State Consumer Disputes Redressal Commission
Punjab National Bank vs Surendera Kumar Pal And Another on 29 August, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 326 / 2013
Punjab National Bank
Branch SIDCUL, District Haridwar
Through its Senior Manager Sh. K.K. Chaudhary
......Appellant / Opposite Party No. 1
Versus
1. Sh. Surendera Kumar Pal S/o Sh. Rajaram Pal
C/o Nipman Faster Industries Pvt. Ltd.
Plot No. 9, Salempur Mehdud, District Haridwar
......Respondent No. 1 / Complainant
2. State Bank of India
Branch Bahadrabad, District Haridwar
......Respondent No. 2 / Opposite Party No. 3
Sh. Vijai Kumar Gupta, Learned Counsel for the Appellant
Respondent No. 1 in person
None for Respondent No. 2
Coram: Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 29/08/2016
ORDER
(Per: Mr. D.K. Tyagi, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellant-opposite party No. 1 against the judgment and order dated 23.10.2013 passed by the District Forum, Haridwar in consumer complaint No. 171 of 2012. By the order impugned the District Forum has allowed the consumer complaint and directed the opposite party No. 1 to pay a sum of Rs. 10,000/- to the complainant, within one month from the date of order.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant has saving account in the branch of opposite party and is a consumer. On 13.03.2012 at about 10:30A.M., the 2 complainant went to ATM of State Bank of India-opposite party No. 3 and used his ATM card in the ATM machine for withdrawing the amount of Rs. 10,000/-, but the said machine instead of providing money, has provided a slip of receipt of amount and amount of Rs. 10,000/- deducted from the complainant's account. No money came out from the ATM machine. The complainant immediately went to the branch of P.N.B. to make entry in the passbook and he found that Rs. 10,000/- were deducted from his bank account. The complainant lodged a report at toll free number of customer care on 13.03.2012. The complaint No. 57437711 of customer care was informed, but no report has been sent by the customer care, even after 10 days of the complaint. The complainant sent a letter to the Branch Manager of opposite party bank, who replied the complainant on 17.07.2012 that an amount of Rs. 10,000/- has been withdrawn by the complainant. The complainant sent an e-mail to Punjab National Bank on 17.04.2012 and demanded video clip of 13.03.2012 from 10:00A.M. to 11:00A.M. Some more e-mails were also sent, but P.N.B. did not provide him any video clip. The complainant also lodged complaint to Jago Grahak Jago on 09.05.2012 through phone, who advised him to send complaint to Punjab National Bank, Nodal Officer, New Delhi. On 09.05.2012 the complainant sent a letter to Punjab National Bank, Nodal Officer, Atmaram House, Fulfai Marg, New Delhi through a courier of D.T.D.C., but they have not replied the same. Again on 22.05.2012, the complainant sent a letter to the Branch Manager and demanded video clip. The complainant also sent an e-mail to DGM of S.B.I. for video clip. The complainant had also sent a letter dated 22.05.2012 to S.B.I., Bahadrabad, District Haridwar for video clip. The bank manager had asked for pen-drive for supplying a video clip. The complainant purchased a 16GB pen-drive and gave it to the bank manager, who even after 10 days did not provide him video clip. Due to negligence of the opposite parties, the complainant remained absent from his office and took leave for 10 days for which Rs. 6,000/- were deducted from his salary. The complainant has prayed for Rs. 10,000/-, 3 which were not provided to him by the ATM machine and also for compensation on account of mental agony caused to him.
3. The opposite party Nos. 1 & 2-Punjab National Bank have filed written statement before the District Forum and admitted only opening of account and to avail ATM facility. Para Nos. 1, 2 & 4 to 10 are not admitted. Para No. 3 is admitted only to give report on the letter of complainant. Para Nos. 8 & 9 have no relevance with the answering opposite parties. In additional pleas, the answering opposite parties have pleaded that present claim petition is filed against facts and law. There is no lack of service on the part of answering opposite parties. They managing the ATM's machines regularly with due care and excellence. In case any ATM machine is not working properly then the machine automatically display the phrase (out of order) and the watchman on duty also inform the visitors/customers at the ATM. The ATM is to be watched through CCTV cameras installed there. The complainant admitted that on 13.03.2012 at about 10:30A.M. he has withdrawn Rs. 10,000/- from the State Bank of India ATM at Baharadabad and received the slip for the confirmation of withdrawal and later on get the confirmation from his bank account for the same. In case any discrepancy is found during each day account balance confirmations at the day end, then the same will be returned in the bank account of the complainant. This is normal transaction system of Bank ATM. The answering opposite parties have immediately attended the complainant and provided the bank statement. As far as the CCTV camera footage is concerned this can only be provided by the S.B.I., because the ATM used by the complainant was S.B.I. ATM. The complainant was informed and understand properly, as explained to him by the bank staff. There is no lack of service at their level and the complainant has not suffered any pain or agony. He filed consumer complaint without any just and sufficient cause, which is in the knowledge of complainant.
