Delhi

North East

CC/288/2017

Mohd. Saleem - Complainant(s)

Versus

State Bank Of India & Other - Opp.Party(s)

16 Jan 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.  288/17

 

In the matter of:

 

	Shri Mohd. Saleem S/o Shri Yasalla R/o B-350, Street no. 16, Shri Ram Colony Rajeev Nagar, Delhi-110094	Complainant
	Versus
1         2	State Bank of India Yamuna Vihar C-1/5 A, Yamuna Vihar New Delhi-110053   Canara Bank ATM Nodal Cell 6th Floor, 38 Ansal Tower Nehru Place, Delhi-110019	Opposite Parties

 

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

15.09.2017 16.01.2020 16.01.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated the case of the complainant is that he is a consumer of OP1 by virtue of maintaining Savings Account bearing No. 34275469318 against which he was issued a Debit Card bearing No. 5196190197071337. On 10.03.2017, he had visited OP2 Bank ATM located at Rajiv Nagar Delhi to withdraw Rs. 10,000/- through his ATM card. However, he neither could get the transaction slip nor the money for which he tried again but the transaction failed for the second time also in all the complainant tried transacting for withdrawal four times on the ATM machines of OP2 but each time the transaction was declined and no money came out from the said ATM machine. However, on checking his bank statement, the complainant discovered that Rs. 40,000/- has been deducted from his account and Rs. 23/- each for four transactions as ATM charges. In this regard the complainant lodged a written complaint with OP1 dated 17.03.2017 and 06.04.2017 urging prompt action and remittance of wrongfully deducted amount back to his account but OP1 refused to received the said complaint. Complainant lodged a police complaint with PS Khajuri khas, Delhi on 20.03.2017 vide diary no. 36-B but the police also did not act. As a legal recourse complainant approached Mediation & Conciliation cell, Nand Nagri and his complaint was registered on 19.04.2017 but the proceedings were concluded for the reason party having raised triable issues. Therefore, the complainant was constrained to file the present complaint before this Forum praying for issuance of directions against the OPs to credit Rs. 40,000/- back to the account of the complainant alongwith compensation for mental harassment and litigation cost.

Complainant has attached copy of statement of account issued by OP1 highlighting the disputed debit entries of Rs. 10,023/- four times totaling Rs. 40,092/-, copy of complaint dated 17.03.2017 & 06.04.2017 written by complainant to OP1, copy of police complaint dated 20.03.2017 and copy of Mediation & Conciliation report dated 13.07.2017.

2. Notice was issued to the OPs on 06.10.2017. None appeared on behalf of OP1 despite service effected on 30.10.2017 and was therefore proceeded against ex-parte vide order dated 04.01.2018. OP2 filed its written statement in which it took the preliminary objection that all four transactions amounting to Rs. 10,000/- each done by complainant through ATM of OP2 were successful and complainant duly collected the said amount from the ATM. The complainant approached OP1 after a lapse of 7 days from the date of disputed transactions which explains that he failed to take any prompt action or approach the customer care of either of the OPs or made any representation with OP2 to investigate the transactions in question. OP2 objected to being made a party to the proceedings on grounds of having no privity of contract with the complainant but still OP2 on thorough investigation by way of checking ATM log of switch centre, ATM replenishment-cum-verification records, JP log of ATM machine came to know that RESP Code of the transaction in question with record no. 8176/8178/8179/8180 is stated as “001” which denotes successful transactions and further the ATM machines also verified no excess cash was found. Further the ATM receipt number dated 10.03.2017 and statement of withdrawal amount in question on the said date showed the amount was dispensed. OP2 further urged that no CCTV footage was secured / preserved by OP2 as the same was never requested for by the complainant more so  that complainant himself had transacted apart from many other such persons who used the said ATM machine successfully withdrew the cash on 10.03.2017. OP2 took the plea that there was no deficiency of service on its part, the complaint being speculated litigation. While admitting the complainant having accessed OP2’s ATM machined on 10.03.2017, OP2 denied the alleged transactions to be unsuccessful and prayed for dismissal of the complaint.

OP2 has attached duly certified copy of EJ log, switch report, no excess cash certificate dated 10.07.2017, cash balancing report and guidelines and codes of debit card transactions in OP2’s ATM with sample transactions slip highlighting RESP Code 000 denoting successful transaction.

3. Complainant did not wish to file rejoinder as stated by him in hearing held on 15.03.2018 and evidence by way of affidavit was filed by complainant on the said date exhibiting documents relied upon as Ex-A to E.
4. Evidence by way of affidavit was filed by OP2 sworn by its manager exhibiting documents relied upon as Ex-RW1/A to Ex-RW1/D.
5. An  application filed by the complainant on 27.08.2018 for issuance of direction against OP2 to file CCTV footage of its ATM for the date 10.03.2017 was dismissed by this Forum vide order dated 28.08.2018 as having been moved belatedly after lapse of time.
6. Written arguments were filed by both parties in reassertion / reiteration of their respective grievance / defence. During the course of oral arguments, counsel for OP relied upon judgment of Hon’ble NCDRC in Raghabendra Nath Sen and Anr Vs Punjab National Bank in RP No. 3973/2014 passed on 17.12.2014 vide which Hon’ble National Commission held that no withdrawal from an ATM can be made unless ATM card / Debit Card is inserted in the ATM machine and an ATM PIN is entered which is known only to the customer as being highly confidential and therefore the dismissed the revision on grounds that amount could not have been withdrawn by a third person and not by the complainant himself without possession of Debit card and knowledge of PIN.
7. We have heard the arguments of complainant and also have gone through documentary evidence placed on record complainant as well as OP2. 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. 40,092/- was debited from the account of the complainant on 10.03.2017 The same has been corroborated as well by JP Log / EJ log, switch report, no excess cash certificate dated 10.07.2017, cash balancing report filed by OP2.  We have screened the JP Log, no excess cash report as well as other documentary evidence which shows that the successful withdrawal of Rs. 40,000/- was made vide transaction numbers 8176, 8178, 8179 and 8180 on 10.03.2017 through debit card 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 general 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 un-tampered 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 (relied upon by OP2) 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. The Hon'ble National Commission in SBI Vs Om Prakash Saini I (2013) CPJ 749 (NC) while observing that the CCTV camera is fixed only on the face of the user and not on the keys of ATM and delivery window held that non supply of video footage has no bearing on claim of complainant. 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 proposition of law regarding documentation filed by OP2 which conclusively establish transactions 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 him.

8.  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.      
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  16.01.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member