Haryana

Ambala

CC/247/2021

Ms. Anchal Cheeru - Complainant(s)

Versus

The Branch Manager HDFC - Opp.Party(s)

Shweta

04 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	247 of 2021
Date of Institution	:	12.08.2021
Date of decision	:	04.05.2023

 Ms. Anchal Cheeru (22) daughter of Shri Satpal Cheeru, resident of # 488 / 59, Sonia Colony, Ambala (Haryana) 134003.   

 ……. Complainant.

                                                Versus

1. The Branch Manager, HDFC Bank, Manav Chowk, Ambala City.
2. The Branch Manager, Punjab National Bank, Near Bus Stand, Kharar, District Mohali Punjab.
3. The Ombudsman, C/o Reserve Bank of India New office Building, Sector-17, Central Vista Chandigarh-160 017

                                                                                                    ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri J.S. Rathore, Advocate, counsel for the complainant.

                     Shri  Puneet Sirpaul, Advocate, counsel for OP No.1.

                     Shri Kulwinder Chawla, Advocate, counsel for OP No.2.

                    OP No.3 already given up.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To take action against the culprit who has played fraud upon the complainant by tracing him through CCTV Footage and further to provide the CCTV Footage and other relevant record before the P.S.Kharar;
2. To refund the amount of Rs.25,000/- along with interest from 04.03.2021 till realization;
3. To pay Rs.50,000/- as compensation for the mental agony and physical harassment suffered by the complainant besides litigation expenses.

 

382.  

