Complaint filed on: 03.10.2015

                                                      Disposed on: 26.04.2018

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.1689/2015

DATED THIS THE 26^th APRIL OF 2018

PRESENT

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the opposite party directing to pay Rs.2,00,000/- towards reimbursement of the huge monetary loss and to pay Rs.50,000/- towards compensation.

2.       The brief facts of the case of the complainant are that she is a daily traveler in city bus from her residence to office situated near Dairy Circle. At about 7.15 p.m. on 7.7.2015, while returning from her office work in city bus, her ATM cards o Axis Bank and SBI which were kept in her purse were stolen. Later, 10 withdrawals of Rs.10000/- each were done from her Axis Bank account on 7.7.2015 between 7.30 p.m. and 7.40 p.m. On the next day i.e.8.7.2015 at about 8.30 am, again 10 withdrawals of Rs.10000/- each were done from her account. A total of Rs.2,00,000/- were withdrawn without a single SMS alert on her mobile at the time of transaction. She received an SMS informing only the penultimate transaction done on 8.7.2015 stating the balance amount to be Rs.2,53,921.93/-. However, this alert was received at around 10.30 a.m. on 8.7.2015. One more transaction was done after this, for which she did not receive any SMS alert.

3.       The Complainant submits that immediately she rushed to the bank and was told that Rs.2,00,000/- has already been withdrawn from her account. She blocked her ATM card on priority and went to the police station and lodged a complaint on 8.7.2015. Later, she has lodged a complaint with Axis Bank for non-receipt of SMS alerts on her mobile. Had she received the SMS alert on the first withdrawal itself, she would have immediately taken actions to prevent further withdrawals thereby avoiding the huge monetary loss. Hence, it amounts to deficiency of service on the part of Axis Bank for not sending the SMS alert. The Complainant submits that when she approached Axis Bank with regard to the SMS alerts, the response was not satisfying. After repeated follow-ups through personal meeting and via telephonic conversations, at last (after one and a half months) she has received a response letter from Axis Bank. The response letter dt.21.8.2015 received from bank was silent on SMS alert. She received an attachment with the letter called SMS push reports which has only 19 transactions entries. These SMS alerts did not reach her mobile. Nowhere in the letter is it mentioned that the SMS alerts have been delivered successfully.

4.       The Complainant submits that due to such a response, on 3.9.2015, she has approached the Nodal Officer of banking Ombudsman providing all the details of the case for not getting the SMS alerts of the transactions. In return, she has received a reply on 18.9.2015 denying her claim due to following reasons:

a) Mobile is not acknowledging wherein the end user operator gateway not responding and return to timeout.

b) Network weakness which is due to network weakness, Network fluctuation.

c) SMS not supportive wherein number is invalid/services are not available on the number.

d) 032-EXP-MEM-EXCD wherein message rejected because the handset does not have enough memory.

e) 003 wherein particular handset’s message inbox memory was full that time and hence message not delivered.    

5.       Hence, this complaint has been filed, for seeking the said remedies.

6.       On receipt of the notice, the Opposite Party did appear and filed the version. The sum and substance of the version filed by the Opposite Party are that the Complainant has no locus-standi either to file the complaint or maintain the same against the Opposite Party and hence, the complaint liable to be dismissed with exemplary costs. The Opposite Party submits that the Complainant has alleged theft, fraud and cheating, which is not a consumer dispute and is outside the purview of the Consumer Courts. Moreover, she was herself negligent in sharing the credentials of the account with unknown persons and hence, the complaint is liable to be dismissed. Moreover, she has filed police complaint and the matter is under pending police investigation. It is also the contention of the Opposite Party that as the subject matter of dispute is theft, fraud and forgery and the same requires a thorough police investigation, the matter lies outside the purview of Consumer Forum. In this context, the Opposite Party placed reliance on the following decisions;

a) In the matter of N.Shivaji Rao Vs Daman Motor Company Citation: 1993-(001)-CTJ-0107-NCDRC-where the National Commission held that cases of complicated question of fraud and cheating cannot be entertained at consumer forums.

b) In the matter of Lala Samachar Newspaper Vs General Manager Telecom Dept-Citation:1998-(006)-CTJ-0336-NCDRC-where the National Commission held that cases of detailed inquiry involving forged and fabricated false documents can be investigated by regular Civil Court.

c) In the matter of Reliance Industries Ltd., Vs United India Insurance Co-Ltd., -Citation; 1997- (005)-CTJ-0688-NCDRC-where the National Commission held that cases of fraud, cheating an conspiracy should be referred to a Civil Court.

