Complaint filed on: 03-09-2012

                                                      Disposed on: 23-07-2014

BEFORE THE BENGALURU IV ADDITIONAL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU URBAN DISTRICT, NO.8, 7^TH FLOOR, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BENGALURU – 560 052    

C.C.No.1793/2012

DATED THIS THE 23^rd JULY 2014

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.JANARDHANA, MEMBER

Complainant: -   

                                                Smt.Pushpalatha.S.

                                                W/o. Shivanna,

                                                Aged about 48 years,

                                                No.45, 2^nd Main, Bikashipura,

                                                Near ISRO layout, Bangalore-61      

V/s

Opposite parties:-        

1. Manager,

Karur Vysya Bank (KVD)

No.254, 8^th Main,

ISRO layout branch,

Bangalore-78

1. Assistant General Manager,

Customer Care Cell,

Operations Department,

Central office, Karur-02

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OPs, praying to pass an order, directing the OPs to reimbursement of amount Rs.50,000=00 along with interest at 18% p.a. from 5-2-2012 and to pay Rs.10,000=00 towards stationary and travelling expenses and Rs.30,000=00 toward mental agony.

2. The brief facts of the complaint can be stated as under.

The complainant is holding a SB account at Karur Vysya Bank, ISRO layout branch last 10 years bearing SB account no.1313-155-4126 and she is also an income tax payer having PAN card no.ALGPP4174R. Last transaction of ATM card was on 29-1-2012 at Canara Bank ATM centre, Jayanagar, 4^th Block near Vinayaka temple. The unauthorized/skimming operation transactions came to light on 7-2-2012 on checking the bank statement and the stranger has operated on 5^th and 6^th Feb.2012 midnight between 11.30 p.m. and 00.45 a.m. on 6-2-2012. The details are obtained from Bank Manager, KVB and in the above false transactions, she has lost an amount of Rs.50,040=00 the transaction was done at ATM centers located in and around MG road and church street area. The complainant has also lodged a complaint at Kumaraswamy layout police station on 8-2-2012 regarding the data tampering of ATM card details and PIN number at unguarded ATM (Canara bank ATM Jayanagar). The complainant has also personally informed to branch manager of Canara bank Jayanagar, 4^th block about the unauthorized transaction. The complainant has requested the Secretary banking ombudsman vide letter dated 20-2-2012. The secretary has not given any relief. The print media and electronic media has also highlighted about the mishap in ATM centre during 4^th to 7^th Feb.2012. The details of operation done by skimming team were given in the print media. The complainant has addressed a letter to Manager, KVB ISRO layout branch dated 22-6-2012 with a request to reimburse the money of Rs.50,040=00 which was lost. The money was lost due to failure of security systems of banks. The Manager did not respond to her request till date. The additional General Manager, KVB customer care addressed a letter to complainant stating that the banks also do not own up the responsibility and they have no control over what happens in other bank’s ATM, the loss has to be borne by the customer. The Manager and Assistant General Manager of KVB are not protecting the interest of the customer and at the same time escaping from the responsibilities. The KVB Manager and Additional General Manager are fully aware of the skimming operations. The police also detected the master mind skimming operations done by Mr.Palavaram Komal Kumar and registered the case against him vide CR No.67/2012 IPC Section 420 and 43, 66 of IT Act. Hence, the complainant has come up with the present complaint.     

3. After service of the notice, the OPs have appeared through their counsel and filed version, contending interalia as under:

The complaint of complainant is not maintainable and it is liable to be dismissed in limine. It is true and correct that upon the request of complainant only the 1^st OP has issued the account extract for the kind perusal of the complainant. It may be true and correct that the complainant has made her complaint with Kumaraswamy layout police with regard to the usage of the ATM card belonging to her. The complainant has made her complaint in writing to the Banking Ombudsman at Bangalore. The further allegations as set-forth in the complaint of complainant are all false and baseless. The specifications as set-forth in the print media and electronic media are not within the knowledge of these OPs. The complainant who being the customer of the 1^st OP has availed the facility of ATM card from the 1^st OP for her day to day transactions through its ATM centre.  The said ATM card facility was accorded to the complainant solely at her own request and risk. The OP has furnished all the details pertaining to the said transaction as per the claim of the complainant. The pending investigations the complainant has even made her claims before the Banking Ombudsman at Bangalore and the said statutory authority upon an enquiry has dismissed the claims of the complainant. The OP has taken all measures in terms of security in terms of the usage of the ATM card by its esteemed customers. In the instant case of complainant and according to her own allegations, the alleged transaction have taken place in other banks ATM centres. The OP being a customer friendly bank has ventured to collect the photographs/images from the other banks to help the complainant and with the aid and assistance of the same and upon the complaint of the complainant only, the police were able to catch hold of an accused person. At no point of time, the OPs are in no way responsible for the alleged transactions. There is no deficiency of service on the part of the OPs. The alleged transactions having been made out in the ATM centre of other bank and the OPs can never have any access over the same with the situation thus, negligent acts of the complainant which has lead for the leakage of the security details of the account and the card is the sole cause for the alleged transaction and for which the OPs bank can have no say at any point of time. So it is prayed to dismiss the complaint with exemplary cost, in the interest of justice and equity.

