Haryana

Panchkula

CC/198/2020

ROHIT GUPTA. - Complainant(s)

Versus

AXIS BANK LTD. - Opp.Party(s)

21 Mar 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

Consumer Complaint No	:	198 of 2020
Date of Institution	:	13.07.2020
Date of Decision	:	21.03.2022

 

 

Rohit Gupta aged 38 years, son of Sh.Devender Gupta, resident of House No.1111, Gupta House, Sector-21, Panchkula.

                                                                           ….Complainant

 

Versus

1.     Axis Bank Ltd., NPCI, 5^th Floor, “Gigaplex” Plot No.IT.5, MIDC, Airoli knowledge Park, Airoli, Navi Mumbai-400708.

2.     Axis Bank Ltd, SCO No.10, Sector-10, Panchkula through its Branch Manager.

3.     Axis Bank Ltd, SCO No.390, Sector-20. Panchkula through its Branch Manager.                                                                                                                                                                   ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Sh. Nishcal Bhardwaj, Advocate for complainant.   

                        Sh. Manmohan Saroop, Advocate for OPs No.1 to 3.

 

ORDER

(Per Satpal, President)

1.     The brief facts of the present complaint are that the complainant is maintaining a saving account  No.912010044128817 with the Axis Bank, Sector-10, Panchkula i.e. OP No.2. On 28.05.2020 the amount of Rs.75,000/-(Rs.25000+25000+25000) was deducted from the above saving bank account of the complainant as well as the amount of Rs.49,637/- was deducted from the saving amount of the complainant maintained  with State Bank of India, Sector-4, Panchkula. In this regard, the complainant got registered a DDR No.10 dated 29.05.2020, Police Post, Sector-21, Panchkula and as well as moved a written complaint to the OPs regarding deduction of the said amount from his account. Further, the complainant has lodged complaint no.60807242 dated 28.05.2020. It is pertinent to mention here that the amount of Rs.49637/- was refunded by the SBI to the complainant after lodging the complaint with the concerned bank. Thereafter, the complainant made several requests to the OPs to refund his money of Rs.75,000/- but the OPs are lingering on the matter on one pretext or the other. Due to the act and conduct, the complainants have suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.             Upon notice, OPs No.1 to 3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; no locus standi; has not come with clean hands; concealed the true and material facts; no cause of action; estoppels and no jurisdiction. On merits, it is stated that the complainant on 28.05.2020 at 7:30:57pm called on the toll free number of the Bank and asked for the blocking of the card. And the same was done simultaneously. Then on the very next day the complainant visited OP no.3 branch and made a complaint regarding the three transactions of Rs.25000/- each on 28.05.2020 and the same was processed to the fraud and dispute settlement team which after thoroughly going through the transactions came to the conclusion that “The disputed transactions disputed by customer are secured OTP based transactions which are done basis two factor authentication. As per RBI guidelines, the card & OTP related information is confidential information which is not supposed to be shared with anyone else. Hence, the dispute has been closed under customer liability.” And the same was informed to the complainant on the very next day when he visited the branch. It is pertinent to mention here that the above transactions were OTP based transactions and the OTPs were successfully delivered to the complainant on his mobile number 917015872008. For, three transactions of Rs.25,000/- each the OTPs were 901516 delivered at 16:14:41, then 226690 delivered at 16:13:22 and 594873 delivered at 16:14:46 and they were for Axis Bank card XX4414 and were valid for 5 minutes and so the complainant cannot take benefit of his own wrong. Thus, there is no deficiency in service on the part of the OPs No.1 to 3 and prayed for dismissal of the present complaint.

3.             To prove his case, the ld. counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-7 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 to 3 has tendered affidavit Annexure R/A alongwith documents as Annexure R-1 to R-4 and closed the evidence.

 4.            We have heard the learned counsel for the parties, considered the written arguments filed by the learned counsel for complainant and OPs and gone through the record minutely and carefully.

5.             The sole controversy between the parties, in the present complaint, relates to the allegedly unauthorized withdrawal of amount of Rs.75,000/-(Rs.25000+25000+25000) on 28.05.2020, in three separate transactions, from  the saving bank account no.912010044128817 of the complainant. As per complainant, the aforesaid amount was debited from his said account on 28.05.2020 even without sharing the OTP with anyone. The OPs have contested the complaint mainly on the ground that the complainant had shared the relevant OTPs which led to the withdrawal of Rs.75000/- in three transactions of Rs.25000/-each. The learned counsel for the Ops contended that for three transactions of Rs.25000/-each, the OTPs no.901516, no.226690 & no.594873 were delivered at mobile no.917015872008 of the complainant at 16:11:41, 16:13:22 & 16:14:46 respectively, which were shared by the complainant. The learned counsel placed reliance upon enquiry report(Annexure R-2) wherein it is mentioned that “The disputed transactions  disputed by customer  are secured  OTP based transactions  which are done basis  two factor authentication. As per RBI guidelines, the card & OTP related information is confidential information which is not supposed to be shared with anyone else. Hence, the dispute has been closed under customer liability”. On the basis of said enquiry conducted by the fraud and dispute settlement team, the learned counsel contended that there was no lapse and deficiency on the part of the Ops in the matter. Reliance has been placed upon the following case laws:-

i.      Ravi Kumar Goel Vs. Standard Chartered Bank India & Anr. decided   on 17.09.2021 in CC No.09 of 2021(DCDRC-I, U.T.)

ii.      Baldev Singh Vs. The Branch Manager, HDFC Bank decided on   29.08.2019 in CC. No.58 of 2019(DCDRF, Hoshiarpur)

iii.     Rajinder Singh Mehta Vs. Punjab National Bank & Others, decided on 27.09.2018 in CC No.03 of 2018(DCDRF, Kangra at Dharamshala)

iv.     Laxman Kumar Sen Vs.  Branch Manager, HDFC Bank, decided on         22.08.2016(SCDRC, West Bengal).

