IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 30thDAY OF JULY 2021
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.86/2018
E.MytheenKunju,
ZamZam, Panmana P.O.,
Chavara, Kollam.
Pin 691583. : Complainant
V/S
Federal Bank,
Rep.by Branch Manager,
Karunagappally Branch
(By Adv.B.S.Anup) : Opposite party
ORDER
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act.
The averments in the complaint in short are as follows:-
The complainant is a SB Account holder of the opposite party Federal Bank and he has been operating ATM card issued from the said bank. On 22.04.2017 at about 10.A.M the complainant went to the Medicity hospital, Kollam for undergoing medical checkup as advised by the doctor. The complainant was giving blood for examination while so at 10.47 am he received a telephone call from Mobile No.8918572054by claiming that the person has been calling from Federal Bank. He informed the complainant that the ATM card belongs to the complainant is blocked. As the complainant was in the process of giving blood the trap behind the call did not strike his mind. Hence without thinking much the complainant acted in the manner suggested by the caller for reactivating the ATM card, since the complainant was urgently in need of making payment for medical expenses. In that process the caller obtained the ATM card No, CVC No., Type of card and OTP from the complainant. Immediately at about 10.57 A.M. the complainant received a message for successful transaction of Rs.5,000/-. Realizing the trap complainant attempted to block the card by calling Federal Bank, Karunagappally Branch at 10.58 A.M. The call did not attend. The complainant made calls through toll free No.18004251199 at 11.01 A.M. But did not get connected. In the meanwhile at about 11.02 A.M the complainant received three messages for three successive transactions of Rs.9,900/-each. After receiving the message option the complainant send message (SMS) at 11.04 A.M to the No.5676762 whereas the complainant received messages at 11.13 A.M stating that the card is blocked. Yet another message was also received indicating a transaction of Rs.9,900/-. The complainant was lost Rs.44,600/-(5000+4x9900) from his A/c No.11070100363027 maintained with the opposite party bank. Complainant revealed OTP only once whereas five transactions have taken place by using the same OTP, which is due to the deficiency is service and unfair trade practice of the bank otherwise the first one transaction for Rs.5,000/- alone would have taken place . In fact this is the only fraud transaction that had taken place due to the mistake of the complainant and other four transactions were taken place not an account of any mistake or act on the part of the complainant. But only due to the deficiency in service and unfair trade practice of the bank and therefore the opposite party bank is responsible for lastfour transactions for Rs.9,900/- each totalling to Rs.39,600/- lost from the account of the complainant and opposite party bank is legally bound to be refund the said amount, for which the complainant has sent a letter dated 24.04.2017 to the opposite party requesting to refund the said amount lost from his account. But there was no response, nor the amount was refunded. Hence the complainant issued a suit notice on 02.03.2018 to which the reply has been received stating that when online transaction with ATM card is made there will be an option to select OTP or static password and if a static password is selected transaction up to a limit prescribed can be done without subsequent OTPs and in the case the four transactions done by opting the static password fixing a limit of Rs.10,000/-. Since one OTP is for one transaction only doing more transactions by using the same password is nothing but deficiency in service and unfair trade practice and also negligence on the part of the opposite party. Hence the complaint.
The opposite party resisted the complaint by filing a detailed written version raising the following contentions.Thecomplaint is not maintainable either in law or on facts. The complainant is not a ‘Consumer’ as defined U/s 2(d) of the Consumer Protection Act. The alleged transaction is a fraudulent one and the involvement of the fraudster has to be properly investigated through a competent agency. Without initiating such available remedies the complainant had experimentally approached the Forum for getting undue benefit from the opposite party. However the opposite party would admit that the complainant is maintaining an account with the opposite party bank and the account No. of the complainant is 11070100363027 and also would admit that fraudster had withdrawn altogether Rs.44600/- from the account of the complainant. But would contend that all these were happened within a short span of time and immediately with the help of Bank’s toll free number the complainant managed to block his ATM card on 11.13 A.M.
