Delhi

North East

CC/112/2014

Sh. Sushil Kr. Pandey - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

29 Jan 2016

ORDER

CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE, NAND NAGRI, DELHI-93

 

CORAM:        Hon’ble President Sh. N.K. Sharma

                        Hon’ble Member Sh. Nishat Ahmad Alvi

 

In the matter of:

Sh. Sushil Kumar Pandey

S/o Late Sh. Kamla Shankar Pandey

R/o B-50/4, Gali No.4, Phase-10

Shiv Vihar,Karawal Nagar,

Delhi-110094.                                                                                   Complainant

Versus

1.         Punjab National Bank

            Through Branch Manager,

            Branch Yamuna Vihar,

            C-Block, Yamuna Vihar,

            New Delhi-110053

2.         Punjab National Bank (ATM)

            TBD HO, Level-9,

Antrisha Bhawan,

22, K.G. Marg,

New Delhi-110001

3.         Punjab National Bank (MARD)

2^nd Floor, Rajindra Bhawan

Rajendra Place,

New Delhi-110008

4.         Sagar And Co. (Shopping Mall),

            G/18, Preet Vihar,

Delhi-110092.                                                                    Opposite Parties

 

Order

                                                                                                                                         DATE OF INSTITUTION : 24-03-2014

DATE OF DECISION : 29-01-2016

 

Sh. N.K. Sharma, President

Sh. Nishat Ahmad Alvi, Member

                                                                   

1. As per complaint complainant, ATM holder of OPs 1 to 3 on 26.03.2012 at about 6.15, went to ATM ID No.HA487200 of OPs situated at Maujpur Chowk ,for withdrawal of amount of Rs.5,000/-.  The transaction was successful and said amount was made available to the complainant. But neither any slip nor any SMS regarding the said transaction was received by complainant. At the particular time available balance in complainant’s account was Rs. 96,286/-.  Complainant issued a cheque bearing NO.36219 dated 28.03.2012 for a sum of Rs.90,000/- to his friend for purchase of a property but the same was dishonoured by the bank.  On receipt of information whereof complainant approached the OP bank, for knowing the reason of dishonor, and it was revealed that various illegal transactions were carried out, by unknown person through, various ATM transactions as well as shopping from OP 4, on 26.03.2012.  Immediately complaint on customer care number was made by the complainant on which the official who attended the call assured that a credit entry of Rs.84,323/- will be made, in the account of the complainant, within 72 hours..  ON 29.03.2012, the complainant again contacted OPs at its toll free number requesting to provide CCTV footage wherefrom it was again assured that the amount shall be returned. But to no avail.  Complainant lodged, PCR call on 100 number, approached P.S. Bhajan Pura, P.S. Jafrabad and Crime Branch, Birla Mandir, New Delhi and also a written complaint dated 29-3-12 to DCP, Mandir Marg, New Delhi.  When till 04.04.2012 no action was taken by the bank again a written complaint dated 04.04.2012 was sent which was also not responded to by the Bank. Complainant approached to OP Bank on various occasions but the concerned officials of bank did not listen to the requests of the complainant.  The OP bank provided, neither CCTV footage nor ID of suspected person who made two different shoppings from OP4 on 26.03.2012.  The complainant had made RTI dated 10.04.2012 to the bank.  As per reply of RTI dated 17.05.2012 issued by OP2 “The upper limit of cash withdrawal for our customers, from ATMs, is Rs.25,000/- per day”.  The complainant states that through his ATM, transactions of Rs. 84,323 took place in one single day i.e. 26-3-12.  Alleging negligence and deficiency in service by OPs and harassment, complainant has prayed to direct the OP bank to credit/refund a sum of Rs.84,323/- with 18% p.a. interest till realization, to the complainant. Complainant has also prayed for damages of Rs.1,00,000/- and litigation cost of Rs.11,000/-.
2. After notice, OP1, 2 & 3 by filing its reply took two preliminary objections. Firstly complaint is time barred. Secondly as fraud is alleged and recovery of money is sought descriptive evidence and enquiries are required which can be conducted in the Criminal & Civil courts only and not in summary of trial of this forum.  
3. On merits while admitting the complainant as it’s ATM card holder, OP has denied the date of withdrawal of Rs. 5,000/- as 26-3-12 further submitting that the said sum was withdrawn on 25-3-12 vide transaction on. 992 from its ATM at Maujpur. On 26-3-12 complainant was having available balance of Rs. 32,063/- in his account. Alleged cheque of Rs. 90,000/- on 28-3-12, its dishonor and memo of dishonor is not admitted by OP alleging the same as a concocted story of the complainant. Complainant has neither filed the said cheque and memo of alleged dishonor nor disclosed the name of banker, of his friend, through whom the cheque was presented. Even otherwise it was not possible that in one single day the cheque was presented, dishonored and memo of dishonor of cheque was issued.  Allegation of illegal transaction, through ATM or shopping from OP4 on 26.03.2012, by unknown person is also denied by OP1 to 3. As per OPs 1 to 3 complainant withdrew Rs.20,000/- vide two transactions being Nos 697802 and 697580 of Rs. 10,000/- each from ATM ID No. STCH9067 plot No. 129, Rajput morh (ICICI) on 25.03.2012. On 25.3.12 itself shopping of Rs. 39,223/- was also done by the complainant from OP4. Again on 26-3-12 complainant withdrew Rs. 25,000/- in two transactions of Rs. 15,000/- and Rs. 10,000/- vide transaction Nos 4090 and 4089 respectively from its ATM ID No. 8487200 situated at C-216 Gali No. 7 Main Road Brahmpuri, Delhi. All these transactions dated 25.03.2012 and 26.03.2012 have taken place through the ATM and shopping card NO. 5126520024000130 owned and possessed by the complainant. Allegation of contacting to, and assurance given by, OP’s officials, for crediting Rs.84,323/- in complainant’s account is also denied by OPs.  The complainant never informed the OP bank about any cash withdrawal through ATM and has not sent any written complaint on 04.04.2012. He has moved only an application dated 4.4.12 under RTI Act which was replied by the bank.  Complainant has not lodged any FIR of the alleged fraud committed through its ATM. Regarding CCTV footage it is only OP4 who has to provide the same.
4. Admitting its reply of RTI, thereby stating that Rs. 25,000/- is withdrawal limit in a day, OPs 1 to 3 have submitted that it does not include shopping. OP has shown transactions taking place in following manner:-

