BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 11^th DAY OF JANUARY 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to repay a sum of Rs.2,00,000/- along with interest @ 24% p.a and compensation of Rs.50,000/- with litigation cost of Rs.10,000/- for unauthorized withdrawal of money from his account.

2. The brief averments made in the complaint are as under:

The complainant on 25.02.2004 opened a savings account with OP-1 which was earlier known as “UTI Bank” bearing account No.114010100068624.  On the same day OP-1 issued a debit card to the complainant bearing No.4688051140066527.  The complainant subsequently lost the said debit card and upon completing the required procedure, OP-1 issued him a new debit card bearing No.4062281140001663.  Since the complainant went to USA his said Bank account remained inoperative and the said debit card bearing No.4062281140001663 since got completely damaged and was not used by the complainant even though it was in his possession and the expiry of the said debit card was on 08.02.2010.  The complainant approached OP-2 with a request to renew the validity of said card and replace the same with a new debit card and accordingly on the written request, the OP-1 on 13.02.2010 issued the complainant a new debit card No.4688059005032369 which was delivered to the complainant on 15.02.2010 and the same was in use and is still in the custody of the complainant.  The said debit card No.4688059005032369 was being used by the complainant from 15.02.2010 till November 2011, the date on which he went to USA as part of internal transfer of his service.

On 20.07.2012 after going through the account No.114010100068624 with OP Bank on internet, the complainant who was in USA at that time was shocked to see that an approximate amount of Rs.2,00,000/- were withdrawn through various ATM centers in India without his knowledge within a span of 10 days commencing from 09.07.2012 to 20.07.2012.  The complainant immediately contacted the OP-1 and got his said account blocked and on 01.08.2012 the complainant lodged a complaint with OP-1 in respect of the said illegal withdrawal from his account.  Subsequently the complainant was surprised and shocked to hear that the said amount has been fraudulently withdrawn by misusing the alleged debit card No.490223900112693 which was allegedly issued by the OP-1 to the complainant.  On numerous phone calls, personal visits and correspondences the complainant was given to understand that OP-1 has issued another debit card No.490223900112693 on 11.02.2010 and it is alleged that the complainant has received the card on 19.02.2010.  The complainant denies having any knowledge about the issuance of another additional debit card by OP-1 to him within the days of issuance of earlier debit card.  He further denies the allegations that he has received the alleged debit card issued by the OP-1.  The complainant repeatedly requested and demanded OP-1 to furnish copy of his request letter, if any, for issuance of additional debit card but till this date the same is not made available by OP-1.  That without any request from the complainant, OP-1 appears to have issued a additional debit card without his knowledge and thereby unnecessarily caused lot of harassment, torture and financial loss to the complainant.

That any prudent Bank being the custodian of the money deposited with it by its customers, could have immediately taken necessary steps to trace out the identity of the person who has misused the alleged debit card, with the help of CCTV footage from the ATM where the alleged debit card was used.  The OP Bank also filed complaint with the Police for the fraudulent use of the alleged debit card.  But the OP Bank has not at all taken any steps, inspite of repeated complaints by the complainant.  The complainant with an intention to give an opportunity to set right the wrongs committed by them got issued a legal notice dated 26.04.2013 to the OPs requesting them to pay him a sum of Rs.2,00,000/- along with interest thereon and the cost incurred by him within 15 days from the date of receipt of the said legal notice.  However, the OPs instead of complying the same, gave evasive and vague reply.

For the aforesaid reasons, the complainant prays for an order directing the OPs to repay him a sum of Rs.2,00,000/- along with interest @ 24% p.a from the date of withdrawal till the date of realization and compensation of Rs.50,000/- for the hardship, mental agony suffered by the complainant together with litigation cost of Rs.10,000/-.

3. The OPs in response to the notice issued appeared through their advocate and filed their version contending in brief as under:

