DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No.288/2017  

QUORUM:

Order By: Shri S.S. Malhotra (President)

JUDGMENT

1. By this order the Commission shall dispose off the present complaint filed by the Complainant against OPs w.r.t. deficiency of service on account of not getting amount from the ATM. 
2. Brief facts as stated by the Complainant in the complaint are that he has Bank Account with OP1 and also has a ATM Card No.6521542000201374 and on 09.03.2017 when he tried to withdraw Rs.10,000/- from the SBI Bank ATM i.e. OP2’s ATM he received a receipt with the remarks ‘sorry unable to process’ the Complainant tried in the nearest ATM but the Complainant has received the same receipt from the ATM but he was surprised when he received a message on his phone that amount has been debited from his account.  He approached the Customer Care and explained all facts but he was assured that there is some technical fault and therefore amount would be returned in his account within 7 days but nothing happened in 7 days and thereafter he again made a call on 16.03.2017 to reverse the deducted amount and he was again assured that it would be credited in his account by 22.03.2017 but nothing happened and thereafter he wrote various complaint but no satisfactory reply was given and even his amount was not credited in his account.  He approached the office of the OP who told him that if he want to lodge a complaint in RBI Banking Ombudsman then he has to pay Rs.575/- to the Bank which he paid but Respondent did nothing and he submitted that act of the OP is highly illegal and therefore he filed the present complaint thereby claiming an amount of Rs.10,000/- along with compensation of Rs.30,000/- and litigation expenses of Rs.25,000/-. 
3. OP1 has filed his reply by taking preliminary objections that present complaint is liable to be dismissed as there is no cause of action against OP1, Complainant has not come to the Commission with clean hands, the Complainant has no locus to file the present complaint as panel of Banking Arbitration has already decided the matter against the Complainant on 22.05.2017 and therefore no cause of action survive. 
4. On merit it is stated that when the Complainant contacted the office of OP1 informed him that his complaint has already been rejected at the Arbitration level and if he wants to lodge his complaint in Banking Ombudsman he can apply there and he has to pay Rs.500/- + Taxes and after getting the consent from the Complainant and charges the wrongly transaction was raised before Banking Arbitrator Panel (PLE) who have decided the matter against Complainant and therefore now the complaint is liable to be dismissed. 
5. OP2 has filed its reply taking preliminary objection that no cause of action arose against OP2, the ATM Card General Instructions and Conditions have been issued by which the Card Holder has to comply with such terms and conditions, the transaction in dispute was successful and even otherwise no excess cash was found against EJ log dated 09.03.2017 nor any extra cash was found pertaining to the ATM Card No.6521542000201374.  It is further submitted that it is the fault of the complainant for not collecting the dispensed money from the ATM and even the report of the CCTV Footage shows that the amount has not been collected initially by the Complainant but was subsequently collected.  It is further submitted that the slip enclosed with the complaint showing ‘unable to process’ does not reflect the date of transaction therefore cannot be relied upon and as far as CCTV Footage of the ATM is concerned the same is preserved for three months only and therefore demand of the complainant for same is not maintainable.  It is further submitted that on 09.03.2017 the Complainant attempted to withdraw Rs.10,000/- by using ATM Card which was duly processed but complainant had not collected the money for the reason thus known to him and this fact is clear from the ej log as forgotten money at 07:26:39 AM and at 07:32:06 AM the forgotten money was removed.  It is therefore prayed that complaint of the Complainant be dismissed.  
6. The Commission has heard the arguments and perused the record. 
7. The Complainant has not filed any documents in support of his contention particularly w.r.t. the fact that when he tried to take money out from the ATM, he received the slip ‘ Sorry unable to process’ this document has not been filed by the Complainant along with his complaint which is the basic document to show that the amount was not successfully withdrawn from the ATM.  The OP on the other hand has filed these documents and the same runs into three pages.  The relevant transaction w.r.t. the Card Number of the Complainant i.e. 6521542000201374 is at page 4 of the documents filed by the Complainant where withdrawal of Rs.10,000/- is being shown and it is dated 09.03.2017 and it is written presented money forgotten this is at about 07:26:39 AM then w.r.t. same Card Number the another report is at 07:32:06 and it is written forgotten money removed.  At 07:33 the report PIN has been changed but here the Card Number is different i.e. 5103720093881769 this Card Number is not mention anywhere in the complaint filed by the Complainant.  The Complaint filed by the Complainant at IDVI Sector 23 Noida is without any date and in that complaint he submits that the transaction is at about 07:26 AM and 07:27 AM.  Once the Complainant has not filed the documents and OP has filed documents and despite having filed that document by the OP2 the Complainant has not come forward to rebut that fault, establishes one fact that the ATM Machine  was working properly and even the money has come out from the machine while doing the transaction.  No doubt there is a gap of about 6 minutes i.e. at about 07:26 it is written that ‘amount forgotten’ and at 07:32 it has been written that ‘amount has been removed’ and who visited the said ATM Machine within those 6 minutes, has not been proved by the Complainant, this is the reason that the RBI guidelines always issued and they do prescribe that complaint could be made at the earliest possible i.e. within 3 days so that the CCTV Footage can be secured and exact fact can be brought out to lodge the issue.  The Complainant submits that on 09.03.2017 itself he telephonically informed the OP at Customer Care Number and he was assured that the debited amount would be returned in his account within 7 days and when he contacted on 16.03.2017 he was told that it would be credited by 22.03.2017.  During all these 14-15 days the Complainant has not filed any complaint in writing that the CCTV Footage be procured or that the complaint be redressed. 
8. The OP2 in his Written Statement has submitted that since the complaint has been filed at much bilated stage, CCTV Footage cannot be granted. 
9. In Rejoinder to the Written Statement Complainant has not explained as to why this delay has happened at all.  Therefore, by now two facts stands established i.e. No.1 the withdrawal of the amount was successful, machine was working properly and secondly there is no immediate complaint filed by the complainant to secure the CCTV Footage.  Even otherwise apart from the oral facts made by the Complainant that he made a call to the Customer Care there is neither any check or recording of such facts which could prove that the Complainant has informed immediately to the OPs.  In nutshell the onus has proved this fact that there is deficiency in service by the OP which could not keep its ATM Machine properly is not proved rather the fact is proved that the machine was working properly and it is the Complainant who could not take out the money from the machine and might be in panic has left the ATM or someone else i.e. the next person who might have visited the said ATM had taken that money or in the alternative the Complainant himself had taken that money this onus has not been proved by the Complainant that the machine was not working and therefore there appears to be no deficiency on the part of the OP. 
10. Complaint of the Complainant is accordingly dismissed. 

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room. 

Announced on 17.05.2023.