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advantageconsumer.com
Consumer Protection Council, Rourkela |
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advantageconsumer.com
Consumer Protection Council, Rourkela |
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Bank penalised
for not taking adequate interest to detect fraudulent ATM withdrawals.
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DELHI
(Against the Order dated 17/02/2014 in Appeal
No. 2028/2011 of the State Commission Karnataka) REVISION PETITION NO. 3369 OF 2014 T.N. RAVI PRAKASH S/O LATE T.R NARYAANA JOIS, NO.563 WARD NO-12, C.L NANJUDA RAO COMPOUND, 2ND CROSS, OTF LAYOUT, KOLAR – 563101 KARNATAKA ...........Petitioner(s) Versus THE MANAGER, STATE BANK OF MYSORE POST BOX NO-3 SPARKS ROAD, KOLAR - 563 101 KARNATAKA ...........Respondent(s) BEFORE: HON'BLE MR. PREM NARAIN, PRESIDING MEMBER Dated : 08 Jun 2018 ORDER
This revision petition has been filed by the petitioner T.N.Ravi Prakash, against the order dated 17.02.2014 of the State Consumer Disputes Redressal Commission, Karnataka, in short ‘the State Commission’, passed in First Appeal No.2028 of 2011. 2. Complainant has filed this revision petition. Complainant is having savings bank account with the respondent bank. On 14.01.2009 complainant withdrew Rs.3,500/- from the ATM counter installed in the premises of the respondent bank and again on 18.1.2009 he withdrew Rs.2,000/. While withdrawing Rs.2,000/- on 18.01.2009 the complainant took the mini statement and found that an amount of Rs.35,000/- was debited on 14.01.2009 to his S.B. account apart from the debit entry of Rs.3,500/- representing the amount drawn on that day by him. Complainant made written complaint to respondent bank on 19.01.2009 regarding the wrong debit entry of Rs.35,000/- dated 14.01.2009. Complainant took mini statement of his S.B Account on 19.01.2009 itself and found debit entry of Rs.20,000/- on 18.01.2009 in his account apart from the debit entry of Rs.2,000/- showing the amount drawn by him on 18.01.2009. This fact was also immediately brought to the notice of respondent bank on 19.01.2009 itself. The bank officials advised him to withdraw some amount in their presence to check the balance and the complainant withdrew Rs.1,000/- in the same ATM counter and at that time there was only one debit entry of Rs.1,000/-. It is alleged that on 20.01.2009 he again made complaint to respondent bank to rectify the earlier wrong debit entries in his account but in vain. Complainant filed complaint before the District Forum. District Forum allowed the complaint and directed the respondent bank to pay Rs.35,000/- and Rs.20,000/- along with interest @ 9% p.a. from the date of respective wrongful debit entries. 3. Being aggrieved, respondent bank filed the appeal before the State Commission. State Commission allowed the appeal and dismissed the complaint. Hence this revision petition. 4. The learned counsel for the petitioner argued that the order of the State Commission is cryptic in nature. It has only considered Journal Print Log (JP Log) and decided the whole case accordingly. The bank has not given clearly two timings of use of the card on 14.01.2009. For the transactions on 18.01.2009, the timings mentioned in the written statement of the opposite party for withdrawal of amounts of Rs.2,000/- and Rs.20,000/- respectively do not match with the assertion of the opposite party. It has been mentioned in the written statement that at 13:06 hours he has withdrawn amount of Rs.2,000/- from first ATM and at 13:08 hours he has made a balance enquiry at the same ATM, which showed that the balance available in the account was Rs.43,128.37. Again at 13:14 hours he has taken a mini statement through the same ATM. It is stated that thereafter at 11:52 hours he has withdrawn an amount of Rs.20,000/-through his ATM card from the adjacent second ATM. The contradiction is clearly notable that if the first ATM was used after 13:00 hours three times then thereafter how was it possible to use ATM at 11:52 hours. 5. It was further pointed out by the learned counsel for the petitioner that the video clip of these transactions has not been produced by the bank. The observations of the State Commission in this regard that video clips would have only shown face of the person and not the key board or the scream is erroneous because the video clipping would have at least proved the presence of the complainant on the second ATM. The State Commission has taken a contradictory stand by first observing in paragraph No.13 that “The opposite party did not take steps for verifying the video footage as the same would have been helpful for reconciliation or cross checking of the accounts generated by ATM at different levels.” And then in the next paragraph No. 14 the State Commission has further observed on the basis of the judgment of the National Commission in State Bank of India Vs. Om Prakash Saini in Revision Petition No.2382 of 2012, decided on 18th January, 2013 (NC) that non-supply of video footage has no bearing on the claim of the complainant. 6. Learned counsel for the complainant referred to the order of the District Forum, wherein the District Forum has recorded the following: 6. “………..Regarding withdrawal of Rs.35,000/- from ATM No.2 the J.P. Log shows that the said amount was withdrawn on 14.01.2009 at 15.49 hours. From the facts narrated in similar other cases, it is found that the admitted withdrawal from ATM No.1 and the disputed withdrawal from ATM No.2 had taken place almost at the same time. Therefore, it can be said that Rs.3,500/- must have been withdrawn from ATM No.1 on 14.01.2009 just prior to the disputed withdrawal of Rs.35,000/- on 14.01.2009 at 15.49 hours.” 7. From the above observation of the District Forum, the learned counsel argued that District Forum was dealing with some more similar cases where the disputed amounts have been shown as withdrawn from ATM -2 roughly on the same time when the actual money was withdrawn from ATM-1. The District Forum has analysed various possibilities and factors, which could have been taken care by the bank for conducting the proper enquiry like reconciliation of the cash balance in each ATM and video clipping etc. As no proper enquiry was conducted by the bank and the bank was only relying on JP log, the District Forum allowed the complaint. 