitian India Pvt.Ltd. having its registered office at A-27/1,Mahipalpur Extension, New Delhi-110037 and place of business at 10 DDA,Commercial Complex,Nangal Raya New Delhi-110046.

8.                 Scientific Security Management Services Pvt.Ltd. E-1,Mansrover Garden,New Delhi-110015.

                                                                             ----------Opposite parties.

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Sh.Amarjit Singh Dhindsa, Member

                                      Smt.Neelam Gupta, Member

Present:

For the complainant:     Sh.Gaurav Bansal, Advocate

For ops No.1to3:            Sh.B.B.Gupta, Advocate

For ops no.4&5:            Sh.R.K.Pandey,Advocate

For ops no.6to8:            Ex-parte

                                         ORDER

D.R.ARORA, PRESIDENT

          The complainant is the holder of account No.016201506938 maintained with ICICI Bank Ltd. i.e. op no.5. He has also been making the use of the services of ATM card through the aforesaid account number.

2.       On 29.9.2009, at about 17.42, the complainant had used his ATM card in the ATM installed in the branch of the Punjab National Bank,Tripuri,Patiala for the withdrawal of Rs.10,000/- but the ATM failed to dispense the amount. However, the amount of Rs.10,000/-was  debited in the account of the complainant.

3.       On account of the amount having been debited from the account of the complainant, without the ATM having dispensed  the same to the complainant, he approached the ICICI Bank  i.e. op no.5 and enquired about the debit entry. At this the Branch Manager of op no.5, wrote letter to Branch Manager, Punjab National Bank, Bhadson Road, Patiala asking for the video recording of the ATM transactions having taken place on 29.9.2009 at Tripuri ATM.

4.       On 28.10.2010, the complainant approached the Branch Manager Punjab National Bank,Bhadson Road, Patiala i.e. op no.3 and deposited Rs.1654.50 for taking image view/CD in respect of video recording dated 29.9.2009.

5.       On 19.11.2009, the Manager of the Punjab National Bank,Bhadson Road, Patiala wrote letter to the Branch Manager of the ICICI Bank Patiala regarding the video recording dated 29.9.2010.for the period 17.40 to 18.10.After obtaining the CD of the video recording dated 29.9.2010 the officials of the ICICI bank had examined the video recording, which showed that the complainant had entered the ATM room at 17.42 and after conducting the transaction left at 17:44:10 after having confirmed from the guard that the machine was not working. The guard had entered into the room of ATM at 17:44:25 and he refused two customers at 17:45:04 and 17:47:46 from operating the ATM and who had not entered into the ATM room. The next subscriber entered ATM room at 17:52:32.It was observed that from 17:44:10 to 17:52:32 only the security guard of the Punjab National Bank branch remained present in the ATM room meaning thereby that the security guard had withdrawn the amount from the ATM.

6.       The complainant visited the two branches i.e. Punjab National Bank and ICICI Bank a number of times to get his remedy redressed but to no effect. Accordingly he got the legal notice dated 8.12.2009 issued against the authorities of the two banks but they failed to reply. Accordingly the complainant approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act,1986 (for short the Act) so as to pay him the amount ofRs.10,000/- , Rs.1654.50 deposited by him for obtaining the CD and further to compensate him with Rs.one lac on account of the harassment and the mental agony experienced by him at the hands of the ops.

7.       On notice, the ops appeared and filed their written versions, ops no.1to 3 having filed their joint written statement and ops no.4&5 having filed their written statement separately.

8.       In the written version filed by ops no.1to3 they have raised certain preliminary objections, interalia, that the complainant is not a consumer of the ops; that the complainant has got no locus standai / cause of action to file the complaint against the ops and that the matter involved in the complaint is not justiciable by the Forum as the complicated questions of law and facts are involved and the same can not be determined in the summary proceedings and the same can be determined by the Civil Court. It is also the plea taken up by this set of the ops that the complainant has unnecessarily dragged the ops into the frivolous litigation. Ops no.1to3 have got no concern with the working/functioning of the ATM. There is an agreement arrived at between the ops and NCR Corporation India Pvt.Ltd known as NCR regarding the management, service and replenishment of the automated teller machines and the entire working/functioning including the security is handled by the NCR. Further for serving and replenishment of the ATMs, the NCR has engaged the services of a Securitrans India Pvt.Ltd., known as SIPL and entered into an agreement dated 1.1.2008 with SIPL.Accordingly ops no.1to3 had handed over the charge of ATM at Tripuri,Patiala so attached with the Bhadson Road Branch of Punjab National Bank to SIPL and handed over the relativities/L-keys to the officials of the SIPL on 11.12.2008. Similarly the NCR engaged the services of another company i.e.M/s Scientific Security Management Services(Pvt.)Ltd. also known as SMS for the security of the ATM and accordingly NCR and/or SMS only are  responsible for the services relating to the functioning and working of ATM and Punjab National Bank has got no concern with them. So much so employees  including the security guard deployed for the security of the ATM are the employees of the SMS and not of the PNB.For all intents and purposes  the NCR,SIPL and SMS who are responsible for the functioning/working of the ATM. On these grounds this set of the ops contested the claim of the complainant and ultimately it was prayed to dismiss the complaint.