 7.      It is also the contention of the Opposite Party that the Complainant is having savings account with its Jayanagar Branch, Bangalore and that she is having ATM facility in the said account. The Complainant is holder of ATM cum Debit Card being No.4062289003657265. According to the case of the Complainant, she is a daily traveler in city bus, while returning from her office work in city bus, her ATM cards of Axis Bank and SBI were kept in her purse were stolen. Later, ten withdrawals of Rs.10,000/- each were done from Axis Bank account on 7.7.2015 between 7.30 p.m. to 7.40 pm. On next day i.e.on 8.7.2015 at about 8.30 a.m. again 10 withdrawals of Rs.10,000/- each were done from her account. A total of Rs.2,00,000/- were withdrawn without a single SMS alert on her mobile at the time of transaction. It is also stated by the Opposite Party that the Complainant has alleged that an SMS informing only the penultimate transaction done on 8.7.2015, stating the balance amount to be Rs.253921.93/-. The further contention is that the said alert was received at around 10.30 a.m. on 8.7.2015. One more transaction was done after that, for which she did not receive any SMS alert. Thereafter, she rush to the bank and was told that, Rs.2,00,000/- has already been withdrawn from her account. She blocked her ATM card on priority and went to the police station and lodged a complaint on 8.7.2015. Later, she lodged complaint with Axis bank for non-receipt of SMS alert. The Opposite Party denied all these allegations which are false, baseless, untenable and meritless for the following reasons:

a) The Opposite Party bank submits that it has sent the SMS alert for each and every transaction made by the Complainant and also provided the SMS push reports send to the Complainants through her registered mobile for all the 20 transactions, wherein some of the SMS sent to the mobile were failed due to network weakness or the mobile was not acknowledging. Hence, there is no deficiency on the part of the Opposite Party and there is no cause of action and there is no locus standi to file the above complaint by the Complainant. Therefore, the allegations and averments of the Complainant for non-receipt of the SMS alert are hereby denied as false, baseless and meritless.

b) The Opposite Party bank submits that the aforesaid alleged transactions of the Complainant done through her debit card and were processed through the secured channel by putting valid ATM pin and it is not disputed that in general scenario the ATM card on PIN remained in the self-custody/knowledge of the Complainant. In view of elaborate procedure evolved by the Opposite Party bank to ensure that without the ATM card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM. These alleged withdrawals would not be happened in absence of the ATM card and the confidential information of the PIN number of her debit card and hence, the Opposite Party is not responsible for the mistake committed by the Complainant as she neither take care of the ATM card and PIN number. Further, we repeat and reiterate that the complaint liable to be dismissed as the matter is under police investigation and matter is outside the purview of the consumer forum.

c)       That on the receipt of the complaint of Complainant vide her letter dt.9.7.2015, the Opposite Party bank has checked with acquiring bank in respect of the disputed transactions and however, the acquiring bank has reported that the transactions were successful and valid and the records also reveal there had been no excess cash in the ATM as per the Electronic Journal (EJ) and hence, rejected.

d) It is submitted that the journal printer is the final in deciding factor as far as ATM withdrawals are concerned and also it tallies with the physical cash balance.

e) The ATM machines are installed by various banks throughout the country. These ATM machines are supported by the highest technology and excellent surveillance. Thousand and thousands of account holders utilize ATMs and the machines have never failed to show the correct deposit or withdrawal. Further, it is submitted that all the transactions of ATMs and through internet banking facility meet all the stringent safety and security criteria specified by International Associations VISA and MasterCard.  There is a journal printer in the machine, which records each and every transaction done through the ATM. These ATMs are foolproof system with reconciling accounts.

