State Consumer Disputes Redressal Commission
Unon Bank Of India vs Major Bishamber Singh Pathania And ... on 20 July, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1383 of 2013
Date of Institution : 16.12.2013
Date of decision : 20.07.2015
Union Bank of India, Dalhousie Road, Pathankot through its Branch
Manager.
...Appellant/Opposite Party No.2
Versus
1. Maj. Bishamber Singh Pathania son of Shri Puran Chand r/o
House No.22, Defence Colony, Chhatwal, Pathankot, District
Gurdaspur.
.....Respondent No.1/Complainant
2. Manager, Punjab National Bank, B.O. Harial, Post Office Jandwal,
Pathankot, District Gurdaspur.
.....Respondent No.2/Opposite Party No.1
First Appeal against the order
dated 07.10.2013 passed by the
District Consumer Disputes
Redressal Forum, Gurdaspur.
Present:-
For the appellant : Sh. H.S.Parwana, Advocate
For respondent No.1 : Sh. R.K.Arya, Advocate
For respondent No.2 : Sh. Arvind Rajothia, Advocate
First Appeal No.1390 of 2013
Date of Institution : 16.12.2013
Date of decision : .07.2015
Punjab National Bank, Branch Office Harial, Tehsil & District Pathankot
through its Senior Manager/General Power of Attorney holder.
...Appellant/Opposite Party No.1
Versus
1. Maj. Bishamber Singh Pathania son of Shri Puran Chand r/o
House No.22, Defence Colony, Chhatwal, Pathankot, District
Gurdaspur.
.....Respondent No.1/Complainant
2
F.A. No. 1383 of 2013
2. Union Bank of India, Branch Office Pathankot, Tehsil and District
Pathankot through its Branch Manager.
.....Respondent No.2/Opposite Party No.2
First Appeal against the order
dated 07.10.2013 passed by the
District Consumer Disputes
Redressal Forum, Gurdaspur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Present:-
For the appellant : Sh. Arvind Rajothia, Advocate For respondent No.1 : Sh. R.K.Arya, Advocate For respondent No.2 : Sh. H.S.Parwana, Advocate BALDEV SINGH SEKHON, MEMBER This order will dispose of the above mentioned two first appeals;
namely, F.A. No.1390 of 2013 (Punjab National Bank Vs. Major Bishamber Singh Pathania) and F.A. No.1383 of 2013 (Union Bank of India Vs. Major Bishamber Singh & another ); which are directed against the same impugned order dated 07.10.2013, passed by District Consumer Disputes Redressal Forum, Gurdaspur (in short "District Forum"), vide which the complaint filed by complainant, Major Bishamber Singh Pathania, against the appellants/opposite parties (in short 'OPs') was partly allowed holding that both the OP-Banks are equally, jointly and severally responsible and are liable for the deficiency in service and accordingly, they were directed to reimburse to him Rs.10,000/-, the amount of the impugned transaction, within 30 days from the receipt of the copy of the order alongwith interest @ 9% 3 F.A. No. 1383 of 2013 PA with effect from the date of the transaction i.e. 01.02.2011, besides Rs.5,000/- as compensation/cost of litigation etc.
2. The facts as stated in the complaint are that complainant was holding his pension SB Account with OP No.1, which also issued him an ATM/Debit card to operate his account. On 1.2.2011, he attempted to withdraw cash by using the said debit card from the ATM machine of OP No.2, but it did not dispense any cash nor any slip, confirming the transaction, was produced. Taking the said ATM machine to be out of order, he went to the ATM of OBC Bank where also he could not get the cash. Finally, he went to the nearby Canara Bank ATM machine, from where, he successfully withdrew Rs.10,000/-. But, the slip generated by that machine, showed that Rs.20,000/-, instead of Rs.10,000/-, had been reduced from his account. Taking it to be a fault in the Canara Bank ATM, he approached its Manager, who told him to contact the parent bank i.e. OP No.1 to lodge the complaint. When, he called Mr.Gupta of the OP No.1 Bank on telephone, he advised him to lodge the complaint at PNB Toll Free No.18001802222 and further told him that the double entry, being a technical problem, would be reimbursed within 3-4 days. Complainant lodged complaint No. 53787151 on 2.2.2011 on the said toll free number. But, when he inquired about the same after 15 days, he came to know that the same stood rejected. Thereafter, he lodged another complaint No.54081730, in response to which, he was informed by OP No.1 that his earlier complaint was rejected because both of his ATM cash withdrawal transactions on 1.2.2011, were successful. Thereafter, he contacted Sh. Bishamber Dass, Branch Manager OP No.1, who explained him that there were 4 F.A. No. 1383 of 2013 two transactions against his account on 1.2.2011. First transaction No.6947 took place at 13:08 hrs from the station ID NPTH0010 of Union Bank of India, Pathankot while the second transaction No.2326 took place at 13:12 hrs. from Station ID 21230333, which belonged to Canara Bank. He then wrote to OP No.1 bank on 9.3.2011 requesting it to take up the matter with higher authorities, which was followed by another representation to DGM Circle Office of OP No.1 at Kapurthala, but, he did not give any reply. Finally, he wrote to Ombudsman RBI Chandigarh on 25.7.2011, who, registered his complaint vide No. 04/0385/GCE450 /2011-12. After a period of three months, Ombudsman informed him that the requisite documents, including video clipping, demanded from OP No.2 were not supplied by it till 31.12.2011. Finally, on 12.4.2011, the Banking Ombudsman disposed of his complaint asking him to seek any alternative remedy available to him. Alleging deficiency in service on the part of OP No.1 as well as on the part of OP No.2, he filed complaint before District Forum seeking directions to both the OPs to refund him Rs.10,000/-, wrongly debited to his account, at the earliest.