The complainant filed a complaint against the OPs alleging that an approximate amount of Rs.2,00,000/- was withdrawn from his account using his debit card No.490223900112693 through various ATM centers in India without his knowledge.  The complainant has alleged that he never received the additional debit card bearing No.490223900112693 from OPs.  The complainant while opening an account with the OPs Bank has given a declaration agreeing to abide by the Bank’s rules relating to above account.  While sending the ATM cum debit card to the complainant, a ‘Debit’ card-key to usage booklet was sent detailing the features of the debit card and how to use it.  As per the contents of the said usage booklet, the use of the card for ATM withdrawals, whether authorized by the cardholder or not, shall indemnify the OP Bank against any loss or damage caused by any unauthorized use of the card or related PIN.  The OPs issued two debit cards for the same account number based on the request of the customer.  As per the request of the complainant a photo debit card and a non-photo card for renewal of existing debit card No.4062281140001663 was issued to him by the Bank.  The debit card No.4688059005032369 was issued to the complainant on 13.02.2010 based on his request and the said card was delivered to the complainant on 15.02.2010.  A debit card No.490223900112693 was issued to the complainant on 11.02.2010 and the same was received by the complainant on 19.02.2010 by PAFEX Courier.  After receiving the complaint, the delivery details of the above mentioned disputed card was provided to the complainant.

After receiving complaint from the complainant the OP Bank has taken up the matter with the fraud control unit of the Bank for necessary investigation for the transactions done on the disputed card.  As per the Bank records and after verifying the journal printer log, which records each and every transaction done through the ATM, all the disputed transactions were through the ATM card No.490223900112693 and the confidential PIN provided to the complainant was used to withdraw the cash.  The journal printer in the ATM is the final proof of the authenticity of the transaction accepted across the world by all Banks.  It cannot be manipulated by any person in any way whatsoever.  All the transactions at ATMs and through internet Banking facility meet the most stringent of safety and security criteria as specified by international associations like Visa and MasterCard.  The confidential PIN was known only to the complainant, the complainant has come up with this false complaint which is liable to be dismissed.  It is known fact that in the ATM cash withdrawal, transactions can be effected only by using original debit card and confidential PIN number known only to the said customer.  Without admitting, even if it is assumed that the complainant has not used the said debit card then somebody having original debit card and confidential PIN number might have used the same.  It is quite possible that either the family members or somebody having close relationship with the account holder might have been given access to the original debit card and confidential PIN number which is only known to the account holder.  Such a third party might have withdrawn the amount using the debit card of the complainant.

That if the complainant suspects that there is an unauthorized withdrawals from his account, he would have filed an FIR with Police authorities and the OPs shall extend co-operation to the Police authorities in their investigation in nabbing and culprits.  This Forum does not have jurisdiction to entertain the issues relating to fraud or cheating and such complicated questions to be entertained only by Civil Court.  Out of the 42 disputed transactions, 28 disputed transactions were carried out at other Bank ATMs i.e., HDFC Bank, State Bank of India, Punjab National Bank and UCO Bank.  The transactions were effected through an ATM maintained and through a server which remains under the direct control of those Banks only.  The OP Bank has no direct or indirect control over the same.  Since the transaction was done at the ATM of other Banks, the amount has to be claimed from the corresponding Banks.  That the complainant has not made the other Banks party to the present complaint.  Therefore, the present complaint deserves to be dismissed on the ground of non joinder of necessary party.

Once the ATM debit card with PIN details is provided to the complainant, it is his responsibility to keep it safe in its custody.  Both debit cards and PIN mailers were sent to the address provided by the complainant and the same have been received by him and subsequently OP Bank has not received any intimation or request from the complainant either to surrender or cancel the disputed card.  Since, there is no deficiency in service on the part of the Bank.  The OP Bank is not liable to refund any amount.

For the aforesaid reasons, the OPs pray for dismissal of the complaint.  

4. On the rival contention of both parties, the points that arise for our determination in this case are as under:

5. The complainant to substantiate the allegations made in the complaint filed the affidavit of his power of attorney holder.  OPs filed the affidavit evidence of their authorized representative in lieu of oral evidence.  Both parties have submitted their written arguments.

6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both the parties, various documents relied upon by both sides and other materials placed on record.

7. Our answer to the above points are as under:

REASONS

8.  It is not in dispute that the complainant is having S.B account with OP-1 for the last several years.  It is also not in dispute that on the date of opening the account, he was issued with a debit card which the complainant lost and thereafter he was again issued with another debit card.  It is also not in dispute that, since the said debit card was damaged the complainant surrendered the same and was issued with a new debit card and the validity was also renewed.  Admittedly, on the written request made by the complainant on 13.02.2010 OP-1 issued the complainant a new debit card bearing No.4688059005032369 which was delivered to the complainant on 15.02.2010 and the complainant was making use of the same during its validity period.

