Versus
1. HDFC Bank through its Director/CEO/Authorized Representative Ramon House, 169, Backbay Reclamation, HT Parekh Marg, Churchgate, Mumbai-400020.
2. SBI Cards & Payment Services Ltd., Through its Director/CEO/Authorized Representative DLF Infinity Towers, Tower-C, 12th Floor, Block 2, Building 3, DLF Cyber City, Gurgaon-12002 (Haryana) India. …..Opposite parties
Complaint Under section 35 of the Consumer Protection Act, 2019.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
SH. JASWINDER SINGH, MEMBER
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Dalip K. Saggi, Advocate.
For OP1 : Exparte.
For OP2 : Sh. Anand Sabherwal, Advocate.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. Shorn of unnecessary details, the facts of the case are that the complainant has been maintaining his savings account No.00881050766601 with OP1 and debit card No.5129670602385663 was issued by OP1 to the complainant. According to the complainant, he has been using the said debit/credit card for digital payment. He received a telephonic call from OP1 asking him to link his PAN card with his Aadhar card, otherwise his account would be suspended. The complainant further stated that he had been approaching OP1 bank for linking Aadhar card with his PAN card, upon which he received a call from OP1 with regard to sending an online link for linking his PAN card with his Aadhar Card and the complainant would receive an OTP on his mobile after clicking the link and he shall submit the OTP for linking the said documents. The complainant acted as per direction of the officials of OP1 by clicking the link, but on entering the OTP in the said link, a sum of Rs.89,990/- was siphoned off from his account and credited to SBI Card i.e. OP2. However, there was no liability of complainant towards OP2 as the complainant is having no credit card of OP2. Thus the OPs in connivance with each other have caused a wrongful loss to the complainant. The complainant further stated that he immediately submitted a cardholder dispute form dated 04.04.2022 with the charge back unit of OP1 bank about the fraud. Even the complainant lodged a Cyber Crime incident report under provisions of IT Act. The complainant approached the OPs for getting back his money but no heed was paid to his requests. According to the complainant, as per notification of RBI dated 06.07.2017, he has Zero liability. The complainant sent a notice to the OPs for refund of said amount but no reply was received. Hence this complaint, whereby the complainant has prayed to issue direction to the OPs to refund the amount of Rs.89,990/- along with compensation of Rs.3,00,000/-.
2. None turned up on behalf of OP1 despite service of notice through registered post and as such, OP1 was proceeded against exparte vie order dated 27.10.2022.
3. Upon notice, OP2 appeared and filed written statement and by taking preliminary objections; lack of cause of action; suppression and concealment of material facts; the complainant has no locus standi to the complaint etc. According to OP1, the matter involves intricate, complex and/or complicated questions of law and fact which will require detailed and/or elaborate trial and involve leading of voluminous evidence which is possible only in regular proceedings before a Civil Court.
On merits, OP2 reiterated the crux of averments made in the preliminary objections. OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.
3. During the proceedings of the case, the complainant gave up OP2 by suffering his statement dated 17.10.2013 and vide order dated 17.10.2023 the complaint against OP2 was dismissed being in fructuous.
4. In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents i.e. Ex. C1 is the copy of his ID card issued by Hero Cycles, Ex. C2 is the copy of account statement, Ex. C3 is the copy of Cardholder Dispute Form, Ex. C4 is the copy of Cyber Crime Incident report, Ex. C5 is the copy of notification dated 06.07.2017 of RBI, Ex. C6 is the copy of legal notice dated 19.05.2022, Ex. C7 and Ex. C8 are the postal receipts and closed the evidence.
5. We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply produced on record by both the parties.
6. The counsel for the complainant has drawn the attention of this Commission towards Ex. C5 i.e. notification dated 06.07.2017 vide which Reserve Bank of India issued guidelines/instructions to All Scheduled Commercial Banks (Including RRBs) as well as All Small Finance Banks and Payments Banks, which reads as under:-
“Reporting of unauthorized transactions by customers to banks
5. Banks must ask their customers to mandatorily register for SMS alerts and wherever available register for e-mails alerts, for electronic banking transactions. The SMS alerts shall mandatorily be sent to the customers, while email alerts may be sent, wherever registered. The customers must be advised to notify their bank of any unauthorized electronic banking transaction at the earliest after the occurrence of such transaction, and informed that the longer the time taken to notify the bank, the higher will be the risk of loss to the bank/customer. To facilitate this, banks must provide customers with 24x7 access through multiple channels (at a minimum, via website, phone banking, SMS, e-mail, IVR, a dedicated toll-free helpline, reporting to home branch, etc.) for reporting unauthorized transactions that have taken place and/or loss or theft of payment instrument such as card, etc. Banks shall also enable customers to instantly respond by “Reply” to the SMS and e-mail alerts and the customers should not be required to search for a web page or an e-mail address to notify the objection, if any. Further, a direct link for lodging the complaints, with specific option to report unauthorised electronic transactions shall be provided by banks on home page of their website. The loss/ fraud reporting system shall also ensure that immediate response (including auto response) is sent to the customers acknowledging the complaint along with the registered complaint number. The communication systems used by banks to send alerts and receive their responses thereto must record the time and date of delivery of the message and receipt of customer’s response, if any, to them. This shall be important in determining the extent of a customer’s liability. The banks may not offer facility of electronic transactions, other than ATM cash withdrawals, to customers who do not provide mobile numbers to the bank. On receipt of report of an unauthorised transaction from the customer, banks must take immediate steps to prevent further unauthorised transactions in the account.
Limited Liability of a Customer
(a) Zero Liability of a Customer
6. A customer’s entitlement to zero liability shall arise where the unauthorised 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 unauthorised transaction.
Burden of Proof
12. The burden of proving customers liability in case of unauthorized electronic banking transactions shall lie on the bank.”
7. The counsel for the complainant has contended that the bank was required to adopt aforesaid procedure as contained in the instructions Ex. C5, the moment he had received a report of unauthorized transaction from the complainant so that liability may be fixed after due investigation. It is a matter of common knowledge that Reserve Bank of India being watchdog of the entire banking system and in order to prevent fraudulent or unauthorized transactions had been issuing and updating instructions from time to time. The latest instructions, if any, have not been canvassed before this Commission by the counsel for the complainant. So it will be just and appropriate if OP1 is directed to act in accordance with guidelines/instructions as per letter dated 14.07.2017 of the RBI Ex. C5 or any latest instructions of RBI and to pass a speaking order in this regard. Further OP1 is directed that if the complainant is found entitled to any refund of amount, the same shall be reimbursed to the complainant within 30 days from the date of receipt of copy of order. The complaint as against OP2 is dismissed.
8. As a result of above discussion, the complaint is partly allowed with direction to OP1 to act in accordance with guidelines/instructions as per letter dated 14.07.2017 of the RBI Ex. C5 or any latest instructions of RBI and to pass a speaking order in this regard. OP1 is further directed that if the complainant is found entitled to any refund of amount, the same shall be reimbursed to him within 30 days from the date of receipt of copy of order. However, there shall be no order as to costs. The complaint as against OP2 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.
9. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Jaswinder Singh) (Sanjeev Batra)
Member Member President
Announced in Open Commission.
Dated:01.12.2023.
Gobind Ram.
