ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Party (herein referred to as OP) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in not refunding Rs.28,607/- and for refund of the same along with interest at 12% per annum and further for compensation of Rs.1,50,000/- for causing mental harassment and agony, cost of the proceedings and other reliefs and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; the complainant is an account holder with OP having Credit card bearing No.4514 5600 0210 3434 OP bank. To his shock, while checking his bank account, he realized that between 17.06.2020 and 30.06.2020 there were 14 unauthorized fraudulent transactions and that a sum of Rs.53,213/- had been withdrawn unauthorizedly by NEFT transaction without his knowledge. He did not receive any OTP, SMS or emails. On obtaining statement, it was found that amounts were paid to ‘Comewel Ltd GB and one ‘Segpay’. He went to the home branch and raised the complaint bearing No.61344713 and the card was blocked on 01.07.2020. Further he was issued a new card bearing NO.4514560005395151. Inspite of blocking, there were two additional fraudulent transaction for Rs.8,115/- and Rs.4,197/- on 30.07.2020 and no OTP/SMS was received from OP for the said transactions. The said transaction were made to one ‘Cashfree Payments’. The complainant filed a cardholder dispute form on 30.07.2020 giving details of the disputed transactions to the OP.  Absolutely no help or assistance from the customer care or reply to the email sent.  He also filed a complaint with the cyber crime branch on 01.08.2020 and an FIR was registered in FIR No.0294/2020.

3.     He also filed a dispute in the proper form in respect of the fraudulent transaction. He also requested OP to credit the said amount as it was an unauthorized fraudulent transaction.  Further as per July 2020 statement, an amount of Rs.36,918/- for eleven out of 14 fraudulent transaction were credited back to the card of the complainant and that no credit has been reversed for the 2 additional fraudulent transactions for Rs.12,312/- mentioned above. Thereafter he received a mail form OP stating that due to an inadvertent error, the chargeback could not be processed and the remaining three earlier transaction amounting to Rs.16,295/- have still not been resolved. Inspite of it, OP did not credit the same even after several months of complaint being filed. OP has not resolved the issue. Complainant visited many a times to the OP’s branch and inspite of it, OP did not solve the problem and did not provide IP address of the beneficiary. He had to issue a legal notice on 28.12.2020 and the same has not been replied. OP has not refunded the money fraudulently withdrawn by unauthorized person which is against to the rules and guidelines laid down by RBI. The guidelines laid down RBI is very clear that if the customer immediately reports fraudulent transaction, then the bank has to file a complaint before the police and if the transaction were found to be carried out without the knowledge of the customer, the amount has to be made good to the customer. Inspite of it, OP has not cooperated with the investigating authorities. The act of OP amounts to deficiency in service and hence the complaint.

4.     Upon the service of notice, OP appeared before the commission and filed its version and contended that the allegations made by the complainant in the complaint are false and has no cause of action nor have any valid cause. It has admitted that the complainant has facility of credit card bearing card No.4514 5600 0210 3434 and the disputed 14 transactions for a sum of Rs.53,213/- and on the complainant’s complaint, the  card was blocked and new card was provided bearing No.4514560005395151. In respect of other two transactions, for Rs.12,312/- disputed by complainant as fraudulent transactions, the said transactions were pertaining to cash free payments and later complainant on 30.07.2020 filed dispute form and reverse the 11 transactions out of 14 transaction  and no credit reversal was possible for five transactions amounting to Rs.28,607/-.

5.     Further OP contended that the credit card transactions are completed in secured environment incurred on secured merchant web sites, using card secured credentials, which are confidential and known only to the cardholder and all domestic online card transactions are to be carried through an additional authentication/validation. The said disputed transactions are authenticated transactions this requires his credit card number, card Verification value (CVV), expiry date on the credit card and OTP (one time password).  The card holder is responsible for the security of his/her card along with his/her OTP which is sent to registered mobile number. Further the bank does not incur any financial liability arising out of the misuse thereof by unauthorized persons. As per the RBI guidelines on 06.07.2017 which makes customer accountable in cases where the loss is due to negligence by a customer. The extract from the circular is mentioned below for reference that: In case where the loss is due to negligence by a customer, such as where he has shared the payment credentials, the customer will bear the entire loss.” Further the allegations made by the complainant in the complaint are totally incorrect, false and same are hereby denied and prayed the commission to dismiss the above complaint. 

6.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1 :   In the Affirmative.

POINT NO.2 :   Partly in the Affirmative.

                                For the following.

