Delhi

North East

CC/229/2014

Suraj - Complainant(s)

Versus

SBI - Opp.Party(s)

03 May 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.229/2014

 

In the matter of:

 

	Shri Suraj E-4/16, E-4 Block, Fourth Pushta, Near Sagar Market, Sonia Vihar, Delhi 110094	Complainant
	Versus
	State Bank of India C-1/5-A, Yamuna Vihar, Delhi-110094	Opposite Parties

 

	DATE OF INSTITUTION:	13.06.2014
	RESERVED FOR ORDER:	19.04.2018
	DATE OF DECISION:	03.05.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member:-

 

ORDER

1. In this complaint, the complainant was holding a saving bank account no. 33315972012 and was also holding a master card ATM bearing No. 5196190094615962 having available balance of Rs. 28,376/- on 16.04.2014. It has been submitted by the complainant that he had last used his ATM Card on 13.04.2014 and not thereafter for any transaction. On 12.05.2014, he wanted to withdraw some amount through his ATM Card but it was revealed that there was no cash in his account. Accordingly, the complainant met the manager of the bank, who told him that on 16.04.2014, three transactions were carried out from his account through ATM at Axis Bank, Sabzi Mandi, Panipat, Haryana for a total amount of Rs. 25,000/- (10,000 + 10,000 + 5,000 on 16.04.2014). The complainant has submitted that he was shocked and surprised to hear this since he had neither visited Panipat nor given his Master Card/ ATM Card to any other person for the disputed transaction of Rs. 25,000/- and had not even received any SMS on his mobile with respect to these withdrawals on 16.04.2014. Therefore, on the same day, he lodged a written complaint with OP1 on 12.05.2014 and was assured by the Manager of OP1 Bank that a credit entry / refund of Rs. 25,000/- will be made in the account of complaint within 7 days as per RBI guidelines. Thereafter, the complainant visited the OP on several occasions for credit reversal / refund of failed transactions amount but concerned officials of the OP didn’t listen to his request. The complainant also requested OP1 to provide the bank for cash reconciliation statement, JP Log for said concerned Axis Bank, statement of date and amount of cash filled up in the machine immediately before disputed transaction., the date and amount of cash refilled after the said transaction and also the amount of excess cash, if any, found in the said machine when it was first opened after the said disputed transaction alongwith CCTV footage of the concerned machine with related time and date. The OP1 told the complainant that they had lodged the claim before acquiring bank (Axis Bank) vide their email but to no avail. It has been further submitted by complainant that since he didn’t receive any reply from OP1 regarding credit or rejections of the claim, he lodged written complaint dated 20.05.2014 to the Police Station Sonia Vihar and OP1 requesting to credit the disputed amount. The OP1 supplied JP Log and Email communications dated 20.05.2014 and 21.05.2014 with the acquiring bank but the complainant didn’t receive CCTV footage of the ‘failed transaction’ and other necessary documents related to the transaction from the OPs till date. Since, the OP1 has not taken any action and had been negligent to his request for credit of disputed transactions and as such the services of the OPs have been grossly deficient within the meaning of section 2(1) (c)(g)&(e) and other relevant provisions of the CPA, the complainant vide the present complaint has prayed to this Forum to direct the OP1 to credit / refund a sum of Rs. 25,000/- to the complainant with interest @18% from the date of disputed transaction till its realization and also issue directions to OPs to pay an amount of Rs. 50,000/- as compensation for the mental agony, harassment and damages suffered by complainant alongwith litigation cost of Rs. 11,000/- to be paid to complainant by the OP1. It has been further prayed for issuance of directions to all banks to make separate mechanisms for disbursement of slip/ receipt even though the ATM machine hanged, power failure or not made successful transaction and also to preserve the CCTV footage of the concerned machine with related time and date of the disputed transaction and also record about the transactions lodged and footage when it was first opened after the disputed transaction, for cash refilled, covering the footage of internal and cash balance tray.
2. The complainant has attached a photocopy of the Master Card / ATM Card, copy of passbook showing statement of account with OP1, copy of written complaint dated 12.05.2014 to OP1 and 20.05.2014 to PS Sonia Vihar, copy of JP Log and Email communications in support of his claim/complaint against the OPs.
3.  A notice u/s 13 CPA 1986 was issued on 18/19.06.14 to OP1 for hearing on 22.07.2014.  The OP1 took the preliminary objection and submitted in its written statement that the complaint against OP1 was unwarranted and false litigation without any cause of action as it is not a proper party to the complaint and as such the name of OP1 is liable to be deleted from the array of OPs. Further, there is no deficiency in service on the part of OP1, nor there is any role of OP1 in the alleged transactions as claimed by the complainant. The complainant has filed the present complaint with malafide intentions to put undue pressure upon OP1 and to malign its reputation as the alleged transactions took place of ATM of Axis Bank, at Panipat and OP1 is only maintaining the account of complainant having issued the ATM card to him and therefore, the role of OP1 is restricted as recipient of money if excess cash is found in the ATM of OP2. Further, OP1 objected that although the complainant