Delhi

North

CC/51/2022

MUZAMMIL - Complainant(s)

Versus

UNION BANK OF INDIA - Opp.Party(s)

15 Feb 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.51/2022

In the matter of

Muzammil    

S/o Late Sh.Sarafuddin

H.No.7378, Masjid Ghante Wali, Quresh Nagar

Qasabpura  Sadar Bazar, Delhi-110006                                                       …Complainant

Versus

Union Bank of India

Through its Assistant Zonal Manager

66/80, Mumbai Smachar Marg

Opposite BSE Fort, Mumbai-400023                                                        ...Opposite Party-1

Union Bank of India

Through its Branch Manager

488/5, Dilshad Garden

Near Radha Kishan Mandir

Deli-110095                                                                                                  ...Opposite Party-2

Punjab National Bank

Through its Zonal Manager

2^nd floor, 7^th Bhikaji Cama Place

New Delhi-110022                                                                                     ...Opposite Party-3

ORDER
15/02/2024

Ms.Harpreet Kaur Charya, Member

The present complaint has been filed by Mr. Muzammil,  the complainant against Union Bank of India, through its Assistant Zonal Manager, as OP-1, Union Bank of India, through its Branch Manager, Dilshad Garden, Delhi as OP-2 and  Punjab National Bank, through its Zonal Manager, Delhi as OP-3 with the allegations of deficiency in services.

