Haryana

Panchkula

CC/27/2023

SURENDER SINGH YADAV - Complainant(s)

Versus

CANARA BANK - Opp.Party(s)

IN PERSON

18 Mar 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	27 of 2023
Date of Institution	:	30.01.2023
Date of Decision	:	18.03.2024

 

 

Surender Singh Yadav, resident of House No.67-A, Pine Homes, Dhakoli, Zirakpur, District SAS Nagar, Mohali(Punjab)

 

                                                                           ….Complainant

Versus

Canara Bank, Sector-11, Panchkula, through its Branch Manager.

                                                                                                                                                                                                            .….Opposite Party

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh.Satpal, President.

Dr.Sushma Garg, Member

Dr.Barhm Parkash Yadav, Member

 

 

For the Parties:   Complainant in person.

                        Defence of OP struck off vide order dated 05.05.2023.

 

ORDER

(Satpal, President)

1.             The brief facts, as alleged, in the present complaint are, that the complainant had received a message on 27.04.2022 that an amount of Rs.31,185/- was credited  to his account and total available balance in his account was Rs.1,01,992.98 and sweep in balance was Rs.0.00. It is stated that, on 30.04.2022, at about 1745 hrs, the complainant visited the ATM in Sector-11, Panchkula Branch  for withdrawal of cash and tried to withdraw the cash twice but the transactions were declined  both the times stating the reason that there were insufficient funds in the account and in this regard, he inquired about the reasons from the OP-Bank informed him that three transaction had been made from the account qua withdrawal of Rs.49,980/-, Rs.49,995/- and Rs.31,000/- on 28^th and 29^th of April, 2022. It is averred that no message, after 27^th of April, 2022 till date, was received qua withdrawal transactions by the complainant on his mobile; nor any OTP was sent, before alleged transaction in his account, by the Opposite party(hereinafter referred to as OP). It is averred that when no OTP was ever received during the said period on the registered mobile of the complainant, then the question of sharing of the same with any one by the complainant did not arise. On the advice of the OP-Bank, the complainant filed an application in this regard with the OP-Bank on Monday i.e. 02.05.2022. Thereafter, the complainant also visited the police Station, Dhakoli but the police official declined to receive the complaint on the pretext that the matter was related to the Cyber Crime and, hence the complainant lodged the complaint with Cyber Crime on 30.04.2022. It is stated that on 02.05.2022, the complainant visited the OP-Bank in person and thereafter, sent an email on 05.07.2022 to OP for doing the needful in the matter but the Op lingered the matter on one pretext or the other. On the advice of the OP-Bank, the complainant submitted the indemnity bonds in favour of the Canara Bank, Federal Bank and HDFC Bank on 05.07.2022, but of no use.  Having no option, the complainant filed a complaint with the Banking Ombudsman RBI, Chandigarh and resultantly, the OP and other two banks transferred the amount of Rs.65,493/- out of the total debited amount of Rs.1,30,975/-, which was short of Rs.65,482/-. It is stated that the  complaint filed with the Banking Ombudsman RBI, Chandigarh was also closed as the OP-Bank was able to mislead the Banking Ombudsman RBI, Chandigarh alleging that the transaction(s) were two factors secured transaction(s) carried out with the help of credentials, which are confidential to the customer and whenever applicable, debit alert SMS (s) was (were) delivered to the customer’s mobile number and Log for OTP/ SMS has been provided by the regulated entity for the confirmation of the same. Thus, the Banking Ombudsman RBI, Chandigarh held that it is a case of negligence on the part of the customer, which had led to alleged fraudulent transactions. Due to the act and conduct of the OP, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.             Upon notice, the OP has appeared through Sh. Chand Deep Jindal, Advocate to contest the complaint; but he did not file the written statement despite availing several opportunities including the last opportunity. Therefore, the defence of OP was struck off by the Commission, vide its order dated 05.05.2023. 

3.             The complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-7 in evidence and closed his evidence by making a separate statement. 

4.             We have heard the complainant and gone through the record available on filed including written arguments filed by the complainant, minutely and carefully.

