Delhi

North East

CC/306/2014

Pawan Kr. Gupta - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

18 Jun 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.  306/14

In the matter of:

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Succinctly put, the case of the complainant is that he is an account holder of OP1 (Punjab National Bank), bearing Account No. 3927000100243690 at its Dilshad Garden Branch Delhi and OP2 being customer care center of operation, payment and settlement division of OP1. The available balance in the said account as  on 22.04.2014 was Rs. 12,551/- The complainant went to ATM of OP3 AXIS Bank located at Dilshad Extension Bhopura Ghaziabad on 22.04.2014 around 6:45PM for withdrawing Rs. 9,000/-. However, the said ATM machine did not dispense the cash but the amount of Rs. 9,000/- was shown as debited from the account held with OP1 though no transaction slip came out. The complainant immediately gave intimation to OP1 on its toll free customer care number vide complaint number 61308008 and was assured remittance of said sum back in his account but  no action was taken in this regard. The complainant vide written complaint dated 23.04.2014 to OP1 asked for redressal of his problem and remittance of Rs. 9,000/- back in his account and also wrote emails between dated 03.05.2014 and 08.07.2014 to OP1 & OP2 for early redressal of his complaint. However, OP1 & Op2 vide reply email dated 03.05.2014 rejected the complaint of the complainant asking him to take up the matter with
2. Complainant has attached copy of passbook of account held with OP1 with disputed entry dated 22.04.2014 of Rs. 9,000/-, copy of hand written complaint dated 23.04.2014 by complainant to OP1, copy of series of emails correspondence in the month of May 2014 exchanged between OP1 & OP2, copy of complainant acknowledgement dated 27.05.2014 by Office of Banking Ombudsman, copy of order email dated 17.07.2014 from RBI to complaint alongwith order dated  31.07.2014 passed by Banking Ombudsman on complainant ‘s complaint lodged with it closing the same.
3. Notice was issued to the OPs on 19.08.2014, OP1 & OP2 entered appearance and filed written statement vide which it took the preliminary objection of complainant not having mentioned on which toll free no. of OP1 & OP2 did he register the complaint and got the complaint no. from while taking the defence that the disputed transaction was actually a successful one and therefore the Assistant General of RBI of Hon’ble Banking Ombudsman New Delhi had dismissed the complaint of the complainant vide order dated 27.05.2014 after examining the JP log which revealed that the complainant had made a transaction of withdrawal of Rs. 9,000/- on 22.04.2014 from OP3’s ATM vide transaction no. 4037 and switch centre report which indicated that complainant card was used six times vide transaction no.s 4032 to 4037, transaction no 4032 to 4036 having being declined by the ATM machine due to exceeding the withdrawal limit with response code (061). The Banking Ombudsman sought clarification for the same from OP3 and OP3 who vide reply dated 14.07.2014 stated that the complainant had entered the amount of Rs. 20,000/- for withdrawal where as for accessing any other bank ATM than the account holding one, the transaction limit was set at Rs. 10,000/- and for which reason the transaction from 4032 to 4036 were declined. Further there was no excess amount as per cash reconciliation statement and the CCTV footage submitted by OP3 clearly indicated that there as an apparent compromise of card and PIN with the kiosk having another person standing behind the complainant when the complainant was making the withdrawal transaction and this person also interfered with the ATM transaction and another person, probably his accomplice took away the money after the complainant had left. Nonetheless since the transaction was disputed despite being successful, the said office decided that it would require elaborate evidence for which proceedings before Ombudsman are not appropriate and therefore had closed the complainant case. Lastly, OP1 & OP2 submitted in their defence that the copy of CD of CCTV footage had not been supplied to it but nonetheless, it has procured the switch data, JP log and reconciliation sheet with respect to the alleged transaction showing to be same successful.
4. OP1 & OP2 has attached copy of Banking Ombudsman order dated 31.07.2014, copy of switch data, copy of JP log and ATM reconciliation sheet with letter dated 02.06.2014 certifying that closing cash as reported in the cash balancing report matches with the ATM counters printed in electronic journal and no excess cash was identified by the cash replenishment agency as part of End of Day activity performed on 23.04.2014.
5. Written statement was filed by OP3 whereby it took the preliminary objection of no cause of action and privity of contract between complainant and OP3 since complainant is admittedly an account holder of OP1 and was issued ATM card by OP1 and complainant had merely used the ATM services of OP3 which did not make him its customer and therefore complainant was not a consumer as regards OP3 resisted the complaint by submitting that the complainant had not filed a single document to substantiate the allegation made against OP3 of deficiency of service and instead has acted in a most negligent manner by allowing someone else to operate the ATM machine for his transaction and to make the matter worse, the complainant left the ATM kiosk without canceling the transaction giving rise to possibility of someone else taking the amount dispense by the ATM machine of OP3. OP3 urged in defence that on receiving the complaint in this regard, it provided all the necessary details and documents included CCTV footage of its ATM to the complainant which revealed the card and pin compromise which no prudent man ought to allow to any stranger for using his ATM card and then living the ATM kiosk without canceling his transaction affording an opportunity to any person to take the dispense amount. OP3 further submitted that as per the letter dated 02.06.2014 issued by Prizm Payment Services Ltd., it was certified that closing cash as reported in the cash balancing report matches with the ATM counters printed in electronic journal and no excess cash was identified by the cash replenishment agency of OP3 as part of End of Day activity performed on 23.04.2014. Apart from this OP3 relied upon its JP log which also revealed that the complainant’s transaction no. 4037 for withdrawal of Rs. 9,000/- through his debit card no. 6070930038387544 was successful with cash dispensed and submitted in this regard that Journal Printer in the ATM is the final proof of authenticity of truncation accepted across the world by all bank and cannot be manipulated by any person and the fact that ATM machines are supported by highest technology and excellent surveillance and urged that there was no deficiency of service on its part for which reason after appreciating the documentary evidence, the Banking Ombudsman too vide order dated 31.07.2014 had closed the complaint after scrutiny of documents and CCTV footage clearly indicating a successful transaction and apparent compromise card and pin by the complainant and then complainant leaving the ATM site without canceling the transaction. For the defence so taken, OP3 prayed for dismissal of the complaint. OP3 has placed on record copy of letter dated 02.06.2014 to its reconciliation team from Prism payment, copy of cash balancing report, copy of JP log and ATM reconciliation sheet.
6. Rejoinder to the written statement of OPs was filed by complainant in rebuttal to defence taken by them in which the complainant  urged that as per the CCTV footage it was clear that the complainant had used the ATM card only once to make the transaction but contrarily OPs urged there were transactions no. 4032 to 4036 which were unsuccessful but they could not have been generated without insertion of ATM card in the machine which contradiction clearly shows there was a fault in the programming of OPs otherwise the ATM machine would be required to swipe the card and pin no. again for new transaction. Complainant denied the disputed transaction alleged to be successful by OPs and submitted in this regard that the transaction in the JP log and CCTV footage are totally different since in the JP log the ATM card of the complainant was shown as inserted at 18:55:35 PM and timing of successful transaction no. 4037 is at  19:08 but according the CCTV footage, the complainant inserted the ATM card on 18:57:36 PM and left the ATM counter at 18:59:50 and in between 19:07:18 to 19:08:25, no person entered the ATM for cash transaction and therefore any other documents such as cash reconciliation certificate etc cannot be relied upon and it appears to be a system error of ATM and for all such reasons, even the banking ombudsman had not rejected but closed the complaint vide order dated 31.07.2014 with observation of case requiring consideration of elaborate evidence.
7. Evidence by way of affidavit was filed by the complainant in reproduction of his grievance against OPs.
8. Evidence by way of affidavit was filed by O1 & OP2 sworn by its senior Manager exhibited document relied upon / filed alongwith written statement as Exhibit RW1/1 to RW1/4.
9. Evidence by way of affidavit was filed by OP3 sworn by its Senior Manager and Head (ACMC) exhibiting the CCTV footage of ATM and other documents already filed alongwith its written statement as Ex OP3-1 to OP3-6.
10. Written arguments were filed by all parties in reassertion / reiteration of their respective grievance / defence.
11. We have heard the rival contentions of all parties and have applied our judicial mind after thorough perusal of documentary evidence placed on record before us.

