Order-17.

Date-22/09/2015.

In this complaint Complainant Smt. Kalpana Shaw by filing this complaint has submitted that on 26.03.1999 complainant opened a SB A/c being No. 06280100000717 having Customer ID No.005563352 for which she had balance of Rs. 18,316.30 paisa till 12.00 AM. On 12.02.2015 in the said bank account but suddenly at about 01.40 PM complainant received a mobile SMS in mobile no. 9831507627 which shows that the entire amount in the bank account was drained out from complainant’s bank account without any transaction made by complainant in the said account and on the same very date at about 01.05 PM an another SMS came by which it was reported that Rs. 5,796.30 paisa again was credited to the complainant’s bank account.

The whole incident was narrated to the Bank Manager by the complainant, but the said Bank Manager did not care on that matter and thereafter complainant issued legal notice on 25.02.2015 to op and on receipt of the same by the op, op admitted that the amount had been withdrawn but due to fault of the complainant it happened but no relief was given to the complainant and finding no other alternative, complainant filed this complaint for redressal for negligent and deficientmanner of service and for adopting an unfair trade practice.

On the other hand op by appearing reported that this Forum and by filing written statement denied all disputes and each and every allegation of the complainant denied that dispute of the Consumer Forum as the fault is of the ATM Credit Card and complainant disclosed the PIN Code number to someone who withdrew the amount and it is not the fault of the op as much as op has claimed that the present complaint is not maintainable when the negligent part of the bank is not at all proved and fact remains that ATM PIN number and other credit card is very confidential and consumer only knows, even the bank has no knowledge of the PIN code and due to misuse of the ATM PIN code of the complainant that incident took place for which there was no deficiency of service and for which the present complaint is also not maintainable and op Bank has no role in the incident as described by the complainant and this complaint is filed malafidely and practically such incident occurred due to own negligence on the part of the complainant in the premises op has prayed for dismissal of this case.

Decision with reasons

On careful consideration of the complaint and written version and also considering the argument as advanced by the Ld. Lawyers of both the parties and further considering the material, it is undisputed fact that complainant is a consumer under the op and no doubt the account was opened by the complainant on 26.03.1999 being A/c No.06280100000717 having Customer ID No.005563352 for which she had balance of Rs. 18,316.30 paisa till 12.00 AM and as per bank statement, it is found that complainant prayed for issuance of bank statement during the period from January-2015 to till 24.06.2015.But bank has not submitted that statement, even in this Forum.

At the same time bank has failed to produce any document to show that complainant used the ATM PIN code by using it in any ATM Kiosk.No such document is produced by the op/Bank that complainant made transaction by using the ATM Card and used PIN Code and thereafter the transaction was successful and for which a sum of the 18,316.30 paisa was withdrawn.No such document is produced by the op/Bank.Subsequently on the same date that is 12.02.2015 after alleged withdrawal of said amount and amount of Rs. 5,796.30 paisa again was credited.

It is invariably for the purpose of crediting that alleged amount of Rs. 5,796.30 paisa either ATM was used or it was credited to the bank but no such document is produced by the op/Bank.

Most interesting factor is that op/bank only took a plea that ATM card along with PIN code was in the custody of the complainant and PIN Code was not known to the bank and it was the knowledge of the complainant.So, under any circumstances there was no scope on the part of the bank to know about PIN Code that means complainant somehow or otherwise reported his PIN Code to some other person who managed to withdraw the same or he deposited the said amount.But bank has nothing to do and in this context when bank authority reported it to the complainant on 10.03.2015 that no doubt on 12.02.2015 there was balance of Rs. 18,316.30 paisa in the account of the complainant and after a couple of online transaction the balance was found Rs.1,276.30 paisa and it is clear from the said a copy which was attached with the letter but that account was made up to date on 31.12.2014 but Bank has not submitted any statement up to date in respect of that account and truth is that the bank has realized after internal inspection that some fraud has been practiced when they are satisfied that the ATM Card was not used.

At the same time bank has failed to show from whose account the said amount was credited and from whose account the subsequent small account was credited in the complainant’s account.About that online transaction as alleged by the op, op has failed to produce any document.Further most interesting factor is that it is the duty of the bank to produce the entire account of the complainant.But bank has submitted account statement from 08.05.2015 to 15.06.2015 and only submitted another statement from 14.10.2014 to 31.12.2014 but from 03.01.2015 to 08.05.2015 no account statement is produced by the bank and bank has withheld that statement and it has not been supplied to the complainant showing the amount was withdrawn or credited.

