Date of Filing: 28-07-2015 Date of Final Order: 30-05-2016
Smt. Runa Ganguly, President-In-charge.
The gist of the complaint as culled out from the record is that the Complainant, Eyachin Miyan being a customer of the O.P, Central Bank of India, Sitalkuchi Branch, Cooch Behar has Savings Bank Account bearing No.3267610874 with ATM facility bearing No.504437148040486.
Subsequently, the Complainant went at Delhi for his business purpose and accordingly he stayed there for one year. In that period the Complainant needed some money for which he went to the ATM counter of Central Bank of India at Delhi for withdrawing money from his aforesaid account by using ATM Card and when he pressed buttons for withdrawal of Rs.10,000/-. But the Complainant neither get the said amount nor any acknowledgement slip from the ATM counter. Only display in ATM skin “CARD INVALID”. Thereafter, the Complainant contacted with the O.P bank over telephone and narrating the said matter. On scrutiny, the O.P bank informed to the Complainant that due to non-producing of KYC, his ATM Card has been blocked. On 08/11/2014 the Complainant went to the O.P bank for activate his ATM Card by producing KYC also made up-to-date entry in his pass book. After up-to-date entry in pass book, the Complainant getting shocked by seeing his pass book, which revealed that two withdrawal entry i.e. Rs.12,000/- in total (Rs.10,000/- + Rs.2,000/-) dated 11/03/2014 from the Complainant’s account through ATM, but how it is possible. In the mean time the Complainant informed the aforesaid matter to the O.P. Bank also Customer Care Centre of the O.P. Bank, but he did not get any response from the O.P. Bank. By not getting any response from the O.P. Bank, the Complainant filed a written complaint before the O.P. Bank on 10/11/2014 for getting the amount of Rs.12,000/- which was wrongly deducted by the O.P. Bank and also prayed for determination of real fact of such fraudulent transaction to produce CC TV footage. The O.P. Bank assured to the Complainant, the matter would be settled very soon but till now the O.P. Bank did not take any proper steps against such fraudulent transaction.
Due to such activities of the O.P. Bank, the Complainant was suffered from mental pain & agony and unnecessary harassment also there was deficiency in service, adopting by the O.P.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.P. Bank to produce CC TV footage for determination of real fact and refund the amount of Rs.12,000/- which was wrongly deducted from the Complainant’s account on 11/03/2014 and also to pay (i) Rs.25,000/- as compensation for mental pain & agony and unnecessary harassment, (ii) Rs.25,000/- for deficiency in service and (iii) Rs.10,000/- towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P, Central Bank of India, Sitalkuchi Branch, Cooch Behar has contested the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P is that at no point of time the ATM Card of the Complainant was invalidated by the O.P or by the bank in any way what so ever. The Complainant has also not mentioned the date of such incident purposefully so that the veracity of his statement cannot be checked.
The O.P bank further stated in their W/V that the Complainant never contacted the O.P over telephone and narrated the purported incident. The Complainant should contact with the Customer Care of the O.P bank and also he should have provided with a particular docket number by which such communication and its process could have been tracked. But the Complainant did not provided any docket number of his purported conversation with Customer Care purposefully. The O.P also stated that the O.P never told the Complainant about invalidity of the ATM Card due to any reason including that of non-production of KYC documents as alleged or at all.
It is the case of the O.P bank that this O.P did not received any KYC document from the Complainant on 08/11/2014 as the Complainant stated in his complaint and on 08/11/2015 the Complainant did not contacted with the Customer Care of the O.P bank, as he stated in his complaint.
It is the further case of the O.P that the O.P bank received one written communication from the Complainant on 10/11/2014, which was the first time the O.P came to know about the grievance of the Complainant. After receiving the said communication, the O.P bank immediately took step to inform the concerned department of the bank, which looks after such ATM transaction and asked for Redressal of the grievance of the Complainant. After getting the concerned information, this O.P immediately checked the veracity of the transaction and after thorough verification it was revealed that both the purported transactions were genuine transactions and the amounts were withdrawn by using the ATM Card and PIN of the Complainant. After getting the confirmation from the concerned department, on 21/11/2014 the O.P informed the Complainant about the genuineness of the transaction and such information was conveyed to the Complainant both by way of telephone and in writing.
It is the specific case of the O.P that since the ATM transaction were revealed to be genuine, there has been no deficiency in service on the part of the O.P bank. Moreover, the purported transaction of the Complainant took place on 11/03/2014 and the Complainant for the first time informed about the same to the O.P bank on 10/11/2014 i.e. after more than 240 days of the purported incident. As the bank does not keep the CC TV footage backup after 90 days, it would not be possible for the O.P to retrieve the CC TV footage backup of 11/03/2014.