From the passbook entry filed by the complainant with respect to the account held by him with OP1 bank, it is clear that amount of Rs. 9,000/- was debited from the account of the complainant on 22.04.2014. The same has been corroborated by JP Log / EJ Report filed by all OPs. The CCTV Footage placed on record by the complainant as well as OP3 assumes great importance in terms of evidentiary value in the present case apart from the JP Log, ATM cash balancing report, switch data, ATM conciliation report and No Excess Cash certificate etc which shows that the successful withdrawal of Rs. 9,000/- was made vide transaction number 4037 on 22.04.2014 through debit card number 6070930038387544 and not ‘failed’. On close scrutiny of CCTV footage we have observed that the complainant entered the ATM kiosk of OP3 at 18:57:20 and soon after was joined by another person in yellow t-shirt with whom the complainant is seen as taking assistance in inserting the PIN number which is highly confidential information and this person in yellow t-shirt actually seen operating the ATM machine on complainant’s behalf and third person was standing behind the complainant with the ATM kiosk door open overlooking the transaction. The complainant as well as the person in yellow t-shirt exited the kiosk at 18:59:37 and a third person who was standing behind the complainant at the ATM kiosk door immediately entered the kiosk at 18:59:37 and stayed in till 19:04:15 seen as operating the ATM machine many time while being continuously on phone conversation. It is evident from the said footage that the complainant had acted in gross negligence by sharing and parting with the most confidential information of his pin no. to a stranger and allowing him to operate the ATM on his behalf. 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 didn’t file the transaction slip on grounds of non receipt of the same with respect to disputed transaction/ 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 all OPs which is a computer generated untampered with document.

As far as the role of OP3 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 OP2 in the present case.Hon’ble NCDRC in the case of SBI Vs K.K Bhalla held that 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. The Hon'ble National Commission in SBI Vs Om Prakash Saini I (2013) CPJ 749 (NC) held that 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.

12. 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 OP3 and CCTV footage clearly revealing complainant having compromised his ATM debit card information with a stranger and another person overlooking the entire transaction behind him, we are of the considered view that the complainant has acted in the most negligent manner  and has compromised his debit card information and therefore cannot take advantage of his own wrong doing by alleging a failed transaction and disputing withdrawal and also by his act of leaving the ATM kiosk without canceling the transaction and that too in the present of stranger for which act he himself is to be blamed and therefore does not deserve any relief.
13. We therefore do not find any merits in the present complaint as regards to deficiency of service alleged against OPs by the complainant and therefore complaint is dismissed with no order as to cost.      
14. Let the copy of this order be sent to both parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
15.  File be consigned to record room.
16.   Announced on  18.06.2020