So, considering all the above fact we have gathered that bank has adopted deceitful manner of practice and they have withheld the statement of account for the period from 01.03.2015 to 07.05.2015.At the time of argument hearing this Forum has asked the Ld. Lawyer of the op why said statement has not been submitted.But substantially in whose account that amount has been credited from the account of the complainant and from where the subsequent amount was credited in the account of the complainant by adopting what method.Against that Ld. Lawyer for the op submitted that the said period of transaction is not visible in the internet, that means the entire matter is very doubtful and the total administration of the bank in this regard is found not honest in their approach.At the same time after considering that fact, it is found that the very act of the bank employees or staff of the bank is no doubt unfaithful and only to save their skin, the bank has not produced the statement of the account of the complainant from 01.03.2015 to 07.05.2015. Bank only supplied the statement up to 31.12.2014 and thereafter from 08.05.2015 to 15.06.2015.But reason for non-production of account statement of the complainant, bank is silent and their defence is same not available in the internet that means that part of internet printing has been washed out by the bank employees only to save their skin and withdrawal of money was done invariably by the employee and sub-staff of the op for which they are unable to prove that the said amount was withdrawn or it was withdrawn by ATM and subsequently same amount was credited from some other account but all those chapter is blank.Then it is proved that bank is not willing to disclose the truth about that alleged transaction as made by the complainant against the op.

Most interesting factor is that ops have not produced any document even question No.7 was put to the op by the complainant that op deliberately suppressed the transactions details from 11.02.2015 and 12.02.2015 by not supplying the statement to the complainant.Against that op answered not a fact, if it is not a fact, then op must have to produce that bank statement and existence of transactions in their internet for that period by producing document but that has not been submitted.

Another factor is that complainant put Question No.8 to the op to that effect – Will the op submit the statements of account showing that the complainant withdrew money through ATM Card?Against that question op answered that it is admitted fact.When answer is admitted fact, then the document must be produced by the op.But op has not produced any single paper about transaction made through ATM Card.This is the position of the bank administration.No doubt fraud has been practiced and it was practiced through employees and sub-staff of the bank through internet and no doubt on enquiry bank is satisfied that the mal-practice has been made by the ops and when op realized that if it is placed before the Forum, their misconduct, fraud practice, illegal activities on the part of the bank shall be proved for which all the documents are withheld.Such a bank cannot say that their administration is honest, their employees are honest but public money is in the hands of that bank,then safety of the customer is also a question.

On the other hand it is also proved that the allegation as made by the complainant has not been proved as false by proving any positive document that complainant by using the ATM Card withdrew it and complainant subsequently deposited such amount and not only that op withheld certain period of transaction statement for that purpose.But they are submitting before this Forum that same is not available in the internet that means bank has erased that part from the account of the complainant and such practice on the part of the bank is no doubt unfair trade practice.

Ld. Lawyer for the op submitted that PIN No. of ATM Card is very confidential and consumer only knows the same and bank has no knowledge of the said PIN No. as per Hon’ble National Commission’s judgement- the bank has no liability.But in this case ATM Card was not used which is proved because op has failed to produce any document that ATM Card was used by the complainant.But op’s version is that it was withdrawn on the online basis.Then invariably the amount from account of the complainant was transferred to some other account.Op has not produced that account to which account it was transferred, no such document is produced subsequently a sum of Rs. 5,796.30 paisa was credited.Whether it was credited in cash or it was transferred from any account that has also not been proved.Statement of account of a particular period is withheld by the ops which simply proves that the allegation of the complainant, they cannot deny for which they are not producing a part of statement of account knowing fully well it is not produced and the malpractice and fraud practice in respect of such alleged transaction is made by the bank employees.But the ops have not enquired about that only denied the entire allegation only no doubt this is the immoral, illegal activities on the part of the op’s Bank.

Another factor is that from the conduct of the op, it is proved that op has not complied the specific circular and guide line of RBI vide Circular No. DVS, CO. ITC. BC. N 6/3102008/210-11 dated 29.04.2011 on working group of Information Security Electronic Banking Technology and Cyber Crime, Fraud for which implementation and recommendation and taking implementation security measures including protection of the customer was circulated. But ops have failed to produce any such notification of the bank and their order that matter was completely applied as per RBI guideline.Invariably bank ought to have taken such step against the complaint of the complainant.But without adopting any such legal procedure, op/Bank appeared before this Forum and stated that that they havenothing to do because personal PIN was in the custody of complainant and it would disclose.There was chance of transaction through online or internet banking and it was the fault of the complainant and it is common in almost all the cases.

But most interesting factor is that Bank has not complied or implemented the RBI guide line which is proved and no positive action has been taken by the bank and another factor is that Bank has adopted unfair path when in this regard bank has not challenged that banking system was not hacked in any manner.So, considering all the above fact and circumstances, we are convinced to hold that bank was responsible for taking no action and no initial enquiry was made to come to a conclusion that internet banking system was not hacked in any manner and at the same time no step has been taken by the bank by taking such recourse when complainant has proved that he never used the ATM Card and he never withdrew any amount and or never deposited any amount in the account.