3. Upon notice, OP No.1 filed written reply pleading therein that the complaint was only against OP No.2, as the disputed transaction took place at its ATM machine and that there was no deficiency in service on its part. It was admitted that its officer, Mr. Gupta, advised him to lodge a complaint at the Toll Free No.18001802222. He was also informed that in case the amount was not dispensed due to some defect, the same would be reimbursed within 3-4 days. It was admitted that complaint was lodged by complainant at said Toll Free number, but 5 F.A. No. 1383 of 2013 pleaded that the same was rejected on the ground that the disputed transaction was subsequently found to be successful. The functioning of the ATM machine was explained as under :
"When a customer inserts his ATM Card into the ATM Machine for withdrawing money, the ATM senses the card and sends signal to ATM switch centre Mumbai through VSAT/Satellite media. ATM Switch verifies the card holders details and amount with the bank data-base and if every thing is OK, the customer's account is debited and a signal is sent back to the ATM for dispensing the cash. The ATM, then dispenses cash to the customer and details of transaction are printed the JP Log as well as on the customer's slip simultaneously (JP Log is a plain paper roll kept inside the ATM). The customer collects the both cash and the advise slip of the transaction. A response code '000' indicating successful transaction appears both in JP Log and customer's slip. And when cash is dispensed successfully, a return signal is again sent to the switch centre and ATM switch centre treats his transaction as successful. "
It was further pleaded that it informed OP No.2, vide its letter dated 9.9.2011, about the alleged non-delivery of the cash to the complainant and sought detailed information from it. In response to the said letter, OP No.2, vide letter dated 22.9.2011, intimated that transaction No.6947 dated 1.2.2011 was successful and further that no 'excess cash' was found in the ATM and reconciliation of ATM was tallied. However, OP No.2 informed that CCTV footage was not found as a new ATM machine had been installed but OP No.2 assured that they would try their best to make the same available. Officials of its Circle Office at Kapurthala also rejected the complaint on the ground that the disputed transaction was successful. Denying all other 6 F.A. No. 1383 of 2013 allegations, dismissal of the complaint was prayed.
4. OP No.2 filed a separate written reply pleading therein that the complainant is a consumer of OP No.1 with which he was having his saving bank account and that he initially attempted to withdraw cash through his debit card from ATM machines of Oriental Bank of Commerce and Canara Bank and thereafter, withdrew Rs.10,000/- from its Branch but he had not impleaded these Banks as parties. It was further pleaded that disputed transaction was successful, vide computer record No.6947. There was no fault, imperfection or short coming on its part. Denying all other allegations, dismissal of the complaint was prayed.
5. Parties led their evidence, by way of affidavits and documents, before the District Forum, which after going through the same, allowed the complaint, in aforesaid terms.
6. Aggrieved by this order, OP No.2 filed the appeal (First Appeal No.1383 of 2013) on the grounds that the District Forum has decided the complaint on fiction and surmises without appreciating the fact that when complainant noticed that the transaction of Rs.10,000/- at its ATM machine was unsuccessful and he could not withdraw the cash, he should have been vigilant to cancel or clear the transaction immediately. He cannot take the advantage of his own lapse, when as per the record, the transaction No.6947 was successful. The District Forum has erred in holding that it was deficient for non production of CCTV footage covering the disputed ATM transaction despite the fact that in his solemn affirmation on oath, Chief Manager of its bank deposed that video clipping of CCTV of the said transaction could not 7 F.A. No. 1383 of 2013 be produced due to deletion of data after the lapse of period of one year, whereas the retention period of CCTV footage is 3 months. No complaint was ever lodged by the complainant with it. It came to know about the disputed transaction only when the notice was received from the District Forum in the complaint No.188 of 2012. Acceptance of the appeal and setting aside of the impugned order was prayed.