9.       In the written statement filed by ops no.4&5 they have also raised certain preliminary objections interalia that the complainant is not a consumer as per the definition given under Section 2(1)(d) of the Act; that the matter can not be determined in the summary proceedings before the Forum and that the complaint being false, frivolous and vexatious and to have been filed without any legal ground, the same is liable to be dismissed under Section26 of the Act. As regards the facts of the complaint, it is admitted that the complainant is maintaining the account with the ops and he is availing the ATM service. It is also admitted that the complainant had used his ATM card through Punjab National Bank, Branch Tripuri,Patiala and withdrawn Rs.10000/- and it is denied if due to  any defect in the ATM, the amount was not dispensed.

10.     It is admitted that the complainant had given the information regarding the incident to the ops, who had written a letter to the Branch Manager of the Punjab National Bank,Bhadson Road, Patiala for supplying the video recording of the ATM transaction dated 29.9.2009 for the period 17:40 to 18:10, who provided the video recording for the period 17:42 to 17:49:49.The recording for the period 17:49:49  to 17:54:44 was not there in the CD. The watching of the video recording disclosed that the complainant had entered the ATM room at 17:42 and after having made the transaction left at 17:44:10.The security guard of the ATM belonging to Punjab National Bank entered the ATM room at 17:44:25 and disallowed two customers to operate the ATM between 17:44:04 to 17:47:46 who had not even entered in to the ATM room. A next customer entered the ATM room at 17:52:32. It was observed that from 17:40:10 to 17:52:32 only the security guard of the ATM remained present in the room but there is a suspense regarding the withdrawal slip which mentioned the time as 17:49.

11.     It is denied if both Punjab National Bank and ICICI Bank are liable severally or jointly for the alleged non dispensation of Rs.10,000/- to the complainant. The ATM belongs to the Punjab National Bank and therefore, it is the liability of the Punjab National Bank to account for the amount. Moreover, the unfair trade practice was committed by the employee/representative of the ops no.1to3. After denouncing the other averments of the complaint, going against the ops, it was prayed to dismiss the complaint.

12.     Here, it may be noted that on an application moved by the complainant , ops no.6to8 were impleaded but only op no.6 appeared through its representative while ops no.7&8 were proceeded exparte. Op no.6 failed to file any written version and its defence was struck off.

13.     In support of his complaint, the complainant produced in evidence Ex.C1 his sworn affidavit alongwith documents,Exs.C2 to C14 closed the evidence .

14.     On the other hand, on behalf of the ops no.4&5 ,their lerned counsel tendered in evidence,Ex.R1, the sworn affidavit of Rupinder Singh,Special Attorney of op no.5 and closed their evidence.

15.     On behalf of ops no.1to3 their learned counsel tendered in evidence,Ex.R2, the sworn affidavit of RI.Sharma,Branch Head and Principal  officer of op no.5 alongwith documents Exs.R3 to R12 and closed their evidence.