1. Facts as per the present complaint are that the complainant is maintaining saving account No.66079093057001917 with OP-2, formerly Andhra Bank.    
2. On 11/01/2022, at about 13:14:45 hrs the complainant used ATM of Punjab National Bank (OP-3) situated at Turkman Gate, Delhi to withdraw Rs.10,000/- and again tried to withdraw Rs.10,000/- however no cash was dispensed on second transaction with the error remark as “Out of service”.
3. Despite the fact that no money was dispensed in the second transaction but the amount was debited from his account.  On 12/01/2022, the complainant visited the home Branch (OP-2) and gave a written complaint, however, no acknowledgment was provided. A complaint was also registered through phone banking vide complaint No.440177005388 on 12/01/2022.
4. Complainant also visited OP-3, Turkman Gate Branch with the request to provide the CCTV footage but the same was declined on the pretext that the CCTV footage can be provided only to OP-2 as and when they will demand.  On 11/01/2022, 21/01/2022 and 27/01/2022 the complainant received a reply from OP-2 stating that the claim of the complainant was taken up with the acquiring bank (OP-3) where it has been informed that the transaction was successful; CCTV footage was neither given nor shown to the complainant.
5. Legal notice dated 07/02/2022 was served upon OPs demanding CCTV footage of the ATM and the photographs of the disputed transaction but the same was neither replied nor complied. A complaint was also sent to banking Ombudsman, RBI on 24/02/2022.   However, no response has been received.
6. The complainant has further alleged that despite written complaint, several requests and personal visits, OPs failed to address his grievance.  Feeling aggrieved, the complainant has prayed for directions to OPs to return Rs.10,000/- alongwith penalty @100/- per day till realization; compensation of Rs.50,000/- on account of mental torture and harassment or any other order which this commission deemed fit and proper.
7. The complainant has annexed the copy of the passbook as Annexure-1, copy of screenshot of SMS alert as Annexure-2, copy of complaints/reminders and its reply as Annexure-3 copy of legal notice dated 07/02/2022 as Annexure-4, copy of complaint to Banking Ombudsman alongwith speed post receipt and tracking report as Annexure-5 and copy of circular dated 20/09/2019 issued by RBI as Annexure-6.
8. Notice of the present complaint was served to OP-1, OP-2 and OP-3. Written statement was filed on behalf of OP-1 and OP-2.  They have taken several preliminary objections such as there was concealments of material fact, there is no cause of action in the favour of complainant etc.   It has been submitted that the complaint was duly addressed by them and it was informed by OP-3 that no excess cash was found in ATM on 11/01/2022.  As OP-3 in its official reply had informed that no excess cash was found, the account of the complainant could not be credited with Rs.10,000/- . 
9. They have further submitted that OP-3 is in possession of CCTV footage of the disputed transaction and OP-3 can provide the same.  Rest of the contents have been denied. They have annexed the authority letter dated 12/05/2022 authorising Mr. Anshul Gupta, Branch Head of Dilshad Garden, New Delhi, official letter written by OP-3 with their written statement.
10. OP-3 also filed its written statement taking several objections in their defence such as: the account number mentioned in the complaint is wrong as per the passbook the account number is 305710100006065; the complainant has not disclosed the time when he had used ATM of OP-3, whether there were other persons standing beside him; the complainant did not approached branch office of OP-3 which is adjacent to ATM of OP-3.
11. As per the investigation and inquiry the transaction dated 11/01/2022 was successful.  For transaction no.1417 and 1418, there was successful disbursal of cash of Rs.10,000/- each and no error code was generated.  Rest of the contents of the complaint have been denied.  They have annexed the letter of authority dated 26/07/2022 as Annexure-1 and the Transaction Inquiry Report as Annexure-2.
12. Replication to the written statement of OP-1 and OP-2 was filed by the complainant where, the contents of the complaint have been repeated and of written statement have been denied. In replication to the written statement of OP-3, the complainant has stated that inadvertently the complainant has mentioned the Debit Card number instead of saving account number.   He has reiterated that the CCTV footage of the ATM has not been filed deliberately, despite several requests.
13. Evidence by way of affidavit was filed on behalf of the complainant and OPs.
14. Complainant has deposed on oath the contents of his complaint. He has deposed that he is having a saving account no.305710100006065 and Debit card no.6079073057001917 with Union Bank of India formerly known as Andhra Bank, Dilshad Garden.  He has got exhibited the copy of the passbook as Ex.CW1/1, copy of screenshot of SMS alert as Ex.CW1/2, copy of complaints/reminders and its reply as Ex.CW1/3 copy of legal notice dated 07/02/2022 as Ex.CW1/4, copy of complaint to Banking Ombudsman alongwith speed post receipt and tracking report as Ex.CW1/5 and copy of circular dated 20/09/2019 issued by RBI as Ex.CW1/6.
15. Ms. Bharti Shami, Branch Manager was examined on behalf of OP-1 and OP-2.  Authority Letter dated 21/11/2022 has been exhibited as Ex.RW1/1.  She has reiterated that upon receiving the written complaint from the complainant, they had immediately contacted OP-3 seeking details of the entire transactions.  They have got the copy of the letter issued by PNB exhibited as Ex.RW1/2.
16. Sh. Ashish Ranjan, has been examined on behalf of OP-3.  He has also reaffirmed the contents of the written statement and has got exhibited the letter of Authority as Ex.OP-3/A; transaction report dated 11/01/2022 as Ex.OP-3/B.  They have submitted that OP-3 has diligently searched its record but the CCTV footage is not available as more than 90 have lapsed from the date of disputed transaction and the said CCTV footage was not requested by OP-1.They have got exhibited the guidelines on effective handling of the complaint on ATM matters alongwith reply to the application of the complainant for supplying of CCTV footage as Ex.OP-3/C  and guidelines for preservation of CCTV footage as contained in circular No.10 of 2019 Ex.OP-3/D.
17. We have heard the arguments of the Ld. Advocate for the complainant, Ld. Advocate for OP-1 and OP-2 and Ld. Advocate for OP-3.  We have also gone through the documents placed on record.   The complainant is aggrieved by the facts that out of two transactions, one transaction of Rs.10,000/- was  unsuccessful as money was not dispensed from the ATM of OP-3 but the said amount was debited from his account maintained with OP-2. 
18. The complainant immediately informed OP-2 for which complaint No.440177005388 was issued, the same is not in dispute. If we look at the email dated 21/01/2022 between OP-2 and ATM Cell, wherein, they have stated that no action had been taken on the complaint so far.  Even as per email dated 27/01/2022 the complainant has requested for CCTV footage and further stated that there was no guard at the time when he had used the ATM of OP-3 when he was accompanied by his friend.  However, OP-3 in their defence has submitted that no request for preservation of CCTV footage was made by OP-2.  Hence they are unable to provide the CCTV footage of the incidence.  OP-3 has further relied on Digital Banking Division Circular No.10/2019 dated 28/01/2019 which deals with preservation of video footage for disputed ATM transaction.  As per the said circular the field functionaries are required to keep CCTV at all ATM sites in running condition with preservation of CCTV footage for 90 days.  It has further been advised in the circular that:-

“In case of any disputed transaction at ATMs, details of CCTV footage of such transaction for 5 transactions before the disputed transactions and 5 transaction after the disputed transaction or for one hour before the disputed transaction and one hour after the disputed transactions, whichever is earlier, shall be preserved by the respective circle offices till the resolution in cases of complaint.”

