Date of Filing 14.08.2023

                                                                                                       Date of Disposal: 28.11.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                    …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                           ……MEMBER-I

CC.No.79/2023

THIS TUESDAY, THE 28^th DAY OF NOVEMBER 2023

Mr.P.Edward Durai, S/o.M.Papu,

No.37, 3^rd Street, Ellaiamman Nagar,

Muthapudupet, IAF,

Avadi,Chennai 600 055.                                                                          ......Complainant.                                                                               

                                                                 //Vs//

The Branch Manager,

Punjab National Bank,

Muthapudupet Branch,

IAF Avadi post,

Chennai 600 055.                                                                                  …..Opposite party.

Counsel for the complainant                                                : Party in Person.

Counsel for the opposite party                                            : M/s.G.Pramila, Advocate.

This complaint coming before us on various dates and finally on 21.11.2023 in the presence of complainant who appeared in party in person and M/s.G.Pramila, counsel for the opposite party and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER-I

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party with regard to disputed transactions along with a prayer to direct the opposite party to pay a sum of Rs.2,00,000/- towards compensation for the mental agony and financial loss caused to the complainant along with a cost of Rs.25,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. That on 10.04.2023 the complainant went to ICICI Bank ATM to withdraw amount of Rs.30,000/-.  The complainant had utilized his Punjab National Bank debit card to withdraw the money.  Firstly he had withdrawn Rs.10,000/- and when he tried to withdraw for the second time, the cash was not disbursed, but the amount has been debited from his account vide transaction No.310018006718.  The complainant had used another Punjab National Bank debit card to withdraw Rs.10,000/-. Subsequently when he tried again to withdraw another Rs.10,000/- using the same card money was not disbursed, but the amount has been debited from his account.  Again he used another SBI ATM card to withdraw Rs.10,000/-.  He went to Punjab Nation Bank, Muthapudupet and informed about the incident.  They advised him to wait for two days as the money may be refunded.  However, no refund was received. On 12.04.2023 he lodged two complaints, but the same were rejected on 28.04.2023 without assigning any reason.  Hence he lodged another two complaints to opposite party on 28.04.2023.  On 01.05.2023 he had complained Head Office of the opposite party through toll free number and they advised him to wait for 4 to 5 days.  On 05.05.2023 he had approached the opposite party and they informed that he had asked CCTV footage from ICICI Bank.  He had lodged two complaints with banking Ombudsman on 12.05.2023 and the same were rejected without assigning any reasons.  Hence he lodged another complaint again on 20.05.2023.  The Ombudsman closed the issued as money was collected by next person.  On 27.06.2023 he sent mail to the Ombudsman disputing closure report and asked for the CCTV footage but no reply till date.  On 19.07.2023 the Ombudsman closed another complaint as the money was received by another person.  Inspite repeated follow ups and demands the opposite party has not taken any steps to refund of Rs.20,000/-.  Hence the act of the opposite party caused severe mental agony to the complainant.  Hence the complaint.

The crux of the defence put forth by the opposite party:-

3. That the opposite party disputing the allegations in the complaint interalia contended that the complaint is not maintainable for non-joinder of necessary party i.e., ICICI Bank.  The complainant did not raise the complaint within 24 hours. The opposite party had done his duty promptly by issuing the request email to ATM CRC.  The complainant lodged the complaints on 12.05.2023 with Banking Ombudsman and the same was rejected.  Again the complainant lodged second complaints on 20.05.2023. The Ombudsman closed both the complaints as the money was collected by another person.  There is no negligence on the part of the opposite party.  There is no deficiency in service and prays to dismiss the complaint.

4. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A5 were submitted. On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B7 were submitted.

Points for consideration:-

1) Whether there is any deficiency in service as alleged by the complainant against the opposite party and the same has been successfully proved by the complainant with admissible evidence?

2) If so, to what reliefs the complainant is entitled?

Point No.1:-

5. It is the case of the complainant that the money has been debited from his account and the cash was not disbursed by the ATM.  Inspite of repeated demands and requests the opposite party had not retrieved the amount of Rs.20,000/-. Till date the opposite party has not taken any action to refund the said amount.  The complainant suffered severe mental agony.