6.            Before looking into the merits of the case, we deem it expedient to mention here that the Reserve Bank of India(hereinafter referred to as RBI), pertaining to the unauthorized transactions leading to the withdrawal of the amount,  has been issuing detailed guidelines to the banks, from time to time, indicating the various steps to be taken as part of the duties owed by them to their customers. Considering the recent surge in customer grievances relating to unauthorized transactions in the accounts of the customers, enjoying electronic banking facilities like ATM-cum-Debit Cards, net banking  etc, the RBI has issued the circular no.RBI/2017-18/15 dated 06.07.2017, vide which, it has directed all banks, among others,  to put in place, appropriate  systems and procedures to ensure safety and security of electronic banking transactions carried out by customers; robust and dynamic fraud detection and prevention mechanism; mechanism to assess the risks  resulting from unauthorized transactions and measure the liabilities arising out of such events; appropriate measures to mitigate the risks and protect the banks against liabilities arising there from and a system of continually and repeatedly advising customers on how to protect themselves from electronic banking and payment related frauds. As per the aforesaid circular, if a customer suffers loss in connection with the transactions made, without his junction, by fraudsters, it has to be presumed that it is on account of the failure on the part of the bank to put in places system which prevents such withdrawals and the banks are, therefore, liable for the loss caused to their customers. Further, there shall be no liability of the customer in such cases as mentioned below:-

7.             A customer’s entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events:-

i.        Contributory fraud/negligence/deficiency on the part of the bank (irrespective of whether or not the transaction is reported by the customer)

ii.       Third party breach where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system, and the customer notifies the bank within three working days of receiving the communication from the bank regarding the unauthorized transaction.

The aforesaid circular also speaks about the liability of the customer in the following cases:-

i.      In cases 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 until he reports the unauthorized transaction  to the bank. Any loss occurring after the reporting of the unauthorized transaction shall be borne by the bank.

8.             Now, adverting to the facts of the present case, it is found that the complainant took various steps immediately after the alleged unauthorized withdrawal of Rs.75,000/- from his account. First of all, he got blocked his debit card followed by a complaint no.60807242 dated 28.05.2020 lodged with OPs. A formal complaint(Annexure C-1) was lodged with the OPs on the very next day i.e. 29.05.2020 wherein it was clearly mentioned that he had not  authorized the above transactions and card was in his possession at all times. Another complaint with similar declaration is also on record as Annexure C-2. DDR No.10 (Annexure C-3) was also lodged with the concerned Police post.

9.             Now,  coming to the defence version, it is found that the sole defence of the Ops is based upon the above mentioned enquiry report (Annexure R-2), which is silent about the transaction number, if any, and payment order ID details etc. The said enquiry report is also silent about the persons, who were associated with the enquiry. The fraud and dispute settlement team, which conducted the enquiry, have failed to clarify as to how and on whose behalf, the disputed transactions occurred leading to the withdrawal of amount of Rs.75,000/- from the account of the complainant. In view of the specific, consistent and categorical contentions of the complainant that he never shared the OTPs with anyone, a heavy duty was cast upon the Ops to conduct a detailed and comprehensive enquiry into the matter but the Ops have got conducted the enquiry in a very perfunctory, superficial and causal manner, which is of no avail to them. The Ops have failed to put in place the robust and dynamic fraud detection and prevention mechanism as directed by the RBI so as to protect the interest of the consumers. Needless to mention here that it is the legitimate expectation and even right of every customer of the bank to know about the identity & whereabouts of the persons committing fraud with them. Therefore, the banks (the service provider) i.e. OPs cannot be absolved of their basic duty towards its customers to conclude an in depth enquiry/investigation to its logical end so as to ascertain the identity and whereabouts of the fraudster involved in the unauthorized transactions. Thus, the OPs were under an obligation to make an all out efforts leaving no stone unturned so as to trace out the identity and whereabouts of the persons who carried out the disputed transactions in question. The fraud and dispute settlement team of the Ops, which was entrusted with the enquiry, failed to contact the relevant team of ICICII MOB, Mumbai so as to find out the identity and credentials of the person/persons behind the unauthorized transactions. Even, no efforts have been made by the said team to procure the documents from ICICII MOB, Mumbai establishing the ID and whereabouts of the persons behind the transactions in question. The ICICII MOB, Mumbai by virtue of its agreement with various banks under the provisions enshrined in Payment and Settlement Systems Act, 2007 was bound to share the documents revealing the identity and credentials of the person/persons behind the disputed transactions in question. In view of the aforesaid discussion, the enquiry report(Annexure R-2)  is of no help to the case of the Ops. The case laws are also of no avail to the case of Ops in view of the enquiry conducted by them in a perfunctory, superficial and causal manner. Therefore, we conclude that there has been lapse and deficiency on the part of OPs No.1 to 3; Hence, the complainant is entitled to relief.

10.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 3:-

1. To pay a sum of Rs.75,000/- to the complainant along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization.
2. To pay an amount of Rs.20,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as cost of litigation.

 

11.            The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:21.03.2022

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini            Satpal               

                Member                       Member                   President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal                               

                                        President