DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.235/2011
Trilok Singh
S/o Sh. Dhani Singh
R/o House No. B-465,
Dakshinpuri
Delhi-110062
….Complainant
Versus
ICICI Bank
B-78, Defence Colony
New Delhi-110024
….Opposite Party
Date of Institution : 10.02.2011
Date of Order : 02.01.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The Complainant has filed the present complaint seeking credit of Rs. 1,00,000/- fraudulently/illegally withdrawn from the account of the complainant. The complainant is also seeking compensation of Rs.1,00,000/- for mental torture, pain and agony and Rs.20,000/- as litigation charges.
- It is stated by the Complainant that he was having SB A/c (salary a/c) No. 630001016927 having an ATM card with the OP. It is his case that and that Rs.1,00,000 was withdrawn from his account between 16.11.2010 to 26.11.2010.It is stated that he has withdrawn Rs. 14,000/- using his ATM on 15.11.2010 but the slip was not generated. At that time, his credit balance was Rs.3,74,930/- on 31.11.2010.
- Then on 03.12.2010, he successfully withdrew Rs.10,000/- and the balance at that time was 2,79,151.80. He was shocked to receive the statement that an amount of Rs.1,00,000/- was illegally deducted from his account. The copy of the statement is exhibited as CW 1/2. He immediately lodged complaint in the Defence Colony Police Station bearing DD No. 33 dated 04.12.2010 and the OP but till date no action has been taken by the police officials or OP.
- It is further stated that he requested the OP to make him aware as to how the money in lots of Rs. 25,000/- each was withdrawn from his account from 16.11.2010 to 26.11.2010, whether it was by way of ATM card or cheque book.
- It is stated that the Complainant has not withdrawn the said money and that the OP did not inform him about the withdrawal of the said amount from his account. It is stated that he lodged a complaint with the PS Defence Colony and got his ATM card blocked which was later cancelled by the OP and the new ATM card was issued in its place.
- He further states that once his ATM card was stuck in the ICICI ATM at Chandivali, he approached the OP Bank. He was told by the OP bank that a new ATM card would be provided to him. Later on, the card was cancelled by the OP and the Complainant was issued another ATM card. The Complainant states that he thinks that the same may have been misused by some inner person of the OP bank.
- It is the case of the Complainant that someone from the bank might have withdrawn this money, it is alleged that 4 transactions were carried out in a single day and that the Complainant has lodged a complaint with RBI about the non-cooperative attitude of the OP.
- On the other hand, OP has raised preliminary objection that the Commission does not have the territorial jurisdiction to entertain the present complaint and there are disputed questions of facts which cannot be adjudicated by this Commission in their summary jurisdiction where detailed evidence may be undertaken to fix the liability of all the parties.
- It is also stated that the Complainant has not come to the Commission with clean hands and is guilty of misrepresenting the facts. It has also been stated that the complainant is not a consumer and that the complaint is barred by time.
- On merits, it is stated that the Complainant was having a savings account number 630001016927 with ICICI Bank Defence Colony branch, New Delhi and might have used the ATM card for withdrawal of money. It is stated that the transaction took place from ICICI ATM as well as non ICICI ATM.
- It is stated by the OP vide their letter dated 09.02.2011 that the disputed transactions for an amount of Rs.1,10 000/- had taken place from 16.11.2010 to 03.12.2010 whereas the dispute was raised by the Complainant on 04.12.2010 with the OP whereas the reporting of the loss of ATM card happened on 04.12.2010 and hence there is no deficiency on their part. It is stated that the since these transactions were already completed, the OP could not have undone the transaction and no liability can be fastened on the OP on account of any negligence or of fraud committed by/ with the complainant. It is stated that all transactions were PIN based transactions which was in the knowledge of the complainant
- OP says that it is the absolute responsibility of the card holder for securing the card and to take all steps ensuring the safe keeping of the card. The card holder is liable for the safety of the ATM card in its physical form and also to maintain the secrecy of the PIN without which, the card cannot be used and since these two parameters were available only with the Complainant himself or his duly authorised person, the bank is under an obligation to honour the transaction and therefore no liability can be fastened on them.
- It is stated that no liability can be fastened on the OP in case of misuse of the ATM card by any third party and in such cases, the Complainant is under obligation to prove the chain of events where the bank is also within his rights to cross examine the witnesses. The OP has further denied that the communication of the Complainant has not been replied to and have stated that the letter of the complainant dated 28.12.2010 has been replied to, vide letter dated 09.02.2011.
- It is further stated by the OP that he apprehends that the Complainant has misused the process of law and concocted the entire story while getting the withdrawal from his own authorised persons and since all these facts require detailed investigation by police authorities, the matter cannot be adjudicated before this Commission.
- The Complainant, in his rejoinder, has mostly denied the averments of the OP and has stated that it was the duty of the OP to get the CCTV footage from the ATM whether transaction was done and since the OP has failed to perform his duty and is negligent in protecting the interest of its customer, therefore the OP is liable. It is further denied that the complaint has misused the process of law or that the complaint is concocted.
Both the parties have filed their evidence on record as well as written arguments. Oral arguments were heard. Having gone through the entire material on record, this Commission is of the view that this Commission has the territorial jurisdiction to entertain the present complaint as the account of the Complainant was with the branch situated at Defence Colony. Further, the objection of the complaint being barred by time is also without any merit as the incident took place in the year 2010 and the complaint has been filed in the year 2011 therefore, the complaint is filed within time.
Coming to the merits of this case, in the present case, the Complainant has admitted in his evidence that he had lost the ATM card and the new one was issued to him. It is also seen that the OP has not even disputed that the card of the Complainant was stuck and that a new ATM card was issued to the Complainant. The OP has also nowhere mentioned as to the status of the old ATM card or the possibility of it having been misused. Statement of A/c dated 04.12.2010 reflects the amount being deducted from the account of the Complainant from 16.11.2010 to 26.11.2010.
The defence taken by the OP is that the Complainant did not raise any dispute till 04.12.2010 whereas all the disputed transactions had taken place till 03.12.2010. It is seen from the statement of A/c filed on record by the OP hat disputed withdrawals have taken place between 16.11.2010 to 26.11.2010 and not till 03.12.2010 as has been claimed by the OP. The transaction done on 03.12.2010 has been made by the Complainant and thereafter he came to know that money has been fraudulently withdrawn from his account.
The OP has also not clarified whether the Complainant had received the messages for such withdrawal, nor has the OP placed on record/ made available to the Complainant any camera recording when such withdrawals took place whether it is the complainant or someone on his behalf who has withdrawn the said money.
The RBI Circular dated circular no. RBI/ 2017-18/15 dated 06.07.2017 is not applicable in the present case as the time when the money from the ATM card was taken out in the year 2011 whereas the said circular was made operative in the year 2017.The Hon’ble NCDRC in HDFC Bank Ltd vs Jesna Jose (NCDRC) Appeal No.: Revision Petition No. 3333 of 2013(21/12/2020) has held the bank liable for unauthorized transactions.
In the light of the material on record, both documentary and oral, this Commission is of the view that the OP has been deficient in its services in not keeping the money of the Complainant safe and in not sending messages to the Complainant. Therefore, we direct the OP to refund Rs.95,000/- to the Complainant within two months from the date of receipt of this order failing which the OP would be liable to pay this sum along with interest @ 6% p.a. till realisation. The OP is also liable to pay a sum of Rs. 20,000/- as compensation for mental torture to the Complainant for not able to use his own money.
File be consigned to the record room and order be uploaded on the website.
