Delhi

North East

CC/181/2016

SH. RAM KUMAR BHARDWAJ - Complainant(s)

Versus

UNION BANK OF INDIA - Opp.Party(s)

29 Jan 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. 181/16

 

In the matter of:

 

	Sh. Ram Kumar Bhardwaj S/o Sh. Ratan Singh R/o 209, Roshan Vihar, East Sadatpur, Karawal Nagar Delhi-110094.	Complainant
	Versus
	The Branch Manager Union Bank of India Sherpur Chowk Delhi- 110094.   ATM Handling Branch Branch: Ashok Vihar, Delhi 24 Community Centre, Ashok Vihar, New Delhi-110052.	Opposite Parties

 

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

14.07.2016 23.01.2018 29.01.2018

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated the case of the complainant is that the complainant is an account holder with the OP bank having savings bank account No. 645802010004608 and having ATM card vide                                       No. 4213686458017275. On 27.10.2015 complainant went to withdraw Rs. 20,000/- from the ATM machine of OP2 situated at Ashok Vihar, Sawan Park, Delhi. However, on insertion of his ATM card into the machine and given command of Rs. 20,000/-, the ATM counted the money but did not release the same and the screen of ATM machine displayed “Contact Branch of Bank, your card has been blocked” and the withdrawal could not be done and the complainant waited there for sometime but no money was received by the complainant for which he contacted the OP branch the next day when he was told by the executive of the OP branch that Rs. 20,000/- has been withdrawn on the given date from his account and duly entered therein.  On 28.10.2015 the complainant lodged a complaint vide complaint No. 13233983 to the customer care of OP Bank and wrote several emails but to no avail and did not get his refund. Lastly the complainant sent a legal notice dated 02.03.2016 to the OP through his counsel which was served on the OP on 04.03.2016 but the OP did not reply to the same. Therefore the complainant was constrained to file the present complaint and has prayed for the following reliefs from this Forum:-

1. Direct the OP to refund Rs. 20,000/- towards wrong deduction made by the OP from the complainant’s account.
2. Interest @ 18% p.a. on the said amount from date of loss till payment be granted to the complainant payable by the OP.
3. Rs. 25,000/- towards damages for harassment, tension and agony undergone by the complainant at the hands of OP be paid by the OP to the complainant
4. Rs. 15,000/- be paid by the OP to the complainant towards cost of the present complaint and its proceedings.

 

2. Notice was issued to the OP and written statement was filed by the OP on 18.10.2016.
3. The OP took the preliminary objection that the complainant is guilty of suppression of material facts before this Hon’ble Forum in as much as the withdrawal of Rs. 20,000/- on 27.10.2015 at 09:10 AM by the complainant through his ATM card, record No. 1887 from the ATM machine situated at Ashok Vihar, Sawan Park, Delhi was successfully completed as per the E.J. transaction number 1887.  The OP further stated that vide email dated 06.02.2016 it had already informed the complainant of the successfully withdrawal and has also attached therewith the requisite documents viz 

1. EJ
2. Switch log
3. No. excess cash certificate
4. CC TV footage.
5. These documents were also being filed by the OP alongwith written statement. Further the OP placed on record the pass book entry of the complainant’s passbook highlighting the transaction of cash withdrawal by the complainant dated 27.10.2015 as successful. The OP also relied upon the CCTC footage of the given date to corroborate successful withdrawal transaction of Rs. 20,000/- made by the complainant. The OP urged that the complainant has not filed copy of the slip which ejects after the operating of ATM and SMS on mobile of the complainant qua the withdrawal transaction from ATM deliberately. The OP further urged that no excess cash was found in the concerned ATM machine of the OP and certificate to this effect was already sent to the complainant. Therefore, the OP objected to the deliberate suppression of such material facts and documents viz copy of passbook, EJ report, Switch log, No. excess cash certificate, CC TV footage. Lastly, the OP placed on record email dated 21.05.2016 written by the banking ombudsman to the complainant stating that his case has been closed under clause 13 C of banking ombudsman scheme 2006 in view of the disputed transaction requiring consideration of elaborate documentary and oral evidence not appropriate for adjudication before banking ombudsman.
6. Rejoinder to the written statement was filed by the complainant in rebuttal in which the complainant stated that the CCTV footage provided by the OPs was defective and illegible and could not ascertain if any person was taking out cash from the ATM machine which recording of CCTV footage not provided to the complainant.  The complainant further did not receive any cash from the ATM of OP, there was no question getting any withdrawal slip thereof and reiterated his contention of wrongful deduction of Rs.  20,000/- on his account maintained with the OP bank due to failed ATM transaction.
7. Evidence by way of affidavit filed by the complainant  and the OP prayed on 02.01.2017 that his written statement carrying all the relevant documents annexed therewith be treated as evidence on its behalf and therefore did not file any separate evidence by way of affidavit.
8. Written arguments were filed by both the parties and oral were address with respect to their complaint and defence.
9. We have heard the rival contentions of the parties and have carefully perused and scrutinized the case file and documentary evidence placed on record by both the parties alongwith their respective pleadings.