5.            Evidently, a total sum of Rs.1,30,975/- was withdrawn from the saving account no.82612030010343 of the complainant on 28.04.2022 & 29.04.2022 vide three separate transactions. The details of the withdrawal of said amount are given in the tabular form as under:-

Sr.No.	Amount	Date	Description
1	Rs.49,980	28.04.2022	IB-IMPS-DR//FDRL/**2091//28/04/2022  18:32:48
2	Rs.49,995	28.04.2022	IB-IMPS-DR//HDFC//**5895//28.04.2022 18:34:43
3	Rs.31,000	29.04.2022	IB-IMPS-DR//HDFC//**7251//29.04.2022 08:32:22

 

6.             As per the averments made by the complainant vide para no.10 of the complaint as also the corresponding para of his affidavit (Annexure C-A), an amount of Rs.65,493/- was credited/transferred by the OP-Bank in the account of the complainant out of the total debited amount of Rs.1,30,975/-, in pursuance of the directions issued by the Ombudsman in complaint no.N2022230230- 99627/2022-23 and in this regard, the closure report dated 19.09.2022 of said complaint is available on record as Annexure C-7.

7.             Now, the grievances of the complainant are that the said complaint bearing no. N202223023099627/2022-23 filed through CMS Portal with the Ombudsman by him was wrongly closed by merely directing the OP/Bank to refund the 50% amount of the total debited amount.

8.             During arguments, the complainant reiterated the averments as made in the complaint as also in his affidavit(Annexure C-A) and contended that a message was received on 27.04.2022 to the effect that an amount of Rs.31,185/- was credited in his account and the total available balance in his account was Rs.1,01,992.98. The complainant vehemently argued that he came to know on 30.04.2022 about the unauthorized withdrawal of sum of Rs.1,30,975/- vide three separate transactions on 28.04.2022 and 29.04.2022 from his account, when he visited the ATM in Sector-11, Panchkula for withdrawal of  the cash. It is vehemently argued that no message after 27.04.2022 was received by him(the complainant) on his mobile and nor any OTP was received before the withdrawal of said unauthorized amount from his account. It is further argued that neither OTP nor its PIN was shared with any one and the credit/debit card was in his possession and thus, no lapses or negligence was/were attributable on his part. It is further argued that contributory negligence on his part has wrongly been attributed by the Ombudsman of RBI vide closure report (Annexure C-7) and thus, it is prayed that the complaint is liable to be accepted by granting the relief as claimed for in the present complaint.

 9.            On the other hand, the OP has failed to file the written statement/reply, despite having taken sufficient time and resultantly, its defence was struck off vide our order dated 05.05.2023 and thus, there is no rebuttal and controversial to the contentions of the complainant

10.            After hearing the complainant and perusing the available record on the file, the question that arises for adjudication, before the Commission, is, whether there was  negligence or lapse on the part of the complainant, which had led to the withdrawal of unauthorized transactions of amount of Rs.1,30,975/-vide three separate transactions on 28.04.2022 and 29.04.2022.

11.            Before going into the merits of the case, we deem it proper to mention here that the Reserve Bank of India(hereinafter referred to as RBI), keeping in view the surge  in customer grievances relating to unauthorized transactions in the accounts of the customers, enjoying electronic banking facilities like ATM-cum-Debit Cards, net banking  etc., has issued the Circular No.RBI/2017-18/15 dated 06.07.2017, vide which, it has directed all banks, among others, to put in place, appropriate  systems and procedures to ensure safety and security of electronic banking transactions carried out by customers; robust and dynamic fraud detection and prevention mechanism; mechanism to assess the risks resulting from unauthorized transactions and measure the liabilities arising out of such events; appropriate measures to mitigate the risks and protect the banks against liabilities arising there from and a system of continually and repeatedly advising customers on how to protect themselves from electronic banking and payment related frauds. As per the aforesaid circular, if a customer suffers loss in connection with the transactions made, without his junction, by fraudsters, it has to be presumed that it is on account of the failure on the part of the bank to put in places system which prevents such withdrawals and the banks are, therefore, liable for the loss caused to their customers.

12.            A customer’s entitlement to zero liability shall arise where the unauthorized 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 nor 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 unauthorized transaction.

