Delhi

North East

CC/111/2014

Smt. Geeta Devi - Complainant(s)

Versus

SBI - Opp.Party(s)

04 Oct 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. 111/14

 

In the matter of:

	Geeta Devi W/o Shri Veersain R/o H-114, Gali No.8, New Ganga Vihar, Gokulpuri, Delhi-110094.	Complainant
	Versus
1.     2.	SBI Bank Gokulpuri, Delhi-110094.   Axis Bank Ltd C-1/12A, Ground and 1st Floor,                 Yamuna Vihar Delhi-110053.	Opposite Parties

 

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

21.03.2014 12.09.2018 04.10.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated, the case of the complainant is that she is an account holder of OP1 bank (SBI), Gokulpuri Branch bearing  no. 32950454365 and holder of debit card bearing No. 4591 5101 1007 7703. On 01.02.2014 complainant went to the ATM of OP2 at around 06:30 PM to withdraw amount of Rs. 5,000/- but despite accessing the ATM card several times, could not withdraw the said amount and the ATM machine displayed ‘SORRY FOR TRANSACTION’ despite showing ‘TRANSACTION SUCCESSFUL’ whereas no cash or transaction slip was received by the complainant from the ATM machine of OP2. The complainant further stated that since she did not have a personal mobile phone and did not know how to use it, she took somebody assistance to call up the helpline of OP2. However the helpline informed her that her card number was incorrect and asked her to contact her account holding bank i.e. OP1 which the complainant could not contact on 1^st and 2^nd February 2014 due to weekend holidays. On 3^rd February 2014, complainant visited the OP1 bank and lodged a complaint with the officials of OP1 who assured her that the debited amount of Rs. 5,000/- shall be credited back in her account within next 1 or 2 days and that OP1 complaints branch had written to OP2 asking for clarification and submission of his report within next 7 to 10 days failing which the complainant can come to OP1 bank and take her money. However, thereafter the complainant repeatedly visited the OP1 for claiming the credit of wrongful debit but was repeatedly answered ‘Successful Transaction’ through computerized reply. The complainant, being dissatisfied with the response of OP1, wrote an e-mail to which vide response from OP2, the complainant received computerized ‘No Excess Cash Certificate, Cash Tally Report and J.P. Log’ from OP1. Complainant had repeatedly asked for CCTV footage of ATM machine from OP2 but to no avail. Therefore the complainant was constrained to file present complaint before this Forum praying for issuance of directions to the OPs to remit the wrongful debit of Rs. 5,000/- back to her account with OP1 and directions to OPs to pay Rs. 20,000/- as compensation for physical, mental and financial hardship faced by the complainant.

The complainant has attached copy of online complaint dated 03.02.2014, copy of J.P. Log, copy of e-mail dated 14.02.2014 from OP1 to OP2 requesting for provision of no excess cash certificate, cash tally report and J.P. Log, copy of passbook alongwith relevant disputed entry / debit of Rs. 5,000/- on 01.02.2014, copy of debit card.

The complainant filed authority letter dated 01.05.2014 in favor of her relative Shri Rajender Kumar to persue the said complaint on her behalf.