It is further contented by the opposite parties that the entire episode happened due to the own fault of the complainant. The opposite party bank has been constantly advising their customers through SMS alerts or otherwise not to reveal the password/OTPs to any person under any circumstances. The bank or its officials never call a customer for sharing the said credentials over phone or in any other manner. The complainant by knowing all the consequences had openly disclosed the details to the fraudsters and as an outcome of his mistake he had lost the said amount and therefore the bank is not liable for refunding the amount misappropriated by the fraudsters. During the short span of period the fraudsters had tried 20 unsuccessful transactions in the account of the complainant and the same were prevented as the complainant had blocked the account by contacting the opposite party bank’s Operations Department. The alleged incident had occurred on a holiday. But the bank’s operations department had timely done the needful to help the complainant and therefore the complainant had stop further fraudulent transfers from his account. There is no deficiency in service or any unfair trade practice on the part of the opposite party bank. The complainant himself would admit that due to the mistake in stating that he first revealed his credentials to the fraudsters and the said first fraudulent transaction itself is the root cause of his additional loss of Rs.39,600/-. Hence the complainant cannot blame anyone for the loss if any sustained to him and the bank is not responsible for the acts of the complainant due to his own mistake. There is no wilful deficiency in service or unfair trade practice on the part of the opposite party bank. The complainant has deliberately filed this complaint as an experimental one and to cause loss to the opposite party bank. The opposite party further prays to dismiss the complaint with its costs.
In view of the above pleadings the points that arise for consideration are:-
- Whether the complaint is maintainable?
- Whether there is any deficiency in service or any unfair trade practice on the part of the opposite party bank as alleged in the complaint?
- Whether the complainant is entitled to get the relief sought for?
- Reliefs and costs?
The complainant no chosen to give any oral evidence.However got marked Ext.P1 to P6 documents.3 witnesses were examined on the side of the opposite party as DW1 to DW3 and got marked Ext.D1 to D3 and X1 series documents. The opposite party has filed interrogatories and got answered by the complainant.
Both sides have filednotes of argument. Heard both sides.
Point No.1
Admittedly the complainant is a SB Account holder with opposite party bank and one ATM card has been issued to the complainant and said ATM card wasin operation at the relevant time.Admittedly the complainant is a customer of the opposite party bank. It is well settled that the service rendered by statutory authority like a banking company and insurance company will come within the definition of the service as defined U/s 2(1)(o). Therefore it is clear that the complainant is a consumer as defined U/s 2(d) of the Consumer Protection Act.
It is further contended on behalf of the opposite party that the complainant has not approached a police authority and remedy of investigation to find out the fraudsters and without initiating the available remedies the complainant has no right to approach the Forum. The above contention of the opposite party is actually and factually incorrected. Criminal prosecution is intended for punishing the wrongdoer and not for returning the amount unlawful withdrawn from the complainant’s account. Admittedly Ext.P4 is the copy of the FIR in crime No.1770/2017 of Karunagappally police station alleging the offence punish U/s 417&420 IPC and 66(D) of the IT Act. The above crime has been registered on the basis of the complaint lodged by the complainant herein alleging the very same allegations in the present complaint. The copy of the above complaint form parts of the P4 FIR. It is true that the police has not properly investigated the matter and found out the fraudster and brought before the court of law. The blame for the nonfeasance and misfeasance of police officials in investigating the crime cannot be saddled upon the shoulder of the complainant and escape from the liability of the bank.
Yet another contention of the opposite party bank regarding maintainability is that the complainant has not approached the banking Ombudsman. The above contention is also devoid of any merits on 2 grounds. The first ground is that the powers and jurisdiction of the Banking Ombudsman is not to investigate the fraudulent act of the fraudster for which the bank itself is having internal investigating agency. Furthermore Section 3 of the Consumer Protection Act 1986 would clearly indicate that the provisions of the Consumer Protection Act shall be in addition to and not in derogation of the provisions of the any other law for the time being in force. It is well settled that Consumer Protection Act is enacted to provide for better protection of the interested of the consumers and also for settlement of consumer dispute in a speedy and cheaper manner. There is no provision in the said act which barrs the filing of a complaint by a consumer even if the consumer has availed or not any other statutory remedies. It is also settled law that the provisions of the Consumer Protection Act gives the consumer an addition remedy besides that may be available under any other existing laws. In view of the above settled law the filing or not filing complaint before police or not approached the Banking Ombudsman is not a ground to throw away the complaint filed by a consumer. In view of the reasons stated above we hold that the present complaint wherein there is allegation of deficiency in service on the part of the opposite party bank . In view of the reasons stated above we hold that the complaint is perfectly maintainable. Point answered accordingly.
