Order-14.
Date-31/08/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant is a bona fide consumer under the OPs, who is an employee of CESC Ltd., Kolkata and was designated as the Deputy Manager (Mains), Calcutta North District of CESC Ltd., Kolkata at the time of the incident and complainant is maintaining one salary account being Savings Bank Account No.1610101000029777 in the office of the OP No.1 having its branch office at 2-1-4, Deb Lane, CIT Road, P.S. Entally, Kolkata – 700 014 and complainant has a net banking facility in respect of the said account and was using the same through his own residential computer only and used the said facility only for the purpose of downloading account statement needed for purchasing a car. In the said account complainant has a balance of Rs.1,50,000/- or more on or before 26-11-2012 in his said account lying in OP1 as the complainant desired to make a payment to his car dealer and normally the complainant used to maintain a much lower balance in his said account as it is the salary account of the complainant and he has been using his mobile phone no.9432238732 and he used to busy in a regular manner through direct consumer interactions, phone calls and SMSs of customers as well as office personal seeking advice/orders on matters requiring immediate attention. 3-4 days prior to 26-11-2012 at about 8.30 p.m. onwards, the complainant used the internet banking facility from his residential computer to downloan a bank statement to submit to his car dealer namely M/s. Premire Car World, as a prerequisite to purchasing the car and on 24-11-2012 complainant issued a cheque bearing No.533978 dated 26-11-2012 in favour of his car dealer namely M/s. Premier Car World, for a sum of Rs.1,00,000/- as initial payment for purchasing a car and on 16-11-2012 complainant got a message with some information through his mobile phone and on seeing casually complainant thought that the high value cheque issued in favour of the car dealer had been cleared from such account but thereafter, the complainant realized that there was something abnormal going on only when the complainant tried to access the said savings account using the net banking facility from the personal computer at his residence on 29-11-2012 and was unable to do so, complainant realized his user i.d. and password for the operation of the said account of the complainant had been changed and, thereafter, being perplexed, the complainant went to nearest ATM counter and took out a Mini Statement therefrom and found that there had been three numbers of un-authorized withdrawals of Rs.50,000/- each totaling Rs.1,50,000/- from the said account of the complainant and on enquiry complainant came to know through SMSs from the OPs/Banks that the said amount had been credited in favour of any unauthorized person/account holder named Sandeep Kadian via NEFT, without the knowledge and consent of the complainant and the said amount of Rs.1,50,000/- had been transferred on 26-11-2012 at 15.35 hrs. Rs.50,000/-, on 26-11-2012 at 15.41 hrs. Rs.50,000/- and on 28-11-2012 at 15.49 hrs. Rs.50,000/-. So, the complainant immediately on 29-11-2012 at about 9.00 p.m. informed the same to a representative of the OP1 over phone and explained the scenario to him and the said representative asked the complainant to come to the office of the OP1 at an earliest and on 30-11-2013 complainant rushed to the branch office of Axis Bank Ltd., i.e. the OP1 and lodged a written complaint before the OP1 and also lodged a written complaint to the Cyber Crime Cell, Kolkata Police, Lalbazar, Kolkata – 700 001 as well as Joint Commissioner of Police Crime, Kolkata stating all the material facts with a request to take appropriate steps against the OPs/Bank in accordance with law. After receiving the same OP1 replied then and there stated that they are not held responsible for such unauthorized transactions on the contrary the OP1 suggested the complainant to make complaint before the Police Authority. Finding no other alternative on 08-01-2014 complainant lodged a written complaint before Banking Ombudsman, R.B.I., stating the fraudulent and/or unauthorized withdrawal of funds of Rs.1,50,000/- which was duly registered as complaint no.201314005002481 got disposed of. On the same day the OP1 also informed the complainant by a letter that a sum of Rs.1,00,000/- has been credited on 28-05-2014 in favour of the complainant in his said Savings Bank Account No.16101010002977.
On receipt of the said sum Rs.1,00,000/- out of Rs.1,50,000/- complainant asked the OP1 regarding the balance amount of Rs.50,000/- along with interests on several occasions but every occasions OP suggested that the complainant should take action against the other bank involved, i.e. State Bank of Patiala for refunding the balance amount. On the other hand, the authority of the OP1 also misbehaved with the complainant. In the above circumstance, complainant sent a demand notice of balance payment of Rs.50,000/- but that was not properly entertained and practically for that deficiency and negligent manner of service and for giving no proper safety and security of the account complainant has filed this complaint against the OP for proper redressal.