On keen scrutiny of the documents placed on record by the complainant, it has been found that material documentary evidence which was crucial in adjudication of the case were transaction slips and CCTC footage which were not filed or placed on record by the complainant neither with his complaint nor with the evidence filed by him despite being already in possession of the same as supplied to him by the OP in February 2016 where the complaint was filed thereafter in July 2016. It was only in the written statement filed by the OP that all crucial documentation were filed entirety and conclusiveness with respect to the present dispute in hand viz EJ, Switch report, SMS or transaction slip, CCTV footage photographs, passbook entry of the complainant with the OP bank and series of correspondence vide emails during the relevant period of dispute till the email from banking ombudsman in May 2016. This act of not filing the documents relevant to the current dispute despite being in possession thereof amounts to wilful concealment and does not espouse the case of the complainant on bonafide grounds.  In the recent case law in Dinesh Malik vs State Bank of Patiala I (2016) CPJ 550 NC, the Hon’ble National Commission has dealt-with similar issue of account debited and money not disbursed by the ATM. In this case also a specific question was put to the complainant whether the ATM receipt obtained from the ATM of the Bank has been filed by the complainant or not and the same was admittedly not filed. The Hon’ble National Commission weighed the matter in terms of the documentary evidence filed by both the parties and clearly the documents placed on record by the bank out-weighed those filed by the complainant and on basis of such documents, the debited amount was not returned in the account of the petitioner therein. Further the Hon’ble National Commission in the recent Judgment of Satyanarayan Pandey vs State bank of India & Ors. vide citation No. IV (2017) CPJ 199 (NC) in Revision Petition No. 2988 of 2015 in first appeal No. 14/803 has dealt with similar ATM transaction case. In this case, the complaint was allowed by the District Forum against which the bank went in appeal before SCDRC which was allowed and against which order the complainant had approached the Hon’ble NCDRC in revision. The Honb’le SCDRC Chattisgarh had while reversing the order passed by the District Forum had observed that in light of EJ report which showed that the transaction was successful and money was delivered and other documentary evidence such as ATM slip receipt etc not filed by the complainant and also no documentary proof to show non receipt of money while using his ATM card did not help or support or strengthen the case of the complainant. On the other hand according to the documentary evidence placed on record by the bank, there is ample proof to show that the transaction was successful. The Hon’ble NCDRC had further observed that Generally ATM cards and ATM machines are safe and if the transaction is not successful, it is shown on the screen on the ATM as well as on the slip issued by the ATM. Even if some money is transacted but not delivered, the same is reversed to the account of the ATM card holder. As the documents of the bank showed that the transactions were successful and Rs. 20,000/- was delivered to the person using the ATM card and no proof on the contrary has been filed by the complainant /petitioner, it is difficult to find any fault in the order dated 23.09.2015 of the State Commission thereby upholding the decision SCDRC Chattisgarh in reversing the decision of the District Forum finding no illegality, material irregularity or jurisdictional error therein.

10. In view of the recent judgments passed by the Hon’ble NCDRC with regard to the present dispute and observation made therein we are of the considered opinion that the complainant has failed to establish any deficiency in service against the OP and the present complaint is devoid of merits as the OP has been successful in defending itself qua the disputed transaction in light of the documentary evidence placed on record in support of the same being that of successful withdrawal transaction by the complainant. The complaint is therefore dismissed no order as to cost.
11.   Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.

4.   File be consigned to record room.
5.   Announced on  29.01.2018   

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member