Order-16.
Date-16/09/2015.
In this complaint Complainant Daya Shankar Jaiswal by filing this complaint has submitted that complainant is a credit card holder of ICICI Bank having credit card No. 4629864673309003 on 27.11.2014 and complainant never asked to debit his account by Rs. 10,999/- but it was debited and it came to the knowledge of the complainant on 28.11.2014 at once by a letter asked the bank to stop his credit card.
But thereafter complainant informed to the customer care of ICICI Bank, but they informed the complainant that he had been cheated by someone through online and no one is interest to hear the complainant’s complaint but just wants the money to be deposited.But complainant is not interested such a plea of the op but he wants money deposited and complainant found that the money which was transferred from his account and the account was transferred to Allen Trip India Pvt. Ltd. as the person named Garlen Kaur has some connection in this operation and his phone no. is 921158638.
Thereafter complainant informed the Banking Ombudsman Reserve Bank of India at Netaji Subash Road Kolkata-01 dated 15.01.2015 but till date no steps were taken by Banking Ombudsman.Against such situation complainant sent a reminder to the Banking Ombudsman on 30.03.2015 what is the position of the complainant. But no reply is yet received.But bank always call the complainant and ask himto make the payment of Rs. 10,999/- along with interest and late charges.
Complainant when asked them that the money which was transferred from his account is still pending in that account and it has not been transferred or withdrawn.So complainant shall have to make the payment.In fact the money which was deducted from complainant’s account is still lying in the account of Allen Trip India Pvt. Ltd. and the account is in the name of Pvt. Ltd. having its full address.The bank is not interested to start from its own side to find out the main culprit and the bank has its full knowledge regarding this operation and illegal activities.
Bank may transfer the amount and deposit it and solve the dispute and some unknown person are operating this type of illegal activities.The bank staff are forcing the complainant to make payment and later on they will withdraw the rest amount and will gain.Complainant has all the information that bank is always trying to put the burden on the shoulder of complainant which is not correct.
In the above situation being aggrieved by the negligent and deficient manner of service rendered by the op/bank, complainant finding no other alternative to move before this Forum for redressal.
On the other hand ICICI Bank by filing written statement submitted that the entire complaint is misconceived one and the allegations are completely false and fabricated and further submitted that in fact transaction amount is Rs. 10,949/- which was made on 27.11.2014 through a payment gateway PayU, Mumbai, a company which provides payment gateway services and complainant has not impleaded Allen Trip India Pvt. Ltd. as a party to the instant proceeding and disputed amount was transferred and for which the present complaint is not maintainable and for want of necessary parties and only Allen Trip India Pvt. Ltd. may clarify the name and details of the person who has allegedly transacted the money with them and paid the said amount. Moreover complainant has made the name Garlen Kaur in whose company’s name the amount was transferred.But he is not made a party.
It is further mentioned that for online transaction where the credit card holders visits the merchant websites and executes the transaction, requires card verification value, expiry date of the credit card and the personal six digit 3D secure PIN or One Time Password and in the instant transaction complainant used 3D secure PIN for the said transaction and those details are mandatory for effecting online transactions.Further a 3D secure PIN is purely personal and privy to the cardholder and would not be known to anybody unless the cardholder discloses or compromises on the same.
Fact remains that other holders are responsible for the security of their credit cards along with their personal secure PIN and must take all possible steps towards ensuring the safe keeping thereof.Bank does not incur any financial liability arising out of the misuse of the card by unauthorized person.But complainant has suppressed the material fact.It is specifically mentioned in or around December-2005 that the complainant approached the op no.1 for availing of a credit card and representing to the op that complainant may duly make payment of the monies due under the terms and conditions of the credit card facility without any demur, objection, qualification, protest or default.
Pursuant to the aforesaid representations and believing the same, the op no.1 granted credit card bearing No. 4629864673309003, having a credit limit of Rs. 45,000/- in favour of the complainant and subsequently op issued a credit card statement for the month of November 2014 demanding payment of Rs. 10,949/- from the complainant which was paid within the stipulated time period.But the answering op said that the disputed amount of Rs.10,999/- is completely erroneous and fictitious and the complainant shall have to prove the same.