On the other hand, OP by filing written statement submitted that complainant had done online transactions through his account for which his Net banking facility was activated on request and it is, therefore, necessary to include State Bank of Patiala as a party and fact remains the entire matter should be heard in presence of the said Bank also so the present complaint should be dismissed. Moreover, it is specifically mentioned that complainant is a knowledgeable person and i.d. and password that are given to the customers are extremely confidential and must not under any circumstances be shared with any other person. If the customer, in spite of such guidelines divulges such confidential information to anyone, it does not remain the responsibility of the Bank anymore and practically the complainant has filed this complaint for unjust enrichment and practically the negligent and carelessness is on the part of the complainant. No doubt complainant lodged a complaint before the Banking Ombudsman in January, 2014. OP1 has already refunded the amount as awarded to the complainant that is Rs.1 lakh. Complainant managed the same and by making the refund OP1 discharged their part of order and in respect of that complainant has filed this complaint but under any circumstances complainant is not entitled to get it back. Ombudsman had also directed State Bank of Patiala to refund the complainant Rs.50,000/- which till date has not been carried out. Complainant had sent a legal notice to which the OP1 had replied in detail about the order of the Banking Ombudsman and had also provided the details of State Bank of Patiala and complainant ought to have contact the SB of Patiala but for reason best known to the complainant he in all probablity did not contact State Bank of India or if any contact had been done the request for refund must have been turned down. So, in the above circumstances, OP has prayed for dismissal of this case.
Decision with Reasons
After thorough study of the complaint and the written version and also considering the argument as advanced by the Ld. Lawyers of both the parties it is found that no doubt a sum of Rs.1,50,000/- in each occasion Rs.50,000/- were withdrawn from the account of the complainant that is from Savings Bank Account No.1610101000029777 what is admitted fact. Truth is that complainant lodged complaint to the Banking Ombudsman regarding fraudulent withdrawal of Rs.1,50,000/- and the complaint of the complainant was registered as complaint No.20134005002481 and that was disposed of by Shri Dibyendu Banerjee, Vice President and Nodal Officer for the Banking Ombudsman of Kolkata and it was observed by the Ombudsman that bank has not complied with and has not implemented the RBI instruction vide circular DBS. CO.ITC.BC No.6/31.02.008/2011-11 dated 20-04-2011 on Working Group on Information Security, Electronic Banking, Technology Risk Management and Cyber Frauds – Implementation of recommendations” advised byt the RBI Banks to implement various security measures including cooling period for beneficiary addition for which the Banking Ombudsman observed that the bank should compensate the loss to the complainant for the first two transactions and bank was directed to refund Rs.1 lakh to the complainant.
At the same time Banking Ombudsman concluded in para 5 of their order “incidentally the beneficiary account to which the funds were fraudulently transferred belonged to State Bank of Patiala (SBP) as revealed from the reply of Axis Bank and accordingly a complaint has since been registered in the name of SBP which is being dealt with separately”. So, considering that order of the Ombudsman it is clear that it was not the fault of the complainant, fault was on the part of the OP Bank for which OP Bank was directed to compensate and that amount was received by State Bank of Patiala for which a complaint has been registered by the Banking Ombudsman, Kolkata and that is dealt with separately and when the fault on the part of the Bank is proved from the order of the Banking Ombudsman and it is already held that in respect of precaution and management against Cyber Frauds anti-devices have not been properly implemented by the OP Bank, so such sort of fraud was practiced by fraudsters and it was not the fault of the complainant then invariably it was the duty of the Ombudsman to refund the balance amount of Rs.50,000/- but in this regard Ombudsman is silent. Step has been taken against the State Bank of Patiala but complainant was not directed to file any complaint against State Bank of Patiala and that cannot be the fault on part of the customer who is not the consumer of the SB of Patiala but in the findings of the Ombudsman it is found that fraud has been practiced and amount was withdrawn and it is also observed that there was deficiency on the part of the Axis Bank then invariably OP is bound to refund the balance Rs.50,000/- also but OPs have tried to convince that Ombudsman directed the complainant to file a complaint against SB Patiala is completely false. There is no such order but Ombudsman suo moto shall have to take step against SB Patiala that is their business. So, considering that fact we have gathered that Axis Bank has taken a false defence but admitted position is that Ombudsman already confirmed that entire amount of Rs.1,50,000/- has been fraudulently transferred from the account of the complainant and it is the fault of the Axis Bank then deficiency and negligence on the part of the OP is confirmed by the Ombudsman and in fact, Axis bank has already transferred Rs.1 lakh to the account of the complainant as per order of the Ombudsman but Ombudsman is silent about balance Rs.50,000/-. So, there is every ground on the part of the OP to repay the balance amount along with banking interest to the complainant and in this regard OP cannot deny his liability because their deficiency negligence is proved from the decision of the Ombudsman.
In most of the cases this forum has confirmed and decided in case of many fraudulent transaction in case of ATM and other wise that Bank has not taken such step by applying such anti-devices to control the Cyber frauds and many banks have not observed the same though there was RBI Guidelines and in the present case there is another example that Axis Bank has not followed the guidelines of the RBI for implementation and recommendation of RBI to check the Cyber Frauds. So, it is proved that OPs are legally bound to refund the said amount when fraud has been practiced by the fraudster for the laches of the OPs.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.2,000/-.
OPs are hereby directed to refund the said balance amount Rs.50,000/- along with banking interest to the complainant and the litigation cost of Rs.2,000/- i.e. totalling Rs.52,000/- with banking interest within one month from the date of this order failing which for non-compliance and disobeyance of the Forum’s order OP shall have to pay penal damages at the rate ofRs.100/- per day till full satisfaction of the decree, even if OP is found reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.
