Adv. For the Complainant  : -   Gopal Chandra Panigrahi and Others

      Adv. For O.P.                  :-   Bikash Chandra Pradhan and Goura Chandra Naik

      Date  of filing of the Case  :- 28.02.2023

      Date of Order                       :- 05.06.2024

JUDGMENT

The Fact of the case in nutshell:-

1. The complainant has a S.B. A/C in Main Branch SBI , Balangir vide A/C no. 11342032839 on dated 21.11.2020 while updating the aforementioned A/C the complainant found that Rs.23,200/- in seven mode of operation on dated 19.11.2020 and Rs.1040/- in two mode of operation on dated. 20.11.2020  a total sum of Rs.24,240/- was deducted from the A/C of the complainant where as the amount was not withdrawn by the complainant at any point of time . The complainant immediately informed the matter to     the officer in-charge of the SBI. The officer in charge advisedthe complainant to lodge a complaint before the police and accordingly an F.I.R was lodged in the Town P.S Balangirvide P.S. no 9 dated 21.11.2020 and later on the same were converted to G.R. case no. 1533 of 2020 . The officer in- charge advised the complainant to stop the said account and change the mobile number linked to the account.

That on dated.06.12.2021 the complainant received a notice from the SDJM, Balangir to appear before the court and filed a protest petition as the I.O had reported the case “FRT NO CLUE” when there is no fruit for lodging the F.I.R. and as a result the complainant knock the door of this commission against the deficiency of service by SBI, Balangir Main Branch Balangir towards the complainant. Hence this case with a limitation petition u/s 5 of the limitation act to condone the delay.

2. To Substantiate his case the complainant relied on the following documents.

1. Photo copy of SBI A/C no. of Main Branch.
2. Photo copy of Aadhar Card of the complainant.
3. Photo copy of the FIR lodged on dated 21.11.2020.
4. Photo copy of notice dated 6.12.2021 issue from the court of SDJM, Balangir.
5. Photo copy of the circular of R.B.I of dated .6.7.2017.

3. Having gone through the complaint it’s accompanied documents and on hearing the complainant Prima facie it seemed to be a genuine case hence admitted and notice to the Op served and in response he appeared through his councel and filed the written version.

4. In the rival contention the OP denied all the allegation made against him and stated that the complainant has not filed within the time of limitation the complaint is not maintainable either in fact or in the eye of law, and liable to be dismissed as time barred by limitation. The complainant has operated the A/C by using UPI PIN so the amount has been deducted. The Op has not committed any deficiency in service on his part as there was no deduction of money after received of the information from the complainant. The complainant know the alleged transaction on dt.21.11.2020 and filed the case on dated. 28.02.2023 after a lapse of 1 year 3 months. The complainant is not entitled for any benefit u/s 5 of the limitation act. No copy of the limitation petition supplied to the Ops as such the condonation of delay allowed by the commission is misconceived.

5. Heard both the parties and the material and evidence on the record with the submission of the learned advocate for the complainant and vehement denials of the learned advocate for the OP with arguments.

6. Before adjudicating the case in hand it is better to make the important issues emerged out of the facts and evidence found on the record, the issues are as follow.

Issue no. 1- whether the complaint is non maintainable?

Issue no.2- whether allowing the condonation of delay is bad in the eye of law ?

  Issue no.3- where the OP able to prove his case in deficiency of service?

    Issue no.4- whether the complainant is entitled for any compensation?

Issue no.1- The complainant is a consumer comes under the definition of Sec. 2 sub-Sec 42 of consumer protection Act 2019. Where service defined as “service means services of any description which is made available to potential users and includes but not limited to , the provision of facilities in connection with Banking financing , insurance , transport, processing supply of electrical or other energy , telecom boarding or lodging both , housing construction entertainment / amusement or purveying news or other information but does not include the rendering of any service free of charge or under a contract of personal service , as such the case is maintainable  and this commission has the ample Jurisdiction for adjudication , accordingly meet the issue no.1 .