Point No.2
According to the complainant at about 10.A.M. on 22.04.2017 while the complainant was giving blood as a part of medical check-up at the Medicity hospital, Kollam he received a telephone call from Mobile No.8918572054 claiming that the person has been calling from Federal Bank wherein the complainant has maintained S/B account and operating ATM card. The complainant was informed through at phone that his ATM card has blocked and in order to saidthat the ATM card ATM card No, CVC No., Type of card and OTP from the complainant. According to the complainant while he was giving blood for examination the trap behind the call did not strike his mind and he has to pay charges for the medical examination at the hospital without delay and therefore he furnished the above information on the assumption that the call was actually from the officials of the bank. However by using the credentials of the ATM card and OTPthe fraudster from the withdrew an amount of Rs.5,000/- at 10.57 AM from the account of the complainant. By the time the complainant realising the fact that the caller is not a bank official but a fraudster. Hence he immediately (within one minute at 10.58 AM) he made a complaint with bank through landline. But the bank did not attend the call. Hence the complainant contacted the banks operation department through toll free number at about 11.01 AM that too did not get attend. Later the complainant sent a message at 11.04 AM to 5676762 thereupon the complainant received a message at 11.13 AM that the card is blocked. But in the meanwhile without having any further OTP the fraudster withdrew Rs.9,900/- each in three times at 11.04 AM , 11.13 AM. The complainant on the next working day that is on 12.04.2017 intimated regarding the alleged fraudulent transaction and the amount withdrawn fraudster through the transactions totalling to Rs.39,600/-. But no action has been taken by the bank. The complainant ishaving no much dispute with regard to the withdrawal of Rs. 5,000/- from his account as he has revealed his credentials of the ATM card. But his grievance is that after withdrawing the amount once the fraudster has subsequently made four more withdrawals @ Rs.9,900/- on each withdrawal. The complainant would alleged negligence and deficiency in service regarding above 4 withdrawal. According to the complainant he disclosed OTP once and therefore the last four transactions are without the knowledge of the complainant or without OTP. The opposite party would contend that the fraudster made successive withdrawals on the reason that ATM credentials were disclosed by the complainant. According to the complainant the above reason itself is not sufficient to put the entire liability to the shoulders of the complainant. His liability lies to the extent of his negligence and not beyond.Here in this case it clear that the complainant has negligently revealed the credentialsof ATM on the bonafide belief that the same are required for reactivating the blocked ATM card. By using the above credentials the fraudster has withdrawn Rs.5,000/- from the account of the complainant. The complainant ought not have given the OTP and other credentials of the ATM card to a person who contacted him. The complainant who conducted the case himself as argued that while he was giving blood for examination as a part of check up as advised by the doctor. He has not got opportunity to consider the veracity of the instruction of the fraudster or think of the consequences. The 2nd reason argued by the complainant is that he need to use the ATM card urgently for payment of the fees at the hospital. Therefore reactivating of the ATM card was highly essential for the complainant and however he happened to believe the representation of the fraudster and given the credentials of the ATM card and OTP then and there itself. Of course giving intimating password and other details of the ATM card to any other person without thinking its consequences is a negligent act. Therefore the complainant is liable for the use of the OTP and the first withdrawal of the 5,000/- from his account. The complainant also not seen claimed in the relief that amount of Rs.5000/- from the bank.