Fact remains that the transaction dated 21.11.2014 shows that an amount of Rs. 10,949/- was transferred by way of PayU and an online gateway for online transactions.There was no other details available with the Bank which confirms that the amount was transferred to the account of the Allen Trip India Pvt. Ltd. as alleged by the complainant, nor has the complainant provided any supporting document to prove and substantiate his assertion.Further the Bank questioned the inclusion of the reference of one Garlen Kaur and puts the complainant to provide further clarification with respect to her alleged involvement and also as to the modus by which the complainant obtained her name and details.
When the complainant is sure of not clearing the said amount from the said company’s Account, then why complainant has not initiated any criminal action against the said entity but on the contrary questioning the Bank’s conduct without any cause of action.It is asserted that it does not fall under the purview of the Bank to ensure recovery of a borrower’s money on his behalf and it is the borrower’s own prerogative to do it with necessary assistance of enforcement agencies.At the same time complainant has failed to prove any sort of negligence and deficiency on the part of the Bank.So, in the above circumstances, the complaint should be dismissed.
Decision with reasons
On proper consideration of the entire materials on record and also the evidence as advanced by the both parties and after giving thoughtful consideration of the argument as advanced by the Ld. Lawyers of both sides and further evaluation of the entire materials including the complaint and written version, we find that the main dispute is involved in this case regarding transaction of amount of Rs. 10,999/- from the account of the complainant bearing No. 4629864673309003 dated 27.11.2014.When undisputed fact is that complainant is a credit card holder and as per agreement, complainant was given facility for banking internet services and transaction and the disputed transaction has been carried out by hacking credit card and secret password which was in the custody of the complainant and in fact the complainant got the 3D Secured Authenticate transaction bank does not have rights to dispute with the merchant as per Industrial guideline.
But however since the transaction had been made through banking internet using the credit card and secret PIN of the complainant then under any circumstances, bank cannot initially shifted his liability to the complainant and truth is that in this case complainant has provedsome deficiency on the part of the ops when online of the bank has been used by fraud stars.
Fact remains that in such type of cases, complainant ought to have approach to the Cyber Crime Branch and it is fact that subsequently complainant reported the matter to the Bank Ombudsman, but Bank Ombudsman did not dispose of the matter which is very painful. But he reported the matter to the bank.But subsequently complainant made a complaint to Ombudsman against the ICICI, bank for illegal transaction of Rs,10,999/- from his account.But from the statement of account of the complainant it is found that complainant used this credit card many times for other purpose and in this case what we have gathered that even after filing of the complaint, op did not take any step and such a conduct on the part of the op is no doubt unfair practice and it is true that if any complaint is filed against the bank regarding any transaction or illegal transaction and regarding ATM or any other matter, it is the duty of the bank to enquire about the matter and to search out whether any illegal transaction has been made by any hackers or others but that has not been done.
Truth is that complainant is a customer.So, it was the duty of the op to enquire about the matter and to satisfy the client thepresent customer the complainant but that has not been done.Regarding transaction complainant has stated very specifically that the some money was deducted from his account and is still lying in the custody of the Allen Trip India Pvt. Ltd. and that was reported to the bank and in that case bank ought to have started such an enquiry and to file a complaint.But bank is found always silent.
In this context it is to be mentioned that there is a specific guidelines of RBI vide Circular DVS. Co. ITC. BC No.6/3102008/210-11 dated 29.04.2011 on working group of opinion security electronic banking technology risk and Cyber for which implementation and recommendation advice of taking the implementation security measures including protection of the customer in fact for non-compliance of the above RBI guideline, invariably bank ought to have taken such step against the complaint of the complainant.But without adopting any such legal procedure, op bank particularly ICICI Bank appeared before this Forum only submitted that they have nothing to do and as because internet security as well as transaction PIN were in the custody of the complainant and if it would not be disclosed in that case there was no chance of any transaction by an internet banking.So, it was the fault of the complainant.
