Delhi

North East

CC/337/2015

Rakesh kr. - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

08 Dec 2018

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. 337/15

 

In the matter of:

 

	Rakesh Kumar Shukla C-6/363 Yamuna Vihar, Delhi 110053	Complainant
	Versus
	Manager Punjab National Bank Durga Puri Branch, Delhi	Opposite Party

 

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

28.09.2015 07.12.2018 08.12.2018

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts germane to the present complaint as culled out by the complainant are that on 03.07.2015 at about 10:10 AM the complainant had visited the OP ATM located at 100 ft. Road Kabir Nagar Delhi to withdraw cash. However the ATM was very slow and getting hung therefore the complainant pressed the cancel / clear button when the machine became stable to end the transaction and left the ATM. However, he got an SMS alert on his mobile of debit of Rs. 10,000/- from his account also held with OP bank. The complainant has submitted that just before him in the said ATM was a boy and a woman of 21 to 24 year age and remained therein after the complainant had left the said ATM. The complainant immediately registered a complaint with the customer care of the OP vide complaint no. A013886801 but no response was given. Thereafter he went to his account holding branch of OP at Yamuna Vihar with a written complaint where he was informed that the said complaint pertained to Durga Puri Branch. The complainant visited the said branch and gave the complaint in writing and also asked for CCTV Footage for which the branch manager of OP asked him to deposit Rs. 1,000/- which the complainant requested for deduction from his account and signed the complaint and put it in the drop box. The complainant had lodged a police complaint with P.S. Jyoti Colony but no FIR was registered. The complainant vide letter dated 04.07.2015 to the manager of OP bank at Durga Puri Branch had drawn attention for the irregularities and poor maintenance of the ATM and sent reminders letters dated 16.07.2015 and 08.08.2015 to the OP for providing CCTV footage and had contacted the OP officials regarding the problems in the ATM in question viz non functional  AC, absence of guard misuse of cancel / clear button by criminal aliments, slow operation of ATM machine, gate always open for stray dog nuisance and ATM machine having been shut but such complaints were not attended to by the OP and therefore the complainant was constrained to file the present complaint praying for issuance of directions to OP to remit Rs. 10,000/- wrongly debited / deducted from his account held with OP bank and Rs. 50,000/- for mental and physical harassment and wastage of time and litigation expenses.

Complainant has attached copy of letter dated 04.07.2015, 16.07.2015 and 08.07.2015 to OP, copy of passbook entry highlighting the alleged wrongful debit/disputed deduction of Rs. 10,000/- on 03.07.2015 through ATM withdrawal from his account no. 2256000100161556 held with OP bank.