Now regarding the subsequent four withdrawal of Rs.9,900/- each. According to the complainant he has disclosed OTP once and therefore subsequent four transactions are without OTP or his knowledge and permission. The complainant has argued that OTP means ‘ One Time Password’ the use of which is permitted only one time and that is why it is called OTP and the bank is liable for the subsequent use of the OTP and loss of the amount from the account of the complainant. But according to the opposite party bank subsequent four transactions were done using static password and hence subsequent OTP not required. However there is nothing on record to indicate that the complainant was informed at any time about the usage of static password. In this connection DW2 deposed that bank has no practice of the intimating any such facts. Ext.P5 is the instructions of the RBI regarding unauthorized electronic banking transactions. As clause No.4(i) of Ext.P5 instructions, it is stated that the bank should take appropriate systems and procedures to ensure safety and security of electronic banking transactions carried out by customers. As clause No.(4), (v) it is stipulate that the system of continually and repeatedly advising customers on how to protect themselves from electronic banking and payments related fraud. In the light of the above instructions it is crystal clear that bank has to make awareof the customers how to protect themselves from electronic banking and payments related fraud. But according to the PW2 there was no such practice in the bank. The above grievance of the complainant has been stated in Ext.P3 suit notice and Ext.P6 letter dated 24.04.2017 where in it is stated that the above fraudulent transactions have been taken place due to the technical flaw of bank IT system and software. In reply to the P3, P6 and earlier communications theopposite party bank has intimated P2 letter that when first time one do an online transactions by using ATM card he has to select OTP or static password. If he selected static password he can do transaction up to a limit(fixed by him) afterwards he can do online transaction using the static password without any subsequent OTPs up to the previously fixed limit and in case after obtaining the OTP from the complainant the fraudster has opted static password fixing a limit of Rs.10,000/- and that is the reason why the fraudster has withdrawn Rs.9,900/- each of thefour times.
According to the complainant the system of generating static password by a customer or the fraudster is not made known to the complainantby the opposite party bank and hence he was not aware of creating static password and if there is chance of such a situation he would not have divulged the OTP in the response to the call. We find force in the above claim of the complainant especially when no material is available to indicate that any information has been given to the complainant regarding the use of static password.
The 2nd ground for alleging deficiency in service on the part of the opposite party bank is that the opposite party bank failed to provide means so that the complainant could report the loss of money from his account at the earliest opportunity or in the alternative did not attended act timely to the report made and that the report made to the operation department through toll free No. also was not attend and not acted upon. According to the complainant even after sending message the opposite party did not act promptly to stop the fraud and thereby atleast further fraudulent transaction could not have been taken place. Hence according to the complainant deficiency in service on the part of the opposite party bank has to be inferred. We find force in the above allegations. It is clear from Ext.P6 complaint which is the earliest in time filed by the complainant before the opposite party manager that the complainant has received a mobile phone call from the fraudster at 10.47 AM purporting to be a call made by an officer of the opposite party bank and informed that the operation of the ATM card of the complainant is blocked. As he was engaged in giving blood at the hospital for examination, he acted upon as suggested by the caller and intimated the necessary credentials of the ATM card and OTP number by using the same the fraudster has withdrew Rs.5,000/- from his account and within 10 minutes (10.57 AM) he received a message by way of SMS stating the successfull transaction of Rs.5,000/-. Immediately the complainant realized the trap and attempted to block the card by making telephone call to the opposite party branch within one minute(10.58 AM). However the call was not attended by anyone within 3 minutes(at 11.01 AM) the complainant made mobile phone calls to the toll free No.18004251199. However the said call did not get connected. But in the meanwhile the complainant received 3 messages regarding 3 withdrawal of Rs.9,900/- each. Immediately he sent message at 11.04 AM to the number 5676762 from where he received a message after 9 minutes(at 11.13AM) that the card is blocked and also got another message regarding the withdrawal of Rs.9,9000/- each from his account. If the opposite party bank has provided sufficient means to attend to his grievance then and there and to actedupon definitely the further four withdrawal of Rs.9,900/- each by the fraudster could have been avoided. The toll free number is expected to work 24x7 hours. In other wards it is expected to work throughout day and night irrespective working or holiday. But in this case it is crystal clear that toll free number was also not attended and act upon. It is also clear from the available materials that even after sending sms one more fraudulent transaction taken place. Therefore it is evident that there is culpable negligence on the part of the banking authoritiesin promptly actingagainst the fraud reported by the complainant and to makenecessary arrangement to block the operation of the ATM card so as to avoid further fraudulent transactions.