13.            Now, adverting to the facts of the present case, it is found that the complainant had immediately lodged the report on 30.04.2022 in Cyber Crime, qua the occurrence of the incident of unauthorized withdrawal from his account vide acknowledgment no.22505220004410 (Annexure C-2). On the next day, the matter qua unauthorized withdrawal was brought into the notice of the OP-Bank vide application (Annexure C-3) and on 02.05.2022, an application in prescribed performa was submitted qua the said incident with the OP-Bank. Thereafter, an email(Annexure C-4) was sent to OP-Bank on 05.07.2022 followed by a separate application of even date qua taking action in the matter. As per Annexure C-5 & Annexure C-6, the OP-Bank was duly apprised qua the name of the bank, wherein the amount from the  account of the complainant was fraudulently transferred by the fraudster as also the name of the beneficiary, the details whereof are given as under:-

Sr. No.	Transaction Id	Account No.	Date	Name	Bank Name
1.	IB-IMPS-DR//FDRL/002091	999801172720	28.04.2022	Kalan Joy Reang	Federal Bank , Agartala FDRL0001965
	IB-IMPS-DR//HDFC/005895	50100497375895	28.04.2022	Lal Bahadur Reang	HDFC0001037
		50100494667251	29.04.2022	Bodhan Kumar Reang	HDFC0004841

 

14.            We are clueless as to any correspondence made by the OP-Bank with the said beneficiary’s bank. Further, we are also clueless as to any action taken by the OP-Bank qua making of any recovery from the said unauthorized beneficiary/ fraudster. As per unrebutted averments made by the complainant in para no.4 of his complaint as also in the corresponding para of his affidavit(Annexure C-A), he never received any OTP qua the unauthorized transactions in question. Undoubtedly, the debit/credit card was in the possession of the complainant at the time of incident.

15.            Undoubtedly, no enquiry or investigation was conducted by the OP by referring the matter to its fraud and dispute settlement team so as to ascertain the details and whereabouts of the fraudsters. As per above circular dated 06.07.2017 issued by the RBI, it was binding upon the OP  to put  in place the robust and dynamic fraud detection and prevention mechanism but we have no clue whether any fraud and detection mechanism has been put in place by the OP or not.

16.            From the above stated factual possession, it is well proved that the OP had failed to adhere to the guidelines issued by RBI vide instructions dated 06.07.2017 and thus, the OP had been deficient while rendering services to the complainant. 

17.            Resultantly, we find that there were no lapses or negligence on the part of the complainant qua the unauthorized withdrawal of sum of Rs.1,30,975/- vide three separate transactions of Rs, 49980/-, Rs.49,995/- & Rs.31,000/- on 28.04.2022 & 29.04.2022 respectively; thus, the Ombudsman vide closure report qua the complaint no. N20222302309-9627(Annexure C-7) has wrongly held that there was negligence on the part of the complainant, which had led to the alleged fraudulent transactions. 

18.            Resultantly, we have reached at the irresistible conclusion that the OP was deficient, while rendering services to the complainant, for which, it is liable to compensate him.

19.            In relief, the complainant has claimed the following relief:-

1. To pay Rs. 65,482/- along with bank interest from the date      of illegal debit till actual realization to the complainant.
2.     To initiate legal action against the wrong doers at the earliest to        save other customer’s hard earned money.
3.     To Pay Rs.50,000/- to the complainant for compensation for     mental agony harassment, inconvenience, financial loss etc.
4.     To pay Rs.22,000/- as legal expenses, as well as cost of the     complaint.

20.            As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OP :-

1. To pay a sum of Rs.65,482/- to the complainant, along with interest @ 9% per annum(simple interest) w.e.f. 29.04.2022 i.e. the date when amount was withdrawn  unauthorizedly from the account of the till its realization. 
2. To pay an amount of Rs.10,000/- to the complainant on account of mental agony and harassment suffered by him.
3. To pay an amount of Rs.5,000/- as cost of litigation charges.

               

21.            The OP shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP.  A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

 

Announced on: 18.03.2024

 

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg          Satpal

                Member                                 Member                 President

 

 

Note: Each and every page of this order has been duly signed by me.

 

                                               Satpal

                                         President