Delhi

North East

CC/50/2015

Sh. K.D. Sharma - Complainant(s)

Versus

Punjab National Bank, - Opp.Party(s)

20 Mar 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.  50/15

 

In the matter of:

 

	Shri K.D. Sharma S/o Late. Shri Risal Singh R/o:- H.No.-L-37 Gali No. 39, Sadatpur Ext. Pusta Area, Delhi-110094	Complainant
	Versus
1       2         3	Punjab National Bank Branch-Mukund Vihar Karawal Nagar, Delhi-110094   Chairman & Managing director Punjab National Bank 7, Bhikaji Kama Place New Delhi 110066   Axis Bank ATM Channel Management Centre J-3, First Floor, Vikas Puri New Delhi 110018	Opposite Party

 

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

05.02.2015 20.03.2020 20.03.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

 

ORDER

1. Concise facts of the present complaint are that the complainant is a senior citizen, retired from MTNL and was holding savings account no. 4579000100046226 with OP1 bank in which account he received monthly pension post retirement and OP2 is the CMD. On 03.07.2014 the complainant, being in need of Rs. 20,000/- to repay a friendly loan, accessed the ATM of OP3 at about 6:00 AM to withdraw a sum of Rs. 20,000/- but no cash was disbursed by OP3 ATM till about 6:30 am despite multiple efforts by complainant to make the transaction. However, he received an SMS on his mobile phone the same day showing that the amount of Rs. 20,000/- was debited by way of Rs. 10,000/- each twice from his savings account held with OP1. The complainant immediately went to OP1 and complained about the same when he was advised by the manager of OP1 to register complaint on the toll free no. of OP1 which the complainant did vide complaint numbers A000848643 and A000848749 the complainant also lodged a written complaints dated 15.07.2014 and 28.07.2014 with OP1 requesting for reversal of wrongly deducted amount and resolution of his problem since he was informed in the interim period on 22.07.2014 by OP1 toll free no. to lodge another complaint since wrong information about the ATM bank had been entered instead of OP3 and therefore the complainant had also lodged a fresh complaint on 23.07.2014 at about 9:15 am vide complaint no. A001350445 and A001350521. However, no action was taken by OP1 in this regard. The complainant also wrote a letter dated 16.09.2014 to OP2 narrating his grievance and inaction on the part of OP1 praying for early resolution of the issue. The complainant vide email dated 16.09.2014 to OP1 and OP2 lodged a complaint with OP1 & OP2 in reply to which, OP1 processed the emails for procuring CCTV footage and informed the complainant vide email dated 17.09.2014 that his complaint has been rejected from OP3 in view of transaction no. 8641 and 8643 made by the complainant on debit card no 5126520032180726 done by him on 03.07.2014. The complainant vide email dated 22.09.2014 to OP1 had asked for CCTV footage of the relevant date and time. Subsequently, in September 2014, complainant was provided with the CCTV footage for the relevant date i.e. 03.07.2014 as procured by OP1 from OP3 but in the said footage, for the period 6:24 am to 6:34 am, the footage was missing whereas in stark contradiction, OP1 had apprised the complainant that the cash was withdrawn between 6:30 am and 6:33 am. Therefore, it was not clear from the said footage as to who received the cash from the ATM of the OP3 once the complainant had left it after failed transactions. The complainant has highlighted email dated 29.09.2014 and 03.10.2014 in this regard and requested OP1 for detailed necessary action and detailed enquiry on the same. In reply to the said email, OP1 vide email dated 17.10.2014 to the complainant informed him as per update received from OP3 particular time footage was only available at site. OP3 vide reply mail dated 13.10.2014 to query email dated  03.10.2014 by complainant regarding missing footage in the CCTV CD informed him that ATM cash withdrawal dispute have to be raised by affected customer with their banks only and asked the complainant to raise his query with OP1 & OP2 to whom only shall OP3 provide any information for query so raised. Nonetheless despite being in regular contact with OPs between September 2014 and October 2014, no resolution of complainant’s grievance was given by either of the OP2 and therefore as a last resort complainant was constrained to filed the presence complaint against OPs praying for issuance of direction against the OPs to refund the wrongly deducted amount of Rs. 20000/- with interest and also  compensation of Rs 50000/- for mental agony, harassment and monetary loss suffered by complainant due to negligence of OPs and Rs. 11000/- towards cost of litigation.
2. Complainant has attached copy of letter dated 15.07.2014, 28.07.2014 and 16.09.2014 written to OP1 & OP2 duly received by said OPs, copy of service of email correspondence between complainant and OPs from 16.09.2014 to 13.10.2014 regarding CCTV footage and time period misgiving from the said footage and transaction in dispute and copy of JP log for transaction no 8641 and 8643 for withdrawal of Rs. 10000 each from complainant’s account between 6:30 am and 6:33 am and copy of  passbook entry highlighting the disputed withdrawal and CCTV footage CD alongwith certificate under section 65B of Indian Evidence Act.
3. Notice was issued to the OPs on 10.03.2015. OP3 entered appearance and filed written statement vide which it took the preliminary objection that the transaction details clearly shows that Rs. 10000 each was withdrawn from complainant’s account first at 6:30 am and then 6:33 am and as per JP log both were successful which showed that ATM machine functioning properly contrary to complainant’s allegation. OP3 submitted that in its defence vide email dated 13.10.2014, it had asked the complainant to raise the query through OP1 &OP2 in terms of RBI guidelines. OP3 placed reliance upon ATM balancing report for the relevant date filed as annexure OP3/A vide which no excess cash had been found in its ATM machine for the relevant date i.e. 03.07.2014 and therefore prayed for dismissal of the complaint for no cause of action and for no deficiency of service. OP1 & OP2 did not appear despite several opportunity granted to them post receipt of notice and handing over complete paper book on 07.05.2015 and were therefore proceeded against ex-parte vide order dated 08.10.2015.
4. Rejoinder in rebuttal to defence taken by OP3 was filed by the complainant vide which complainant submitted that OP3 has admitted the complainant having access in its ATM machine on 03.07.2014 but the CD of CCTV footage supplied by it clearly shows that the complainant had not received any money therefrom till he remained inside the ATM machine booth in which he remained from 6:19 am to 6:26 am after failing to withdraw the money. The CCTV footage from 6:27 am to 6:33 am was missing and it was during this period that the suspicious transactions allegedly took place and complainant alleged that the fact that OP3 failed to provide CCTV footage for 6:30 am to 6:33 am clearly shows that OP3 was holding material record from this Forum. Complainant further stated that contrary to OP3’s submission of the subject transaction having been successful at 6:35 am, CCTV footage supplied to the complainant showed none was present in the ATM of OP3 between 6:30 am to 6:34 am to on 03.07.2014. Complainant disputed the authenticity of the ATM balancing report filed by OP3 as the same was not signed and verified by any supporting material and averred that all the said discrepancy was nothing but clear cut deficiency of service on the part of OP3. Therefore complainant prayed for relief claimed.