Issue no.2 – The crux point of this case which raised by the OP is the period of limitation. Many decision has been pronounced by our Appex court regarding the limitation period and computation of condonation of delay u/s 5 of the limitation Act. All the Judgment pointing towards the “Sufficient Cause”, here in this case the complainant advise by the Bank authority knocking at the wrong door and waits for one year 3 Months to got any relief , spent the time only S.C. regarding computing  limitation held that “ Time spent contesting bonafide litigation at wrong forum would be excluded while computing limitation, as well as the wrong advice given by the advocate or any prudent and responsible person in relation to the incident in question . Here in the instant case the responsible Bank officer wrongly advice the complainant to lodge a FIR in Police Station instead of cyber cell or any proper forum.

       In the matter of collector, land Acquisition, Anantanag and Ano. Vrs. Mst Katiji and ors. AIR 1987 Sc 13 53 Hon’ble  supreme court opined that the court should take liberal approach while dealing with condonation of delay u/s 5 of the limitation Act, refusing to condone delay can result a meritious matter being thrown out as threshold and cause of Justice being defeated.

        More over this case is arouse within the covid-19 wave period and Supreme Court in misc appeal no-21 of 2022 and 665 of 2021 in matter of Recognizance for extension of limitation directed that the period from “15/03/2020 till 28.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special law in respect of all Judicial or quashi Judicial proceeding. Hence the allowing the petition u/s 5 of the limitation act and condonation of delay by this commission is Just and proper according to the norms of law. Issue no.2 answered accordingly.

       To meet the issue no.3 As per the circular of R.B.I dated 06.07.2017 vide RBI 2017/18/15 DBR No. leg . BC 78/09.07.005/2017-18 July 6 2017, prescribed that a customer has zero liability in case any unauthorized transaction had happened and reported the matter within three working days by the consumer. Here in this case on dated 19/11/2020 and 20/11/2020 the unauthorized transaction had happened and the complainant informed the OP on dated 21/11/2020. Which was within the time as prescribed. As such the complainant has done his duty and free from the contractual liability. It is the Bank who is not proper to check the fraudulent transaction due to the fact of its software system, Op has failed to prove any fault or mistake or lapse on the part of the complainant in respect of the disputed unauthorized fraudulent transaction. In question Banks cannot be exonerated from liability for loss caused to a customer on account of unauthorized withdrawals made from his /her account merely on the ground that the customer did not respond promptly to the SMS alert given by the Bank. As such in the instant case the complainant took all reasonable measures as were expected from him and there was no contributory negligence on his part with respect to the unauthorized transactions. The Bank itself is responsible for its safety and security any systematic failure whether by malfeasance on the part of its functionaries or by any other person except the consumer / A/C holder) the Bank is liable towards such transaction.

         In revision petition no2082 of 2017 Praveen Kumar Jain vs. HDFC Bank limited dated 28 December 2023 the NCDRC observed that “not withstanding that such fraudulent transactions committed by someone else constitute a criminal offence which is an independent matter to be taken to the criminal courts. The complainant has his remedies open under the consumer protection act with respect to deficiency in service unfair trade practice against the Bank. By malfeasance on the part of its functionaries or by any other presume (except the consumer / account holder) is its responsibility and not of the consumer. Thus as the remedies available in the consumer court and on a criminal case is different in this case. The Town P.S. is not a necessary and proper party issue no.3 answered accordingly.

     In last but not the least taking the aforesaid facts and circumstance it is crystal clear that the Bank is responsible in any fraudulent unauthorized transaction as per the guide line of R.B.I.   as such the OP is failed to prove his counter and the complainant marched towards compensation. For deficiency in service by the OP After going through all the above facts and after perusal of evidence on the record and followed the observations of the apex court we are of the considerable view in favour of the complainant with the following directions.

ORDER

The OP is directed to pay a sum of Rs.24,440@9% interest per annum from the date of filing till the date of order and Rs.3000/- towards litigation expenses, within one month from the date of order, failing which the Op should paid the entire amount @12%interest per annum from the date of filing till the date of realization.

No award as to cost.

PRONOUNCED IN THE OPEN COMMISSION TODAY I.E DATED  05^th   DAY OF  June’2024