19. It further bears that all Circles Offices/ Branches must ensure strict compliance of the guidelines regarding preservations of CCTV footage as circulated vide circular No.40/2018 dated 07/07/2018.  OP-3 has also filed the transaction inquiry as Ex.OP3/B, where the General Ledger date is 11/01/2022 and value date is also 11/01/2022.  However, there is one entry pertaining to value date as 31/12/2021 same raises doubt on the veracity of this document.
20. As per the National Payments Corporation of India (NPCI) circular NPCI/2012-13/NFS/2737 dated 26.03.2013, in case of the disputed transaction, the acquirer bank must provide three transactions before and three transactions after the ‘Disputed transaction’ in the JP/EJ ATM logs. This circular also states that all banks have to facilitate providing CCTV images of failed ATM transactions to Bank customers when requested.  It is observed OP-3 has failed to supply the CCTV footage as well as the JP/EJ log. OP-3 has also failed to comply with the directions issued in Digital Banking Division Circular No.10/2019 dated 28/01/2019 referred above.
21.  Emails dated 25/01/2022 and 27/01/2022 have also been filed by the complainant where it has been requested to provide the CCTV footage of the event, but the same has not been provided by OP-2. We have also perused the email dated 21/01/2022 written by bears -please handover a copy of the attached JP Log/other proofs to the cardholder. The said documents have neither been supplied to the complainant nor have they been filed before us. In the absence of said documents an adverse inference is to be drawn against OP-2.
22. It has been held by Hon’ble National Commission in ‘State Bank of India vs. Sansar Chand Kapoor and Ors.’ (2015) CPJ 135 (NC) as under;

“It is an admitted case that CCTV recording was provided by the respondent No.2 - Punjab National Bank to the petitioner State Bank of India but despite request of the complainant a copy of the said video footage was not provided to him. Though according to the petitioner-bank the said video footage was shown to the complainant and his son-in-law when they visited the bank, that in our opinion would not be sufficient and considering the fraudulent withdrawal claimed by the complainant, the bank ought to have made available a copy of the aforesaid CCTV footage to the complainant. The petitioner-bank, therefore, was deficient in rendering services to the complainant, by not making available a copy of the aforesaid CCTV footage to him. For the reasons stated hereinabove the order of the District Forum and the State Commission to the extent the petitioner-bank has been directed to refund the amount of Rs. 10,000/- to the complainant along with interest is set aside. However, the order to the extent it awards compensation and cost of litigation to the Complainant is upheld.”

23. Following the observations of Hon’ble National Commission in Sansar Chand Kapoor (supra), Hon’ble Delhi State Consumer Disputes Redressal Commission in FA No. 1020/2014, decided on 01.03.2023, titled as ‘State Bank of India Vs. Ms. Madhu Chawla’ also held that non supply of copy of CCTV to the complainant shall amount to deficiency in service on the part of the bank.
24. Hence, in the light of above judgements, non-compliance of the NPCI circular and for reasons discussed above we are of opinion that acts/omissions on part of OP-2 and OP-3 amounts to deficiency in services. Though, the complainant has also placed on record the circular dated 20/0902019: RBI/2019-20/67- “Harmonisation of Turn Around Time (TAT) and customer compensation for failed transactions using authorised Payment Systems”, where as per the table, compensation payable is      Rs. 100/- per day of delay beyond T+5 days, to the credit of the account holder. However, to balance the equities we are inclined to award compensation as per Consumer Protection Act.
25. Therefore, in the facts and circumstances of the present complaint and in the interest of justice, we hold OP-2 and OP-3 jointly and severally liable to:

1. Pay Rs. 10,000/- debited on account of failed transaction.
2. Pay Interest @9 percent per annum from the date of filing of the present complaint (08/03/2022) till realisation.
3. Pay compensation of Rs. 15,000/- on account of mental agony and harassment.

The order be complied within 30 days from the date of receipt of this order.Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.