2. Notice was issued to the OP on 28.09.2015 which entered appearance and filed written statement by way of letter / representation on the OP letter head alongwith CD on 18.11.2015. OP took the defence that on receiving the application for CCTV Footage from the complainant, the same was forwarded to the concerned agency at Mumbai which sent ATM inbuilt footage by way of CD attached with the reply. The OP negated the allegation of the complainant that the ATM machine was dysfunctional on grounds that before and after the transaction made by the complainant, several customer have accessed the said ATM machine as also the allegation that the said machine was shut down for few days on grounds that on 04.07.2015 the complainant himself had withdrawn Rs. 1,000/- at 10:08AM from the same machine.
3. Rejoinder to the written statement filed by OP was filed by complainant in which in rebuttal to the averments of the OP that the complainant had withdrawn Rs. 1,000/- from OP’s ATM in question on 04.07.2015, the complainant stated that the said transaction was made to him to check the ATM whether this get hung and dispenses cash or not. The ATM was very slow though and the cash was dispense after delay of 3 minutes10 seconds which the complainant captured in his camera and filed by way of CD clip. With regard to ATM in question having been shut for few days which the OP refuted, the complainant stated that he had made a video clipping of 06.07.2015 of the said ATM in which this is found closed. With respect to the dysfunctional, malfunctional ATM, the complainant submitted that he had taken statements of nearby people who had operated the said ATM viz. a lady from Lal Path Lab adjacent to the said ATM and other such persons of the public who also faced similar problem with regard to malfunctioning of said ATM in which despite two ACs being installed none is functional due to which the ATM getting heating up and doesn’t work properly and due to absence of guard, mischievous element tend to misuse the cancelled or clear button of ATM. The complainant further expressed his grievance of non functional CCTV camera, the footage of which the OP despite several requests by the complainant vide reminder letter dated 07.12.2015 and 29.01.2016, didn’t provide him which CD OP had submitted before this forum on 18.11.2015 which the OP was under legal obligation to provide to it’s customer. The complainant therefore, alleged deficiency in service and dereliction  of duty against the OP. OP attached letter dated 07.12.2015 and 29.01.2016. The OP filed a letter dated 15.02.2016 on the same day the day complainant filed rejoinder stating that since the case is older than three months, their CCTV footage team has declined the request for providing CCTV footage in the said case and attached email dated 22.01.2016 in this regard.
4. Complainant filed evidence by way of affidavit reiterating his grievance in the complaint as well as rejoinder and prayed for relief against the OP in light of CD filed.
5. Evidence by way of affidavit was filed by OP reiterating its defence and exhibited the CCTV footage CD, JP Log and authorization response code statement in support of its defence that the transaction no. 7487 in question dated 03.07.2015 entered by the complainant through its ATM card no. 5126520240626676 for withdrawal of Rs. 10,000/- was successful and the cash was duly disbursed to him and filed accompanying certificate u/s 65-B of Indian Evidence Act in support of electronic data of emails dated 10.03.2016 and 21.04.2016 vide which the aforementioned JP Log and ATM in built CCTV footage were received by OP.
6. Written argument were filed by complainant in which he reiterated his grievance of non-provision of CCTV footage of OP despite several reminder letters dated 16.07.2015, 08.08.2015, 07.12.2015 & 29.01.2016 and the said footage was very crucial to investigate who had wrongfully withdrawn money from the complainant’s account but despite repeated directions of this Forum issued on 18.11.2015 and 21.12.2015, the OP finally vide letter dated 15.02.2016 filed before this Forum declined to furnish the CCTV footage CD to complainant on arguments that it is not preserved beyond 90 days which is contrary to the OPs email to the concerned agency asking for the footage. The complainant argued that for such non-provision, the OP is solely liable. The complainant also placed on record news paper article dated 22.02.2016 in Hindustan Times Daily by a consumer activist regarding bank will liable to return money that customer  loss due to technical fault in ATM and also placed on record RBI guidelines  5.12 sub clause A highlighting that in the event bank fails to resolve customer complaint within 7 working days from the date of receipt of same, the complainant shall be entitled to compensation @100/- per day by the issuing bank which shall be credited in the customer account automatically on account of failed ATM transaction on the same day when the bank affords the credit for such transactions. The complainant also placed the record copy of mobile message print out of debit of Rs. 10,000/- from his account on 03.07.2015 which at 10:10 a.m. whereas as per the JP Log filed by OP the time of transaction is 10:03 a.m. and prayed for appropriate relief.
7. OP filed its written arguments reiterating in its dream taken into evidence and written statement. Complainant has filed additional written arguments reiterating his earlier written arguments already placed on record expressing his grievance of non provision of CCTV footage despite several reminders by OP and his legal entitlement of compensation in the light of RBI guidelines and ombudsman ruling and malfunctioning in ATM of OP and discrepancy in the time of transaction shown in JP Log filed by OP and in mobile message filed by complainant. During the course of oral arguments the counsel for OP argued that all the pleadings filed by the complainant are improvement over one and other.
8. We have heard the rival contentions of both the parties and have applied out judicial mind after thorough perusal of documentary evidence placed on record before us. The OP during the course of arguments placed on record the judgment of UTCDRC, Chandigarh in the case of Rajeshwar Singh V/s S.B.I. III (2008)CPJ 21 in support of its defence of JP Roll / Log being held as positive indication of withdrawal and the judgment of Hon’ble NCDRC in S.B.I. V/s K.K. Bhalla regarding CCTV footage.

From the passbook entries filed by the complainant with respect to the account held by him with OP bank, it is clear that amount of Rs. 10,000/- was debited from the account of the complainant on 03.07.2015. The same has been corroborated by the passbook entry filed by complainant as well as JP Log filed by OP. However, the OP didn’t provide the CCTV Footage of its ATM to the complainant prove whether the complainant had withdrawn the above said money from the ATM.We have screened the JP Log which shows that the successful withdrawal of Rs. 10,000/- was made vide transaction number 7487 on 03.07.2015 through debit card number 5126520240626676 and not ‘failed’. 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 general 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 filed by OP which is a computer generated untampered with document. It is pertinent to mention here that the complainant has not filed any accompany certificate u/s 65-B of Indian Evidence Act, 1872 for filing the CD of allegation leveled against OP regarding malfunctioning/ closure of ATM and other/ several allegations of statements of public and clearly in absence of which certificate as per the law clearly laid down by three members Bench of Hon’ble Supreme Court inAnwar P.V. V/s P.K. Basheer and Others (2014) 10 SCC 473, the said CD cannot be taken as evidence as it has no evidentiary value unaccompanied by certificate u/s 65-B (iv) of the said Act.

As far as the question of the CCTV footage or lack of it concerned, the issue has been clearly settled by Hon’ble NCDRC in the case of SBI Vs K.K Bhalla (relied upon by the OP during course of oral arguments) in which the Hon’ble NCDRC held that non provision of CCTV footage does not mean that money could be withdrawn fraudulently without using ATM card or pin number. 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. Hence, the complainant cannot take shelter of non provision of CCTV Footage to dispute the transactions in the present case also.

Therefore, in light of the settled propositions of law regarding documentation filed by OP which conclusively establish transactions as successful beyond reasonable doubt and no mandatory emphasis/ requirement on CCTV Footage in such cases,we are of the considered view that the complainant could not establish that the withdrawal was not successful or failed as alleged by him.

9. We, therefore, do not find any merits in the present complaint as regards to deficiency of service alleged against OP by the complainant and therefore complaint is dismissed with no cost to either side.    
10.    Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  08.12.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member