5. Evidence by way of affidavit was filed by complainant exhibiting the documents placed on record / relied upon as Ex CW1/A to EX CW1/E.
6. Evidence by way of affidavit was filed by OP3 sworn by its senior manager and head ATM Channel Management Centre.
7. OP1 & OP2 appeared on 08.03.2016 and filed copy of order dated 26.02.2016 passed by Hon’ble SCDRC Delhi in RP. No 113/15 vide which the ex-parte order dated 08.10.2015 passed by this forum setting aside the said order and reinstating defence of OP1 & OP2. OP1 & OP2 filed written statement vide which the OPs while admitting the factum of complainant holding savings account with OP1, took the preliminary objection of both transaction of Rs. 10000/- each made by complainant through ATM machine of OP3 were successful and raised objection that the CCTV footage as was informed by OP3 itself to OP1 & OP2 of not being in order at the point of time when the money was withdrawn from the said ATM between 6;15 am to 6;30 am on 03.07.2014. OP1 & OP2 resisted the complaint on grounds that it had taken due cognizance of the grievance raised by the complaint on its toll free no and also informed its dealing department abut the same but had no authority to decide the case when the complaint was made. OP1 & OP2 submitted that the CCTV footage whether available / not available or ATM machine working / not in order was the business of OP3 not of OP1 & OP2. OP1 denied having received any CCTV footage from OP3 and submitted that for this reason it was for OP3 to redress the grievance of the complainant. Therefore for defence as taken, OP1 & 2 prayed for dismissal of the complaint.
8. Rejoinder to the defence of OP1 & 2 was filed by the complainant vide which complainant submitted that he could not withdraw money from the machine of OP3 as is clearly from CCTV footage also and submitted that OP1 & 2 took no serious action to resolve his grievance and the inaction on their part is clear from their failure to provide the CCTV footage of the ATM machine of OP3 for the period between 6:30 am to 6:33 am and that the CCTV footage is missing from the period 6:27 am to 6:34 am and not 6:24 am to 6:34 am as stated in its complaint. Further lastly complainant submitted that as per the CCTV footage supplied to him none was present in the ATM booth of OP3 between 6:34 am to 6:40 am on the relevant date i.e. 03.07.2014. Therefore complainant prayed that all OPs were jointly and severally liable to compensate the complainant.
9. Evidence by way of affidavit was filed by OP1 & 2 sworn by senior manager.
10. Written arguments were filed by all parties in reassertion / reiteration of their respective grievance / defence.
11. We have heard the arguments and carefully perused the record filed before us. The debit entries of Rs. 10,000/- each twice vide transactions no 8641 and 8643 on 03.07.2014 is clearly established from JP log filed by complainant the said debit entries have also been admitted by all OPs. The dispute is whether the money was actually received by the complainant or not since he has denied receiving the same and OPs claimed it to be disbursed / dispensed by ATM machine of OP3 on scrutiny JP log, we have observed that after the transaction no. 8637 made on 03.07.2014 at 6:26 am for balance enquiry by somebody, the very next transaction is at 6:30 am bearing no. 8641 and thereafter at 6:30 am bearing transaction no 8643 of complainant’s debit card of his savings account held with OP1. Therefore, it implies that either there was no transaction in the ATM machine of OP3 after 6:26 am till 6:30 am or the same did not get recorded by the camera installed. Moreover, the transactions no.s have jumped three in sequence and there is no transaction no. 8642 between the complainant’s two alleged transactions 8641 and 8643 between 6:30 am to 6:33 am. However it does not reconcile or match with the CCTV footage submitted by OP3 since in the said footage complainant has been seen to be entering the ATM booth of OP3 at 6:19 am and exiting the booth at 6:26 am after several failed attempts to withdraw money. Therefore, there is a big question mark on the ‘success’ of two transactions and timings thereof which are in contraindication between JP log and CCTV footage. Further from the angle of the camera, it is clearly seen that no money came out of the ATM machine of the OP3 and the footage is missing from 6:27 am to 6:33 am. The emails dated 29.09.2014 and 03.10.2014 by complainant to OP1 & OP2 attain relevance in this regard wherein the complainant had raised his concern of missing footage from 6:27 am to 6:34 am. Further, the JP log filed / relied upon by OP3 is incomplete document as it does not reflect any transactions before and after the complainant’s alleged transactions no 8641 and 8643 and particularly missing from the JP log are transactions 6:19 am onwards till 6:26 am when the complainant claims to have entered the ATM booth and exited it. None of the OPs has filed either the Switch Report or cash reconciliation sheet or complete JP logs which are mandatory requirements and recognised / admissible defence for the bank in disputed ATM transaction cases to establish a successful or a failed transaction as the case may be. OP1 & OP2 are service provider to OP1 to complainant in capacity to complainant holding savings bank account with OP1 and cannot shirk its responsibility and duty towards its customer but we observe that it failed to discharge its duty towards him. No documentary evidence has been filed by OP1 & OP2 in the present case in sheer act of callousness and irresponsibility towards the complainant. OP1 & OP2 also failed to place on record any enquiry report or any documentary evidence despite knowledge of relevance / importance of such documents. On perusal of JP Log filed by the complainant, it is seen that between 06:26 am and 6:30 am transaction No. 8637 and 8641 respectively took place meaning thereby that there were no transactions in the ATM of OP3 for four minutes between transactions no. 8637 and 8641 and thereafter the transaction no. 8643 is at 6:33 am after which no transactions records can be seen as have not been filed. The complainant had already exited the ATM booth of OP3 at 6:26 am and therefore the JP log does not match with the footage and even otherwise it does not bear any stamp or seal or signature of the issuing authority i.e. OP3 and its authenticity is highly doubtful.

