DATE OF FILING: 15.02.2016.
DATE OF DISPOSAL: 04.10.2017.
Dr.Alaka Mishra, Member (W):
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in banking service against the Opposite Parties (in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated, the case of the complainant is that he is the customer of O.Ps having a joint account with his son vide Savings Account bearing No.112632556674 with O.P.No.1. It is stated in the complaint that at the time of opening of aforesaid bank account, the officials of the O.P.No.1 insisted and persuaded him for availing the ATM facilities for better services and accordingly the complainant agreed for the same and submitted requisite applications for availing the ATM facilities and an ATM Card bearing No. 6220180132100038463 was issued in favour of the complainant. For availing the ATM facilities, the O.P.No.1 used to deduct necessary service charges from the S.B. Account without any notice to the complainant. On 02.01.2016 the complainant for an urgent purpose withdrew a sum of Rs.1800/- at SBI, Jajpur Market-II ATM counter. From the balance slip, the complainant observed that an amount of Rs.2,91,000/- was lying as balance in the account of complainant. On 06.01.2016 the complainant’s son was also withdrawn a sum of Rs.10,000/- through his ATM card. Again on 11.01.2016 the complainant withdrawn Rs.3,000/- and made up-to-date of the pass book and he came to know that a sum of Rs.2,03,133.86 was lying his account as balance only losing Rs.75,500/- which was shown as purchased out of state i.e. at Noida, New Delhi. Immediately the complainant met with the O.P.No.1 at his office on 06.01.2016 and explained the matter who blocked the ATM Card of complainant and as required a written complaint was filed for necessary enquiry and relief. It is also alleged that the complainant has registered his mobile No.9437658942 for bank transaction but no message on dated 04.01.2016 and 05.01.2016 was received by the complainant. A lot of transactions made but no message was received in cell, which is deficiency of service of the O.Ps. The complainant has already paid SMS charges and ATM charges for service. On 21.01.2016 the complainant filed a written complaint before the O.P.No.1 requesting to return back the said amount to his savings bank account. But the O.Ps did not give any heed to his grievances. Hence, the complainant has filed this consumer complaint alleging deficiency in banking service on the part of the O.Ps and prayed to direct the O.Ps to debit Rs.75,500/- in the S.B. account of the complainant along with compensation of Rs.20,000/- towards harassment and mental agony and to pay Rs.4000/- towards cost of the litigation in the best interest of justice.
3. Upon notice the O.Ps appeared through Shri B.K. Mohanty, Advocate and filed version. It is stated that the allegations made in the complaint petition are not all true and correct and the complainant is put to the strict proof of such of those allegations, which are not specifically admitted herein. The averments made in Para 1 that the complainant is the customer of O.Ps having a joint account of present complainant along with his son vide SBI Savings Account bearing No. 11263255674 at O.P. No.1 are based on documents. The averments made in Para 2 and 3 are all true except the officials of the OP No.1 insisted persuaded the complainant for availing the ATM facilities for better services. Availing ATM facility is optional on the part of a customer and no bank can compel a customer to avail ATM facility and operate the said facility. As per the mandate given to the bank at the time of availing the ATM facility, the bank used to deduct the annual maintenance/ service charge from the customer. The further allegation made in Para-3, regarding withdrawal of money on 02.01.2016 and the balance in the account are based on records and the complainant is put to strict proof of the same. The allegation made in Para-4 are false, fabricated and based upon a concocted story for filing the complaint petition and it is nothing but distortion of facts aimed at diverting the attention of this Forum and gain sympathy by covering the own latches and lacuna of the complainant. The complainant and his son are operating a joint account having two ATM cards. On 4th and 5th January through a series of transactions a amount of Rs.75,500/- was withdrawn from his account at various point of sales for purchasing by using internet banking facilities. For transaction through internet banking physical use of PIN and card is not required. For each transaction through internet banking, a onetime password is generated and transmitted to the registered mobile number. Thereafter, by using the said password along with card number transactions are successfully carried out. In the instant case the complainant/account holder had disclosed his card number and one time password repeatedly which facilitated /resulted in successful operation of the account by debiting the amount from his account. Thereafter, as admitted by the complainant on 06.01.2016 the account was blocked. On 21.01.2016 the complainant has given a written complaint narrating the entire episode and circumstances under which he disclosed the card number and one time password repeatedly. The SBI is the largest public sector bank of the nation having wide ATM network throughout the country. It issued the ATM card subject to certain terms and conditions and the applicant/account holder has to enter into a contract accepting the same by signing on the application form. As per Clause- C (2) of the terms and conditions for ATM cards, which reads that “Please remember that an unauthorized person can access the ATM service on card holder’s account if he gains the card and the PIN The card should remain in Card Holder’s possession and should not be handed over to anyone else. The card is issued on the condition that the Bank bears no liability for the unauthorized use of the card. This responsibility is fully that of the card holder” and as per Clause-D(2) of the terms and conditions for ATM cards, which reads that “Any financial loss arising out to unauthorized use of the card till such time the Bank records the notice of loss of card will be to the card holder’s account” and as per Clause- E (1) of the terms and condition for ATM cards, which reads that, “The Bank has the express authority to debit the designated account of the card holder for all withdrawals/transfers effected using the card as evidenced by Bank’s records which will be conclusive and binding on the card Holder”. The ATM card was issued to the complainant on his accepting the terms and conditions for ATM cards for all its customers. The customers should take adequate precautions to protect their own interest and money while operating their ATM cards with existing facilities/system. In view of the above, this O.P. is neither liable to return the amount of Rs.75,500/- withdrawn from the account of the complainant nor responsible to pay compensation of Rs.20,000/-, litigation expenses Rs.4000/- and the interest thereon for financial loss, mental agony and physical harassment and cost etc. as claimed. This O.P. has also provided all necessary information and extended full cooperation to the complainant. Hence there is no deficiency in service. This case involves complex question of facts, evidence and law. Hence this Forum has no jurisdiction to admit the case and try the same and the matter can be properly adjudicated in the civil and Criminal Court. Due to the above facts, this does not come within the scope and ambit of the consumer Forum and there is no deficiency in service. The SBI is not liable to pay anything or responsible for the alleged misuse of the ATM card and internet banking as per the terms and conditions of the contract entered at the time of issue of the ATM card and internet facility. The petition is barred by limitation and the same has not been properly valued. The complaint is not maintainable due to non-joinder and mis-joinder of parties. Hence, the O.Ps prayed to dismiss the case with exemplary cost in the interest of justice.
