Delhi

North East

CC/52/2013

Dinesh Kumar - Complainant(s)

Versus

The Branch Manager Canara Bank, - Opp.Party(s)

08 Mar 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. 52/2013

 

In the matter of:

 

	Dinesh Kumar S/o Late Shri Hardwari Lal D-130, Loni Road West Jawahar Nagar, Ghaziabad.	Complainant
	Versus
1.       2.	The Branch Manager Canara Bank, GTB Residential Complex Dilshad Garden, Delhi-95.   The Branch Manager Development Corporation Bank A-77, Main Road, Johari Pur Near Shani Bazar Chowk, Delhi-94.	Opposite Parties

 

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

12.02.2013 05.03.2018 08.03.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that he is a Group D Government employee working with GTB hospital, Delhi and having saving bank account bearing No. 3009101058244 with OP1 at the GTB hospital residential complex branch. On 15.07.2012, the complainant had gone to the ATM of OP2 at around 8:00 AM to withdraw a sum of                     Rs. 10,000/-, however despite going through the standard procedure, the ATM machine did not dispense any money for which another attempt was made by the complainant but the same failed too. The complainant has stated that at the time of these transactions the balance in his account was Rs. 25,239/- but after these two cashless transactions, his account balance was debited by Rs. 20,000/- and the balance was reduced to Rs. 5,184/-. The complainant immediately made a call to the customer care of OP2 regarding the wrongful debits which instead the complainant to instead call up the customer care of OP1 and lodge a complaint with the concerned branch of OP1 where the complainant was holding his account. The complainant visited the OP1 branch on 16.07.2012 and on getting his bank passbook updated, the complainant found out that his account was debited twice by 16.07.2012, Rs. 10,000/- each vide transaction No. 2262 and 2265 and his account was also debited by Rs. 22, Rs. 11, Rs. 11, and Rs. 11 vide transaction No. 2265, 6800, 6801 and 7401 respectively and thereafter for Rs. 1000/- which the complainant had withdrawn from HDFC bank on 15.07.2012, his account was debited again by Rs. 22, Rs. 11, Rs. 11, Rs. 11 and Rs. 11 vide transaction No. 7209, 2409, 2410, 2411 and 7267 respectively. The complainant had lodged a complaint in writing with the branch manager OP1 on 16.07.2012 requesting for remittance of the wrongful debit of Rs. 20,000/- back to his account and was assured that the same would be credited within next 2 weeks. However the same was not done for which the complainant against visited the OP1 on 16.08.2012 where he was informed for the first time that his transactions were successful and that for any further action, CCTV Footage would be required by OP1 for which the complainant was advised to lodge a complaint with the police. Accordingly the complainant visited the PS Karawal Nagar, Delhi and lodged a formal complaint on the same day which was duly received vide diary No. 57 B at 5:00 PM by head constable Subash. However the complainant has stated that no action has been taken on his complaint except e-mails exchanged between OP1 and OP2 in the month of August 2012 pertaining to demand of providing CCTV Footage by OP1 to OP2 without any consequence. Therefore, the complainant was constrained to file the present complaint praying for directions to the OPs to pay Rs. 40,000/- towards wrongful embezzlement of Rs. 20,000/- from his account Rs. 10,000/- as loss on account of interest which the complainant has been paying @ 5% on loan taken due to financial hardship and Rs. 5,000/- each expenses incurred by the complainant and Rs. 5,000/- for mental pain, agony and harassment to the complainant.
2. Notice was issued to both the OPs. However OP2 never appeared and written statement was filed by OP1 on 01.11.2013 wherein the OP1 admitted the complainant as its account holder and that Rs. 20,000/- was debited from his account on 15.07.2012. The OP1 however took the preliminary defence that on the basis of the report of its investigating Section Card Division Head Office dated 26^th June 2012 and 30^th July 2012 that the said transactions were successful as per record, the dispute was not valid and therefore the OP1 is not liable for this claim amount. The OP1 further took the defence that it had written a letter to OP2 requesting for video footage and print slip photocopy but no reply came forth from OP2 and therefore OP1 should not be held liable for this claim since the complainant received the money from ATM of OP2 and the same was debited from OP1.
3. Rejoinder to the written statement of OP1 was filed by the complainant wherein the complainant submitted that OP1 was liable as its being home bank of complainant and also because it was unable to provide CCTV Footage to the complainant despite the same being the sole responsibility of OP1 and therefore the same was deficiency of service on the part of OP1 and that OP1 cannot get rid of its responsibility by merely stating ‘transactions were successful’ without providing CCTV Footage or taking any effort for procuring the same despite charging its customers for such services. The complainant further submitted that merely writing e-mails or letter for CCTV Footage without any outcome as to solution to the embezzled fund was of no consequence and shows reluctant, irresponsible and callous attitude of OP1 in discharge of its duties towards its customers. The complainant further submitted that the OP1 has to establish the truth by providing the CCTV Footage which they are not providing for their vested interest / malafide intention of emblazing his hard earned money.
4. Evidence by way of affidavit was filed by Om Prakash Manager of OP1 exhibiting the e-mails, transactions statements etc in its defence.
5. Secondary written statement was filed by OP1 on 13.10.2014 in which the OP took the preliminary objection that the complaint of the complainant was immediately sent by OP1 to its head office, ATM section, card division Bangalore which had in turn followed up the case with OP2 asking OP2 to provide the CCTV Footage. The OP1 further submitted that the concerned head office had asked the complainant to provide copy of FIR and CCTV Footage but the complainant failed to do so. The OP 1 further submitted that the complainant had used the ATM of OP2 and therefore OP1 had no role in the matter since the money was not returned by OP2 after the said transactions and therefore OP1 could not have credited the said debit in complainant’s account.
6. Replication was filed by the complainant to the additional written statement filed by the OP1 stating that bank is a service provider and charge from its customers in the name of annual charges for ATM, ATM withdrawals and so on as also enjoys the returns on the money deposited by its customers. The complainant further objected to the mere exchange of correspondence between OP1 and OP2 regarding CCTV Footage which was the responsibility of OP1 towards complainant but it only gave false assurances to the complainant to provide the same. The complainant further stated that even if he had used the ATM of OP2 the very fact that his account was debited by OP1 despite it being a cashless transaction goes to prove that all the responsibility lies with his home bank i.e. OP1 and not OP2.
7. Written arguments were filed by OP1 reiterating its defence and praying for dismissal of the complaint as no deficiency of service could be attributed to OP1.
8. We have heard the rival contentions addressed by both the parties and have carefully perused the case filed and material documents placed on record therewith.