The bald assertion made by OPs of complainant’s transaction as being successful is defeated on the concept of ipse dixit (an assertion made without proof). OP3 did not come forth with any defence by way of any investigation or assistance extended to OP1 & OP2 for any enquiry made in this regard and also whether its ATM machine or the CCTV was defective or functional for the relevant time period between 6:19 am to 6:35 am for the relevant date 03.07.2014.

We, therefore, find all OPs deficient in service in having failed to address the problem of the complainant and find merit in the case of complainant and give him benefit of doubt in the absence of any cogent evidence or enquiry report or the requisite documents in the nature of comprehensive EJ Log, Switch Report, Cash Reconciliation Report filed by any of the OPs.

12. We accordingly hold all OPs guilty of deficiency of service for failure to redress the grievance of the complainant and direct the OP1 & OP2 to credit the sum of Rs. 20,000/- wrongly debited from his account. OP1 & OP2 shall be at liberty to recover the said amount from OP3 as per guideline of Reserve Bank of India. We further direct all OPs jointly and severally to pay a sum of Rs. 5,000/- as compensation towards mental harassment inclusive litigation charges to the complainant. Let the order be complied by all OPs within 30 days from the date of copy of receipt of this order.
13. Let the copy of this order be sent to both parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
14. File be consigned to record room.
15.  Announced on  20.03.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member