DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VII(SW)

[GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI]

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SHAKAR BHAWAN

CASE NO. CC/224/2016

                                                        Date of Institution :  27.04.20166

                                       Order reserved on : 21.04.2023

                                               Date of Order : 11.05.2023     

In the matter of: 

Md Jalaluddin Khan,

S/o Md. Jainuddin Khan,

C/o Assistant Commandant,

CISF Unit, IGI Airport,

New Delhi-110037.

                                                                             ….      Complainant

VERSUS

1. State Bank of India,

Through its Branch Maageer/A.R.

Branch at : Khara No 350,

Bijwasan Road,

New Delhi.                                                   ….     Opposite Party 1

2. The Branch Manager ICICI Bank Limited,

        Branch at Bijwasan,

          New Delhi.                                                   ….      Opposite Party 2

ORDER

(By SH. SURESH KUMAR GUPTA, PRESIDENT)

1. The complainant has filed a complaint under Section 12 of the Consumer Protection Act (hereinafter referred to as Act) with the allegations that he is having a bank account No. 10621809148 with OP-1.  OP-1 has issued an ATM card No. 62201800330001580 to him. The ATM card always remains in his possession.  He is in CISF and posted at IGI Airport, New Delhi.  He was on duty during the intervening night of 01.06.2015 and 02.06.2015. He was surprised to see SMS on his registered mobile No. 9540587637 about the deduction of Rs. 47,566/- through his ATM card from the ATM machine of OP-2. He reported the matter at the customer care center of OP-1 and blocked the ATM vide ticket No 1507270011457209 dated 02.06.2015. He has lodged another complaint with customer care executive vide complaints No. CR1458518603033 and 1458523273126.  All the transactions were dated 01.06.2015 amounting to Rs. 47,566/-.  He was on duty at the time of the said transactions and this fact can be verified from the CCTV footage.  Such incident has also taken place with 21 other CSIF personnel and various amounts were withdrawn through various ATM machines. DIG of his unit called the Manager, SBI, Bijwasan, who advised them to submit an application for disputed transactions. He went to submit the application but the same was not received by the Manager of OP-1.  He was advised to give a complaint to the nearest Police Station.  He has given a written complaint dt 02.06.2015 to SHO, PS Kaparshera as transactions took place at the ATM Booth of OP-2 situated at shop no. 1, MH 8 MR Complex, New R Hotel, Rangpuri, New Delhi.  He has requested the Police to collect CCTV footage for investigation.  A joint FIR No 270/2015 dated 24.06.2015 on behalf of 21 CISF personnel was lodged as P.S., Kapershera by DIG, CISF Unit, IGI Airport, New Delhi. He has also given another complaint dt 17.06.2015 to SHO, PS Kapershera to take the necessary action but in vain. A written complaint dt 11.08.2015 was given to Manager, SBI, Bijwasan to credit the amount in his account but in vain. The letter was also written to Dy. GM of OP-1 but in vain.  He has sent letters & emails to the officials of OP-1 and even visited the Branch Office of OP-2 to do the needful but in vain. Hence, this complaint.

2.  The notice of the complaint was given to OP-1.  OP-1 did not put his appearance despite due service. On 08.06.2016 OP-1 was proceed ex-parte.

3. OP-2 filed the reply with the averments that the disputed transaction has taken place with ATM Card bearing NO 4591520002101156. The said card does not belong to complainant. There is no cause of action in favour of the complainant as complaint is filed on frivolous grounds.

4. The ATM machine of OP-2 was used.  The transactions can be done only by inserting a valid ATM card and PIN number. It is not necessary that the holder of the card must remain present at the time of the transaction as the card can be given to anyone for transaction. The CCTV footage cannot be provided to the complainant as it is confidential in nature. OP-1 has never requested for CCTV footage. The case is old so the CCTV footage is not available with the OP.  There is no merit in the complaint.

5. The complainant has filed the rejoinder wherein facts of the complaint are reiterated and he further added that two ATM cards were issued to him by OP.  The first ATM is Maestro Card (ATM-cum-Debit card) No. 62201800330001580 and this number is reflected in the complaint.  The second Visa ATM card is valid from June 2013-June 2016 but PIN of this card has not been issued so card is lying in the safe custody with him. The second card has not been used by him. The amount has been debited from this ATM card of which PIN was never issued by OP-1.  Another card number has been inadvertently mentioned in the complaint and this is a typographical mistake. The card number is mentioned as 4591520002101156 in all the correspondence with the bank. The opposite parties are liable to refund the amount within 07 days in terms of the circulars and guidelines issued by the Reserve Bank of India as complaints to the Bank and Police were made within 03 days of the transaction.  The averments of the reply are denied.

6. The complainant and OP-2 were directed to lead the evidence.  The complainant has filed his own affidavit in the evidence and corroborated the stand taken in the complaint and rejoinder and relied upon the documents.

7. OP-2 has filed affidavit of Sh. Kewal Verma, AR of OP-2 wherein facts of the reply are reiterated and placed reliance upon the documents.

8. We have heard the Ld Counsel for the parties and pursued the entire material on record including the written submissions.