But most interesting factor is that bank has not complied or implemented the aforesaid RBI guideline in this regard no positive action has been taken by the bank and another factor is that bank has failed to give a comprehensive explanation in this regardthat the banking system was not hacked in any manner.So, considering all the above fact and circumstances, we are convinced to hold that the bank was responsible for taking no action and no internal enquiry had been made by the bank to come to a conclusionthat Internet Banking System was not hacked in any manner.At the same time no step has been taken by the op by taking such recourses when complainant has stated that the said amount has been transferred in the account of Allen Trip India Pvt. Ltd., Proprietor’s name Garlen Kaur and probablyGarlen Kaur has some connection in that operation in that case op/Bank had to take such step with the Banker of Allen Trip India Pvt. Ltd. and take such investigation to satisfy the complainant that there was no laches on the part of the op/Bank but bank is found a lazy cat.
Another factor is that complainant has specifically brought the allegation against the bank staff and some unknown staff who are operating this type of illegal activities, but bank has not denied their stand in this regard.
So, considering all the above facts, we find that the RBI guideline has not been complied by the ops and no doubt ops have their some legal responsibilities in this regard about the allegation and to report the matter to the complainant.
No doubt on behalf of the op no.2 one judgement passedby National Commission in Revision Petition No. 2139/2013 on 16.05.2014 (PNB – VS – LT. COL.JagdeepGehlot)are referred and also another judgement passed by State Commission Maharahstrapassed in FA No. A12/580 dated 17.04.2013 (Mr. Balkatta Prakash Hegde – VS – Head Credit Card Operation & ICICI Bank Ltd.) and they submitted that those judgements are sufficient to hold that in such case op had to approach Cyber Crime Branch and to file such complaint that there was no laches on the part of the op.With due respect to the above judgements we have gathered that in both the judgements, RBI guidelines in this regard has not been explained or decided only factual aspect is decided.So, we find that those rulings are not applicable in view of the present fact and circumstances when in the particular case op has not followed and implemented the RBI guide line in respect of safety of the account of the complainant for internet banking and also to protect from Cyber Crime.
At the same time op/Bank has not investigated the matter internally and did not try to return back the amount from the banker of Allen Trip India Pvt. Ltd.In the two judgements no scientific facts are decided in view of the fact that even in absence of pass word of credit card number, the hackers can easily search out the password and number by adopting such hacking system and withdraw money and there are so many instances all over India and this Forum also searched out such sort of cases and passed judgements against the bank.
So, we are convinced that ops’ have not properly entertained the complainant and that was not decided and that is no doubt deficiency in service.But we are not unmindful to the fact that the pass word and internet banking, credit card numbers were with the complainant and at the same time op bank has not stated that it was not a cause of Cyber Hacking or no such hacking was made against this transaction for which entire defence as taken by the op is nothing but on casual defenceas taken in most of the cases by non-implementing the RBI guide line which is well proved.
Hence, it is
Ordered,
In the above situation we are disposing of the matter by allowing the complaint by directing the op to enquire the entire matter and by their domestic authority and to collect the money from the banker of Allen Trip India Pvt. Ltd. and thereafter shall have to handover the same to the complainant if it is possible and if it is found that it has been hacked and withdrawn by some other persons in that case op shall have to pay the entire amount with banking interest to the complainant, and op bank shall have to submit internal domestic enquiry report and it must be reported within 2 months from the date of this order of this Forum.But op shall have to submit a report that they have already taken such step as per guideline of RBI as enumerated inside the body of the judgement in respect of protecting the customer from Cyber fraud and it must be reported by the op by showing their notification in this regard on and from which date they shall have to implement.
If ops fail to comply the order within one month from the date of this order, in that case op shall have to refund the entire amount with banking interest to the complainant with such direction that the present complaint is disposed of by allowing this complaint in part, but without any cost.
That the complaint be and the same is allowed in part without any cost against the op as per spirit of the order as embodied in the body of the judgement and op shall have to comply the same within 2 months from the date of this order and to submit such report and if it is not complied, in that case, penal damages of Rs. 10,000/- shall be paid by the op to this Forum for non-compliance of the Forum’s order.
Even if it is not complied in that case penal action shall be started u/s 25/27 of C.P. Act 1986 against them for which further penalty and fine shall be imposed upon them.