Another factor is that the complainant has specifically brought out the allegation against the Banking system who are operating this illegal activities.But bank has not enquired about that or has not changed their stand in this regard.So, we are convinced to hold that RBI guideline has not been complied by the ops and no doubt ops have their some legal responsibility in this regard about allegation and report the matter to the complainant, but that was also not done.

Invariably there are judgement of Hon’ble National Commission, but in those judgements the fact was otherwise and in the present case op has failed to produce any document about transaction or about misuse of the ATM Card for withdrawal or using of ATM Card for deposit or about any transaction and that part of transaction against which complainant brought this allegation against the op/Bank.But peculiar factor is that Bank has not supplied those documents and that is sufficient to hold that all those rules are not complied in this case.At the same time it is to be mentioned that there are so many scientific methods which are being used by the hackers by so many manners even collecting password or credit card number or ATM Card number from the other source and hackers usually search out password and credit card number or ATM Card number by adopting such hacking system and withdrew the entire money and so many instances are found in India and this Forum also searched out of cases against the Bank observing the particular fact in particular case.

In this context it is to be mentioned that as per RBI guideline, Bank must have to take all such safety measures against any Cyber fraud to protect the interest of the customer and it is the legal liability, responsibility of the bank as per RBI guideline.But op/Bank has failed to produce any such document that they have already implemented such RBI guideline to protect the consumer from Cyber fraud and they have taken such safety measures and devices are fixed with all the transactions and all the customers’ account are properly protected from any Cyber fraud and in fact in the very present case, op’s negligent manner of service, ops’ deceitful manner of business is well proved and they have no doubt harassed the complainant without any reasons and the complainant’s money was drawn out and thereafter some amount was credited and all those procedures were possible only for bank’s callous and casual approach about the protection of the account of the complainant/customer from the hands from Cyber fraud.

In the light of the above observation we are convinced to hold that there is negligent and deficient manner of service on the part of the op at the same time it is proved that this particular bank employees and their Branch Manager, the bank employees are directly or indirectly involved for such sort of Cyber fraud for which they have not decided consumer complaint and no enquiry was also held to search out, tosave the employees and only to save their skin, they appeared before this Forum against the allegation of the complainant.But same are not produced and submittedparticular period of transaction statement is notavailable.So that was not supplied but in fact same is not produced before this Forumonly to save their skin who are no doubt involved in this case for which they appeared before this Forum without any sword, instrument to apply against the complainant.We are not unmindful to the fact that whether the banking authority followed the path of Ashoke who was great warrior but ultimately he left the field of fighting and war for peace and particular conduct of the bank administration has convinced this Forum that they have abandoned all their instrument in their field and appeared before this Forum without any document is no doubt to save their skin but are generally filed by the bank and all those conduct of the in the op/Bank has given this Forum a chance to take negative presumption against the bank about the conduct and no doubt their conduct is motivated and their employees are no doubt involved in such sort of Cyber fraud and factual aspect is that the entire Cyber fraud has been done by their bank employees and their staff within the knowledge of branch manager and administration and administration is well aware of the fact for which they have no produced all those documents.

At the same time op/Bank has not stated anywhere that no such hacking was made against this transaction.So, the entire defenceas made by the op is nothing but causal defence as taken in most of the cases without knowing implementation of RBI guideline which is well proved and for the negligent and deficient manner of service and deceitful manner as adopted by the op, complainant suffered much and he has been harassed and for which complainant is entitled to get such compensation and also to get refund of the entire amount which was drained out due to Cyber fraud for which bank employees were involved.

In the result, the complaint succeeds.

Hence, it is

Ordered,

That the complaint be and the same is allowed with cost of Rs. 5,000/- against the op.

Op is hereby directed to refund the entire amount at once within one month from the date of this order and shall have to pay compensation of Rs. 5,000/- for causing harassment, mental pain and agony and for not giving proper safety and also for their negligent and deficient manner of service and deceitful manner of trade and for adopting such sort of false defence by the op and also for withholding the vital document by the bank and for adopting such unfair trade practice by the Bank, Bank has imposed penal damages of Rs. 25,000/- and it is imposed to check such sort of deceitful practice as adopted by the bank in future and also for protection of the consumers and if the said amount is collected it shall be deposited to this Forum by the op/Bank authority within one month from the date of this order.

If it is found that op is reluctant to comply the order, in that case after expiry of the stipulated period, op shall have to pay penal interest at the rate of Rs. 100/- per day till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.

Opis directed to comply the order very strictly within the stipulated period, in default, penal action shall be started against them u/s 25 read with section 27 of C.P. Act 1986 for which further penalty and fine shall be imposed.