DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.462/2009

Shri Neeraj Beniwal

S/o Ramesh Beniwal,

R/o T Huts 19, Sewa Nagar,

New Delhi-110003                                                           ….Complainant

Versus

Indian Bank

A-261, Defence Colony,

New Delhi-110024                                                    ….Opposite Party

                                                  Date of Institution        :      11.06.2009         Date of Order    :      28.08.2018

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

Briefly, facts as pleaded by the complainant are:-

1.       Neeraj Beniwal hereinafter referred to as complainant has bank account in the Indian Bank, Defence Colony (i.e. Account No. 790376266 of Indian Bank Branch at A-261, Defence Colony, New Delhi). On 29.05.2009 complainant went to the bank to deposit some money where he got to know that somebody had withdrawn sum of Rs.20,000/- from his account. He immediately reported the matter to the bank officials about the financial fraud and it was after 5 – 6 days he was told by the bank that money had been withdrawn from his ATM account. He was shocked as the money had allegedly been withdrawn from the ATM of the Indian Bank whereas the ATM card was with him. The complainant also asked for CCTV footage of the day when his money was withdrawn, but officials of the bank said that they were unable to provide the video or photograph of the CCTV camera as it was not working on that day. Aggrieved, at last, the complainant approached the Forum and prayed that OP be directed to pay Rs. 20,000/-, the financial loss incurred by him and Rs.10,000/- for deficiency in service and Rs.5,000/- as transportation charges and mental harassment.

2.1     Indian bank hereafter referred to as OP after receiving notice filed written statement. OP contended that the complaint is not maintainable in the present court/ Forum as the complainant has alleged financial fraud.

2.2     OP further pleads that the complaint is not maintainable for the reason that the entire complaint is based on the fact that at the time of the alleged withdrawal from the ATM at the site of the opposite party the closed circuit TV camera was not functioning.

2.3     OP also contends that though the complainant states that at the time of alleged withdrawal, the ATM card was in his possession, there is a probability that any of the associate of the complainant who is having access to the ATM card and knowledge of the password, might have withdrawn the amount from the ATM without his knowledge.

3.       Rejoinder to the written statement was filed by the complainant, controverting the written statement and reiterating the facts stated by him in his complaint.

4.1     The complainant reiterates whatever is stated in his compliant, as well in his evidence by way of affidavit.   

4.2     Affidavit of Mr. Mahender Kumar Bansal, Manager has been filed by way of evidence on behalf of the OP.

5.       Written arguments have been filed on behalf of the parties. We have heard the arguments on behalf of the parties and have also gone through the file very carefully.

6.       It is observed that Neeraj Beniwal is a Consumer within the definition and meaning U/s 2 (d) of the Consumer Protection Act, 1986 as he had an account with the Indian Bank (OP). From the pleadings and evidence as noticed it is admitted fact that sum of Rs.20,000/- was debited from the complainant’s account i.e. account maintained by the opposite party. Immediately on the discovery of the wrongful withdrawal complainant wrote a letter marked as Annexure-A, reporting the matter to the bank.  However, it was only after 5-6 days that the bank responded to the complainant that the money was withdrawn from his ATM. The complainant was shocked as the ATM card was with him during the alleged withdrawal and he had been using utmost caution and due diligence of not revealing his password and had not given his ATM card to anybody else.

Complainant also requested for video footage of the alleged withdrawal but the bank could not provide the same stating that CCTV camera was not functioning on the said date of withdrawal.

Herein reliance is placed on a circular bearing No.RBI/2017-18/15 DBR.No.Leg.BC.78/ 09.07.005/2017-18 dated 06.07.2017 on the subject “Customer Protection-Limiting Liability of Customers in Unauthorised Electronic Banking. This circular had been issued with reference to RBI’s Circular DBOD.leg.BC. 86/09.07/2001-02 dated 080.04.2002.  The relevant portions of the same are reproduced hereunder:-

“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 24 x 7 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 been 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 unauthorized electronic transactions shall be provided by the 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 unauthorized 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).”

          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 the three working  days of receiving the communication from the bank regarding the unauthorized transaction.

          Burden of Proof.

12.     The burden of proving customer liability in case of unauthorised banking transaction shall lie on the bank.”

Therefore where consumer has availed the service of the OP bank, this Forum is of the opinion that it is a duty of the bank to safeguard the money deposited by the customer of the bank. It is a case of negligence and deficiency in service wherein the OP was negligent for not providing the adequate security for the financial services provided to its customer and the same has resulted in financial loss to the complainant.

In view of the above discussion, we hold OP guilty of deficiency in service and direct OP to pay Rs.20,000/- along with interest @ 9% per annum from the date of withdrawal i.e. 29.05.2009 till its realization to the complainant within 30 days from the date of receipt of copy of this order.

Failing which OP shall be liable to pay the said amount of Rs.20,000/- along with interest @ 12% per annum from the date of filing of complaint till its realization. In the facts and circumstances of the case, we do not award any compensation towards mental agony etc. or cost of litigation to the complainant. Complaint stands disposed off accordingly.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 28.08.18