Tuesday, 10 November 2015

When adverse inference should not drawn against bank for non production of CCTV Footage recording?


ATM—Unauthorised withdrawal--Since there is no R.B.I. guidelines in India regarding C.C.T.V. Footage recording in the ATM Booth, the non-production of the said C.C.T.V. Footage from the side of the Bank does not impair the defence of the Bank in any way.
ATM—C.C.T.V FOOTAGE RECORDING NOT PRODUCED BY BANK—NO ADVERSE INFERENCE CAN BE DRAWN.
A perusal of the records of the District Forum shows that no such application was ever moved by the complainant before the District Forum. However, the following order was passed by this Commission on 7.11.2012:-
"The main dispute between the parties as alleged by the appellant is that Video clips were not supplied by the respondent. On the other hand, counsel for the respondent submitted that CCTV was not available at that time in the ATM Cabin, and as such the same was not supplied to the appellant/customer. Whether the CCTV was compulsory to be installed in the ATM cabin or not and what were the directions/regulations of the RBI. The documents be produced by the parties."
 In spite of that order, no such document was produced by either of the parties. As the onus was upon the complainant so he was required to place on record the directions/regulations of the RBI that the installation of CCTV Camera in the ATM booth at the relevant time was mandatory. For the non-production of any such direction or regulation an adverse inference is to be drawn against the complainant himself. 
State Consumer Disputes Redressal Commission
Mehar Singh vs Centurion Bank Of Punjab Ltd. on 25 March, 2013
 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
  PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH

                 FIRST APPEAL NO. 722 OF 2008

                                      
Quorum:
Hon'ble Mr. Justice Gurdev Singh, President Sh. Baldev Singh Sekhon, Member 
This appeal by Mehar Singh, appellant/complainant, is directed against the order dated 25.3.2008, passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum"), vide which his complaint filed under Section 12 of the Consumer Protection Act, 1986 directing the opposite party to pay back Rs. 15,000/-, to pay compensation of Rs. 1,00,000/- for deficiency in service and a compensation of Rs. 50,000/- for harassment, was dismissed.
2. According to the complainant, he had a bank account with respondent No. 2/opposite party No. 2 and had got issued one ATM card in respect of that account. On 15.2.2007, he had withdrawn Rs. 1,00,000/- by means of a cheque from his account and for checking the balance he went to ATM booth and after satisfying himself came out of that booth. On 17.2.2007, he again went to the ATM booth for the withdrawal of Rs. 10,000/- and when he got the statement of account, he was shocked to see that Rs. 15,000/- were less in his account. He brought that fact to the notice of Branch Manager on 19.2.2007 and was told that there was some mistake in the ATM machine. Another employee of the branch told him that there was some problem in computer system and that the same would be solved in short time. About the less amount of Rs. 15,000/- he wrote a letter to opposite party No. 1 on 26.2.2007 but did not receive any reply. He received one reply on 19.3.2007 in which it was disclosed by the opposite party No. 2 that there might be some other person who operated account though he had clearly stated in his letter that it was Balwinder Singh, Security Guard, who was responsible for the embezzlement. On account of this act of the opposite parties, he suffered a loss of Rs. 15,000/- and it shows deficiency in service on their part.
3. In written reply to the complainant the opposite parties came with a version that it was on account of negligence of the complainant himself that same transaction was done by someone else regarding his account and the same would not have occurred if the complainant had operated the ATM carefully and properly and checked that he did not want any further information or withdrawal and operation had been properly cancelled. When anybody do balance enquiry from the ATM machine, the machine asks "Do you want to do another transaction" YES or NO? Sometimes the customer leaves the ATM without reading that message and the next customer may press YES and withdraw the cash from that account as the machine does not ask PIN number again. The same thing happened in the case of the complainant. He might not have pressed NO before leaving the ATM booth due to lack of knowledge and the next customer might have withdrawn the cash amount from his account. As the complainant himself was at fault so it cannot be said that there was any deficiency in service on their part. The complainant cannot take benefit of his own negligence and the complaint, which is not maintainable, is liable to be dismissed.
4. Both the sides produced evidence in support of their respective averments before the District Forum. After going through that evidence and hearing the learned counsel on their behalf, the District Forum dismissed the complaint, vide aforesaid order.
5. We have heard the learned counsel for both the sides and have carefully gone through the records of the case.
6. It has been submitted by the learned counsel for complainant that an application was filed before the District Forum by the complainant directing the opposite parties to produce on record the recording of the CCTV Camera fixed in the ATM booth so as to ascertain as to whether any such amount of Rs. 15,000/- was withdrawn by anyone or the opposite parties deducted that amount from his account of their own. No such recording was produced and for non- production thereof an adverse inference is to be drawn against the opposite parties and the finding recorded by the District Forum that the complainant himself was negligent for operating ATM is to be reversed. Once that finding is reversed the complaint is to be allowed and the complainant is entitled to the amounts mentioned therein by way of refund and compensation.
7. On the other hand, it has been submitted by the learned counsel for the opposite parties that no such application was moved before the District Forum and, as such, no such adverse inference, as has been stated by the counsel for the complainant, can be drawn. There is no ground for upsetting the well reasoned finding recorded by the District Forum and the appeal is liable to be dismissed.
8. A perusal of the records of the District Forum shows that no such application was ever moved by the complainant before the District Forum. However, the following order was passed by this Commission on 7.11.2012:-
"The main dispute between the parties as alleged by the appellant is that Video clips were not supplied by the respondent. On the other hand, counsel for the respondent submitted that CCTV was not available at that time in the ATM Cabin, and as such the same was not supplied to the appellant/customer. Whether the CCTV was compulsory to be installed in the ATM cabin or not and what were the directions/regulations of the RBI. The documents be produced by the parties."
9. In spite of that order, no such document was produced by either of the parties. As the onus was upon the complainant so he was required to place on record the directions/regulations of the RBI that the installation of CCTV Camera in the ATM booth at the relevant time was mandatory. For the non-production of any such direction or regulation an adverse inference is to be drawn against the complainant himself.
10. After having gone through the records of the case, we do not find any ground to upset the finding recorded by the District Forum that the complainant himself was negligent while operating the ATM. The statement of account was proved on the record as Ex. C-1. A perusal of that statement shows that the complainant had withdrawn a sum of Rs.1,00,000/- by way of cheque from his account on 15.2.2007. On the same day he went to the ATM booth to verify the amount in his account and Rs. 15,000/- were withdrawn from his account from that ATM booth on the same day. For verifying amount in his account he must have operated the ATM. As per the facts pleaded in the written reply of the opposite parties, which have not been disputed, he was required to cancel the further transaction in his account on the ATM by opting for NO. He left the ATM booth without exercising that option and anyone entering that booth and operating the ATM could have withdrawn the amount from his account without giving PIN number. Someone might have withdrawn the amount of Rs. 15,000/- from his account by using the ATM. The complainant himself was to be blamed for that negligence and no such negligence can be attributed to the opposite parties nor it can be held that there was deficiency in service on their part.
11. The complaint was correctly dismissed by the District Forum and that order is upheld and accordingly the appeal is dismissed. No order is made as to costs.
12. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER March 25, 2013 VINAY

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