9. The complainant alleges that on 20.07.2012 when he was in America, on his transfer, he was routinely checking his S.B account with OP Bank on Internet during which time he found that an approximate amount of Rs.2,00,000/- has been withdrawn from his account in India through various ATM centers between 09.07.2012 to 20.07.2012.  The complainant has immediately lodged a complaint to OP-1 on 01.08.2012 regarding the said illegal withdrawal of amount from his account.  Subsequent enquires revealed that the above said amount of Rs.2,00,000/- has been withdrawn with the help of debit card bearing No.490223900112693 which was alleged to have been issued to complainant by OP-1.  The copies of the relevant withdrawals discloses that the said amount of Rs.2,00,000/- has been withdrawn by making use of a debit card bearing No.490223900112693 in the name of the complainant.  OP-1 also admits that the said withdrawal has been made with the help of the above mentioned debit card bearing No.490223900112693.

10. Now the question is as to whether the said additional debit card bearing No.490223900112693 was issued to the complainant on his request.  The complainant stoutly denies that he ever made a request for additional debit card to OP-1, as he was already having a debit card bearing No.4688059005032369 issued by OP-1.  He further contends that since he was never in need of any additional debit card, he never made any request in writing to the OP-1 for issuing an additional debit card.  The OPs in their version as well as in their sworn testimony insisted that the said additional debit card bearing No.490223900112693 was issued to the complainant only on his request.  However, the OPs did not produce any such request in writing made by the complainant requesting for additional debit card.  Except their self serving the OP statement did not produce any material to establish that the said additional debit card was issued to the complainant on his request.  OPs did not produce any evidence to substantiate the same.  In absence of any documentary evidence in this regard we are unable to accept the contention of the OPs that the complainant at any point of time made any request for additional debit card and the above mentioned additional debit card was issued to him only at his request.

11. The OPs contended that the said additional debit card No.490223900112693 was issued to the complainant on 11.02.2010 and same has been delivered to the complainant at his registered communication address on 19.02.2010 by PAFEX Courier under the consignment no.823371791.  The complainant denies of having received the said debit card on 19.02.2010, as contended by the OPs.  The OPs did not furnish any documentary evidence to substantiate their contention that the said additional debit card was sent to complainant at his registered communication address on 11.02.2010 and the same has been received him on 19.02.2010.  The OPs also did not furnish any acknowledgement given by the complainant for having received the said debit card sent through PAFEX Courier.  In absence of any acknowledgement by the complainant and in absence of any documentary evidence regarding delivery of the debit card to the complainant we are unable to believe that the said additional debit card was sent to the complainant to his registered address and was received by him on 19.02.2010.  There is no iota of evidence to believe that the complainant made a request for additional debit card and the said debit card was sent to him through courier service and was received by him on 19.02.2010.  Therefore, it appears to us that the OPs set up this story of request made by the complainant for an additional debit card and regarding delivery of the said additional debit card only to escape from their liability of compensating the complainant for the said illegal withdrawals from his account.

12. It is pertinent to note here that, immediately after having come to know about the said illegal withdrawals of Rs.2,00,000/- from his account, the complainant has lodged a complaint with OP-1.  However, it appears that OP-1 has not made any sincere efforts to ascertain the identity of the person who has withdrawn the said amount from various ATM centers making use of the said debit card.  Admittedly, the ATM centers have been provided with CCTV.  If at all the OPs had made any efforts to obtain the CCTV footage of the relevant dates they could have easily identified the person who has made the said withdrawals.  However, no such efforts have been made by the OPs for the reasons best known to them.

13. In absence of any credible, oral as well as documentary evidence, we are unable to accept the contention of the OPs that the said additional debit card was issued at the request of the complainant and the same was delivered to him.  It appears to us that either the OPs have not at all sent the said debit card to the complainant or even if it is sent, the same must have landed in the wrong hands and not in the hands of the complainant.  This shows the gross negligence on the part of the OPs in handling a debit card.  This conduct of the OP also amounts to gross deficiency in service.  The OPs instead of admitting the serious lapses on their part and having failed to discharge their duties diligently are trying to pass the blame on the complainant for the said illegal withdrawals.  It is further contended by the OPs that the complainant is not a ‘consumer’ as defined under the Consumer Protection Act, 1986 therefore cannot approach this Forum.  In umpteen number of cases the Hon’ble Supreme Court as well as the Hon’ble National Commission have held that in a case like this the customer of Bank is a ‘consumer’.  In a case between Standard Chartered Bank Ltd., V/s Dr.B.N Raman (Civil Appeal No.2982 of 2006-Decided on 14.07.2006), the Hon’ble Supreme Court has held that in a business transaction between Bank and customers such customers are consumers within the meaning of Section 2 (1) (d) (ii) of C.P Act 1986.  Therefore, we don’t find any basis for the contention of OPs that the complainant is not ‘consumer’ as defined under the C.P Act, 1986.

