State Consumer Disputes Redressal Commission
Ambrish Taygi vs Axis Bank on 24 January, 2023
Appeal No. Sh. Amrsih Tyagi 24.01.2023
256 of 2011 Vs.
Axis Bank
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 09.12.2011
Date of Final Hearing: 10.01.2023
Date of Pronouncement: 24.01.2023
First Appeal No. 256 / 2011
Sh. Amrish Tyagi S/o Sh. Rishipal Tyagi
Address: Sales Manager
M.N.Y.L. in Front of Garhwal Mandal Vikas Nigam,
99, Rajpur Road, Dehradun
(Through: Sh. Vaibhav Jain, Advocate)
.....Appellant
VERSUS
Axis Bank
Through Branch Manager
74, Rajpur Road, I.I.P.M. Tower, Dehradun
(Through: Sh. Praveen Kumar, Advocate)
.....Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal has been directed against the judgment dated 29.09.2011 passed by the learned District Consumer Disputes Redressal Forum, Dehradun (hereinafter to be referred as the District Commission) in consumer complaint No. 125 of 2009 styled as Sh. Amrish Tyagi Vs. Axis Bank, wherein and whereby the complaint was rejected / dismissed by the learned Commission concerned.1
Appeal No. Sh. Amrsih Tyagi 24.01.2023
256 of 2011 Vs.
Axis Bank
2. The facts giving rise to the present appeal are as such that the complainant is a saving bank account holder (Account No. 093010100239097) in the bank of opposite party. On 28.04.2009 the complainant had put his demand for withdrawal of Rs. 15,000/- through putting ATM card at about 4:16 p.m. the opposite party branch, Rajpur Road, Dehradun, but only Rs. 100/- came out from the ATM of the opposite party; the complainant immediately informed to the guard who was incharge of the ATM and also Ms. Anubha, who was inside the bank. The complainant also informed the Bank Manager and gave his complaints in writing on various dates, i.e. 29.04.2009, 01.05.2009 and reminder notice on 05.05.2009, but his amount was not credited to his account. The complainant was informed that his amount will be credited soon.
Subsequently the complainant was informed through e-mail that the transaction was successful and everything is O.K. and no discrepancy was found in the Branch. The complainant is not satisfied with the banking working system, neither the balance sheet was shown to the complainant, nor the CCTV footage installed in ATM was given to him; such act amounts to unfair trade practice, hence, the complaint was filed.
3. In the written statement, the respondent - opposite party denied the version of the complaint alleging that when the complainant through his ATM card demanded a sum of Rs. 15,000/- through ATM; in result thereto, the complainant received only a sum of Rs. 100/-. It is further wrong to say that a sum of Rs. 14,900/- was not received by the complainant and the same was stuck in the ATM machine of the opposite party. The complainant through his debit card bearing No. 4688050930195264 on dated 28.04.2009 had withdrew a sum of Rs. 15,000/- only and the said transaction was successful; the computerized records of the ATM machine also shows the transaction to be successful. The complainant has not come with clean hands before the Commission, as he has not stated that after the 2 Appeal No. Sh. Amrsih Tyagi 24.01.2023 256 of 2011 Vs. Axis Bank withdrawal of Rs. 15,000/-, the complainant further made an attempt to withdraw a sum of Rs. 10,000/- whereof failed and the complainant again tried to withdraw a sum of Rs. 10,000/- and the transaction again failed, due to which the complainant had contacted the guard of the ATM. It is also pleaded that statement of an ATM is a confidential document of the bank and cannot be shown to a customer, without prior approval from the appropriate authority. As far as CCTV footage is concerned the same is only recorded to identify the person entering the ATM, no transaction in CCTV is recorded. The complaint is frivolous and vexatious and is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986.
4. The learned District Commission after perusing the material available on record and after hearing both the parties, passed the impugned judgment, wherein it is held as under:-
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5. On having been aggrieved by the impugned judgment, the present appeal has been preferred by the appellant - complainant.
6. We have heard both the sides and perused the impugned judgment as well as the material available on records.
7. It is an admitted fact that the appellant - complainant had saving bank account No. 093010100239097 with the respondent - opposite party at Dehradun. It is also an admitted fact that the appellant -complainant through his ATM card demanded a sum of Rs. 15,000/- through the ATM in result thereto, the appellant - complainant received only a sum of Rs. 100/-.
3 Appeal No. Sh. Amrsih Tyagi 24.01.2023
256 of 2011 Vs.
Axis Bank
8. Now the dispute between the parties to the appeal is as to whether a sum of Rs. 14,900/-was stuck in the ATM machine of the respondent - opposite party or not.
9. The learned counsel for the appellant - complainant has contended that the learned District Commission below has failed to consider the difference shown between the opening balance and switch balance of deposit record (cash) of the ATM machine of the respondent - opposite party and has erred while passing the impugned judgment.
