West Bengal

Birbhum

CC/58/2019

Debabrata Mukherjee - Complainant(s)

Versus

Branch Manager, Axis Bank Ltd., - Opp.Party(s)

Koushik Acherjo

13 Oct 2023

ORDER

Shri Sudip Majumder- President-in-Charge.

            The complainant/petitioner files this case U/S 12 of Consumer Protection Act, 1986. The fact of the case in brief is that the petitioner, Debabrata Mukherjee, S/o. Srikumar Mukherjee, resident of Chhora, P.O.- Karidhya, P.S.- Suri, Dist.- Birbhum and at present residing at New Dangalpara, P.O. and P.S.- Suri, Dist.- Birbhum is a bonafide customer of OP/Axis Bank Ltd., Suri, Birbhum. The complainant has a savings account being No. 532010100010520 lying under the OP/Axis Bank Ltd. and the said account is operated by the complainant himself.

            It is the case that OP Bank had issued a ‘Titanium Credit Card’ being card No. 5241780004634122 in favour of the instant petitioner.

            It is alleged by the complainant that on 13/11/2018, six numbers of fraudulent transactions in total amounting of Rs. 1,15,373/- were made from the petitioner’s account lying with this OP bank through this Titanium Credit Card being No. 524178000464122. These transactions were without any knowledge of this petitioner. It is curious enough that OP bank never intimated this petitioner about the said transaction through mail or SMS.

            It is the next case of the complainant that in the first week of December 2018 when this petitioner went to the branch of this OP bank for statement of account, he came to know about the said fraudulent transactions.

 

   

 

Thereafter, the petitioner made a written complaint before the Branch Manager, Axis Bank, Suri branch in connection of the said false transaction on 21/01/2019 and prayed for correction of the account of the statement.

            Further the complainant made a complaint being No. 48804758 dated 14/02/2019. The petitioner also informed the Suri P.S. of the matter.

            It is the specific case of the complainant that after receiving the said complaint the OP said that these transactions have been made in Italy and after proper enquiry the money which is deducted from the account will be considered and corrected. It is to be noted that petitioner or his relative or any near friend never visited Italy.

            Moreover, the OP denied to pay the amount deducted from the account of the petitioner.

            Hence, after finding no other alternative the complainant is compelled to file this case before this Forum/Commission for proper relief and prays for:-

1. An order/direction against the OP bank to pay the amount of Rs. 1,15,373/- in favour of the petitioner.
2. An order/direction for correction of statement of account of the petitioner.
3.  Litigation cost of Rs. 15,000/-.
4.  Cost for mental agony and harassment of Rs. 60,000/-.
5.  Other relief/reliefs as this petitioner is entitled to.

            The OP/Axis Bank Ltd. filed their written objection/version, and denied all the complaint against them. The OP/Axis Bank Ltd. also filed questionnaires and Evidence-in-chief on affidavit.  

            The OP/Axis Bank Ltd. stated in point No. 1 of their written notes on argument that the complainant did not lodge any complaint before the cybercrime to unveil the truth. He also did not submit before the Commission the original Titanium Credit Card before the court for examination and cross examination by the opposite party.

The OP/Axis Bank Ltd in their W.N.A. cited a judgement of Hon’ble National Commission reported in I(2015) CPJ 422 wherein their lordship observed the consumer court has not the jurisdiction to adjudicate the case of fraudulent transaction as the complicated question of law and facts are involved.

Ultimately the OP/Axis Bank Ltd. prayed for dismissal of the case.

Complainant’s side submitted evidence-in-chief and written notes on argument. Some documents have also been filed by the complainant compared with the original ones. Thereafter, Ld. Advocate for the both sides made oral argument in support of their case.

It appears from the case record vide order No. 41 dated 04/10/2023 that the complainant himself filed Original Master Card being No. 5241780004634122, which was valid from 03/15 to 03/18. This Commission carefully examined the original one and returned the same to the petitioner on his request by

 

petition, after keeping the photocopy thereof. It is marked ‘X’ for identification. (Formal proof being dispensed it).

            Heard Ld. Advocates for the both sides.

Considered.

            Perused all the documents.

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?           
3. Whether there is any deficiency in service on the part of the OP/Axis Bank Ltd.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Point No. 1:

            In this case, the complainant has a savings account in the OP/Axis Bank Ltd. being savings Account No. 532010100010520. The complainant also has a Titanium Credit Card/Master Card under OP/Axis Bank Ltd. being No. 5241780004634122. Thus, the complainant is a consumer under the OP/Axis Bank Ltd. and the OP/Axis Bank Ltd. is the service provider. Hence, the complainant is a consumer as per Sec. 2(1)d(ii) of the Consumer Protection Act, 1986.