6. To prove the claim the complainant deposed proof affidavit with 5 documents which were marked as Ex.A1 to Ex.A5.  Ex.A1 is the Acknowledgement from RBI CMS TEAM No.N2023 24 00 600 2438, Ex.A2 is the acknowledgement from RBI CMS TEAM No.N.2023240006002949, Ex.A3 is the RBI CMS TEAM closure intimation, Ex.A4 is the RBI CMS TEAM closure intimation and Ex.A5 is the physical disability and medical history of the complainant.

7. Per contra the opposite party interalia contended that there is no negligence on the part of opposite party and the opposite party had taken all the necessary steps by issuing email to the ICICI Bank seeking CCTV footage.  The Ombudsman closed the complaints of the complainant as the money has been collected by another person.  The complaint is not maintainable for non joinder of necessary party. Therefore the opposite party prays to dismiss the complaint.

8. To refute the claim of the complainant the opposite party deposed proof affidavit with 7 documents which were marked as Ex.B1 to Ex.B7.   Ex.B1 is the complaint issued by the complainant to the opposite party, Ex.B2 is the complaint issued by the complainant to the opposite party, Ex.B3 is the email sent to ATM CRC, Ex.B4 is the email sent to ATM CRC, Ex. B5 is the email sent to ATM CRC, Ex.B6 is the email sent to ATM CRC and Ex.B7 is the Authorization letter.

9. We have heard the argument of both and perused the pleadings and documents filed by both the parties.  It is not disputed that money has been debited from complainant’s both accounts and the cash was not disbursed.  It is evidenced from Ex.B1 and Ex.B2 that he had lodged complaints to the opposite party about the incident. Upon receipt of complaints from complainant the opposite party sent emails to the ICICI Bank on various dates as evidenced from Ex.B3 to Ex.B6.

10. On perusal of Ex.A3 the closure intimation from Ombudsman revealed that the disputed transaction amount was not taken by the complainant and the same was taken by the unknown person at 19.10.37hours.  Ex.A4 also reveals that the cash was not taken by the complainant and it has been taken by some unknown person.  However, the opposite party had not filed the CCTV footage and photographs of the alleged transaction of the complainant.  It is well within the domain of the opposite party that they can produce evidence to show the transaction of the complainant.

11. The averment of the opposite party that the disputed transactions happened only because of the negligence of the complainant and they could not be held liable for the alleged transactions is not acceptable.  It has been held in catena of decisions by the Apex Court that when the disputed transactions occurs without the involvement of the complainant, the Bank should be held responsible and that when the alleged transaction has been immediately reported to the Bank, the customer has zero liability.

12. In the present case, it is an admitted fact that the complainant has not received the cash for his alleged transactions. The cash was taken by some unknown person.  The opposite party had not taken any steps to recover the said amount and they are simply finding fault on the side of complainant.  It is bounden duty of the opposite party to recover the said amount from the unknown person.  However, the opposite party had not filed a single document to show that they had taken steps to recover the said amount.

Circular bearing No.DBR.No.Leg.BC78/09.07.005/2017-18 dated 06.07.2017 issued by RBI to all commercial Banks wherein it is stated as under,

A customer’s entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events

Contributory fraud/negligence/deficiency on the part of the Bank (irrespective of whether or not the transaction is reported by the customer)

Hence it is admitted that the opposite party is liable for the disputed transaction.  The act of opposite party amounts to deficiency in service.  Thus this point is answered accordingly in favour of the complainant and as against the opposite party.

Point No.2:-

13. We have held that the opposite party had committed deficiency in service in not refunding the disputed transaction amount of Rs.20,000/- to the complainant.  The complainant definitely could have suffered severe mental agony due to deficiency in service of the opposite party and therefore he has to be compensated accordingly. Thus we direct the opposite party to pay Rs.20,000/- being the disputed transaction amount to the complainant and Rs.25,000/- towards compensation for the mental agony and deficiency in service and Rs.5,000/- towards litigation proceedings.  This point is answered accordingly.

In the result, the complaint is partly allowed directing the opposite party

a) To pay a sum of Rs.20,000/- (Rupees twenty thousand only) being the disputed transaction amount to the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, an interest at the rate of 6% will be levied on the said amount from the date of complaint till realization.

Dictated by the Member-I to the steno-typist, transcribed and computerized by him, corrected by the Member-I and pronounced by us in the open Commission on this 28^th day of November 2023.

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MEMBER-I                                                                                                      PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite party:-

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MEMBER-I                                                                                                      PRESIDENT