 

Amt of Withdrawal	Transaction No.	A.T.M. ID	Value Date	Transaction Date
Rs. 5000/-
Rs. 10000/-
Rs. 10000/-
Rs. 15000/-
Rs. 10000/-

 

5. As per OP1 & OP3, date of withdrawal of  Rs. 25,000/- is 25-3-12, and of Rs. 25,000/- is  26-3-12, but complainant intentionally not filed ATM slips to conceal date of transactions. As the system remained closed on 25.03.2012, being Sunday, entry regarding transactions dated 25.03.2012 (value date) including purchases from OP4 was completed by computer system on 26.03.2012 only.  While admitting receipt of Rs. 5,000/- and denying other transaction complainant has nowhere taken any plea of misplacement, or lodged any FIR for misplacement, of the ATM card. There is also no explanation by the complainant as to how the ATM card was misutilised by some other person or how it reached to one Mr. Vikas Sharma on 26-3-12. This shows that either the complainant was negligent to the security of ATM card or the card was used by some third person with the consent of complainant.                                                                                                                                                                                                                                                                                                                                               
6. OP4 in its reply, denying the allegations in complaint, states that it has received the amount against shopping of the goods under due receipt, in ordinary course of business and bonafide, after verifying all the records. There is no privity of contract between OP4 and complainant. Hence OP4 is not liable for alleged transactions, to complainant. Bonafide of complainant is also doubtful as on the one hand he is stating that his bank account has been hacked and used by somebody, while on the other hand he has neither lodged any police complaint nor got the operation of his account stopped. On merits OP4 states that complainant has concealed the fact that his mobile No. is registered with the bank. In that case if massage of alleged illegal transactions were not received on his mobile why he did not complain for it. Cheque enclosed is shown issued for self which cannot be utilised by some other person than the complainant himself or by any other person known to him. Regarding complaint dated 29-3-12 it nowhere mentions about any misplacement of ATM card. CCTV footage was never asked for by complainant from  OP4.
7. By filing rejoinder, the complainant denied all the averments made by the OPs and reiterated the contents of the complaint and reiterates for prayer made in the complaint therein. 
8. Affidavits in evidence filed by the parties.
9. Heard the parties and perused the record.
10. Record show cause of action arose on 26-3-12, the date when fact of withdrawal of money came to complainant’s knowledge while complaint is filed on 24-3-14 thus it is not time barred. Regarding jurisdiction, complainant has taken plea of deficiency in service also on the part of OPs which this forum is very much empowered to deal with.