4. So from the averments of the complaint of complainant and version of the OPs the following points arise for our consideration.

1. Whether the complainant proves that, the OPs are negligent and there is deficiency of service on the part of the OPs, in making unauthorized ATM transactions on 5^th and 6^th Feb.2012 as stated in the complaint?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?

5. Our findings on the above points are;

          Point no.1:  In the Negative

Point no.2:  In view of the negative findings on the

Point no.1, the complainant is not entitled to any relief as prayed in the complaint

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced documents along with complaint. On the other hand, Jyothsna, Sr. Manager working in the OPs bank has filed her affidavit by way of evidence and produced documents and also produced four more documents along with list dated 5-6-2013. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.

7. One Smt.Pushpalatha, who being the complainant has filed her affidavit by way of evidence stating that, she is holding a SB account at Karur Vysya Bank, ISRO layout branch for the last 10 years and she is also an income tax payer having PAN card and her last transaction of ATM card was on 29-1-2012 at Canara Bank ATM centre, Jayanagar, 4^th Block near Vinayaka temple at Karur Vysya Bank account. The unauthorized/skimming operation transactions came to light on 5^th and 6^th Feb.2012 midnight between 11.30 p.m. and 00.45 a.m. on 6-2-2012, and the said fact came to her knowledge on 7-2-2012, on checking the bank statement and the stranger has operated the bank account ATM centre. On 6-2-2012 was the weekly bank holiday, so she checked the bank statement on 7-2-2012 and she brought to the notice of the bank Manager about the fraud taken place and the OP advised to lodge police complaint, so she lodged a police complaint at Kumaraswamy Layout police station on 7-2-2012. She was regular in requesting the OP no.1 to reimburse the money lost in skimming operations. The OP Bank Manager has not made any efforts even to lodge the police complaint about the skimming operations. She approached the banking ombudsman at Bangalore for relief. The Banking ombudsman informed about his limits to take action about the complaint. Again she approached the OP bank for reimbursement of money lost. The 1^st OP advised her to give a letter to their customer care cell central office at Karur in the month of June 2012 and the 2^nd OP has replied. The bank accepted the fraud and it is unfortunate that the OPs are not aware of the fraud published by the print media and electronic media, and they are not keen to secure the interest of public money kept in the bank. The OPs never made any complaint with police authority for investigation despite her repeated request and the OPs are not protecting the interest of the customers and at the same time they are escaping from the responsibilities. The police also detected the master mind skimming operations done by Mr.Palavaram Komal Kumar and registered a case against him vide CR No.67/2012 IPC Section 420 and 43,66 of IT Act. She made request for reimbursement of money lost by her through skimming operations due to failure of the security system of banks, and the 1^st OP did not respond to her request till date. The OPs are liable to protect the interest of the customers but the OPs have failed in protecting her interest. So, she has come up with the present complaint, so she prayed to allow the complaint and grant relief as prayed for.