14. The learned advocate for the complainant placing reliance on a judgment rendered by U.P State Consumer Disputes Redressal Commission, Lucknow in a case between State Bank of India V/s. Om Prakash Prajapati and others reported in 2008(3) CPR 292 argued that the OPs are liable to pay the said amount of Rs.2,00,000/- illegally withdrawn by certain unknown persons with the help of additional debit card alleged to have been issued by OP-1.  The Hon’ble U.P State Consumer Disputes Redressal Commission, Lucknow while dealing with a similar case has opined that in a circumstances like the one on hand the Bank is liable to compensate the customer for illegal withdrawals from his account with the help of the ATM card which was never delivered to him.  Further the Hon’ble Commission has observed that;

In view of the above decision of the Hon’ble National Consumer Disputes Redressal Commission, we are of the view that the State Bank of India is guilty of deficiency in service rendered to the complainant.  It is, indeed, lamentable to observe that a renowned Bank like State Bank of India who stands behind the major economy of the country and in whom the Society reposes a greater confidence has not been able to evolve full proof system regarding delivery of ATM cards to the consumers, rather rely upon the irresponsible courier agencies like the one in this case and fail to shoulder its responsibility vis-a-vis its customers, who are consumers.  It is more regretful to note that even after a long gap of more than three years the State Bank of India has not come forward on its own to repay the amount of the complainant/respondent and credit the same to his Savings Bank Account.  The un-scrupulous bank authorities have been unnecessarily fighting with the respondent without realizing that the goodwill of the State Bank of India has totally shuttered in the matter of such instances.  Although this Commission is not much concerned as to what has happened vis-a-vis, the erring officials of the bank and the Courier Service against whom strict action like suspension or removal of the bank officials and black-listing of the courier service, yet the Bank must rise to the occasion to restore its glory of its past goodwill.

15. The ratio laid down in the above said authority squarely applies to the facts of the case on hand.  In the instant case also the OPs instead of admitting their serious lapses or fighting with the complainant in refunding the said amount of Rs.2,00,000/- thereby causing him untold miseries, hardship and the mental agony. 

16. The OP Bank relying upon principle laid down by the Hon’ble National Commission in a case between State Bank of India Vs. K.K Bhalla argued that they are not liable to compensate the complainant for the said illegal withdrawals.  The facts of the case in the said case are entirely different from the facts of the case on hand.  Therefore, the ratio laid down therein, in our humble opinion cannot be applicable to the case on hand.

17. The OP Bank further contended that out of the 42 disputed transactions, 28 disputed transactions were carried out at the ATMs of other Banks i.e., HDFC Bank, State Bank of India, Punjab National Bank and UCO Bank.  Therefore, the present complaint is not maintainable for not making the said Banks as parties to the present complaint.  We are unable to accept this contention of OPs in view of provisions contained in sec.79 of the Information Technology Act, 2000 which exempts the liability of intermediary in such ATM transactions.

18. The complainant has successfully proved the deficiency in service on the part of OPs.  In view of the discussions made above, we are of the opinion that, the OPs.1 & 2 have to be directed to pay a sum of Rs.2,00,000/- to the complainant together with interest @ 9% p.a from 20.07.2012 till the date of realization.  In view of hardship and mental agony caused to the complainant, we feel it appropriate to award compensation of Rs.25,000/- to the complainant to be paid by OPs apart from litigation cost of Rs.5,000/-. 

19. The order could not be passed within the stipulated time due to heavy pendency.

20. In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.   OPs.1 & 2 are directed to pay a sum of Rs.2,00,000/- to the complainant together with interest @ 9% p.a from 20.07.2012 till the date of realization.  Further, OPs are directed to pay a compensation of Rs.25,000/- to the complainant for having caused hardship, inconvenience and mental agony to the complainant and for deficiency in service, together with litigation cost of Rs.5,000/-.

OPs.1 & 2 shall comply the said order within four weeks from the date of communication of this order.

          Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 11^th day of January 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 11.02.2014.

1. Smt.Pushpa Ramesh Kulkarni.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties-1 & 2 dated 07.08.2014.

1. Sri.Sathish.  

Document produced by the Opposite parties.1 & 2:

MEMBER                            MEMBER                    PRESIDENT

Vln*