has indicated role of Axis Bank, the memo of parties does not show the name of Axis Bank as OP2 and as such the complainant is liable to amend the complaint. Accordingly, in the absence of OP2 the matter cannot be decided effectively. OP1 further submitted that accuracy of transactions in the ATM system is ensured on the basis of electronic data and in case of any discrepancy or malfunction of ATM, the same is duly verified which the OP1 had pursued by way of complaint with Axis Bank and it was informed by Axis Bank that the transactions in question was successful as per EJ Log and transaction inquiry which has been duly intimated to the complainant and Axis Bank had to revert / rebut to the allegations. OP1 also denied that there is any negligence on the part of OP1 and it is relevant to mention while issuing the ATM Card, general instructions by way of booklet and also on PIN mailer envelop some precautions are mentioned such as first usage of Card at any ATM/ POS amounts to customer acceptance of terms and conditions, no transactions like money withdrawal, balance enquiry, mini statement, POS transactions can be done without ATM-cum-Debit card and secret PIN Number.  Further, the banks bear no liability for the unauthorized use of the card, PIN and the responsibility is fully of the card holder. Therefore, in case of unauthorized use of ATM card or passing of PIN to someone else, the OP bank is not responsible in the questioned transaction. It has been further submitted that due to technical reasons, sometimes SMS alert are not generated and OP1 had requested Axis Bank to provide CCTV footage and no excess cash certificate related to alleged transaction as demanded by complainant to resolve the complaint but the same not provided by OP2. It has been pointed out by OP1 that the complainant at one place has stated that he never went to Panipat and his ATM Card was not used after 13.04.2014 and on the other hand claims that the transactions were failed which is self contradictory statement of made by the complainant. OP1 placed on record copy of complaint  / management system, successful EJ Log of the disputed transactions of Rs. 10,000/-, Rs. 10,000/- and Rs. 5,000/- made through ATM card No. 5196190094615962 vide transactions number 4550, 4551 and 4553 respectively and correspondence with Axis Bank by e-mail on 20^th / 21^st May 2014 regarding CCTV Footage.  
4. No rejoinder was filed by complainant. However, the affidavit of evidence was filed by the complainant wherein the grievance in the complaint was reiterated. Complainant further stated that OP is guilty of gross negligence, deliberate evasion of its duty and responsibilities and the conduct of OP and their officials has been that of “who bothers”. And as such the complaint filed by the complainant may be allowed as prayed.
5. The affidavit of evidence and written arguments were filed by complainant as well as OP1 wherein both the parties have reiterated their respective grievance and defence made in complaint and written statement respectively.
6. On 06.05.2014, the complainant moved an application for impleading Axis Bank (acquiring bank) as OP2 in the array of parties to the present complaint which was objected to by OP1 on grounds of having been moved at a belated stage of arguments. However Axis Bank being a necessary party for adjudication, this Forum allowed the application and issue notice to Axis Bank as OP2 for 03.06.2015. However, notice could not be served on OP2 due to incorrect address and complainant was unable to furnish any other alternate address of OP2 and therefore in pursuance of observations of this Forum vide order dated 26.10.2016, OP2 was deleted from the array of parties vide order dated 19.04.2014.  
7. We have heard the arguments of complainant as well as OP1 in the matter and also gone through evidence put forth by both the parties. From the passbook entries filed by the complainant with respect to the account held by him with OP1 bank, it is clear that amount of Rs. 25,000/- was taken out from the account of the complainant in three tranches of Rs. 10,000/-, Rs. 10,000/- and Rs. 5,000/-  on 16.04.2014. The same has been corroborated by the EJ Log file by OP1  procure from OP2 clearly highlighting the three transaction vide transaction numbers 4550, 4551 and 4553 by which the disputed withdrawals have been made through OP2 Sabzi Mandi Panipat Branch. 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 or not. We have screened the JP Log as well as other documentary evidence which shows that the successful withdrawal of Rs. 25,000/- was made vide three transaction and not ‘failed’. The Hon’ble NCDRC in the case of 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 decided in favour of OP1.
8. 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 approached the District Forum against the ATM machine 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 of 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. Therefore the complainant cannot take shelter of non provision of CCTV Footage to dispute the transactions in the present case.   Therefore, in light of the settled propositions of law regarding documentation filed by OP1 which conclusively establish transactions as successful beyond reasonable doubt, no privity of contract between complainant and OP2 and no mandatory emphasis on CCTV Footage in such cases,   we are of the considered view that the complainant could not established that the withdrawals were 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 OP1 and 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.

(Announced on 03.05.2018)     

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member