Facts of the case necessary for the adjudication of the complaint are these:-

That the complainant have a Saving Bank Account  bearing No. 01870151515 with OP 1/ICICI Bank, Chowringhee Road Branch, Kolkata – 700016. That on 12.05.2018 at about 8.30 a.m. he received a call from Mobile No. 7548909630 for re-activation of SIM Card in order to continue service. He was told to forward a link SMS and the complainant forwarded the link SMS. After long effort he contacted the caller who admitted that his Mobile Number has been hacked. An amount of Rs. 34,300/- has been unauthorizedly debited from his account and such amount was transferred to one Account Holder of Central Bank of India, Nawada Branch, Bihar. The complainant lodged an FIR to Kalimpong PS about the fraud.

It is further averted that matter was also brought to the notice of Branch Manager of OP 2. The OP 1 has refused to redress the grievance of the complainant. OPs/ICICI Bank has refused to refund the misappropriated amount to his S B Account. The complainant suffered mental agony, harassment on account of deficiency in service on the part of the OPs 1 & 2. Having no other alternative, the complainant has approached this Commission alleging deficiency of services on the part of the OPs.

The OPs 1 & 2 have contested the case by filing WV and have raised certain preliminary objection as to the maintainability of the complaint case. The answering OPs have contended that the dispute in question cannot be adjudicated without implicating Bharti Airtel Limited as necessary party. The transaction was made within the knowledge of the complainant. An SMS was sent to the registered Mobile Number of the complainant. The transaction could not be carried out without the Confidential Information in possession of the complainant. In terms of RBI circular bearing No. RBI/2017-18/15, dated 06.07.2017, the customer is solely liable for any loss suffered due to his own negligence. Hence, the complainant has failed to establish any kind of deficiency in proving services by the answering OPs. Pressing the aforesaid defense, the answering OPs have prayed for dismissal of the consumer complaint.

Despite service of notice of the complaint, the OP 3 did not appear to contest the case by filing WV. Thus, the case has been proceeded ex-parte against them vide order dated 20.03.2019.

            The written argument submitted on behalf of the Complainant are on the lines of averments made in the complaint. The sum and substance of oral and written arguments is that the Complainant has a Saving Bank Account being numbered 018701515115 with the OP-1 ICICI Bank. On perusal of the complaint petition as well as evidence of the complainant, it is clear that on 12.05.2018 at about 8.30 a.m. he received a call from Mobile No.  7548909630 for re-activation of SIM Card with a request to forwarded a Link SMS to Customer Service Centre. On activated of SIM Card a sum of Rs. 34,300/- was debited from his SB Account and credited to an account maintained with OP-3 Central Bank of India. His account has been hacked and Rs. 34,300/- has been unauthorizedly debited from his account.

The Written Argument submitted on behalf of the OPs 1 and 2 are on the lines of averments made in the WV. The sum and substance of oral and written argument is that the alleged transaction was made by the complainant by using -Unified Payment  Interface- and after debited the amount, an SMS was sent to the registered Mobile No.  of the Complainant. OP ICICI Bank vide letter dated 18.06.2018 specifying the relevant details of the transaction to the complainant and also explain that such transaction cannot be carried out without the confidential information kept in the possession  of the complainant. Complainant is fully aware that Rs. 34,300/- was credited to the Bank Account of one Shankar Kumar who is maintaining said account with OP-3/Bank. Shankar Kumar is necessary party in the instant case. There exist no consumer dispute between the complainant and OP ICICI Bank. As per RBI Circular bearing No. RBI/2017-18/15 dated 06.07.2017 Consumer is liable for any loss suffered due to his or her own negligence.

We have given our thoughtful to consideration to the contentions raised by the Ld. Advocate for the parties and have also carefully gone through the written arguments submitted on their behalf as well as record of the case.