8. On the other hand, the learned counsel for the respondent/opposite party stated that the ATMs are sensitive machines which cannot make fault and every transaction is recorded in the JP log and these machines are not amenable to local manipulations. As per recording in the JP log the bigger amounts of Rs.35,000/- and Rs.20,000/- have been withdrawn from the ATM -2 by the complainant himself. As this is the different machine altogether, without inserting the ATM card into the machine JP log cannot record the withdrawal. 9. Learned counsel for the respondent/opposite party bank further stated that when the complainant was asked to withdraw the amount from the ATM-1 in the presence of the bank official, he withdrew some amount, but there was no further debit from ATM-2. This means that there was no automatic debit of 10 times of the withdrawn amount from ATM-1. Thus, allegation of the complainant could not be verified when the complainant and the bank officials jointly took out the cash from ATM-1. This strengthens the fact that the amounts from ATM-2 were also actually withdrawn by the complainant using his ATM card. 10. Learned counsel further argued that the non-availability of the video footage is no deficiency on the part of the respondent as it would be difficult to reach to any conclusion from this video footage. In support of his argument, the learned counsel relied upon the following judgment:- State Bank of India Vs. Om Prakash Saini in Revision Petition No.2382 of 2012, decided on 18th January, 2013 (NC). It has been held that:- “Consumer Protection Act, 1986- Sections 2 (1)(f), 2(1)(g), 21(b)- Banking and Financial Institutions Services- Withdrawal from ATM- Defect in machine alleged- Amount could not be withdrawn- Slip showing deduction from account- Refund of amount denied- Alleged deficiency in service- District Forum allowed complaint –State Commission dismissed appeal- Hence revision- Camera is fixed only on the face of user and not on the keys of ATM and delivery window- Non-supply of video footage had no bearing on claim of complainant- No other person complained for not receiving money on that day- It cannot be presumed that complainant did not receive Rs.5,000 from ATM machine- Impugned order set aside.” 11. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. Clearly the ATMs are very sensitive machines and it is difficult to withdraw the amount without inserting the card in the machine. In the present case, the petitioner has denied withdrawal of any amount from ATM-2, however, it is seen that it has debited 10 times of the amounts withdrawn by the complainant from ATM No.1. The observations of the District Forum show that there were some more similar cases before the District Forum. This creates doubt in the functioning of the ATMs as the JP log has clearly recorded the withdrawal of these amounts from the ATM card of the complainant. The video clipping would have been the best evidence to show whether complainant has used the ATM -2 or not. The respondent has failed to produce the video footage of both the machines. Even though this Commission has taken a view that non supply of video footage would not have any bearing on the claim of the complainant and the reason mentioned is that the camera does not focus on the screen and key board rather it is focused on the face of the person. In the present case, it would have been important to see whether the complainant used his ATM card in the ATM-2 machine. Thus, clearly the bank is claiming no deficiency on its part only on the basis of the JP log. Definitely, non-supply of the video footage is a deficiency on the part of the bank. Even if the JP log are believed and it may be true that the operating systems of ATMs are so secure that generally it is difficult to believe that manipulations are possible, but in the present case as observed by the District Forum the irregularity in the system cannot be ruled out. Even if a third party has withdrawn the amount without using the actual ATM card of the complainant then also bank would be responsible for the loss to the complainant. However, the main defence of the opposite party bank is that the ATM card has been used on the ATM-2 for withdrawal of the bigger amount of Rs.35,000/- and Rs.20,000/- and this assertion is based on entry in the JP log, which cannot be generally disbelieved. It cannot be ruled out that the video footage of these machines have been purposely not produced by the opposite party bank or have been destroyed as per the schedule of destruction fully knowing well that the complaint has been lodged with respect to the withdrawal from these ATMs. Had bank taken due precaution and care to seriously investigate the complaint, these video clippings would not have been destroyed. 12. From the above examination, I reach to the conclusion that even if the JP log are to be believed to be true and the money has been withdrawn by using ATM card by him from ATM-2, there is deficiency on the part of the bank for not producing the video footage of these dates relating to these two machines. Accordingly, it is not possible to confirm the assertions made by the opposite party bank with respect to withdrawal from ATM -2 by using ATM card of the complainant, particularly when there were more similar cases as observed the District Forum and when the respondent bank has not properly investigated the matter. In this way, clearly the opposite party bank is deficient in its service for not maintaining and providing video footage of these dates for these ATMs and for this deficiency atleast, the complainant is entitled to get compensation. In the facts and circumstances of the present case, I deem it appropriate to award a compensation of Rs.25,000/- (rupees twenty five thousand only) to be paid to the complainant by the opposite party bank. Accordingly, the order dated 17.02.2014 of the State Commission is set aside and order dated 11.05.2011 of the District Forum stands modified. Accordingly, the respondent/opposite party bank is directed to pay Rs.25,000/- (rupees twenty five thousand only) to the complainant within a period of 45 days from the date of this order, failing which, an interest of 10% p.a. shall be payable by the respondent/opposite party bank on the awarded amount from the date of this order till actual payment. Accordingly, revision petition No.3369 of 2014 is disposed of. Top |
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