REASONS

POINT No.1:-

8.     It is not in dispute that complainant is an account holder with OP bank having Credit card bearing No.4514 5600 0210 3434 with the OP bank. To his shock, while checking his bank account he realized that between 17.06.2020 and 30.06.2020 there were 14 unauthorized fraudulent transactions and that a sum of Rs.53,213/- had been withdrawn unauthorizedly by NEFT transaction without his knowledge. He did not receive any OTP, SMS or emails. On obtaining statement, it was found that amounts were paid to ‘Comewel Ltd GB and one ‘Segpay’. He went to the home branch and raised the complaint bearing No.61344713 and the card was blocked on 01.07.2020. Further he was issued a new card bearing NO.4514560005395151. Inspite of blocking there were 2 additional fraudulent transaction for Rs.8,115/- and Rs.4,197/- on 30.07.2020 and no OTP/SMS was received from OP for the said transactions. The said transaction were made to one ‘Cashfree Payments’. Absolutely no help or assistance from the customer care or reply to the email sent.  He also filed a complaint with the cyber crime branch on 01.08.2020 and an FIR was registered in FIR No.0294/2020. He also filed a dispute in the proper form in respect of the fraudulent transaction. Inspite of blocking his debit card net-banking and UPI, one more unauthorized fraudulent transaction of Rs.28,607/-.

9.     The copy of the FIR with Cyber Crime police, the written complaint and Ex P3 the card holder dispute form has been filed. Ex P4 is the legal notice issued to OP. OP in its version contended that the complainant is well educated in internet banking and the act of withdrawal of the amount or payment of the amount has been made using customer ID, net banking password, and has passed on the said details which was only within the knowledge of the complainant and no one has access to do the banking activities. 

10.   No internet banking activity would have taken place without compromising or sharing the customer account details. Further the 3^rd party fund transfer transaction done in the account post inputting of customer ID and IPIN and the same was duly authenticated with OTP which was sent on mobile. Further the beneficiary addition was done in his account and funds were transferred.  The OTP generated and sent to the registered mobile of the which need to be inputted as an additional authentication mechanism. In this case also OTP has been generated and sent to the complainant’s registered mobile and post inputting of the correct OTP, the beneficiary was successfully added into the account.  Further as part of security control of the bank, a beneficiary is activated only post cooling period of 30 minutes of addition and for new beneficiary addition, all transactions are mandatorily to be authenticated with OTP. A maximum of 50000 can be transacted to each beneficiary within 24 hours through or within bank transaction. 

11.   Though OP has taken the contention in the version that the complainant has done online transaction for which OTP is generated and transferred to his registered mobile, in this case the bank has not filed the details of the OTP number generated, shared the same with the complainant’s registered mobile.  The bank has failed to produce those details. What prevented the OP to provide all these evidence to strengthen its stand taken in the version has not been explained. Under the circumstances, we have to hold that the transaction of NEFT from the account of the complainant is not either by complainant or by act of OP, whereas it is the defect lying in the banking system of internet and digital banking service. As per the limited liability of the customer liability in case of unauthorized electronic payment transaction through PPI contributory fraud/negligence/deficiency on the part of PPI including PPI - MTS issuer irrespective of whether or not the transaction is the quoted by the customer, the liability of the customer is zero. If the 3^rd party breach where the deficiency lies neither with the PPI issuer nor with the customer, but lies elsewhere in the system, and the customer the PPI issuer regarding unauthorized payment transaction. The per transaction customer liability is such on the number of days lapsed between the receipt of transaction communication by the customer from the PPI issuer of reporting unauthorized transaction by the customer to the PPI issuer within three days of the liability of the customer is zero.

12.   When this directions and guidelines are applied to the facts and circumstances, it is to be noted here that the complainant came to know the unauthorized transaction to an extent of Rs.28,607/- from his account as per Ex P1 and P2, he made a complaint on 01.08.2020 and OP who did not take any action.

13.   Hence not reverting the amount to the account of the complainant within the time stipulated by the RBI guidelines i.e. within 10 days/ 90 days from the date of receipt of the complaint. As per reversal time line for zero liability / limited liability of a customer under clause 7 and 8 amounts to deficiency in service. Hence we answer POININT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

14.   In the result OP is liable to refund / revert / recredit Rs.28,607/- to the account of the complainant with simple interest 3.5% per annum till the said amount is credited to his SB account. Further due to the in action of the OP complainant suffered mentally physically and also to approach this commission for filing this complaint by spending time money and energy.  Hence we are of the opinion that if a sum of Rs.5,000/- towards damages as compensation and Rs.5,000/- towards cost of the litigations if OP is ordered to pay to the complainant would meet the ends of justice. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is allowed in part with cost.

2.  OP i.e. Axis Bank  represented by its Branch Manager/Authorized signatory is hereby directed to refund/revert/recredit Rs.28,607/- to the account of the complainant with simple interest 3.5% per annum from 28.12.2020 till the said amount is credited to his SB account.

3. Further OP is directed to pay a sum of Rs.5,000/- towards damages as compensation and Rs.5,000/- towards cost of the litigation expenses.

4. OP is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open commission on this day the 23^rd day of DECEMBER 2021)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Financial Account  Statement

Ex P2: Copy of the Card holder Dispute form

Ex. P3: Copy of the FIR

Ex P4: Copy of the Legal Notice.

Ex P5: Copy of the email communications.

Ex P6: Copy of the RBI notification.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Keerthi Kashyap K, Manager Legal of OP.

Copies of Documents produced on behalf of Opposite Party/s

- Nil -

MEMBER                        PRESIDENT

RAK*