It is pertinent to mention here that as per the present guideline applicable on the bank, any discrepancy in the ATM transaction by any customer should be communicated to the bank within 30 days, beyond which the bank has no liability to compensate the customer. Therefore, even assuming without admitting that the claim of the Complainant was true, in that case also. Such fact should have been informed within 30 days. Therefore, there was no deficiency in service on the part of the O.P. Bank also this O.P is not liable to pay any compensation to the Complainant.
Ultimately, this O.P bank prayed for dismissal of the case with cost.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the Opposite Party any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument by both parties at a length.
Point No.1.
The Complainant has a Savings Bank Account bearing No.3267610874 lying with the O.P/Central Bank of India, Sitalkuchi Branch. Thus, he is a genuine customer as well as consumer of OP/Bank.
Point No.2.
The O.P Bank are situated within the jurisdiction of this District as well as under the jurisdiction of this Forum and total valuation of this case is far less than maximum limit of Rs.20,00,000/-.
So, this Forum has territorial as well as pecuniary jurisdiction to try this case.
Point No.3 & 4.
Both points are taken up together for convenience of discussion.
It is the case of the Complainant that the Complainant went to Delhi for his business purpose and stayed there for one year. He needed money and went to the ATM Centre of CBI at Delhi and by using ATM Card, he pressed buttons for withdrawal of Rs.10,000/-. Surprisingly, the Complainant did not get the said amount from ATM, only displayed “CARD INVALID” in the screen. Thereafter, the Complainant contacted with the OP/Bank over phone and came to know that his ATM Card is blocked due to non-providing of KYC documents. On 08.11.14, he came to know that Rs.10,000/- and Rs.2,000/- had been withdrawn from his Account by using ATM on 11.03.14 and the Bank deducted the amount of Rs.12,000/- wrongly. The entire matter was informed to the OP/Bank on 10.11.14 and he prayed for taking proper step against fraudulent transaction. The Complainant suspected that said money was fraudulently withdrawn by any unknown person.
On the other hand, it is the case of the OP/Bank that ATM Card with secret code was kept with Complainant and Rs.10,,000/- and Rs.2000/- was withdrawn from the ATM counter of Sitalkuchi maintained by Axis Bank on 11.03.2014 and the said amount was duly debited from his Account.
It is also the further case of the OP that on 11.11.14 after receiving the Complaint for first time from the Complainant, the OP took positive step by informing the matter to the concerned department of the bank with desire to settle the dispute.
The O.P Bank in his evidence on affidavit clearly stated that both the withdrawals of Rs.10,000/- and Rs.2,000/- were made on 11.03.14 at 5:29:28 PM and 5:30:18 PM respectively by using the ATM Card No.5044371480404864 from ATM counter of Axis Bank situated at Sitalkuchi Gram Panchayat premises bearing ATM ID No.679637800024 and such transactions were made vide Journal No.637350000 ,642550000. The Ld. Agent for the O.P has filed Annexure 4 which corroborated the above mentioned fact.
The Account Statement (Annexure 3 series) filed by the OP goes to show that on 11.03.14 Rs.10,000/- and Rs.2,000/- has been withdrawn from the Account of the Complainant through ATM Card No.5044371480404864. Thus, it is clear that the Complainant used his ATM Card and PIN No. allotted to him and withdrew Rs.12,000/- from ATM Counter of Axis Bank situated at Sitalkuchi Gram Panchayat.
During the course of argument, Ld. Agent of the Complainant submitted that whether the ATM Card, in question, used by the Complainant/someone, CCTV footage is a must, but the O.P Bank did not produce any such CCTV footage which amounts to negligence and deficiency on the part of the OP/Bank.
The Ld. Agent for the OP vehemently argued that the alleged transaction took place on 11.03.14 and the Complainant first time informed about the same to the OP/Bank on 10.11.14 i.e. after more than 240 days of the incident. The Bank does not preserve the CCTV footage backup after 90 days for which it is not possible for OP to produce the CCTV footage back up of 11.03.14 and journal report in this regard. Moreover, as per the present guideline by RBI being No.RBI/2010/11/547 dated 27.05.11 referred by the Ld Agent of the O.P. i.e. Annexure A-2 any discrepancy in the ATM transaction by any customer should be communicated to the Bank within 30 days, beyond which the Bank has no liability to compensate the customer.
