State Consumer Disputes Redressal Commission
State Bank Of India vs Sh.Devinder Kumar Sharma on 31 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 321 OF 2012
Date of Institution: 15.03.2012
Date of Decision: 31.10.2013
State Bank of India, Ferozepur Cantt., Punjab through its Assistant
Manager.
.....Appellant/Opposite Party No.1
VERSUS
1. Sh.Devinder Kumar Sharma S/o Sh.Sohan Lal Sharma resident
of Village Bajidpur, Tehsil and District Ferozepur.
.....Respondent/Complainant
2. HDFC Bank Limited, Branch at Mall Road Ferozepur City
Tehsil and District Ferozepur, through its Chief Manager.
.....Respondent/Opposite Party No.2
First Appeal against the order
dated 9.1.2012 by the District
Consumer Disputes Redressal
Forum, Ferozepur.
Quorum:
Hon'ble Mr.Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Smt. Surinder Pal Kaur, Member Present:
For the appellant : Sh.Ashish Gupta, Advocate
For respondent No.1 : Ex-parte
For respondent No.2 : Sh.Sunil Narang, Advocate
BALDEV SINGH SEKHON, MEMBER
This appeal has been filed by the appellant/opposite party No.1 against the order dated 9.1.2012 passed by the District Consumer Disputes Redressal Forum, Ferozepur (in short "District Forum"), vide which the complaint of respondent No.1/complainant was accepted with Rs.1,500/- as compensation and Rs.1,000/- as litigation First Appeal No. 321 of 2012 Page 2 of 9 expenses. Both the opposite parties were held jointly and severally liable for the same. However, opposite party No.1 was further directed to transfer an amount of Rs.9,000/- to opposite party No.2 for its further transfer in the account of the complainant. It was ordered that in case the order was not complied within a period of 30 days from the date of receipt of copy of the order, the said amount of Rs.9,000/- would carry interest @ 9% per annum from 7.6.2011 i.e. from the date of transaction till its actual payment to the complainant.
2. The facts of the case, as stated in the complaint, are that the complainant was maintaining a saving bank account No.03011050053899 with opposite party No.2 and ATM card No.5264190132064477 was also issued to him against the said account. He was regularly paying the ATM card fee to opposite party No.2 bank. On 11.5.2011, he was in need of some money and, as such, visited the nearest ATM machine installed by opposite party No.1 bank at Ferozepur Cantt. to withdraw an amount of Rs.9,000/- from his account. When he used the said ATM card at the machine and gave the command for withdrawal of Rs.9,000/-, the cash was not dispensed by the ATM machine; rather a withdrawal slip was generated showing the debit entry of Rs.9,000/-. One SMS message was also received on his mobile set regarding the debit of Rs.9,000/- against the said saving bank account. He immediately visited opposite party No.1 bank and intimated its officials regarding the said false debit entry and they stated that the debit entry might be the result of some error in the system and advised him to give a written First Appeal No. 321 of 2012 Page 3 of 9 representation in this regard to opposite party No.2 bank, which was given by him and he was informed that the said amount will be shortly credited back into his account. Thereafter, he visited the offices of opposite parties No.1 and 2 many times and requested them to do the needful but they did not pay any heed. Ultimately on 13.6.2011, opposite party No.2 rejected his claim, vide letter dated 13.6.2011, on the ground that it had received intimation from the acquiring bank that the cash was successfully dispensed from the ATM to the card holder and that said acquiring bank had also provided the valid ATM log that proved the same. Thereafter, he moved an application to opposites party No.1 to show him the CCTV recording of the said ATM machine for the relevant time. However, he was not shown the CCTV footage of the said transaction. Alleging deficiency in service on the part of the opposite parties, he filed the complaint before the District Forum seeking directions to the opposite parties to make the payment of Rs.9,000/- alongwith interest @18% per annum till realization. Compensation to the tune of Rs.20,000/- for causing mental agony and harassment and Rs.5,500/- as litigation expenses were also prayed.
3. Opposite party No.1, in its written reply, admitted that the complainant used ATM facility on 11.5.2011 but pleaded that the amount of Rs.9,000/- was successfully withdrawn from the same as per computerised receipt dated 11.5.2011. This receipt clearly showed successful withdrawal of the aforesaid amount of Rs.9,000/-. It was further stated that cash available in the ATM machine of First Appeal No. 321 of 2012 Page 4 of 9 opposite party No.1, on the said date, was also got verified and the same was not found in excess. The ATM receipt dated 11.5.2011, statement of withdrawal of the amount in question from the ATM machine and the certificate issued qua the verification of excess amount in the ATM machine on the relevant date proved beyond doubt that cash was actually dispensed. Even then the claim of the complainant was thoroughly processed in accordance with law and opposite party No.2 as well as the complainant were informed, vide letter dated 13.6.2011, about the fact that the cash was successfully dispensed from the ATM to the card holder and a valid ATM log was provided to them. It seems that the greed has crept in the mind of the complainant and he wanted to grab some money by levelling false allegations. It was further pleaded that on 11.5.2011, many other people used the said ATM machine and had successfully withdrawn the amounts from the same. The malafide of the complainant is also proved from the fact that from the date of making the transaction with the ATM machine, the video clipping of the said transaction was not sought by him despite having knowledge of the fact that the same is being kept in record for a very limited period. No other complaint was made by any other consumer/user of the ATM machine on the relevant date regarding non-dispensation of the cash. The dismissal of the complaint was prayed.