2. Notices were issued to the OPs on 26.03.2014 and OPs entered appearance on 01.05.2014 when copy of complaints supplied to them for filing written statement. Written statement was filed by OP2 on 26.05.2014 in which it took the preliminary objection that in view of the complainant being account holder of OP1 and having being provided its ATM card, the complainant was not a customer of OP2 even though she was using the ATM of OP2 for withdrawing money and there was no privity of contract between complainant and OP2 and therefore the complainant was not a consumer qua OP2. OP2 denied the allegations made by the complainant of wrongful debit of Rs. 5,000/- and her contention of cash not having being dispensed by the ATM machine of OP2 in light of the records which showed that on 01.02.2014 at 18:30 hours, the complainant operated her OP1 bank ATM card at OP2 bank ATM machine at Indra Encl Ghaziabad for withdrawal of Rs. 5,000/- which transaction bearing no. 937 was successful carried out and the amount of Rs. 5,000/- was dispensed to the complainant corroborated by Electronic Journal File which is the final proof of the authenticity of the transaction accepted across the world by all banks which cannot be manipulated since the ATM machines are supported by highest technology and excellent surveillance and never fail to show the correct deposit or withdrawal. The OP2 further submitted that in respect of sharing of ATMs with different banks, the banks have laid down procedure and systems for ATM transactions reconciliation to avoid fraud and to protect the interest of customers vide which the bank of the aggrieved party should lodge a complaint with the other bank whose ATM machine was used to effect the transaction. The OP2 further submitted that in the ATM cash withdrawal the transaction can be effected only by using original debit card and confidential PIN number known only to the customer and assuming not admitting that the complainant had not use the said debit card, somebody having close relation with the complainant may have used the said debit card and confidential PIN number to withdraw the amount in question in act of mischief. The OP2 further contended that there is a general printer in the ATM machine which records each and every transaction done through the ATM which are full proof system with reconciling accounts and the four digit combination of PIN is such that it is virtually impossible for a fraudster to crack it and entering the wrong PIN thrice would result in rendering the card unusable for next 24 hours thereby implying that without knowledge of the unique PIN number, no way any fraudster could have use the complainant’s card at any ATM for cash withdrawal. Therefore in light of the above submissions the OP2 submitted that the evidence and technical details of the transaction confirms beyond reasonable doubt that the complainant had indeed received the disputed cash amount of Rs. 5,000/- from its ATM and there was no deficiency of service or unfair trade practice giving rise to any cause of action against OP2 due to which reason the complaint is liable to be dismissed. In addition to the written statement filed by OP2 the OP2 placed on record the CCTV images provided by its ATM cell in form of photographs which clearly showed that the complainant Mrs Geeta Devi was not present at the time of ATM cash withdrawal rather some other person was using the card and executing the transaction on 01.02.2014 at the relevant time 18:31. The OP placed on record J.P. Log, Cash Balancing Report, ATM Balancing Report, Switch Report alongwith the written statement.
3. The complainant filed amended complaint in 21^st July 2014 in which the complainant stated that the ATM of OP2 was accessed on 01.02.2014 by the complainant’s brother in law when he had gone to withdraw the money and since the complainant was also in need of money and there was no ATM nearby her residence and she did not know how to operate the same, she went alongwith her brother in law to the ATM of OP2 and was present when the transaction in question was been done since prior to the transaction no. 937 which is the cause of dispute in the present complaint, transaction numbers 934 and 935 were done by the complainant’s brother in law to withdraw Rs. 20,000/- each there against. On the failure of the disputed transaction the complainant’s brother in law called up the OP2 customer care number and had also accompanied the complainant on 03.02.2014 to meet the Bank Manager of OP1 and the complaint lodged by the complainant also bears the signature of her brother in law who is pursuing the present complaint on behalf of the complainant due to her being illiterate. Lastly the complainant prayed for issuance of directions to OPs to file ATM videography and to remit / credit back the wrongful debit of Rs. 5,000/- back to the account of the complainant alongwith damages.
4. Written statement was filed by OP1 in which OP1, while acknowledging the complainant maintaining her saving bank account with OP1 against which she had been issued an ATM card, took the defence that OP1 is only recipient of the amount if excess cash is found in ATM of other bank whose ATM is used by the complainant and in the present case after the complaint was lodged by the complainant with OP1, the OP1 had forwarded the same to OP2 for resolution and OP2 had informed OP1 that the transaction undertaken by the complainant was successful and no excess cash was found. However no CCTV footage was provided by OP2 bank to OP1 despite request. OP1 further took the defence that accuracy of transaction in ATM system is ensured based on electronic data and in case of any discrepancy or malfunctioning of ATM, the same is duly verified. In the present case as per information received from OP2, not only was the transaction successful but also there was no malfunctioning of ATM reported and no excess cash was found in the concerned ATM as per EJ Log and transaction enquiry and OP1 cannot be held liable for any unauthorized use of ATM card or passing of PIN number to someone else. OP1 further took the plea that its role was limited as recipient bank of the amount if any as no cause of action arose against OP1 or deficiency of service attributed against OP1. Lastly, OP1 urged that the complainant had used the ATM of OP2 and therefore OP1 had no role in the transaction pertaining between complainant and OP2. OP1 placed on record the copy of complaint alongwith series of e-mails exchanged between OP1 and OP2 from 13.02.2014 to 07.05.2014 with respect to requisite document and CCTV footage pertaining to the disputed transaction.
5. Evidence by way of affidavit was filed by the complainant reiterating her grievance made in her complaint.
6. Evidence by way of affidavit was filed by OP1 and OP2 exhibiting documents in support of their respective defence. OP1 in its evidence stated that it had requested OP2 vide e-mail dated 06.05.2014 to provide CCTV footage which is still awaited. OP2 in light of the exhibit ATM Log / EJ / ATM Cash Balancing Report and ATM Switch Report urged that the alleged disputed transaction of Rs. 5,000/- was successful since the complainant had allowed some outsider to operate the said ATM on her behalf and since the documents are the final proof of authenticity of transaction excepted worldwide, it cannot be manipulated or doubted in any manner and prayed for dismissal of the present complaint.
7. Written arguments were filed by the complainant and OPs in reiteration of their respective grievance / defence. OP2 placed on record the judgment of Hon’ble National Commission in Chenaram Vs Oriental Bank of Commerce & Anr. II (2016) CPJ 613 (NC) in which the Hon’ble National Commission had held that since the complainant had no account with SBBJ, he was not a consumer of that bank and had no privity of contract with it and therefore was not entitled to approached the District Forum against the SBBJ by way of consumer complaint.
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.

From the passbook entries filed by the complainant with respect to the account held by her with OP1 bank, it is clear that amount of Rs. 5,000/- was debited from the account of the complainant on 01.02.2014. The same has been corroborated by the passbook entry filed by complainant as well as JP Log / EJ Report filed by OP2. However, the OP2 didn’t provide the CCTV Footage of its ATM to prove whether the complainant had withdrawn the above said money from the ATM.We have screened the JP Log, no excess cash report as well as other documentary evidence which shows that the successful withdrawal of Rs. 5,000/- was made vide transaction number 937 on 01.02.2014 through debit cardnumber 45915101177703 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, no excess confirmation report filed by OP2 which is a computer generated untampered with document.

As far as the role of OP2 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.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 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 OP2 which conclusively establish transaction as successful beyond reasonable doubt, no privity of contract between complainant and OP2 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 her.

9. We therefore do not find any merits in the present complaint as regards to deficiency of service alleged against OP1 & OP2 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 04.10.2018 

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member