4. On the date of final hearing of the consumer dispute, the learned counsels for both parties are present. We heard argument at length from both parties and perused the documents placed on the case record. We have also perused the submission all parties to this dispute and thoughtfully considered the same. On perusal of complaint and arguments, we find that is not in dispute that the complainant holds a Savings Bank Account bearing No. 11263255674 in the State Bank of India along with his son and availed ATM facility bearing card No. 6220180132100038463. It is also an admitted fact that he had withdrawn total amount of Rs.13,000/- from the said bank account. However, as contended by the learned counsel for the complainant and on perusal of documents of bank transactions, it appears that a sum of Rs.75,500/- was withdrawn fraudulently from his account on different sale points out of state. The said transactions have been shown as purchase at Noida, New Delhi etc on 4.1.2016 and 5.1.2016 respectively. The complainant met with O.P.No.1 for blocking the ATM on 6.1.2016 and filed a written complaint on 21.1.2016. As admitted by the complainant he received phone calls in his registered mobile No.9437658942 from a mobile bearing No.7808187507 and 7808187508 respectively in the guise of staff of Head Office, Mumbai and stated that your account was blocked because your net link with Adhar card was not done. We will link your Adhar with Bank account so kindly follow the instructions. As per the instruction, a six digit number was sent to the mobile of the account holder and it has to be disclosed to the mobile caller. The complainant followed the instructions as directed by the caller and lost the amount of Rs.75,500/-. On the contrary, the learned counsel for the O.Ps submitted that the complainant along with his son operated the said joint account having two ATM cards and on 4th and 5th January 2016 through a series of transactions a sum of Rs.75,500/- was withdrawn from the account of present complainant at various Point of Sales for purchase by using internet banking facility. For transaction through internet banking, a onetime password is generated and transmitted to the registered mobile number. Thereafter, by using the said password / six digit numbers along with card number, the internet banking transactions were done successfully. He specifically contended that in the instant case, the complainant/account holder had disclosed his card number and one time password each time to the caller and the caller using the six digit number one time password has successfully carried out his transactions and withdrawn a sum of Rs.75,500/- from the account of the complainant fraudulently which is due to his own fault. He also informed that it is an admitted fact that on complaint filed by the complainant, the account was blocked on 6.12.2016 by the O.Ps. Therefore, there is no deficiency in service on part of the O.Ps and the O.Ps are not liable to refund the amount or to pay the compensation or cost.
5. We have carefully considered the submissions advanced before us by the learned counsel for the complainant as well as for O.Ps. We have also corroborated the argument with documents placed on record as evidence filed by both parties. On a bare perusal of documents filed by the complainant as well O.P. bank, we find that on 04.01.2016 and 05.01.2016 a series of transactions were made outside the state as admitted. On further perusal of details of SMS log of transactions made on 04.01.2016 to 05.01.2016 which has been produced as evidence before us reveals that all the transactions were successful due to disclosure of six digital one time pass ward to the caller for 12 times on 04.01.2016 and 11 times on 05.01.2016 by the complainant. It is an admitted fact that the complainant followed instructions of the caller and disclosed the onetime password repeatedly to the hacker/caller which beyond doubt proves the contributory negligence of the complainant for fraudulent withdrawn of Rs.75,500/- from the account of the complainant in dispute. In the instant case, as admitted by the complainant and as per the documents available on the case record supplied by the O.P bank, the said transactions were took place on account of the negligence of the complainant. Hence, in our considered view, this case can’t be tried in this summary procedure since it involves complex issues of cyber fraud and this Forum has got no jurisdiction to decide the cyber fraud case. In the light of above discussion and considering the peculiar fact and circumstances of this case, we feel that the complaint of complainant deserves no consideration due to devoid of merit. However, the complainant is at liberty to approach any other Forum for proper adjudication of the matter.
6. In the result, we ordered to dismiss the case of the complainant due to devoid of merit. The parties are directed to bear their own cost. The case of the complainant is dispose of accordingly.
7. The order is pronounced on this day of 4th October 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