8.       Further, the Opposite Party submits that it has sent a reply dt.21.8.2015 to the Complainant, intimating that the Opposite Party has sent SMS for all the alleged transactions and also advised to pursue the complaint through the police authorities against the culprit and also informed that the alleged transactions were done because of the Complainant divulged the confidential information to the third party. In this context, the Opposite Party has placed reliance on Annexure C & D. The Opposite Party further submits that the Opposite Party refer and rely on a ratio in the judgment passed by Hon’ble National Consumer Disputes Redressal Commission in the case of State Bank of India V/s K.K.Bhalla- date of judgment 7.4.2011 wherein the National Commission has held that

In the instant case it is not disputed that the ATM card or PIN remained in the self-custody/knowledge of the respondent. In view of elaborate procedure evolved by the petitioner/bank to ensure that without the ATM card and knowledge of the PIN number. It is not possible for money to be withdrawn by an unauthorized person from an ATM. The circumstances of case where fraudulent withdrawals have happened may not be same as in this case and in all probability. These fraudulent withdrawals occurred either because the ATM card or the PIN number fell in wrong hands. Hence, both the orders passed by the learned Forum were set aside and the Revision Petition was allowed.   

On these grounds and other grounds, prayed for dismissal of the complaint.

          9.       The Complainant to substantiate her case filed affidavit evidence. Though she produced list of documents dt.18.1.2018 which are at Sl.No. 1 to 10, did not mark. Anyhow, reliance has been placed on those documents. On behalf of Opposite Party, one Prakash Antony Padua, working as Deputy Vice President and Branch Head at Axis Bank, Jayanagar, Bangalore, his affidavit evidence filed. The Opposite Party has not produced any documents.

          10.     The Complainant and the Opposite Party have filed written arguments which are appears to be reproduction of contents of the Complaint as well as the version respectively.

11.     The points that arise for our consideration are:

1) Whether the complainant proves the deficiency in service on the 

              part of the OP, if so, whether the Complainant is entitled for the

            relief sought for?

          2) What Order?

          12.  Our answers to the above points are as under:

Point No.1 : Negative

Point No.2 : As per the final order for the following

REASONS

          13. POINT NO.1 : During the course of the arguments, the learned counsel for the Opposite Party vehemently urged stating that the Complainant has taken the plea of theft, fraud and forgery, the same requires to be proved in the Court by referring the following decisions:

a) In the matter of N.Shivaji Rao Vs Daman Motor Company Citation: 1993-(001)-CTJ-0107-NCDRC-where the National Commission held that cases of complicated question of fraud and cheating cannot be entertained at consumer forums.

b) In the matter of Lala Samachar Newspaper Vs General Manager Telecom Dept-Citation:1998-(006)-CTJ-0336-NCDRC-where the National Commission held that cases of detailed inquiry involving forged and fabricated false documents can be investigated by regular Civil Court.

c) In the matter of Reliance Industries Ltd., Vs United India Insurance Co-Ltd., -Citation; 1997- (005)-CTJ-0688-NCDRC-where the National Commission held that cases of fraud, cheating an conspiracy should be referred to a Civil Court.

We have gone through the contents of the version filed by the Opposite Party with reference to the said decision, we found there is a considerable force in the argument advanced by the learned counsel for the Opposite Party for the simple reasons that fraud, forgery are requires to be proved in fully pledged-trial by adducing  oral and documentary evidence. With regard to the theft is concerned, it is for the jurisdictional police to get register the case and investigate. In the instant case, the Complainant has lost her ATM card on 7.7.2015 between 7.30 p.m. to 7.40p.m. She filed a complaint before the police on 8.7.2015 at about 11.00 a.m. So there is an inordinate delay in filing the complaint before the police. In between that it is evident that she has received SMS alert call from the Opposite Party bank which can be seen in the letter dt.21.8.2015 addressed by the Axis bank to the Complainant which read thus:

To,

Ms.Savitri Nagaraj

G002, 112-Bharath Residency,

2^nd Main, 1^st Cross, Sarvaboumanagar,

Near HDFC Bank, Bengaluru-560 076

Sbu: ATM Transactions.

Dear Madam,

 We refer to your letter dt.9.7.2015 with regard to fraudulent ATM cash withdrawals of Rs.2 lacs. i.e. Rs.1 lac on 7.7.2015 and Rs.1 lac on 8.7.2015.