8. Let us a have look at the relevant documents of the complainant. Annexure-C1 is letter of Karur Vysya Bank Ltd dated 8-2-2012 addressed to the Police Inspector, Kumaraswamy Layout Police Station to find out the ATM transactions taken on 5-2-2012 and 6-2-2012 of the account no.13131554126. Annecure-C2 is the copy of complaint of complainant dated 7-2-2012 addressed to the Police Inspector, Kumaraswamy Layout, Bangalore requesting to investigate and punish the culprit, who operated her account through ATM un-authorizedly on 5-2-2012 and 6-2-2012 and get back her lost amount and all these happened due to bank failure of security system. Annexure- C3 is copy of complaint of complainant given to the Banking Ombudsman dated 20-2-2012 stating that on 5-2-2012 and 6-2-2012 some unknown person has withdrawn an amount of Rs.50,000=00 from her SB account through ATM un-authorizedly and bank security system at ATM has failed and an unknown person has hacked, the card details and requested to get back the amount.  Annexure-C4 is letter of Banking Ombudsman addressed to the complainant dated 21-6-2012 stating that they are unable to proceed further under clause 13 (c) of the Banking Ombudsman scheme and however free to approach any other redressal forum.  Annexure-C5 is the copy of paper cutting from Bangalore mirror paper dated 13-6-2012 for having trapped one Kamal Kumar and his accomplices in respect of skimming of amount by operating ATM of account holders un-authorizedly. Annecure-C6 is the letter of complainant addressed to the Manager, KVB, ISRO layout branch, Bangalore dated 22-6-2012 requesting to process her complaint at the earliest and to pay back the lost amount taken through skimming operation. Annexure-C7 is the letter of OP dated 6-8-2012 addressed to the complainant stating that, the bank do not own up the responsibility and they have no control over what happens in other banks ATM and the loss has to be borne by the customer.    

9. At this stage, it is relevant to have a cursory glance at the material evidence of the OP. One Jyothsna, who being the Sr. Manager working in the OP bank has stated in her affidavit that, the complainant being a customer of the 1^st OP has availed the facility of ATM card from the 1^st OP for her day to day transactions through its ATM centres as available across the state. The said ATM Card facility was accorded to the complainant solely at her own requests and risks. The OP has furnished all the details pertaining to the said transactions as per the claims of the complainant. The OP being a statutory body discharging its functions in accordance with law, there is no deficiency in service at any point of time from the side of the OPs. The OP has taken all its precautions in terms of the alleged transactions, the bank has cooperated in its full capacity for all enquires of complainant and the police to whom the complainant has lodged her complaint. It was the duty and responsibility of the complainant to safeguard all the details pertaining to her account and ATM card. But the complainant has failed to protect the security interests in usage of an ATM card the information have been leaked out and the transactions have been made, and the complainant is responsible for the said transaction. The complaint of complainant is not maintainable and it is liable to be dismissed.

10. The OP has produced the copy of journal record of Corporation Bank dated 5-2-2012 and the said document shows that, the transaction have taken place on 5-2-2012 and 6-2-2012 by using ATM card and PIN code number of complainant, these transactions were successful transactions, so also Switch report is produced wherein the transactions were taken place on 5-2-2012 and 6-2-2012 by using AMT card and PIN code number of complainant and withdrawn the amount and these transactions were successful transactions.

11. The evidence of employee of the OP bank that, on 5-2-2012 and 6-2-2012 transactions were taken place by using ATM card and PIN code number of complainant and amount have been withdrawn stands corroborated by Journal records and Switch report of OP. Moreover the complainant has not explained properly as to how her secret PIN code of ATM was revealed to the 3^rd person. As per the terms and conditions of ATM, the customer who is having ATM card is solely responsible for safety and security of ATM card, and the bank is not responsible for un-authorized withdrawal of amount from the SB account by using ATM card, since secret PIN code number is not known to the OP bank except complainant.

12. So taking the oral and documentary evidence of OP and compare the same with the material evidence of complainant, it is made manifest that, the OP bank has acted in accordance with the terms and conditions of ATM card and banking rules and regulations and there is no negligence or deficiency of service on the part of the OP bank in making un-authorized ATM transactions on 5-2-2012 and 6-2-2012. On the other hand the complainant who being the ATM card holder has not taken proper care in preserving the secret PIN code of ATM card and on account of her negligence, the PIN code number of ATM card was misused and withdrawn the amount from her SB account, the complainant herself is responsible for alleged transactions and no negligence can be attributed to the OP for the transactions, and as such we are of the view that, the oral and documentary evidence of OPs are more believable trustworthy and acted upon than the material evidence of complainant. So from the material evidence of both parties placed before the forum, we are of the considered opinion that, the complainant who comes to forum seeking relief has utterly failed to prove this point with convincing material evidence that, the OP is negligent and there is deficiency of service on the part of the OPs in making un-authorized ATM transactions as stated in the complaint, and accordingly, we answer this point in a negative.

13. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is hereby dismissed. No cost.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 23^rd day of July 2014).

MEMBER                                 PRESIDENT