| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI Udyog Sadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.61/2019 D/O NARAYAN DAS R/O 62, SUDHAR CAMP, NEW DELHI-110019 …..COMPLAINANT Vs. CENTRAL BANK OF INDIA SHOP NO. 57,58,59 KRISHNA MARKET, KALKAJI, NEW DELHI – 110019. .…..OPPOSITE PARTY Date of Institution-19.03.2019 Date of Order- 31.08.2022 O R D E R RASHMI BANSAL– Member The present complaint is filed by the complainant against OP claiming refund of the money withdrawn from her bank account fraudulently, without her consent and information, while ATM and the PIN was under her control, along with the compensation and the litigation cost. - Complainant has submitted that she is an uneducated, single mother, works as house maid and do other temporary odd jobs with minimal source of income for her survival. She became customer of OP on 01.01.2015, and an ATM/debit card bearing number-6072640308002297 was issued by OP. She stated that till 28.02.2018, the balance in her account was Rs. 3,32,858/, out of which Rs. 2,90,602.80/- had been withdrawn from her account illegally and fraudulently during 05.03.2018 to 11.03.2018 without her knowledge and consent and she came to know about the said withdrawal only on 13.04.2018, when she approached the ATM for withdrawing money for herself. In deep state of shock and emotional stress, complainant approached chief manager of OP, on 16.04.2018, (14 and 15.04.2018 being holiday when the OP bank was closed) and narrated him entire incident submitting that she is illiterate and sought some guidance from OP, but OP did not offer any help and asked complainant to approach police authorities. She also had given her complaints dated 07.05.2018 and 19.07.2018 to OP, but no action was taken. Complainant has also approached police too vide her complaint dated 21.04.2018, and 18.05.2018 for lodging an FIR and Police IO has recorded her statement on 24.05.2018. Complainant has also filed a complaint before banking Ombudsman, on 01.08. 2018, which was closed by banking Ombudsman on 02.03.2019 stating, complaint is non-complying with clause 13 A of the Banking Ombudsman Scheme 2006.
- Complainant alleged that the OP has failed in entirety to provide protection to the money of complainant entrusted to him and due to the negligent acts of the OP, the complainant has suffered huge financial loss, stress and injury, harassment, mental agony and loss of her savings. Complainant further submitted that OP is liable for the breach of contract as it has failed not only in protecting her money but has acted in extremely negligent way in addressing her complaint. Complainant submitted that on 05.03.2018, an excessive amount of Rs.80,000/- was taken out in a single day, which is in violation of the ‘key features’ of ‘classic Rupay debit card’, issued by OP, which limits ATM cash withdrawal to Rs.40,000/- per day. The subsequent unauthorized withdrawals were made, on 06.03.2018 of an amount of Rs.40,100.30/-, on 07.03.2018 an amount of Rs.40,094.40/-, on 08.03.2018 an amount of Rs.40,100.30/-, on 09.03.2018 an amount of Rs. 40094.40/- , on 10.03.2018 and amount of Rs.4 0094.40 and on 11.03.2018 an amount of Rs.10023.60/- , for which no alert/ SMS/ Message/ call was ever provided to the complainant. This is in violation of ‘classic Rupay debit card’ which states, SMS protection: “card holder will receive SMS alert on mobile every time a transaction is made using the debit card”. It is further submitted by complainant that by mid of March 2018, the complainant had lost a total sum of Rs.2,90,601.80 without her knowledge, consent or even information and during all the above transactions the OP turned a blind eye to the entire incident. Also, complainant has asked the OP to provide her the CCTV footage of the ATM kiosks but OP failed to provide the same to her. Complainant alleged that OP was deficient in their services provided to the complainant and the transactions were completely unauthorized fraudulent and illegal as per RBI and Central Bank of India guidelines, rules and regulations.
- Upon notice. The OP chose not to appear despite proper service and has been proceeded ex-parte vide order dated 23.10.2019.
- To prove her case, the complainant, has filed ex-parte evidence and photocopies of documents as follows:
- Aadhaar card, Ex.CW 1/1
- Copy of the debit card, Ex.- CW1/2
- Copy of the passbook, Ex.- CW1/3
- Copy of the key features of Rupay debit card, Ex.- CW1/4
- Copy of the complaint dated 21.04.2018, Ex. CW1/5
- Copy of the complaint dated 07.05.2018, Ex. CW1/6
- Copy of FIR dated 18.05.2018, Ex. CW1/7
- Copy of statement recorded by IO dated 24.05.2018, Ex. CW1/8
- Copy of the complaint dated 19.07.2018, Ex.CW1/9
- Copy of complaint dated 01.08. 2018 before banking ombudsman, Ex.CW1/10,
- Copy of the order dated 02.03.2019 of Banking Ombudsman, Ex. CW1/11.
- We have heard learned counsel for the complainant and have gone through the complaint, ex-parte evidence, written arguments submitted on her behalf and record of the case carefully. Since the OP is proceeded ex – parte, thus, all the averments made in the complaint are deemed to have been admitted by the OP and the evidence led by the complainant stands unrebutted, for which an adverse inference is to be drawn against OP as there is no denial/rebuttal to averments/evidence of the Complainant.