10. We have perused such details bearing paper Nos. 37 and 38 dated 28.04.2009 and 29.04.2009 (of Securitrans India Pvt. Ltd., Axis Bank, cash
- deposit records) wherein we have found that there is cutting / overwriting in the column "cash as per physic verification in cassette as well as in the Total Amount". Besides it, in this column (paper No. 37 of this Commission's record) Rs. 500/- X 3247 and Rs. 100/- X 91. Total amount Rs. 16,42,600/- is shown, but it should be Rs. 16,32,600/-. Thus, there exists discrepancy in the total sum in this column. These papers Nos. 37 and 38 itself reveal that there was shortage of Rs. 3,200/- and difference between admin report and audit remained as Rs. 14,200/-. Thus, it is clearly proved that there had been some discrepancy between the opening balance amount and the switch balance amount as per paper Nos. 37 and 38. This fact has also proved that there was some technical error in functioning of the ATM machine on 28.04.2009.
11. The learned counsel for the appellant - complainant has argued that the respondent - opposite party neither provided statement of ATM of the Bank, nor shown to the appellant - complainant the CCTV footage installed therein, thus there was deficiency in service on the part of the respondent - opposite party. The learned District Commission below has failed to 4 Appeal No. Sh. Amrsih Tyagi 24.01.2023 256 of 2011 Vs. Axis Bank consider the pleading of written statement and the evidence of the respondent - opposite party wherein the respondent - opposite party in its evidence has undertaken to furnish the copy of CCTV footage as and when called upon by the District Commission. The learned counsel for respondent - opposite party has submitted the CCTV camera installed in the ATM counters are focused on the face of the transaction done by the individuals and does not reflect the transaction done by the individual customer.
12. We have perused the pleadings and evidence of the parties to the appeal. In our opinion the learned District Commission concerned should direct the respondent - opposite party to furnish the copy of CCTV footage before the Commission, so that this fact might by ascertained whether the complainant has informed the guard deputed in the ATM counter about not receiving Rs. 14,900/- from the ATM or whether he has complained and contacted the guard after the failure of the transaction of Rs. 10,000/- from the ATM machine.
13. Apart from it, it was the bounden duty of the respondent - opposite party to furnish the copy of the CCTV footage to the complainant, inspite of the fact that the CCTV cameras installed in the ATM are focused only to identify on the face of the person entering the ATM and does not reflect the transaction done by the individual customer, in order to show its genuineness and to discharge its burden to prove the same that the appellant
- complainant has not made a complaint regarding the stuck of Rs. 14,900/- in the ATM machine.
14. As per the complaint, it is the case of complaint that when the complainant put his demand for withdrawal of Rs. 15,000/- through ATM machine, Rs. 14,900/- did not come out from the ATM machine and he only 5 Appeal No. Sh. Amrsih Tyagi 24.01.2023 256 of 2011 Vs. Axis Bank received Rs. 100/-; he immediately informed the guard. According to the contention of the complaint, a guard was deputed in the ATM counter of the respondent - opposite party, who was an important witness, but he was not produced in the evidence by the respondent bank - opposite party, so that the fact may be proved whether the complainant told him about not receiving Rs. 14,900/- from the ATM machine or not.
15. It is also an admitted fact that the complainant after the aforesaid transaction had immediately informed the guard as well as the guard immediately informed Smt. Anubha. It is also admitted fact that the complainant had also given several complaints to the Bank Manager at various dates, i.e. 29.04.2009, 01.05.2009, 05.05.2009 and also a legal notice to the respondent - opposite party. A perusal of the records has clearly shown that there was discrepancy which existed in the ATM machine transaction detail (paper Nos. 37 and 38), which proved that the ATM machine was not functioning well at the relevant date / time. Apart from it, non-production of the relevant evidence of the witness guard, Madam Anubha as well as the documentary evidence, i.e. CCTV footage has also proved that there exists deficiency in service on the part of the respondent - opposite party. It is pertinent to mention that when the complainant has made a complaint for not getting the withdrawal of Rs. 14,900/- from the ATM machine on the relevant date, it was the duty of the Bank to call-upon the complainant at the time of counting and inspection of the ATM machine, so that the complainant might see his matter at that time.
16. Thus, we are of the view that the District Commission has passed the impugned judgment illegally and with material irregularity and has not exercised the jurisdiction vested in it.
6 Appeal No. Sh. Amrsih Tyagi 24.01.2023
256 of 2011 Vs.
Axis Bank
17. In our opinion, the impugned judgment is perverse and suffers from material irregularity and illegality; therefore, we are inclined to interfere with the impugned judgment. Accordingly, the appeal is liable to be allowed and the impugned judgment is liable to be set aside.
18. Appeal is allowed. Impugned judgment passed by the District Commission concerned is set aside. Respondent - opposite party is directed to pay Rs. 14,900/- to the appellant - complainant within a period of one month from the date of judgment, in default, the respondent - opposite party will have to pay interest @ 8% per annum from the date of filing of the complaint case till its actual realization. The appellant - complainant is also entitled to get Rs. 10,000/- as costs of litigation.
19. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The original record of the concerned District Commission alongwith copy of this order be sent to the concerned District Commission for record and necessary information.
20. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 24.01.2023 7