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainant has been pursuing her study from Chandigarh University Gharuan, Mohali. The complainant is having account bearing No.50100179042468 with OP No.1. On 04.03.2021, the complainant had gone for withdrawal of cash amount from the PNB ATM installed near bus stand Kharar i.e. with the bank of OP No.2 at about 12:50 / 12:52. She inserted the ATM card in the ATM Machine for withdrawal of the cash amount, however, she did not get the amount. In the meantime, one unknown person who was in queue & standing behind the complainant, came from her backside and took/removed her ATM card by misrepresenting that the complainant is using the same wrongly and by playing cheating and trick, cleverly replaced her ATM card with another card and went away from there. When the complainant again tried to withdraw the cash amount by inserting the ATM Card, then the complainant found that it was not her ATM Card. Thereafter, the complainant immediately went to OP No.1 and got blocked the ATM Card, however by that time, the said accused person had withdrawn an amount of Rs. 25,000/- from account of the complainant by misusing her ATM card. Thereafter, the complainant immediately moved an application to the Police Station City Kharar by submitting therein the above said actual facts on 04.03.2021 herself.. The complainant has been cheated by the unknown person by removing/ stealing the ATM card from her possession and also by withdrawing an amount of Rs.25,000/- from her bank account and as such, the accused has committed an offence punishable under section 420, 379 of IPC and also under the relevant sections of Information & Technology Act. The father of the complainant firstly made a complaint to OPs No.1 & 2 orally regarding their negligence for not keeping the security guard at ATM Machine as per RBI Guidelines and further requested to take action against the culprit by tracing him in CCTV Footage installed at ATM Machine premises and also requested to refund Rs.25,000/- of the complainant but to no avail.  On visiting police station Kharar it came to the notice of the complainant that OPs No.1 & 2 are not providing the CCTV Footage and other relevant record to the police authorities for the reason best known to them. Thereafter the complainant got served a registered A.D. Legal Notice dated 26.04.2021 asking the OPs to take action against the culprit who has played fraud upon the complainant by tracing him through CCTV Footage and further to provide the CCTV Footage and other relevant record before the P.S.Kharar and further to refund the amount of Rs.25,000/- along with interest to the complainant  but to no avail.  Hence this complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections to the effect that the complaint is maintainable; this Commission did not have territorial jurisdiction for this complaint; the complainant does not qualify the ingredients of a valid complaint as envisaged in Consumer Protection Act, 2019. On merits, while admitting the factual matrix of the case that the complainant has been maintaining a Savings Bank Account with OP No.1, it has been stated that as per the allegations in the complaint, the complainant used the ATM machine of OP No.2 i.e. Punjab National Bank installed at near bus stand Kharar on 04.03.2021, where she inserted the ATM Card in the ATM machine but she did not get the amount and allowed the stranger to assist her in withdrawing the amount, who committed fraud with her and took away her ATM card also.  It is a case of sheer negligence on the part of the complainant where she herself had given her ATM card to some stranger. Moreover,  the complainant has not placed on record the alleged swapped ATM Card, therefore, it cannot be believed whether any such incident had happened or not. OP No.1 is not liable in any way as the complainant willingly gave her ATM Card to some stranger. OP No1. is acting as per the terms and conditions of Customer Protection Policy. The amount was debited from the account of the complainant before she intimated OP No.1, therefore OP No.1 is not liable to refund the amount of Rs.25,000/-.  As soon as the complainant reported the incident to OP No.1, it started the process of blocking her ATM card and by 1:10 PM the card of the complainant was blocked.  Moreover, since the allegations of fraud and cheating have been leveled by the complainant against an unknown person, therefore, this complaint contains disputed question of facts. The Complainant used the ATM machine of opposite party no.2 i.e. Punjab National Bank, therefore, it is responsibility of OP No.2 to provide the CCTV footage, if any, to the complainant. Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with heavy costs.
4.           Upon notice, OP No.2 appeared and filed written version taking preliminary objection to the effect that this Commission has got no jurisdiction to try and to decide the present complaint because no cause of action has arisen within the jurisdiction of this Commission; there is no relationship of consumer and supplier between the parties, the service was provided by OP No.2 to utilize the ATM without any fee or charges etc. On merits, it has been stated that  it is not in the knowledge of OP No.2 that one unknown person has took / removed ATM Card of the complainant by misrepresenting and cheated her. The police officials only enquire once about this case and thereafter they have not contacted the officials of the bank. It is the complainant who has not taken any precautions at the time of use of ATM Card, therefore she suffered financial loss due to her own negligence. There is no deficiency and negligent on the part of OP No.2 rather the complainant was negligent in using the ATM Card. Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint with costs.
5.           OP No.3 was given up by the complainant, during pendency of this complaint.
6.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-12 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for OP No.1 tendered affidavit of Shri Rimple Sharma, Branch Manager, HDFC Bank Ltd., Manav Chowk, Ambala City, Haryana as Annexure OP1/A alongwith documents as Annexure OP-1 to OP-3 and closed evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of Prabhat Ranjan, Branch Manager, Punjab National Bank, Kharar Branch, District S.A.S Nagar Mohali (Pb.) as Annexure OP2/A  and closed evidence on behalf of the OP No.2
7.           We have heard the learned counsel for complainant and learned counsel for the OPs No.1 and 2 and have also carefully gone through the case file.
8.           Learned counsel for the complainant submitted that by neither providing the CCTV footage of the incident nor refunding the amount of Rs.25,000/-, which had been taken out from the account of the complainant by playing fraud and cheating by some unknown person at the ATM in question, the OPs  are deficient in providing service, negligence and adopted unfair trade practice. 
9.           On the contrary, the learned counsel for OP No.1 submitted that since admittedly the complainant for withdrawal of money had used the ATM of OP No.2. While using the said ATM, complainant had handed over her ATM card to some unknown person. He further submitted that the CCTV footage if any was to be provided by OP No.2, as such, OP No.1 cannot be held liable in any manner.
10.           The learned counsel for OP No.2 submitted that there is no deficiency on the part of OP No.2 as it was the complainant who was negligent by handing over her ATM card to some stranger. He further submitted that CCTV footage of the alleged incident was neither demanded by the police nor by the complainant.
11.           It is not in dispute that the complainant had used the ATM card of  OP No.1 in the ATM of OP No.2. It is also not in dispute that an amount of Rs.25,000/- was deducted from the account of complainant. However, in her complaint itself, the complainant, in a very candid manner, has admitted that she had handed over her ATM to some stranger/unknown person, who played fraud and cheated her, by cleverly replacing her ATM card with another card and went away from there. Under these circumstances, it can easily be said that there was a sheer negligence on the part of the complainant to take care of her ATM card and on the other hand, has invited the stranger/unknown person to play fraud upon her,  by handing over to him, her ATM card, which ultimately resulted into loss of her Rs.25,000/- from her account. The specific allegations of fraud and cheating have leveled by the complainant against the unknown person and has prayed for issuance of directions to the OPs to take action against the culprit and also for issuance of directions to the OP No.2, to provide CCTV footage. In this regard, it may be stated here that voluminous evidence is required to arrive at a conclusion and to take action against the culprit. Proceedings before this Commission are summary in nature, thus such like cases cannot be decided by this Commission under the Consumer Protection Act, 2019. Our this view is supported by the principle of law laid down by the Hon’ble Supreme Court on 27.03.2023 in The Chairman & Managing Director, City Union Bank Ltd. & Anr. Versus R. Chandramohan., Civil Appeal No. 7289 of 2009  whererin it was held that  the proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act, and that the "deficiency in service", as well settled, has to be distinguished from the criminal acts or tortious acts.
12.           In view of peculiar facts and circumstances of this case, it is held that this complaint is dismissed being not maintainable before this Commission. However, liberty is granted to the complainant to avail any other legal remedy, if available to her, under law. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

          

Announced:- 04.05.2023

 

(Vinod Kumar Sharma)		(Neena Sandhu)
Member		President