On perusal the documents made available in the record and also considering the facts as elaborated in the Complaint as well as evidence on affidavit of the Complainant, it transpires that the Complainant did not disclose the date and time he went to ATM for withdrawing the money at Delhi and no document is filed by the Complainant that he contacted with the OP/Bank about invalid ATM Card and the opinion of Bank that the ATM Card was blocked due to non-producing of KYC. There is also no document to show that the Complainant submitted KYC documents on 08.11.14 on contacted with the customer care of the OP/Bank. It is pertinent to mention that the Complainant stated that during the alleged transaction, he was in Delhi, then how the ATM was used at ATM situated at Sitalkuchi. Documents clearly shows that the said transaction was successful transaction and obviously any of the family members of the Complainant used the ATM Card who also in knowledge of ATM PIN. Thus, the Complainant prepared a cock-bulled story for his illegal gain.
The Ld. Agent for the Complainant referred the judgment of this Forum and also cited a copy of Judgment of the Hon’ble State Commission, Haryana, Panchkula in first Appeal No.749 of 2014 wherein the Hon’ble State Commission was pleased to observe that the appellant withheld the CC TV footage without any explanation and has deficiency in service.
CC TV footage is a vital document to detect fraudulent user of ATM transaction but the OP fails to produce the same as it was already corrupted due to expiry of 8 months and in such circumstances, non-supply of video footage had no bearing on the claim of the Complainant.
On the other hand, the Ld. Agent for the OP cited two decisions of Hon’ble State Commission, Maharashtra, Circuit Bench at Nagpur in first Appeal No. A/11/407 wherein it is decided that “when transactions are made by ATM, it is necessary to enter correct PIN and it is possible only if the person already has correct knowledge of the same. Therefore, fraudulent withdrawal is not proved by the respondent/ Complainant. Hence, we find that the appellants have not committed any deficiency in service” and another of Hon’ble State Commission, Maharashtra, Mumbai in First Appeal No.754 of 2009 pleased to observe that “the fault was of the Complainant herself, because she had not kept her ATM-cum-Debit Card and PIN Code in proper custody and somebody has used it fraudulently to her disadvantage to cause wrongful loss to the Complainant. In this view of the matter, the Bank is not at fault in this episode and the Forum below erroneously passed award in favour of the Complainant and allowed the appeal.”
It is also pertinent to mention that ATM equipment does not accept anything except ATM Card and PIN which is a secret number like a password. Only when one ATM Card holder inserts the Card, the Account of the Card holder is then be opened for operation unless a person in possession of the relevant ATM Card and knows the PIN number, the ATM Card cannot be used or operated. As a matter of further precaution, in case the PIN code is entered wrongly, thrice, in succession, the ATM will retain the card itself or cancel it permanently. There is no averment in the complaint that the Complainant lost his ATM card at any point of time. He alleged that during the disputed transaction, he was in Delhi but the ATM Card was used in ATM, Sitalkuchi of Axis Bank. The Account statement shows that Rs.10,000/- and Rs.2,000/- withdrawn on 11.03.14 by using ATM Card at Sitalkuchi and that was a successful transaction. Thus, it is reasonably presumed that the Complainant suppressed the material fact that at that time the ATM Card was in possession of any member of his family who was in knowledge also the ATM PIN In our view, invariably the close person of the Complainant who have/had knowledge about the PIN also got custody of the ATM card did the operation back behind the knowledge or within the knowledge of the Complainant.
It is well settled in so many cases that in case of a ;successful transaction, there is no chance to withdraw money from ATM without using ATM Card and PIN for which there is no question to fix liability upon the O.Ps. In this case also the ATM was used of Axis Bank not the OP Bank during the said successful transaction for which this O.P. is no way liable.
In this juncture, we invite a ruling, State Bank of India v. K.K. Bhalla reported in 2011(i) CPJ 106 (NC) it has been decided that where withdrawal of money from ATM by unauthorized person was not possible at all the complaint for deficiency in service against Appellant/Bank not tenable.
Relying upon the above judgments, we are in view that non-availability of video footage on 11.03.14 does not mean that the money could be withdrawn fraudulently without using the ATM Card and PIN number.
In view of the elaborate procedure having been evolved by the opposite Party, regarding the use of ATM card and the principle of law laid down in the above authorities we have no hesitation but to hold that there is neither any deficiency in rendering service on the part of the Opposite party nor it indulge into unfair trade practice. Thus, the Complainant miserably failed to substantiate his complaint by any cogent and reliable evidence and liable to be dismissed.
ORDER
Hence, it is ordered that,
The present Case No. CC/69/2015 be and the same is dismissed on contest. No order as to costs.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