It is admitted that the complainant has a Saving Bank Account being numbered 018701515115 with OP-1 ICICI Bank and an amount of Rs.  34,300/- was unathorizedly debited from his aforesaid account on 13.05.2018. On 14.05.2018 complainant registered a Criminal Case at Kalimpong PS which registered as Kalimpong PS Case No. 147/2018 dated 14.05.2018 U/ss 66 (C)/66 (D) of IT Act  against Shankar Kumar of Mirzapur, Bihar. The complainant, thereafter lodged a complaint  dated 18.05.2018 to the OP-2 requesting him to redress his grievances. The OP/ICICI Bank vide letter dated 18.06.2018 intimated the complainant that -the account holder/card holder is responsible  for the security of his/her card along with his/her personal MPIN and OTP and  should therefore, take all possible steps towards ensuring the safe keeping thereof. The Bank does not incur any financial liability arising out of misuse thereof by unauthorized persons-.

In consumer Education & Research Society  & Anr. Vs. New India Assurance Co. Ltd. & Ors. I (2008) CPJ 317 (NC) the Hon’ble NCDRC has held that under the Consumer Protection Act, 1986 technicalities are not encouraged and the only procedure is to follow the principles of natural justice.

The specific case of the contesting OPs is that the alleged transaction could not have been conducted without the confidential credentials of the complainant, such as OTP, Debit Card details and MPIN. Thus, the answering OPs Bank cannot be held responsible for the aforesaid transaction.

Reference is also drawn to the circular bearing No. DBR No. Leg. BC.78/09.07.005/2017-18 dated 06.07.2017 issued by the RBI to all Commercial Bank, where it is stated as under :-

-6. A customer’s entitlement to Zero liability shall arise where the unauthorized transaction occurs in the following events:-

Contributory fraud/negligence/deficiency on the part of the Bank (irrespective of whether or not the transaction is reported by the customer).

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 unauthorized transactions-.

It is also pertinent to mention here that once any such kind of credit facility by way of Credit Card is provided to a consumer, the authority issuing  such a card is supposed to ensure that its online operational use may not be hacked by any other person with an intent to extract money from credit card amount by hacking the confidential information of the card holder or by hacking the Email ID on which OTP was sent, which has happened in the case of the complainant. It is also a fact proved on record that immediately after receiving information of alleged fraudulent transaction, the complainant lodged FIR to Kalimpong PS as well as OP-2 Bank. In view of aforesaid circular, since the deficiency lies neither with the Bank nor with the complainant but lies elsewhere in the system, the complainant is definitely entitled to zero liability and the liability is that of the OPs/ ICICI Bank to reverse the fraudulent transaction. Therefore, in absence of any cogent and convincing evidence on record, we are of the opinion that the OPs 1 and 2 ICICI Bank clearly indulged into unfair trade practice and is also deficient in service by not reversing the entry of Rs 34,300/- in his SB Account.

The fundamental question that arises is whether the bank is responsible for an unauthorized  transfer occasioned by an act of malfeasance on the part of functionaries of the bank or by an act of malfeasance by any other person (except the Complainant/Account Holder). The answer, straightway in the affirmative. If an account is maintained by the Bank, the bank itself is responsible for its safety and security. Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the Consumer/Account-Holder), is its responsibility, and not of the consumer.

Theoretically, it may appear that the safety measures being put in place by banks in order to safeguard the interests of their customers are foolproof and miscreants can get away with their sinister design provided customers themselves are at fault. However, if we take a practical view into the matter, we would come across thousand of such instances where, thanks to the vulnerability defect of Indian Banking System, helpless customers are robbed of their hard earned money every now and then. In such circumstances, without proving sufficient proof, banks can not be allowed to pass the buck upon the customers.

In our considered view, Bharti Airtel and Shankar Kumar are not proper and necessary parties for adjudication of the instant consumer case.

In view of the discussion above, the complaint is allowed with following directions:-

1. OPs 1 and 2/ ICICI Bank are directed to reverse Rs.  34,300/- to the S B  Account No. 018701515115 of the complainant with simple interest of 5  percent  per annum from the date of filing of the complaint till its actual realization within 60 days from the date of order.

2. OPs 1 and 2 are further directed to supply afresh statement of accounts after reversing entry of Rs.  34,300/- to the complainant within the specified period.

3. OPs 1 and 2 are also directed to pay Rs.  5,000/- only as litigation cost to the complainant within the specified period.

With the above directions the consumer case is disposed off.

The consumer case could not be decided within the statutory period due to heavy pendency of cases and pandemic of Covid-19.

The Registry-in-charge is requested to send copy of judgment to the parties as per rules. The stenographer is also requested to upload the judgment on the website of this Commission immediately.