9. It is clear from the material on record that complainant is having a saving bank account No 10621809148 with OP-1. OP-1 has issued ATM cum debit card bearing No 62201800330001580 to the complainant.  OP-1 has issued another card bearing No. 4591520002101156 to the complainant of which PIN card was never issued to the complainant and said card remained unused. The ATM Card No. 62201800330001580 has been mentioned in the complaint but the card number got rectified in the rejoinder. The Card No. is reflected as 4591520002101156 in the rejoinder by the complainant. OP-1 did not come forward to contest the complaint.  It was for the OP-1 to controvert the version of the complainant that PIN of ATM card No. 4591520002101156 was never issued to the complainant. In the absence of anything contrary on record from OP-1, the version of the complainant is relied upon that Card No. 4591520002101156 was issued to the complainant without issuing PIN No. at any point of time.  The issue qua the Card number is duly clarified by the complainant. The explanation of complainant to this effect is relied upon.

10. The version of the complainant is also relied upon to the effect that transaction has taken place from the Card No 4591520002101156 instead of ATM cum Debit card No. 62201800330001580 and said number has been inadvertently mentioned in the complaint due to some typographical error.

11. The transactions from the Card No. 4591520002101156have taken place on 01.06.2015 and amount of Rs. 47,566/- was deducted from the account of the complainant.  The annexure A2 is the bank account statement of the complainant showing the transactions through ATM. The transaction receipt dated 02.06.2015 from the ATM machine of OP-2 shows that transaction by using ATM card of the complainant has taken place on 01.06.2015. This fact is clear from Annexure 2 & 2A. The complainant has got the ATM card blocked by making complaints to the customer care of OP-1. The complainant has allegedly used the ATM card. The alleged fraudulent ATM transactions have also taken place with 21 other CISF personnel qua which a joint FIR was also lodged which is clear from Annexure 4.

12. The complainant has met the Manager of OP-1 of Branch Kapershera who allegedly did not take the complainant of the complainant and advised him to give complaint to the Police Station Kapershera upon which complainant has given complaint to SHO, PS Kapershera, which is Annexure 5.

13. The complaint dated 11.08.2015, Annexure 6 was given to the Manager, SBI, Bijwasan to do the needful but in vain. The complainant has given complaints to the Bank authorities as well to the Police authorities but in vain. The amount was never refunded back to the account of the complainant.

14. It is correct that withdrawal of money from ATM machine is possible by using ATM card and PIN number which exclusively remain in possession of the holder of the card. The card holder has to swipe the card in the ATM machine and then to command for paying the required amount following the directions of the machine correctly. The machine then dispenses the notes of the said amount from inside.  The transactions are recorded in one’s own individual account and against each ATM transaction. The ATM machines are guarded by security people and CCTV camera.

15. The advancement in the technology has not made the ATM machines fool-proof. ATM machines run with the help of electricity as well as the internet services, the machine is unable to function sometime due to some mechanical defect or power failure or slow internet connection which disturbs the functioning of the machine.

16. In the instant case, the complainant has alleged that he was on duty when the alleged transactions have taken place. The complainant has kept his money in the bank account which is with OP-1.  The bank must take necessary care for the safety of the money of the customers. The complaint was given to the OP-1. The OP-1 should have acted swiftly to ascertain real facts and offer a satisfactory reply to the complainant.  The matter was also brought to the notice of OP-2.  The opposite parties not only failed to respond swiftly but also failed to reply properly to the complainant about the complaints given to him by them. The OP-1 did not come forward to contest the complaint and reply of OP-2 does not suggest that any measures were taken by the bank to satisfy the complainant. No steps were taken by them to resolve the issue. The CCTV footage or hard disk were not examined immediately. The opposite parties have failed to rule out any ATM fraud or any online fraud in this case.  The opposite parties did not lodge a police complaint.  The failure on their part proves deficiency in service.

17. In T.N. Ravi Prakash Vs the Manager, State Bank of Mysore decided on 08.06.2018 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, it was held that “even if the JP Logs are to be believed to be true and the money has been withdrawn by using ATM card, there is deficiency in service on the part of the bank for not producing video footage of this date.  Accordingly, it is not possible to confirm the assertions made by the opposite party bank with respect to withdrawal from ATM by using ATM card of the complainant, particularly when there were more similar cases as observed by District Forums and when the respondent banks has not  properly investigated the matter. In this way clearly the opposite party bank is deficient in its service for not maintaining and providing video footage of this date and for this deficiency, at least the complainant is entitled to get compensation”.

18. Keeping in view the aforesaid discussion coupled with the case Law i.e. T.N. Ravi Prakash Vs the Manager, State Bank of Mysore, Supra, we are of the view that there is deficiency of service on the part of  opposite party Banks. The opposite parties have failed to credit the amount in the account of the complainant as withdrawal of the amount from the account of complainant through ATM cards took place without any fault or negligence on the part of the complainant.  

19. The complaint of the complainant is allowed.  The opposite party banks are jointly and severely directed to credit a sum of Rs 47,566/- to the bank account of the complainant. The complainant has faced mental harassment and even forced to go for litigation.  The compensation of Rs. 30,000/- is granted to the complainant for mental harassment and litigation expenses. The order be complied within 45 days from the date of receipt of the order, failing which complainant is entitled for the interest @ 9% per annum from the date of order till its realization.

• Copy of this Order be supplied to parties free of cost.

• File is consigned to record room thereafter.

• Announced in the open court.