- The statement of account shows the transaction of Rs. 80,000/- on 05.03.2018 and thereafter on the subsequent dates, as mentioned by complainant in her complaint there is withdrawal of the money from her account and a total amount of Rs. 2,90,601.80/- is withdrawn from her account. The withdrawal of Rs. 80,000/ in a single day i.e. 05.03.2018 is in clear violation OP‘s own ‘classic Rupay debit card’ which specifically limits Rs. 40,000/- per day as the high withdrawal from ATM cash withdrawal limit, which itself evidences negligent and careless act on the part of OP, as it has failed to stop the withdrawal beyond 40,000 in a single day. Documents available on record also shows that even for further and subsequent withdrawal, no SMS alert or communication/ message was sent by OP, which again is in violation of the above stated scheme which states that cardholder will receive SMS alert on mobile, every time a transaction is made using the debit card. The various complaints filed by the complainant with OP were not dealt by it, showing that even after having the knowledge of the fraudulent withdrawals, OP stayed oblivious to the loss occurred to complainant. The whole episode shows a plight of a poor woman who was unaware at the time of fraudulent withdrawal from her bank account as she was confident that her money is safe with the bank since she is in control of her ATM card and kept her PIN secret.
- It is the settled position of law that the relationship between a bank and its customer arises out of the contract entered into between them, and OP is under legal duty to exercise reasonable care to safeguard interest of the customer, to protect the money of the complainant and to take necessary steps to prevent unauthorized withdrawals from the bank account of complainant. Therefore, if a customer suffers loss on account of the transactions not authorized by him, the bank is liable to the customer for the said loss. The OP has failed in his duties towards protecting the bank account of his customer and thus caused breach of his duty and consequently caused financial harm to the complainant. The OP did not even choose to inform police and to probe the matter despite repeated request by the complainant. The complainant has stated in her complaint that she has not shared the PIN with anyone else and also was having ATM card with her, therefore, the fraudulent withdrawal from her bank account did not happen because of leakage of PIN or handing over the ATM card to anyone.
- The case of the complainant is squarely covered by the judgment passed by the Hon'ble Kerala High Court in “State bank of India versus PV George, RSC-1087/2018, wherein vide its order dated 9 January 2019, while dismissing the second appeal filed by the State bank of India, has observed that if a customer suffers loss on account of the transaction not authorized by him, the bank is liable to the customer for this said loss. The relevant portion of the judgment is reproduced herein below, where Hon’ble court while addressing several key issues relevant for Banking has held:
“9. (i): … one thing is certain that where a bank is providing service to its customer, it owes a duty to exercise reasonable care to protect the interest of the customer. Needless to say that Bank owes a duty to its customers to take necessary steps to prevent unauthorized withdrawals from their accounts. As a corollary, there is no difficulty in holding that if a customer suffers loss on account of the transactions not authorised by him, the bank is liable to the customer for the said loss” Hon'ble Court has also dealt with the RBI circular with respect to the unauthorized withdrawals by stating: “10. Coming to the electronic bank regime ….. circular number RBI/2017–18/15 dated 06.07.2017, ……. clarified that customer shall have no liability at all in the case of third-party breach where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system. The only obligation which cast on the customers of the bank in terms of the circular is that the unauthorised transactions shall be brought to the notice of the bank forthwith so as to enable the bank to block the account. …………In short, there is also no difficulty in holding that 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 place a system which prevents such withdrawals, and the banks are, therefore, liable for the loss caused to their customers. All over the world, the courts are adopting the aforesaid approach to protect the interest of the customer of electronic banking.” - The Hon'ble court further considered the obligation of the banks with respect to the SMS alert and held: “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 offshore oil rig, who may not be able to access their mobile phone for several days having regard to the peculiarity of their avocation.”
- Considering the above discussion, and in the light of the Hon'ble Kerala High Court judgment, this commission is of the view that the OP cannot be exonerated from its liability for the loss caused to the complainant on account of the unauthorized withdrawals from her account. There is clear deficiency of service on the part of the OP and is liable to make good the loss sustained by the complainant due to the negligence of the OP. Therefore, OP is directed to pay Rs. 2,90,601.80/- towards the loss suffered by complainant due to unauthorized withdrawals and compensation of Rs.50,000/- for deficient services causing mental agony, harassment and trauma to the complainant. The said order is to be complied with in a period of three months from the date of passing of the order failing which the entire amount shall carry interest at 9% p.a. from the date of order till actual realisation by the complainant.
- Regarding the order of banking Ombudsman and findings of the Ombudsman, we are of the view that the order of ombudsman is not binding on the District Commission.
- The file may be consigned to record room after providing copy of the order to the parties free of cost as mandated by Consumer Protection Act, 1986 and the order be uploaded on the website www.confonet.nic.in.
- The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
- The order contains … pages and bears my signature on each page.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA) MEMBER MEMBER PRESIDENT | |