The debit of Rs. 20,000/- and other transactions debit are not in dispute and are clearly establish from the passbook entry of the complainant vide account held with OP1 as also from the documentary evidence filed by OP1 alongwith its evidence as exhibit RW1/2 wherein two debits of Rs. 10,000/- each can be ascertain on 15.07.2012 at 08:08 AM and 08:10 AM vide transactions numbers 2262 and 2265. The complainant had made sincere efforts by way of lodging prompt complaint with OP1 as well as with the concerned police station on directions of OP1. However the grey area in the present case is the absence of CCTV Footage which in our opinion was the responsibility of OP1 to procure the same from OP2 since complainant was a bonafide customer / consumer of OP1 being its account holder having no relationship banking or otherwise with OP2. By merely writing e-mails without any consequence or conclusiveness, OP1 cannot shirk its responsibility and duty towards its customer. Further the OP1 failed to place on record any switch report, no excess cash certificate, JP Log / E- Journal either with its two written statements or with the evidence by way of affidavit which in such cases are mandatorily required and recognised/ admissible defence for the bank in disputed ATM transaction cases. The Hon’ble NCDRC in Satya Narayan Pandey vs SBI IV (2017) CPJ 199 (N C) had taken into consideration the documentary evidence filed by the bank in terms of electronic journal file. However no documentary evidence has been filed by OP1 in the present case except inconsequential e-mails written to OP2 and are trying to wriggle out of their responsibility towards the complainant by taking advantage of absence of OP2 and trying to seek refuge under the garb of complainant having transacted with the ATM of OP2 by merely writing e-mails to the effect that ‘transaction were successful’ which is not a valid as sufficient defence in our opinion and therefore we find OP1 deficient in service in having failed to address the problem of the complainant for which CCTC Footage was a very crucial and of utmost importance a document which the OP1 miserable failed to procure for want of sincere efforts. The absence of OP2 and no defence put forth by OP2 shall definitely not come in rescue of OP2 as the ATM machine through which transaction were made by the complainant was that of OP2 and the CCTC Footage with respect thereto was definitely with OP2 which it did not furnish to OP1.

9. We therefore find merit in the case of complainant and give him benefit of doubt in the grey area of absence of CCTV Footage and accordingly direct the OP1 and OP2 jointly and severally to refund / remit the wrongful debit of Rs. 20,000/- back to the account of the complainant held with OP1. We further award a sum of Rs. 10,000/- towards expense incurred by the complainant and for mental pain and agony and harassment suffered by the complainant payable by OP1 and OP2 jointly and severally to the complainant. Let the order be complied with by the OP within 30 days of receipt of this order.
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 on08.03.2018.

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member