4. Opposite party No.2 filed a separate written reply admitting that as per record, the complainant used the ATM machine of opposite party No.1 for withdrawal of Rs.9,000/- but denied that the cash was First Appeal No. 321 of 2012 Page 5 of 9 not dispensed by the ATM machine. It pleaded that as per information received from opposite party No.1, cash was successfully dispensed from the ATM machine to the card holder. The complaint was lodged by them with opposite party No.1 through proper process of its charge back unit. The acquiring bank stated that the cash was successfully dispensed from the ATM machine to the card holder and also provided a valid ATM log. It was denied that the complainant moved any application for showing him the CCTV recording or that the same was not shown to him. Since no such written request was made, question of any refusal does not arise at all. The dismissal of the complaint was prayed.
5. The learned District Forum, after going through the pleadings of the parties and evidence on record, allowed the complaint in the terms referred above.
6. Aggrieved by this order, opposite party No.1 has come up in appeal on the ground that the District Forum has failed to appreciate its specific stand that the complainant had successfully operated its ATM machine and had withdrawn Rs.9,000/-. The cash of the said ATM machine on the concerned date was also verified and the same was not found in excess. There is no evidence on record to show that the cash was not dispensed by the ATM machine. Although the complainant has pleaded that he asked for CCTV footage from opposite party No.1 but he failed to provide any document to prove that he ever made any request in respect of the CCTV footage. The banks are receiving hundred of complaints in general and CCTV First Appeal No. 321 of 2012 Page 6 of 9 footage is only kept in the cases pending before the Courts and not in all cases. By placing reliance on the judgment of Hon'ble National Commission in a similar case titled "State Bank of India V/s K.K.Bhalla" II (2011) CPJ 106 (NC), dismissal of the complaint was prayed.
7. We have thoroughly gone through the pleadings of the parties and have carefully perused the evidence on record.
8. The only point for adjudication before this Commission is whether the cash was actually dispensed to the complainant when he used his ATM card on 11.5.2011 for withdrawal of Rs.9,000/-. The complainant has contended that the cash was not dispensed and the complaint was immediately lodged with opposite party No.1 as well as with opposite party No.2 while the categoric stand of opposite party No.1 as well as opposite party No.2 is that cash was successfully dispensed vide transaction No.9822. Opposite party No.1 has placed on record the JP Log of the ATM machine No.S10F000640003 dated 11.5.2011 as Ex.R-5. Perusal thereof shows that at 16:11:19 hours, the card holder operated the ATM machine through his ATM card No.5264190132064477 and an amount of Rs.9,000/- was withdrawn vide transaction No.9822. The response code on this log is stated as "000", which means that the transaction was successful. In addition, opposite party No.1 has also placed on record the certificate dated 22.9.2011 (Ex.R-2) in which it has been stated that as per journal print/electronic journal print log, transaction No.9822 dated 11.5.2011 was a successful transaction and as per branch ATM replenishment- First Appeal No. 321 of 2012 Page 7 of 9 cum-verification records no excess amount of cash was found on 11.5.2011 in the ATM Machine No.S10F000640003. Had the cash been not dispensed, on the closing of the day it would have been found surplus. The opposite parties have also proved on record the ATM log of the ATM Switch Centre as Ex.R-3 which also proves that all the transactions conducted on 11.5.2011 were successful. There is no document on record suggest that the cash was not actually dispensed or that the transactions No.9822 was doubtful. The complainant was duly informed about these facts by opposite party No.1 as well as opposite party No.2 after conducting inquiry and the details of JP Logs were also supplied.
9. The learned District Forum has allowed the complaint on the ground that CCTV footage was not produced by the opposite parties to verify the facts. The complainant has contended that he made request for CCTV footage after his claim was rejected on 13.6.2011. The opposite parties have denied having received any such request. No such written request, if any, has been placed on record by the complainant. Hon'ble National Commission in a similar case reported as "State Bank of India V/s K.K.Bhalla" II (2011) CPJ 106 (NC) has was held as under:-
"We are not convinced by this reasoning of either the District Forum or the State Commission, particularly, in view of the fact that merely because the CCTV was not working on those dates and its footage was thus not available, does not mean that the money could be withdrawn fraudulently without using the ATM First Appeal No. 321 of 2012 Page 8 of 9 Card and the PIN number. In case the ATM Card had been stolen or the PIN number had become known to persons other than ATM card holder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card. In the instant case it is not disputed that the ATM Card or PIN remained in the self-custody/knowledge of the Respondent. In view of elaborate procedure evolved by the Petitioner/Bank to ensure that without the ATM Card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorised person from an ATM, we find it difficult to accept the Respondent's contention. No doubt there have been cases of fraudulent withdrawal as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM Card or the PIN number fell in wrong hands."
10. In view of the law laid down by the Hon'ble National Commission and the above discussion, the appeal of the appellant/opposite party No.1 is accepted and the impugned order of the District Forum is set aside. Consequently, the complaint filed by respondent No.1/complainant is dismissed. No order as to costs.
11. The appellant/opposite party No.1 deposited an amount of Rs.6,107/- with this Commission at the time of filing of the appeal. This amount, alongwith interest, which has accrued thereon, if any, be remitted by the Registry to the appellant/opposite party No.1, by way First Appeal No. 321 of 2012 Page 9 of 9 of a crossed cheque/demand draft, after expiry of 45 days under intimation to the learned District Forum.
12. The arguments in the case were heard on 21.10.2013 and the order was reserved. Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (SURINDER PAL KAUR) MEMBER October 31, 2013 VINAY