1. The brief history of the case of the complainant is that he is a saving bank account holder vide A/c No. 11384504872 attached to his salary.  It is submitted that due to treatment of his brother, on 29.10.2020 he had been to Chowdwar and tried to withdrew some amount, but the same did not disbursed to him with a remark “unable to dispense”, for which he obtained mini statement and found that on 21.10.2021 an amount of Rs. 5,000/- have been withdrawn three times and on 22.10.2020 an amount of Rs. 4,500/- and Rs. 5,000/- have been withdrawn from his account, and no messages or any intimation was received from the O.P. in that regard.  It is alleged that after return from medical treatment of his brother, on 10.11.2020 he submitted a written complaint to the O.P. but no action by the O.P. It is also alleged that on many occasions, he approached the O.P. for return the said amount, but no service provided to him.Thus showing deficiency in service, he filed this case with a prayer to direct the O.P. to debit the lost amount of Rs. 24,500/- and to pay Rs. 50,000/- and Rs. 10,000/- towards compensation and costs of litigation to him.

2. The O.P. appeared though their Ld. Counsel and filed counter denying the allegations of the complaint have contended that all the transactions were made through internet banking which could not be completed without putting the user ID and password which are under the possession of complainant and also contended that they have published numerous advertisements not to fall prey to the fraudster and not disclose the banking credentials to any other persons.  Further contended that, they have taken prompt action with the payment Gateway Companies and one of payment of Rs. 5,000/- have returned back to his account on 31.10.2020 and other amounts have not been returned back.  Further contended that they have already sent messages to the mobile number of complainant and with contentions, showing their no liabilities, they prayed to dismiss the case.

3. Both the parties have filed certain documents in support of their cases including the guidelines issued by Reserve Bank of India dated 06.07.2017.  Heard from the complainant as well as the O.P. and perused the materials available on record.

4. In this case, it is an admitted fact that the complainant is a saving bank account holder vide no. 11384504872 with ATM facility under the Opp. Party.  The case of the complainant is that on 21.10.2020 and 22.10.2020 amount of Rs. 24,500/- in total have been withdrawn from his account, which he came to know on 29.10.2020 and on 10.11.2020 he made a written complaint to the O.P. and complainant filed document to that effect.  It is alleged that though the O.P. has received the complaint, but no action taken by them, thus showing deficiency he filed this case.Whereas the contentions of O.P. is that all the transaction were made through internet banking and since the user ID and password are in the possession of complainant, as such complainant must have completed the transactions, which he suppressed and also contended that as per their prompt action an amount of Rs. 5,000/- have been returned by the payment gateway companies and other amounts have not been returned, thus showing no deficiency they prayed to dismiss.

5. From the above submissions and documents filed by the parties, it is ascertained that complainant has already received an amount of Rs. 5,000/- but the rest amount have not received the rest amount of Rs. 19,500/-.  Emphasizing the clause 3 (ii) of guidelines issued by Reserve Bank of India dated 06.07.2017 the O.P. argued that since the user ID and password in the possession of complainant and without putting the user ID and password, no amount can be disbursed and it is the complainant who must have completed the transaction.  We have gone through the said clause of the guidelines which says that “Face – to –face / proximity payment transactions ( transactions which require the physical payment instrument such as a card or mobile phone to be present at the point of transaction e.g. ATM, POS, etc.”, but miserably failed to prove their contention by producing any documentary evidence like CCTV footage or any mode which may give stand value to their submissions, which is highly required as per clause 12 of said guidelines.  And the said fact does not disclose that that the transaction were carried out either by the complainant himself or as per his instructions through any other person.  And without any strong evidence, simply submitting the guidelines will not do and also has no fruitful effect, as such the oral plea of O.P. cannot be sustained at any angle. 
   
           Further clause of 9 of the said guidelines emphasizes that “On being notified by the customer, the bank shall credit (shadow reversal) the amount involved in the unauthorized  electronic transaction to the customer’s account within 10 working days from the date of such notification by the customer (without waiting for settlement of insurance claim, if any).  Banks may also at their discretion decide to waive off any customer liability in case of unauthorized electronic banking transactions even in cases of customer negligence.  The credit shall be value dated to be as of the date of the unauthorized transaction.” As per such provision, we feel, complainant is entitled to get back his lost amount.

6. Further contentions of O.P. is that they have sent the messages regarding the above transactions and also filed document to that effect.  We have carefully gone through the documents and found that though all the messages were sent to the complainant, but not a single message have delivered to the complainant and the documents i.e. SMS DLR report from 21.10.2020 to 22.10.2020 itself shows the delivery status as “failed”. Hence it cannot be said that the messages were properly delivered to the complainant and the said fact is also in the knowledge of the O.P.  While they are aware of such facts that the messages were not properly delivered to the complainant, they could have resend all the messages to him, but without doing they kept silent, whereas the O.P. is charges fees towards SMS alert, which is also a gross negligence on the part of the O.P.

7. Further the contentions of O.P. that they have taken prompt action with the payment gateway company to make the lost amount of complainant return back and an amount of Rs. 5,000/- also returned back, then why they kept silent to do the same for remaining lost amount, whereas the complainant made written complaint to the O.P. which is also acknowledged by them.It seems that the O.P. have not properly carried out their duties to provide proper service to the complainant which result the lost of rest amount of Rs. 19,500/- and such inaction of O.P. compelled the complainant to file this case.

8. Further the OPs in their counter have clearly admitted that there are 5 nos. of transaction have been made on 21.10.2020 to 22.10.2020 through internet banking on different times and complainant must have completed the transactions, which is nothing but only an imaginary submissions and the same clearly proves the inability and inefficiency on the part of the bank to protect the hard earnings of their valuable customers, which are under their custody and such type of activity on part of the OP – Bank is nothing but only to cause loss and harass their customers.

9. Further, it is well known to the OPs that the ATM and its server are with them.  Any tempering and misuse to the machines is the fault of the OPs for which the poor customer at no stretch of imagination can be suffered.  For the safeguard of the interest of consumers and for protection of their hard earned money, the OPs should work hard and the help of enforcement agencies should be taken to find out their fault and apprehend the culprits.  Necessary technologies must be adopted so that the culprits’ access could be restrained to such fraudulent withdrawal.  Simply stating that disclosing of user ID and password will not do but to act for the interest of their valued customers, as the OP – Bank who are in banking business and earning profit out of amount deposited by their customer.    

10. In the above facts and circumstances, it can be concluded in the case in hand that a sum of Rs. 19,500/- has been fraudulently withdrawn from the account of the complainant when the ATM card and PIN was in his possession for which the OP is liable and the complainant is entitled to get back his money with interest, further for such withdrawals, the complainant must have suffered some mental agony and also filed this case incurring some expenditures, for which he is entitled for some compensation and costs.Considering his suffering we feel a sum of Rs. 3,000/- and Rs. 2,000/- towards compensation and costs will meet the ends of justice.Hence this order.

                                                                                                ORDER

That the complaint petition is allowed in part and the O.P. being the custodian of money of complainant is directed to credit Rs. 19,500/- with simple interest @ 6% p.a. from 22.10.2020 till payment and to pay Rs. 3,000/- towards compensation and Rs. 2,000/- towards costs of litigation to the complainant within 30 days from the date of the communication of this order.

        Pronounced in the open Forum on this the 14^th day of July, 2021. 

       Issue free copies to the parties concerned.