7. OP No.1 filed a separate appeal (F.A. No.1390 of 2013) on the grounds that there was no deficiency in service on its part as the disputed transaction took place at the ATM machine of the OP No.2. The complainant is not entitled for any amount as the disputed transaction of Rs.10,000/- was, infact, successful. Upon receipt of the complaint from the complainant, it duly verified the facts regarding the transaction and it was found that the cash was actually dispensed. Since the ATM machine belonged to OP No.2, and if due to fault in the ATM machine, the complainant was not able to get the cash, even in that eventuality, it cannot be held liable for the said fault. Setting aside of the impugned order qua it was prayed.
8. The learned counsel for the complainant submitted that there was no merit in the appeals and the same be dismissed as the learned District Forum has arrived at the correct conclusion on the basis of the evidence placed on record.
9. We have thoroughly gone through the pleadings of the parties, carefully perused the evidence on record and heard at length the learned counsel for the parties on their behalf.
8F.A. No. 1383 of 2013
10. The specific case of the complainant is that on 1.2.2011, when he tried to withdraw Rs.10,000/- from the ATM machine of OP No.1, no cash was dispensed and taking that machine to be defective, he attempted to withdraw Rs.10,000/- from ATM of OBC Branch and same was also was not successful. Finally, he went to the nearby Canara Bank ATM and successfully withdrew cash of Rs.10,000/-. Upon lodging of complaint No.53787151 at toll free number of OP No.1, he was conveyed that the transaction done by him at the ATM machine of OP No.2 was also successful.
11. The receipt generated by ATM machine of Canara Bank, Ex.C-2, shows that Rs.10,000/- was withdrawn by the complainant on 1.2.2011 at 13:03 hours and that the ledger balance after this transaction was Rs.6613/-. His account statement (Ex.C-3) shows that two transactions of Rs.10,000/- each by withdrawal through ATM had been recorded on 1.2.2011 in it. It further confirms that balance against his account, which was Rs.26,613/- before both the transactions, was reduced to Rs.6613/- .OPs have placed on record the copy of the J.P. Log, Ex.R-7, which shows that the transaction No.6947 had taken place at the ATM of OP No.2 at 13:12 hours through ATM card No.5126520004927823. This transaction has been clearly mentioned as 'successful' with ledger balance as Rs.16,613/- and the 'response code' is mentioned as '000' which also conveys that it was successful. OPs have further proved on record the 'reconciliation statement' as Ex.R-8 and 'ATM Balance Record' as Ex.R-9, which, further show that no surplus cash in the ATM was found on 1.2.2011, thereby confirming that the transaction No.6947 was, infact, a successful one and that the cash was duly dispensed. 9 F.A. No. 1383 of 2013 The learned District Forum has not at all appreciated the evidence produced by OPs and allowed the complainant on the surmises that OP No.2-Bank ATM responded with time lag on account of technical snag and that the requisitioned amount came out late in some different hands and further that CCTV Footage was not made available.