Point No. 2:

            Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 is Rs. 20,00,000/-. OP/Axis Bank Ltd., Suri Branch is situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

In this case, the cause of action arose from 05/06/2019 and the case has been filed on 13/06/2019 and as such it can be said that the complainant has filed this case within the statutory period of the C.P. Act, 1986 and as such the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

            It appears from the documentary evidence in the case record that on 13/11/2018 six numbers of fraudulent transactions amounting to Rs. 1,15,373/- have been made from the petitioner’s account lying with this OP bank through this Titanium Credit Card being No. 524178000464122 & that was without any knowledge of this petitioner. It is curious enough that OP bank never intimated this petitioner about the said transaction through mail or SMS.

            After receiving the complainant regarding the same from the complainant, the OP/Axis Bank Ltd. informed the complainant that the transactions have been made in Italy. Moreover, the OP/Axis Bank Ltd. denied to pay the amount deducted from the account of the petitioner. The OP/Axis Bank Ltd. has failed to investigate the matter as well as for recovery of the amount in question.

 

            It is the observation of this Commission that various services are being provided by banks to their customers. In fact, banks are soliciting business by advertising the various services provided by them to their customers in connection with different accounts. SMS alert is one of the facility extended by most of the banks to their customers in connection with the savings bank accounts having electronic banking facilities including ATM-cum-Debit Card facilities. Such facilities are provided not only to those who specifically request for the same, but also to those who do not ask for such facilities. Could such a facility voluntarily given by banks to their customers to determine rights of the parties, is the question. According to us, if there is any fault or lacuna on the part of the electronic system, bank will be liable as their deficiency in service. In the instant case, OP/Axis Bank Ltd. did not provide any SMS alert to the complainant for the unauthorized transactions in question.

            Ld. Advocate for the complainant cited a circular of Reserve Bank of India being circular          No. RBI/2016-17 dated August 11, 2016 at Para 11 stated that…. “The burden of proving customer liability in case of unauthorized electronic banking transactions shall lie on the bank. the bank’s above policy shall also specify the maximum time period for establishing customer liability after when the bank shall compensate the customer.”

            Ld. Advocate for the complainant also cited a judgment of Hon’ble High Court of Kerala, RSA, No. 1087 of 2018 dated 9^th January, 2019 in State Bank of India Vs. P.V. George wherein their Lordship observed in Para 11 that… “According to me, only if there exists a specific term in the contract between a bank and its customer to the effect that the bank would be exonerated from the liability in connection with the unauthorized transactions if the customer does not respond to the SMS alerts, SMS alerts cannot be the basis for determining the liability of the customer, for, there would be account holders who may not be in the habit of checking SMS alerts at regular intervals and account holders like the plaintiff in the instant case who is working in an offshore ill rig, who may not be able to access their mobile phones for several days having regard to the peculiarity of their avocation. The defendant has no case that there is a contract between them and the plaintiff to the effect that if the plaintiff does not respond to the SMS alerts given by them regarding the withdrawals from his accounts, they would not be liable for the loss if any, caused to the plaintiff.”

• We find in HDFC Bank Ltd. Vs. Jesna Jose on 21/12/2020 NCDRC stated in para 11 as follows:

“11…..In Punjab National Bank and Anr. V Leader Valves II (2020) CPJ 92 (NC), this Commission while addressing the question of liability of a Bank in case of unauthorized and fraudulent electronic banking transactions, has observed as under:

"11. The first fundamental question that arises is whether the Bank is responsible for an unauthorized transfer occasioned by an act of malfeasance on the part of functionaries of the Bank or by an act of malfeasance by any other person (except the Complainant/account-holder). The answer,

 

traightaway, is in the affirmative. If an account is maintained by the Bank, the Bank itself is responsible for its safety and security. Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the consumer/account-holder), is its responsibility, and not of the consumer."

In the light of observation made by their Lordships in the above decisions we find us safe to follow them and apply the ratio in the present dispute.

            It is proved beyond all reasonable doubts that the aforesaid act of the OP members are amounting to deficiency in service as per Sec. 2(11) of C.P. Act, 2019 as well as unfair trade practice as per     Sec. 2(47) of C.P. Act, 2019.

Hence, from the above discussion it is proved that the complainant could be able to prove his case beyond all reasonable doubt.

Point No. 4:

As in this case, it is proved that there is deficiency in service on the part of the OP members.

Hence, the complainant is entitled to get relief or compensation as prayed for.

Thus, all the points are decided in favour of the complainant.

Complaint is sufficiently stamped and proved beyond all reasonable doubts.

Hence, it is,

O R D E R E D,

                           that the instant C.F. Case No. 58/2019 be and same is allowed on contest with cost.

The OP /Axis Bank Ltd. is directed to pay the sum of Rs. 1,15,373/- (One lakh Fifteen Thousand three hundred seventy three only) to the complainant/petitioner along with interest thereon @ 9% per annum calculating on and from 13/06/2019 (i.e. from the date of filing of this case) till realization.

            The OP /Axis Bank Ltd. is also directed to pay Rs. 5,000/- (Five thousand only) to the complainant/petitioner as cost of litigation.

The entire decree will be complied by the OP within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.