DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 227/2022

Date of Institution: 05.05.2022

Judgment Reserved on: 14.03.2024

Judgment Passed on: 07.05.2024

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Judgment By: Sh. Ravi Kumar (Member)

JUDGMENT

The Complainant has alleged deficiency in service on the part of OP in not refunding the amount of Rs1,00,000/- which was withdrawn from her account fraudulently.

1. The Complainant has contended that on 15.02.2022 she received a telephonic call from mobile no. 7381133173 at 7:53 pm on her mobile no. 8826235461. The caller was not known to her and he informed that his name is Pramod Kumar and he is an LIC Agent. He informed that he has number of the Complainant registered with Axis Bank Saving Account which has been given by her father Sh. Devi Krishan Sharma whose mobile number is 9891460462. He further told the Complainant that the LIC Policy of her father has matured and amount is to be transferred to her account as her father was not having UPI Account and that her father has instructed him that the matured amount of LIC Policy is to be credited in her bank account which can be done through her UPI Account.
2. When questioned by the Complainant that he should directly transfer the matured amount in her father’s account then that caller told her that now a days the process of transferring of amount in the case of maturity of LIC Policy has changed and the amount can be transferred through UPI Account only. Thereafter the call got disconnected.
3. At around 8:05 pm (one minute later after end of first call) she again received call on her mobile from same person and this time he had communicated ‘Hi’ to the Complainant on Google Pay UPI account and engaged the Complainant in conversation for about 11 minutes 36 seconds and during this period the Complainant received credited of Rs.2 in her Axis Bank Account No. 915010042632915 through UPI and thereafter again call was disconnected.
4. Subsequent to the above thereafter at 8:30 pm she started receiving SMSs messages to the effect deducting amount of Rs.25,000/-, Rs.10,000/-, Rs.25,000/-, Rs.2,000/- (wrongly written as Rs.20,000/-), Rs.8,000/-, Rs.10,000/- and Rs.20,000/- totalling of Rs.1,00,000/- from her bank Account No. 915010042632915. Complainant has alleged that the same  has happened on account of hacking of her bank account.
5. These debits from her account has been credited in the name of Beenu Saini in Kotak Mahindra Bank through UPI. At 8:51 pm again she received call from the same person asking the details of her Debit Card and since she had already known about unauthorised transaction in her account, the Complainant rebuked him and asked to return the amount he had wrongly and illegally transacted however the caller immediately disconnected the call therafter and the Complainant made several mobile calls from her number to that person on the same number i.e. 7381133173 but could not get it through as the other person switched off his mobile. The complainant thereafter immediately lodged complaint with OP Bank on telephone no.186050055 at 20:42 pm on 15.02.2022 by informing all the details for the purpose of stopping other illegal and wrongful transactions in her account and to block Debit Card/Internet Banking/Mobile Banking and investigate the aforesaid incidence of fraudulent withdrawal from her account. The complaint was registered by Axis Bank customer care and complainant ID No. SAK00000799013 was received by the Complainant on registered mobile on 15.02.2022 at 09:06 pm. Thereafter the Axis Bank credited the amount so withdrawn from her account in her Axis Bank Account No. 915010042632915 which was a shadow credit.
6. The Complainant also lodged complaint with Google Pay UPI on 15.02.2022 itself to investigate the matter and restore/refund the amount. The Google Pay UPI registered the claim ID No. 079177593302 and thereafter closed the same without any investigation or refund of the amount.
7. The Complainant further lodged complaint with National Cyber Crime Cell at around 10:00 pm on 15.02.2022 seeking police investigation. On next day i.e. 16.02.2022 the Complainant obtained statement of account of her Axis Bank account from 10.02.2022 to 15.02.2022. She also met one Mrs. Preeti Gupta, Operations Head of Axis Bank on 16.02.2022 and sought refund of the amount so unauthorisedly withdrawn from her account. She was informed by the Branch Manager of OP Bank that their internal procedure/investigation is on. The temporary credit (shadow credit) which was provided by OP Bank was withdrawn on 25.02.2022. The Complainant thereafter made a representation to CEO & MD of the Axis Bank seeking refund of the amount and also wrote to RBI. No reply was received by her and later she came to know that her complaint has been closed. Alleging deficiency on the part of OP Bank, the Complainant has sought following prayers:

• OPs be directed jointly & severally to refund Rs.1,00,000/-with interest @18% p.a. from 15.02.2022 till the date of realisation.
• Compensation towards mental agony and harassment amounting to Rs.50,000/- and litigation cost of Rs.20,000/-
• Any other relief as deemed fit and proper be granted to her in the interest of justice.

8. OP was issued notice and had received copy of the complaint on 17.10.2022. However reply was filed by the OP on 17.03.2023 with delay and without any application seeking condonation of delay and vide order dated 14.08.2023 though the written statement of the OP was taken on record, but it was ordered that the same would not be read in the defense of OP being beyond limitation period. The Complainant has filed her evidence by way of affidavit wherein she has marked following documents as exhibits:

• Copy of screenshot of SMS received by her as Exhibit CW/A-1.(colly)
• Statement of account of SB. No. 915010042632915 for the period 10.02.2022-15.02.202 as Exhibit CW/A-2.
• Copy of email dated 23.03.2022 sent to Google Pay UPI by the Complainant as Exhibit CW/A-3.
• Copy of email dated 15.02.2022 sent to OP bank as Exhibit CW/A-4.
• Copy of temporary credit (shadow credit) dated 15.02.2022 as reflected in  the  account of the Complainant as Exhibit CW/A-5.
• Copy of email dated 16.02.2022 sent to National Cyber Crime Cell and email dated 09.04.2022 w.r.t. the transfer of her complaint to Cyber Police Station East as Exhibit CW/A-6.
• Copy of letter dated 16.02.2022 address to Branch Manager OP Bank as Exhibit CW/A-7.
• Copy of email dated again 16.02.2022 address to Branch Manager OP Bank as Exhibit CW/A-8.
• Email dated 17.02.2022 sent to Pandav Nagar Police Station as Exhibit CW/A-9.
• Copy of email dated 16.02.2022 of OP stating closure of the investigation process as Exhibit CW/A-10.
• Copy of letter dated 25.03.2022 and 07.04.2022 of OP Bank as Exhibit CW/A-11.
• Copy of representation to Delhi Police sent by the Complainant as Exhibit CW/A-12.