On merits going through the application under RTI as well as its reply it is made clear that complainant has contacted customer care helpline of OP No 1,2 &3 on 26-3-12 two times and thereafter on 21-4-12. Thus, plea of OP of no complaint is false. But we find no written complaint to OP1 to 3 of alleged withdrawal on record. Complaint dated 29-3-12 lodged  to DCP, P.S. Mandir Marg, New Delhi wrongly show that it was only on bouncing of cheque of Rs. 90,000/- that complainant came to know about withdrawal of Rs. 84,323/- by somebody else. It is also wrong to say that only thereafter complainant has reported the same to the OPs Branch Manager leading to closure of account. However, nowhere complainant states that his ATM card was lost or misplaced. RTI application to OP1 dated 4-4-12 annexure C5 also nowhere states that the ATM card was misplaced. But as per RTI and its reply complainant’s knowledge of, withdrawal of money as well as shopping is established. It is also established that complainant was having knowledge that some other person has done the shopping and card was in the possession of some other person, who also requested to block the card. RTI annexure C6 show that CCTV footage of the particular withdrawal was sought by the complainant from OP 1,2,3 but the same was not provided to the complainant. As per reply of RTI dated 17-5-12, 12-6-12 and 21-6-12 being annexure C 7,8,9 respectively, it is shown that OPs 1 to 3 have provided complete details of the transactions under dispute including shopping. OP4 has also placed on record copy of retail invoice dated 25-3-12 issued by it for sale of product to some Mr. Prem Kumar against payment of Rs. 39,232/-. However name of the person who called and told OPs on 26-3-12 that he has found the Debit Card is one Mr. Vikas Sharma and on whose request the service of the ATM was withdrawn. With respect to cheque of Rs. 90,000/- allegedly issued in the name of friend of the complainant, complainant neither filed any such cheque or return memo nor any detail of the banker of his friend. Copy of cheque placed on record is a self cheque dated 29-3-12. As per reply of query No. 2 in annexure C7 it is clear that Rs. 25,000/- were withdrawn on 25-3-12 and Rs. 25,000/- on 26-3-12. Retail invoice of OP4 show that the purchase on his shop was made on 25-3-12. Passbook entry show that OPs have charged Rs. 100/- against bouncing of cheque on 28-3-12 but no further details.

On the basis of aforesaid discussion we are of the view that complainant was in the knowledge of withdrawal of cash as well as shopping through his ATM immediately after the transaction. Immediately complainant has lodged a complaint and OPs 1,2 &3 immediately responded on the complaint and blocked the ATM, though on the request of any 3^rd person. All the queries made to OPs 1,2 &3 through RTI were also replied by the OPs without any unnecessary delay but providing CCTV footage. There was no access withdrawal in a day against authorized limit. Complainant’s not lodging complaint of loss of his card and consequent withdrawal and shopping raises a question on the bonafide of complainant himself. Thus story of issuing of cheque of Rs. 90,000/- seems a concocted one and cannot be relied upon.

11. On the basis of aforesaid findings we are of the view that though the ATM card might have lost/misplaced and fraudulently used by some third person or got used by complainant himself through some other person with malafide intention but there is no deficiency on the part of OP1 to OP3. Regarding OP4 since there is no privity contract between itself and complainant, it is not liable for the said transactions.
12. Accordingly, there being no deficiency/liability on the part of any of the OPs complaint is dismissed having no merits. No orders as to cost.
13. Let a copy of this order be sent to each party, free of cost, as per regulation 21 of the Consumer Protection Regulations, 2005. 
14. File be consigned to record room.

 

15. Announced on  29-01-2016  

 

 

       (N.K. SHARMA)                                                (NISHAT AHMAD ALVI)

         PRESIDENT                                                             MEMBER