We wish to inform you that on enquiry, it has come to our notice that the aforesaid transactions on your Debit card account was processed through the secured channel by putting valid ATM PIN.

However, the and Disputed transactions was taken up with acquiring bank and rejected by acquiring Bank by providing successful Electronic Journal and same is enclosed.

We also enclose the SMS push reports sent to your mobile for all the 20 transactions.

Further, Axis Bank will not be able to pursue the matter through the dispute management process, as the transactions are processed in a secure environment. Incase if you have not carried out the aforesaid transaction, we would hereby advice you to pursue the compliant through the police authorities against the culprit and provide all facts like to whom, when and where you have possibly divulged the confidential information for further investigation in the matter. We hereby confirm that we shall co-operate with police authorities and provide all the details as sought by them to further investigate the matter.

Assuring you the best of service at all times.

Yours faithfully,

For Axis Bank Ltd.,  

In support of the said letter, the detailed particulars of the SMS alert have been produced. When such being the fact, the Opposite Party bank has promptly acted upon in sending the alert messages to the Complainant, in the event of withdrawal of the amount by using the said ATM card. Now we placed reliance as to how the Complainant was negligent in respect of ATM card and also PIN Numbers. In this context, we placed reliance on the copy of the reply letter dt.9.7.2015 wherein at ink page No.6 of the list of documents which read thus:

From,

Ms.Savitri Nagaraj

G002, Bharath Residency,

1^st Cross, 2^nd Main,  Sarvaboumanagar,

Bannerghatta Road, Bengaluru.

To,

Axis Bank,

Jayanagar Branch,

Bengaluru.

Respected Sir,

Subject-Regarding fraud transaction on Debit Card.

This is to inform you that my debit card 4062289003657265) was lost on 7^th July 2015. Twenty transactions were made using the debit card and a total of Rs.2,00,000/- cash withdrawn. I have not received even a single message through SMS Banking during these transactions.  The pin number of the debit card was in a small paper in the card pouch.

Emphasis supplied by us

            I received the SMS from Axis Bank on 8^th July 2015 at 8:31 AM with the balance amount in the account. I request you to kindly look into the matter and refund the amount lost in the fraud transaction.

            Thanking you,

            Savitrinagaraj.

If the above contents of the said letters are strictly construed, PIN number of the said debit card was in a small paper in the said pouch. It goes to show that she has not taken proper care in respect of ATM card and also PIN number. In this context, the learned counsel for the Opposite Party rightly draw our attention to the decision passed by Hon’ble National Consumer Disputes Redressal Commission in the case of State Bank of India V/s K.K.Bhalla- date of judgment 7.4.2011 wherein the National Commission has held that

In the instant case it is not disputed that the ATM card or PIN remained in the self-custody/knowledge of the respondent. In view of elaborate procedure evolved by the petitioner/bank to ensure that without the ATM card and knowledge of the PIN number. It is not possible for money to be withdrawn by an unauthorized person from an ATM. The circumstances of case where fraudulent withdrawals have happened may not be same as in this case and in all probability. These fraudulent withdrawals occurred either because the ATM card or the PIN number fell in wrong hands. Hence, both the orders passed by the learned Forum were set aside and the Revision Petition was allowed.  

 In the light of the decision cited supra, we come to the conclusion that it is not possible for money to be withdrawn by an unauthorized person from ATM. The circumstance of the case, where fraudulent withdrawals have happened may not be the same as in this case and in all probability. These fraudulent withdrawals occurred either because the ATM card or the PIN number fell in wrong hand, for which the Opposite Party is not liable. In this context, we come to the conclusion that there is no deficiency of service on the part of the Opposite Party. Hence, the complaint filed by the Complainant is deserves to be dismissed. Accordingly, we answered the Point No.1 in the negative.

14.     POINT NO.2: In the result, we proceed to pass the following:

ORDER

The complaint filed by the Complainant is hereby dismissed.

Looking into the circumstances of the case, we direct both the parties to bear their own costs.

Supply free copy of this order to both the parties.

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open forum on 26^th April 2018).

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

Smt.Savithri Nagaraj., who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

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

Sri.Prakash Antony Padua, who being the Deputy Vice President and Branch Head of Op was examined.

Copies of Documents produced on behalf of OPs