44. The opposite party No. 3-State Bank of India has filed written statement before the District Forum and has pleaded that para No. 1 is admitted regarding account opening, rest is denied. Para Nos. 2 to 10 are denied. In additional pleas the answering opposite party has pleaded that the complainant is not a consumer of the answering opposite party. It is denied that the complainant had not withdrawn Rs. 10,000/- from the ATM of answering opposite party on 13.03.2012 at 10:30A.M. It is denied that the complainant has ever requested for video clip on 22.05.2012 and answering opposite party had demanded any pen-drive from the complainant or pen-drive was provided by the complainant to the answering opposite party. It is also denied that the answering opposite party kept pen-drive and request for video clip was turned down. The actual fact is that the complainant used ATM of the answering opposite party and transaction for withdrawal of Rs. 10,000/- was successful on the basis of record of the answering opposite party. In case, some known or unknown person committed fraud with the complainant at the time of transaction, which is punishable in the eyes of law and requires investigation and evidence, therefore, consumer complaint does not come under the purview of Consumer Protection Act, 1986. The complainant had requested for video clip after a gap of three months and ten days from 13.03.2012. Infact, video clip of CCTV recording cannot be available after lapse of 90 days. It was found after investigation that transaction in the ATM machine by the complainant was found successful. There is no deficiency in service on the part of the answering opposite party.
5. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 23.10.2013 in the above manner. Aggrieved by the said order, the opposite party No. 1- appellant has filed this present appeal.
6. We have heard Sh. Vijai Kumar Gupta, learned counsel for the appellant as well as Sh. Surendera Kumar Pal-respondent No. 1 in person.
5We have also gone through the entire record of the District Forum and have also perused the material placed on record. None appeared on behalf of respondent No. 2.
7. Learned counsel for the appellant has submitted before this Commission that the impugned judgment and order dated 23.10.2013 passed by the District Forum is against the law and facts of the case. The District Forum has passed the said order without applying reasonable and judicial mind. It is admitted case that the respondent No. 1-complainant hold P.N.B. ATM card, but he used it in the ATM of S.B.I. It was also admitted that the ATM of S.B.I. had shown that the money of Rs. 10,000/- was withdrawn by respondent No. 1. Therefore, the appellant had not committed any deficiency in service. Since inception of the complaint, respondent No. 1 demanded CCTV footage from S.B.I., but S.B.I. had miserably failed to provide CCTV footage to him, thus, if there is any deficiency of service committed, it was committed by S.B.I. The District Forum committed mistake by allowing the complaint against the appellant. Learned counsel for the appellant has also argued that it was a successful transaction according to the record of bank and video camera fixed in the ATM only see the face of the person who operates the ATM machine and not the keyboard.
8. Learned counsel for the appellant has cited a decision of the Hon'ble National Commission in Revision Petition No. 2382 of 2012; State Bank of India vs. Om Prakash Saini. In this case, the Hon'ble National Commission has held that video footage had no relevance at all because this is not the case of the complainant that he did not go to operate ATM machine of opposite party. The Hon'ble National Commission in the said judgment has expressed its view that the learned District Forum allowed the complaint mainly on the ground that video footage were not furnished to the complainant by the opposite party and the learned State Commission also observed the same fact in the impugned order. The opposite party has 6 also mentioned in its written statement that camera is fixed only on the fact of the user and not on the keys of the ATM and the delivery window. In such circumstances, non-supply of video footage had no bearing on the claim of the complainant and on this deficiency claim could not have been allowed by the learned District Forum and upheld by the learned State Commission. Consequently, petition filed by the petitioner-State Bank of India was allowed against the respondent and impugned order passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula was set aside and the complaint of the complainant was dismissed. We are convinced by the arguments as well as citation relied upon by the appellant bank. This citation is fully applicable in this case also. There is no relevance of video footage of CCTV camera, as in ATM machine camera is fixed only on the face of the person using ATM machine and not on the keys of ATM and delivery window. In the case in hand, it is admitted fact that the respondent No. 1-complainant operated ATM machine of S.B.I.- respondent No. 2. The appellant-P.N.B. as well as State Bank of India also admits this fact that transaction was made by the complainant on 13.03.2012 for withdrawal of Rs. 10,000/- from the ATM machine of S.B.I., Branch Bahadrabad. Record of P.N.B. shows that the respondent No. 1-complainant used his ATM card on 13.03.2012 by his card No. 5126520080025963. Transaction No. 7701 was successful for withdrawal of Rs. 10,000/- (This record of transaction was filed by the complainant- respondent No. 1 himself before the District Forum). The entries in the pass-book of respondent No. 1-complainant of P.N.B. account also indicates that the amount of Rs. 10,000/- has been debited from the account of respondent No. 1, as shown in paper No. 4/11 on the District Forum.
9. The District Forum has committed manifest error of law in holding that the appellant-P.N.B. has not submitted any footage of CCTV camera before the District Forum. It was the ATM machine of S.B.I., Branch Baharadabad, District Haridwar, in which respondent No. 1 had made transaction, which was successful and if there was any CCTV footage, it 7 may be available in the S.B.I. and not in the branch office of appellant- P.N.B. Furthermore, it is also clear from the citation relied upon by the appellant that CCTV camera is fixed only on the face of user and not on the keys of the ATM machine.
10. The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside.
11. For the reasons aforesaid, the appeal is allowed. Impugned judgment and order dated 23.10.2013 passed by the District Forum, Haridwar in consumer complaint No. 171 of 2012 is set aside. No order as to costs. The amount deposited by the appellant at the time of filing the appeal, as statutory amount, be released in appellant's favour.
(MRS. VEENA SHARMA) (D.K. TYAGI)