16.     The parties filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.

17.     Ex.C2 is the ticket dated 29.9.2009 collected by the complainant from the ATM used by him regarding the withdrawal of Rs.10,000/-. The time of the transaction is recorded as 17:49. Ex.C4 is the copy of the letter dated 27.10.2009 written by the Branch Manager, ICICI Bank Ltd. Ajit Nagar, Patiala i.e. op no.5 to the Branch Manager of op no.3 having asked for the video clipping of the transactions dated 29.9.2009 from 17:40 to 18:10.Ex.C5 is the coy of the receipt dated 8.10.2009 regarding the deposit of Rs.1654.50 with Punjab National Bank i.e. op no.3 for taking the image view of the transaction dated 29.9.2009.Ex.C6 is the letter dated19.11.2009 whereby op no.3 had sent the video recording of ATM transaction dated 29.9.2009 to op no.5. Ex.C7 is the copy of the letter dated 21.11.2009 written by op no.5 to op no.3 having intimated that their customer Rajinder Singh having account No.016201506938 with them had made a transaction of Rs.10,000/- from their ATM at Tripuri and as per the customer the money was not dispensed although the customer’s account was debited for the same. As per video recording Mr.Rajinder Singh had entered in to ATM room at 17:44:10 and after making transaction had left after confirming from the guard that the machine was not working and that he could withdraw the money from any other ATM. Guard had entered the ATM room at 17:44:25 and who refused the two customers the entry in the room at 17:45:04 and 17:45:46 and the next customer entered into the ATM room at 17:52:32. From 17:44 to 17:52:10 only the guard was present in the ATM room but as per ATM rolls and withdrawal slip the transaction was processed at 17:49:49 which means that only the guard was present in the ATM room at the time of the withdrawal. Moreover the video recording between 17:49:49 to 17:50 was not there in the recording provided to Rajinder Singh by the branch of the Punjab National Bank,Bhadson Road, Patiala. Accordingly the Branch Manager of op no.5 requested the Branch Manager of op no.3 to look into the matter and to refund the amount of Rs.10,000/- + Rs.1654.50 charged from the customer for image view.

18.     The learned counsel for op no.3 could not raise any point concering the facts and figures disclosed in Ex.C7 written by the Branch Manager of the ICICI Bank Limited Ajit Nagar, i.e. op no.5 to op no.3. If the said letter Ex.C7 is read in juxtaposition with Ex.C2 the ticket collected by the complainant from the ATM machine installed in the branch of op no.3, it would mean that the transaction regarding the withdrawal of Rs.10,000/- had been effected at 17:49 but the complainant had entered into ATM room at 17:42 and left at 17:44:10 meaning thereby that something wrong had gone with the ATM. In other words the complainant had not collected the money from the ATM during the period 17:42 to 17:44:10 as the  ATM dispensed the money at 17:49:49. In view of the aforesaid position, we find every reason to accept the plea of the complainant duly proved by him with the help of his sworn affidavit,Ex.C1 that he was not dispensed the money by the ATM when he had operated the ATM at 17:42 and despite that the amount was debited from his account, a fact admitted by ops no.4&5 in their written statement and also stated as such by the complainant Rajinder Singh   in his sworn affidavit,Ex.C1.

19.     Here it may be noted that there is no evidence to have been led by op no.3 to show that they had checked the ATM in the matter of calculating the cash in the ATM and that no excess money was found there in.

20.     As regards the plea taken up by ops no.1to3, that  they are not liable to pay the amount to the complainant qua the amount of the compenstion because of the failure of the transaction on the ground that they have further provided the contract for the operation/management of the ATM vide agreement dated 24.9.2007 to NCR who has further engaged the services of SIPL vide agreement dated 1.1.2008, we do not find any substance in the same because the complainant is not bound by any agreement to have been arrived at between ops no.1to3 and op no.6 and op no.6 having further entered into agreement with ops no.7&8. Ops no.1to3 are liable or any deficiency in service provided to the complainant because the complainant was not  party to the aforesaid agreements.

21.     The learned counsel for ops no.1to3 made a reference to circular No.TBD/25/2011 to have been issued by the Transactions Banking Division ATM Sharing Section of the Punjab National Bank which is a mechanism to resolve the complaints pertaining to failed ATM transactions and charges to be levied to the card holders. It does not disclose about the liability of the bank to whom the ATM belongs. Moreover the said circular was not firstly referred to in the written statement and then produced in evidence and it has got no statutory validity.

22.     As an upshot of our aforesaid discussion, it would appear that the transaction no.7966 dated 29.9.2009 regarding the withdrawal of Rs.10,000/- by the complainant having made a use of the ATM installed in the premises of op no.3 had failed and the ATM did not dispense the money to the complainant. Accordingly we accept the complaint and give a direction to ops no.1to3 to make the payment of Rs.10,000/-to the complainant with interest @10% per annum from the date of the transaction i.e. 29.9.2009. In view of the facts and circumstances of case, we direct ops no.1to3 also to refund the amount of Rs.1654.50 incurred by the complainant in precuring the CD regarding the transaction dated 29.9.2009 and further direct ops no.1to3 to award the complainant with a compensation in a sum of Rs.10,000/-on account of harassment and mental agony experienced by him at the hands of ops no.1to3 and the said amount of
Rs.10,000/-also includes the costs of the complaint.The order be complied with in one month on receipt of the certified copy of the order.

Pronounced.

Dated:27.9.2011

                             Neelam Gupta      Amarjit Singh Dhindsa    D.R.Arora

                             Member                Member                            President