12. No doubt, there is mismatch of time in transactions No.6947 and transaction No.2326. As per record, transaction No.6947 took place at ATM of OP No.2 at 13:12 hours while transaction No.2326 occurred at Canara Bank ATM at 13:02 hours conveying that Canara Bank transaction proceeded the disputed transaction, whereas, the contention of complainant is that he first went to ATM of OP No.2 where no cash was dispensed and then, he used ATM of Canara Bank. Receipt Ex.C-2, shows that after withdrawal of Rs.10,000/- from Canara Bank ATM, ledger balance was Rs.6613/- while JP log (Ex.R-2) shows ledger balance after disputed transactions was Rs.16,613/- confirming that transaction No.6947, infact, took place prior to transaction No.2326. Statement of account (Ex.C-3) further shows that amount of Rs.10,000/- was already debited in the account of complainant when he used ATM of Canara Bank. It certainly proves that there is mismatch in the time settings of two machines. The complainant has not specified the time of two transactions in his complaint. Admittedly, both the machines are located very close to each other and both transactions were transacted at short intervals. Time setting of atleast one of the two machines was erratic. JP log (Ex.R-7) shows that transaction No. 6947 commenced at 13:12 hrs and 5 more cash withdrawal transactions No.6948 to 6952 followed at 13:17, 13:18, 13:19, 13:20, 13:21 hours on this machine 10 F.A. No. 1383 of 2013 which were also successful confirming that its functioning was not erratic. Thus, only from the mismatching of timing of two machines, it cannot be assumed that OP No.2 ATM responded with time lag or that there was some technical snag in it, as assumed by the District Forum. Even if, the contention of the complainant that the cash was not collected by him, is taken to be correct, for the sake of argument, even then at the most it can be said that the cash fell into the hands of someone else after complainant had hurriedly left the premises taking the machine to be defective. OP No.1 has described the sequence that takes place when an ATM card is used for withdrawal of cash from it. In case, the complainant was not able to collect the cash, he should have cancelled/cleared the transaction carried out by him before leaving the ATM machine. Apparently, the complainant was negligent while using his debit card and failed to take adequate safe guard. In such a situation, can the concerned bank be held liable for the lapse of the customer who uses the machine carelessly and hurriedly leaves the premises without cancelling the transaction? The user is required to take precautions as conveyed to him by the bank while issuing the Debit-ATM Card. He is supposed to know all the steps, which are essential for safeguarding his money as he is to use the ATM of his own without the help of any bank official. Any lapse on his part may cause him direct financial loss.
13. Hon'ble National Commission in (2015) CPJ 254 (NC) Raghubindra Nath Sen Vs. Punjab National Bank held as under :
"It can hardly be disputed that no withdrawal from an ATM can be made unless the ATM Card/Debit Card issued to the account 11 F.A. No. 1383 of 2013 holder is inserted in the ATM machine followed by use of the ATM pin provided to the customer and therefore, it is not possible for the person to withdraw any cash through the ATM even if he is able to come the ATM/Debit card issued to the customer. Infact, the case before us, this is not the case of the complainant that he lost the ATM card issued to him by the banks. The said card was directly used at the ATM machine for making the transaction in question. The ATM Pin obviously must have been used since no transaction at ATM machine is possible without use of the pin.
Therefore, we cannot accept the contention of the complainant that Rs.5000/- from his account was withdrawn by a third person and not by him. Even if the said amount was withdrawn by a third person, he would have done it using the ATM Pin disclosed by him. "
14. Learned District Forum has also wrongly held OPs liable for not tracing the money as they failed to produce the CCTV footage of the disputed transaction. Hon'ble National Commission in I (2013) CPJ 749 (NC) State Bank of India Vs. Om Parkash Saini, held as under :
"5. Learned District Forum held complainant reliable and trustworthiness only on account of judicial conscience on the ground that there was no reason for the complainant to tell a lie only for a sum of Rs.5,000/-. It is true that normally a person would not tell a lie but in civil matters complainant was obliged to prove his claim by preponderance of evidence. Complainant should have called for the statement of the opposite party showing opening balance in ATM machine on 23.5.2010 and closing balance on that day alongwith amount withdrawn which should have proved that Rs.5,000/- were not received by the 12 F.A. No. 1383 of 2013 complainant and he got only a slip showing receipt of the money. When many other persons had withdrawn money from that ATM on that day and none complained for not receiving money it cannot be presumed that complainant did not receive Rs.5,000/- from the ATM machine. Complainant has not proved any written protest made to the bank authorities immediately and has based his claim only on the basis of information given on toll-free number of the opposite party.
6. Exactly what message was given is also not on record. 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. In this case, 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. Opposite party has also mentioned in its written statement that camera is fixed only on the face 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."
15. In view of the above findings and the law laid down by Hon'ble National Commission, both the appeals i.e. (First Appeal No.1383 of 2013) filed by OP No.1 and (First Appeal No.1390 of 2013) filed by OP No.2 are allowed and the impugned order of the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed. No order as to costs.
16. The appellant/OP No.2 have deposited Rs.9000/- in F.A.No. 1383 of 2013 while appellant/OP No.1 deposited Rs.8793/- in F.A. No.1390 of 2013 at the time of filing their appeals before this Commission. These 13 F.A. No. 1383 of 2013 amounts alongwith interest accrued thereon, if any, be remitted to the respective appellants by way of crossed cheque/bank draft after the expiry of 45 days.
17. The arguments in these appeals were heard on 29.06.2015 and the order was reserved. Now the order be communicated to the parties.
18. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
19. Copy of this order be placed in the file of F.A. No.1390 of 2013.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER July 20, 2015 KK 14 F.A. No. 1383 of 2013