BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

C.C. No. 269/2024 Filed on 12/04/2024

ORDER DATED:  08/11/2024

ORDER

SRI. VIJU V.R : MEMBER

          The complainant has presented this complaint before this Commission under Section 35 of the Consumer Protection Act 2019.  The brief facts of the case is that the complainant is holding a salary account with the opposite party.  On 02/02/2024 the complainant noticed that an amount of Rs.706/- has been debited from his account.  The complainant approached the opposite party and got the information that the amount debited was taken as the charges for the debit card.  The opposite party has issued the debit card without the knowledge and consent of the complainant.  The complainant raised a complaint against this deduction of the amount to the opposite eparty and the opposite party agreed to refund the amount to the complainant.  But on 12/02/2024 a call came to the complainant regarding the up gradation of the credit card.  As per the direction from a person who introduced himself as the manager of the opposite party instructed the complainant to downloaded the application and unload his card details.  The complainant as per direction has uploaded his card details and at that time an amount of Rs.26,843.97/- was debited from his account.  The complainant came to know that it was a spam call.  Immediately he contacted the opposite party and filed a complaint to cyber cell as well as the customer care of the opposite party.  The complainant firmly believes that the personal details of the customers have been leaked from the side of opposite party.  The act of the opposite party amounts to deficiency in service, hence this complaint.

                        Notice to the opposite party was served on 07/06/2024 and it was posted to 22/07/2024 for the appearance of the opposite party, but they didn’t appear before this Commission and hence they were set ex parte.  But it is seen that the opposite party had filed version in the office on 12/08/2024 having CF No.1455/2024 without filing a petition to set aside the ex parte order.  The version was rejected as it is filed beyond the statutory time limit. 

                        Issues to be ascertained:

1. Whether there is any deficiency in service or unfair trade practice from the side of opposite party?
2. Whether the complainant is entitled to get the reliefs?

Issues (i) & (ii):- Both these issues are considered together for the sake of convenience.  The complainant has filed proof affidavit in lieu of chief examination and has produced 3 documents which were marked as Exts.P1 to P3.  On going through Ext.P1 and P2 it can be seen that an amount of Rs.706.82/- and Rs.26,843.97/- was debited from the account of the complainant on 02/02/2024 and 12/02/2024 respectively.  The opposite party did not turn up, hence the deposition of the complainant stands unshaken and there is nothing to rebut the evidence put forth by the complainant.   The complainant has alleged that the amount of Rs.26,843.97/- has been debited from his account due to the leakage of his personal details from the opposite party.     

The Hon’ble High Court of Kerala in state Bank of India Vs P.V.Geroge, 2019(1)KH6515 held as follows:

“ the relationship between a bank and its customers arises out of the contracts entered into between them.  Such contracts consist of general terms applicable to all transactions and also special terms applicable to the special services, if any, provided by the bank to its customers.  The relationship between a bank and its customer, in so far as it relates to the money deposited in the account of customer, is that of debtor and creditor.  The contractual relationship exists between a bank and its customers are founded on customs and usages.  Many of these customs and usages have been recognized by courts and it is now an accepted principle that to the extent that they have been so recognized, they are implied terms of the contracts between banks and their customers.  Duties of care are an accepted implied term in the contractual relationship that exists between a bank and its customer.  It is impossible to define exhaustively the duties of care owned by a bank to its customer.  It depends on the nature of services extended by the bank to its customers.  But one thing is certain that where a bank is providing service to its customer.  It owes a duty to exercise reasonable care to protect the interests of the customer.  Needless to say that a bank owes a duty to its customers to take necessary steps to prevent unauthorised withdrawal from their accounts.  As a corollary, there is no difficulty in holding that if a customer suffers loss on account of the transactions not authorised him, the bank is liable to the customer for the said loss”.            

The bank transactions is both contractual and functionary.  The bank owes a duty to the customer.  Both have a mutual obligation to one and another.  The bank, therefore, is bound to protect the interest of the customer in all circumstances.  Considering the recent surge in customer grievances relating to unauthorised transactions in the account of the customers enjoying electronic banking facilities like ATM - cum - debit cards, net banking etc. the RBI has issued a circular No.RBI/2017-18/15 dated 06/07/2017.

  “(a).Zero liability of a customer.

6. A customer’s entitlement to zero liability shall arise where the unauthorised 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 not 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 unauthorised transaction. 

As per the aforesaid circular if a customer sufferers loss in connection with the transactions made by fraudsters it has to be presumed that it is on account of the failure on the part of the bank to put in place a system which prevents such withdrawals and banks are, therefore, liable for the loss caused to their customers.  So the unauthorised debit transactions from the account of complainant amounts to deficiency in service on the part of the opposite party.   

In the result the complaint is allowed.  The opposite party directed to pay Rs.27,550.79/- (Twenty Seven Thousand Five Hundred and Fifty point Seven Nine Only) [Rs.706.82 + Rs.26,843.97] to the complainant and pay Rs.10,000/- (Rupees Ten Thousand Only)  as compensation for the mental agony suffered by the complainant and pay Rs.2,500/- (Rupees Two Thousand Five Hundred Only) towards the cost of the proceedings within one month from the date of receipt of this order failing which the amount except cost carries interest @ 9% per annum from the date of default till realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 08^th  day of November,  2024.

            Sd/-

P.V.JAYARAJAN                 : PRESIDENT 

          Sd/-

PREETHA G. NAIR              : MEMBER    

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                                                                 VIJU V.R                          : MEMBER

C.C. No. 269/2024

APPENDIX

  I         COMPLAINANT’S WITNESS:

II          COMPLAINANT’S DOCUMENTS:

III         OPPOSITE PARTY’S WITNESS:

IV        OPPOSITE PARTY’S DOCUMENTS:

        Sd/-

PRESIDENT