Yet another argument of the complainant is that the opposite party bank has not done anything to bring back the amount lost from the account of the complainant and no enquiry has been conducted as per directions of the RBI. The learned counsel for the opposite party has vehemently argued that after the intimation of an internet(online transaction) it cannot be said to stop where the complainant says. But it is seen that after 9 minutes of sending SMS the operation of the card was blocked. Hence it is clear that if the opposite party bank has acted promptly on getting intimation regarding fraudulent withdrawal could have blocked then and there itself they the operation of the ATM card and avoided the withdrawal of Rs.9,900/- at least. However the opposite party has no explanation for the immediate non action on getting sms and non-working of the toll free number given to the customer.
It is also argued on behalf of the opposite party bank that as per Ext.P4 FIR the police has conducted investigation identified the name and address of the miscreant which is evident from Ext.C1 case diary. But by pointing out some technically reasons the police has purposefully discontinued the investigation and finally filed refer report before the JFMC, Karunagappally . Police cyber cell have ample power to conduct a detailed investigation in matter and find out details of airtel money valet in which the fraudster transferred the money and Ext.C1 case diary would indicate that police has no interest in investigating the case. According to the learned counsel for the opposite party the complainant by suppressing details of criminal case has filed the present complaint before the Forum experimentally. But the above argument is factually incorrect. The complainant has revealed the details of the criminal case and also produced and got marked copy of the FIR along with the copy of the complaint as Ext.P6. Complainant is not in a position to obtain the details of investigation nor will get the case diary, even though he is a Rtd.District Judge. The complainant has argued that there was informationregarding the static password prior to the sending of suit notice and opposite party bank has invented a new reason of static password so as to wrigle out from the liability arising out of the fraudulent transactions. In the light of the materials available on record we find force in the above argument of the complainant. On evaluating the entire materials available on record we come to the conclusion that there is deficiency in service on the part of the bank which resulted in loss of Rs.39,600(4x9900) to the complainant and the bank is liable to return the amount to the complainant. The point answered accordingly.
Point No.4
In the result the complaint stands allowed in the following terms.
The opposite party bank shall refund Rs.39,600/- in the SB A/c of the complainant within 45 days from the date of receipt of a copy of this order.
The opposite party bank is also directed to pay Rs.5,000/- as costs of the proceedings.
If the Manager of the opposite party bank failed to comply with the above directions the complainant is at liberty to recover the amount Rs.39,600/- with interest @ 6% per annum from the date of alleged fraudulent transaction till realization with costs from the opposite party Manager and assets of the Federal Bank, Karunagappally Branch.
Dictated to the Confidential Assistant Smt. Minimol. S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 30th day of July 2021.
S.SandhyaRani:Sd/-
E.M.MuhammedIbrahim:Sd/-
StanlyHarold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-Nil
Documents marked for the complainant
Ext.P1 : copy of bank statement
Ext.P2 : copy of the reply dated 16.03.2018
Ext.P3 : copy of the Suit Notice dated 02.03.2018
Ext.P4 : copy of the letter dated 24.04.2017
Ext.P5 : RBI circular dated 06.07.2017
Ext.P6 : letter dated 24.04.2017
Witnesses Examined for the opposite party:-
DW1 : Santhoshkumar, Branch Manager of Federal Bank
DW2 : Aravind M., TrivandrumZonal Office Manager of Federal Bank
DW3 : Binoy M.
Documents marked for opposite party:-
Ext.D1 : Instructions accompanying with the debit card
Ext.D2 : Terms and conditions for issue of ATM card
Ext.D3 : The mobile SMS alert issued to the complainant during the month
April 2017
Ext.X1 series : FIR
S.SandhyaRani:Sd/-
E.M.MuhammedIbrahim:Sd/-
StanlyHarold:Sd/-
Forwarded/by Order
Senior Superintendent