9. This Commission has heard the arguments of both sides and perused the record.

The Complainant is maintaining her account No.915010042632915 with OP bank. On 15.02.2022 she was contacted by one Shri Pramod Kumar pretending to be LIC agent, when he made call from his mobile No. 7381133173 at 7.53 p.m.  on her mobile number 8826235461.

The said person informed her that the LIC Policy of her father had matured and is to be transferred through UPI account only and since her father had no UPI account, he (Pramod Kumar) is approaching her as told by her father for credit of matured amount of LIC policy in her account. Thereafter the call was disconnected.

The Complainant received another call at around 8.05 p.m. and Rs.2/- was credited in her Axis Bank Account No.915010042632915 through UPI and after the call as disconnected, the Complainant starting receiving debit massages at 8.30 p.m. in her account where the amount was deducted to the extent of Rs.1,00,000/-.

Upon noticing that she had fallen into the trap of the fraudster Complainant lodged complaint with OP Bank Customer Care at 08.42 p.m. (within 15 minutes) on the same day and gave all details and requested to block her Debit Card/Internet Banking/Mobile Banking and she sought refund the amount. The amount which was deducted as above was credited by OP Bank in the account of the Complainant as shadow balance i.e. the amount cannot be withdrawn. The temporary credit/shadow balance given by the OP bank was ultimately withdrawn on 25.02.2022.

The Complainant also lodged complaint with Google Pay UPI on 15.02.2022 however, the same was closed.

The complaint thereafter also lodged complaint with National Cyber Crime Cell at 10 p.m. on 15.02.2022.

She also met the Operations Head of OP Bank on 16.02.2022 (next day) and sought refund of entire amount so fraudulently withdrawn from her account but to no avail.

Upon issuance of notice OP Bank had filed reply on 17.03.2023 much beyond the statutory period as provided under Consumer Protection Act 2019 and though the same was taken on record but is not to be read in its defense as per order dated 14.08.2023. OP  did not file Appeal against the said order and therefore the same has attained finality and as a result there is no defense of OP on record and complaint filed by the Complainant goes unrebutted. The OP had the opportunity to present its defense but lost it on account of it being time barred.

OP has filed its written submissions wherein it enclosed copy of RBI directions dated 06.07.2017.  

On perusal of the RBI guidelines dated 06.07.2017 it is noted under point 07 as follows:

“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 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”.

From the facts of the present case nowhere it has come that the Complainant shared her bank details/credentials with the said Promod Kumar and she has only stated that she was talking with him and understanding the situation and during the 2^nd call made to her Rs.2/- were credited in her UPI account and payment through UPI can be done by using the mobile number of the person and Bank details are not required. Thus the alleged fraudster by sending Rs.2/- in her account was trying to know if he was hitting the right Bank account for committing fraud and making unauthorised withdrawals which was of Complainant. Hence no negligence can be attributed to the Complainant and she appears to be victim of cyber fraud. 

Further the RBI direction dated 06.07.2017 also talks about zero liability of customer if there is 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 03 working days of receiving the communication from the bank regarding the unauthorized transactions.

The Complainant filed her complaint with the OP Bank within 15 minutes of the unauthorized withdrawal from her account for which she had received SMS message from the OP Bank registering her complaint.

She had lost no time to report to OP Bank/Google UPI Pay/Ciber Crime branch which she did on the same day i.e. 15.02.2022 when she noticed that huge amount has been fraudulently withdrawn from her account. This shows that complainant acted promptly/diligently and reported the matter to OP Bank within 3 working days of fraudulent withdrawal from her account and her case falls under the category of Zero Liability.

This is a case where deficiency lies elsewhere in the system as the Bank account of the Complainant was used to make unauthorized withdrawals by using Google Pay UPI through which fraudster was able to have access to the Bank account of the Complainant and OP Bank is liable to own the responsibility as per RBI directions dated 06.07.2017 as cited by the OP itself as the Complainant reported about the same to the OP Bank within 3 working days.

There is no reply in defense of OP to be read, it being time barred and therefore the complaint of the complainant goes unrebutted and OP Bank has to face adverse consequences of filing its reply beyond the limitation period.

For the reason stated above the Complainant’s case falls under the ZERO LIABILITY under RBI direction dated 06.07.2017 and she is able to establish deficiency in service on the part of OP in not resolving the complaint of unauthorized transaction in the account of the Complainant. Thus OP Bank is held liable for deficiency in service and following order is passed:

• OP Bank shall pay Rs.1,00,000/- to the complainant alongwith interest @9% p.a. from the date of debit i.e. 15.02.2022 within 30 days from the date of this order;
• OP Bank shall pay Rs.25000/- towards compensation to the Complainant and Rs.10000/- towards litigation charges.

The above order shall be complied within 30 days from the date of the order failing which OP Bank shall pay interest @12% p.a. total amount of Rs.1,35,000/- from 15.02.2022  till the date of realization.

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.

Announced on 07.05.2024.