Order-16.

Date-09/07/2015.

Complainant Joydeep Moitra by filing this complaint submitted that he has a Bank Account being No. 019093600000202 at YES Bank, Dalhousie Branch (Code-190), 56A, Hemanta Basu Sarani, Kolkata – 700001 since 2011 with ATM facility.Complainant for withdrawal of Rs. 10,000/- went to ATM Kiosk of Punjab National Bank near Sealdah Rly. Station on 02.01.2014 about 12:45 P.M. and the Kiosk was a single ATM without any security.

Fact remains that complainant swapped his debit card in the said ATM with PIN but screen was unmoved for a while and back in its previous mode automatically.So, complainant again tried but the result was the same.In such circumstances, other customers knocked the ATM door from outside.So, complainant allowed next customer who faced the same result.Complainant left the ATM immediately.

But on the same date i.e. 02.01.2014 at about 12:45 P.M. complainant got one SMS from YES Bank that at 12:50 P.M. Rs. 10,000/- has been debited from his account through the said PNB ATM.So, complainant being shocked and surprised contacted with YES Bank, Head Office and talked to one Mr. Prabhat an officer of the op and he told the complainant to lodge a complain at his local own branch and assured that the debited amount would be re-credited automatically within 3-4 working days in his account.

Fact remains that after getting assurance from the said officer, complainant filled up ATM Dispute Registration Form on 03.01.2014 and submitted to the Branch Manager, YES Bank, Dalhousie Branch but in vain.So complainant again talked to Mr. Nasim Ul Haq Mondal on behalf of Branch Manager of YES Bank, Dalhousie Branch on 10.01.2014 who suggested him to lodge a written complain immediately and requested to keep patience for another 30 days for reverting back the debited money with interest in his account.So, complainant did that according to advice of the Branch Manager of YES Bank, Dalhousie on 10.01.2014.

After getting no result, complainant again visited to the said bank on 10.02.2014 to meet the Branch Manager and the said Manager advised the complainant to submit a complaint at Banking Ombudsman as specified under R.B.I. guidelines.According to him complainant appealed to the Banking Ombudsman, Kolkata and Banking Ombudsman instructed the complainant to wait for another 90 days by a letter and at that time complainant got an Email from YES Bank on 22.02.2014 wherein it is stated that action is in process and requested the complainant to keep patience till resolve of the matter.

Fact remains that no letter was received within 90 days from Banking Ombudsman so complainant went to Banking Ombudsman wherefrom he came to know that his complaint was closed on 06.03.2014 and 02.04.2014 respectively u/s 9 (3) which was already intimated to YES Bank, Dalhousie Branch, Kolkata.So complainant again made a written complaint to the Branch Manager of YES Bank on 15.05.2014 and wanted to know whatsoever officially and finally complainant received an official intimation from YES Bank that transaction was successful one and bank cannot be held responsible.

So, complainant being surprised and shocked made a complaint to the Secretary, Consumer Affairs Department, Kolkata on 19.05.2014 and also made complaint to the Jt. Commissioner of Police (Crime), and made several representations to the Bank Fraud Section, Detective Department, Lalbazar, Kolkata, and the said Department tried to mediate the matter between the parties by a tripartite meeting on 07.08.2014.But op PNB, Sealdah Branch was absent.

Fact remains that op Banks are the custodian of the monies kept with them and the safety and the security of the money of the customer is the sole and primary responsibilities of them and Lalbazar Detective Department asked the op Banks to submit video footage for the ascertainment of the perpetrator of the alleged transaction and the receiver of money.But they neither submitted the same nor lodged a complaint against the matter to the police.

In such circumstances, op bank authority harassed the complainant in such a way for negligent and deficient manner of service and also for mental agony complainant filed a complaint against the ops for redressal and for compensation.

On the other hand op no.1 YES Bank by filing written version submitted that the complainant has made a vexatious, baseless and motivated complaint against them because complainant has not come before this Forum with clean hands and suppressed the material fact.Complainant has failed to inform the Forum that before filing this complaint YBL immediately approached PNB and requested them to reverse the amount of Rs. 10,000/- without any delay and in response to the said grievance PNB informed YBL that the disputed transaction was a successful transaction and a computer generated letter was received from PNB to this effect.

Further op stated that it is the responsibility of the op no.2 Punjab National Bank to submit the video footage for ascertainment of the prepetrator of the alleged transaction and it is also the duty and responsibility of op no.2 for making necessary arrangement for safety and security of the ATM Kiosk.

Op no.1 also stated that the said complaint mainly against the op no.2 PNB but only to mislead this Forum, complainant made such allegations against both the ops.Complainant filed this complaint purportedly without having any cause of action and complainant has no original and actual claim against the op no.1. So, op no.1 prayed for dismissal of this case with exemplary costs against the complainant.

In fact op no.2 Punjab National Bank, Sealdah Branch even after receipt of the notice of the complaint did not appear to contest the case for which the case against op no.2 is heard exparte.

Now we shall have to consider the consumer dispute on the basis of the materials as received by this Forum from both ends.

                                               Decision with reasons

On critical study of complaint, written version and also considering the argument as advanced by the op no.1, it is clear that admitted position is that complainant has a debit card of op no.1.Truth is that there is Memorandum of Understanding (MOU) or Banking relationship in between the PNB and YES Bank Ltd.Admitted position is that the complainant is the debit card holder of the op no.1 YES Bank.

Fact remains that complainant on 02.01.2014 at about 12:50 P.M. swapped his debit card in the ATM Kiosk at PNB, Sealdah Branch for the purpose of withdrawal of Rs. 10,000/-.But complainant has alleged in the complaint that twice he used the debit card into the ATM Kiosk of PNB, Sealdah Branch on 02.01.2014 at about 12:50 P.M. and after that in both cases screen of the machine was found not functioning and no transaction was made and when the other persons are waiting for using the said ATM, asked the complainant to hurry up and complainant then took the help of another fellow but said fellow also found that ATM did not respond even after swapping and machine did not operate at that time, when complainant left that place.But just after departure from the said ATM, he was proceeding and suddenly received a message and he was astonished to see that a sum of Rs. 10,000/- has been debited from his account.When complainant was shocked and forthwith reported the matter to YES Bank Head Office to toll free number and as per their instruction he lodged a complaint to his own branch.

But thereafter Banking Authority asked him to file a written statement that was also filed and they asked him to wait because action shall be taken and it is under process.But ultimately no result was received from his banker op no.1.But they reported that PNB after queries found that the transaction was successful and that was reported to the complainant when complainant submitted an appeal before Banking Ombudsman.But they did not take any step and in the above circumstances, complainant has filed this complaint for negligent and deficient manner of service on the part of the bank and also for loss of Rs. 10,000/- without any reason when his debit card though swapped ATM did not process for delivery of money from the ATM Kiosk of PNB.

Most interesting factor is that admitted position is that the ATM Kiosk of PNB was not of YES Bank, but it was of PNB, Sealdah Branch.Most interesting factor is that two notices were duly served upon the PNB Authority on 06.02.2015 and also prior to that on 05.12.2014, but PNB did not appear to contest.Thereafter E/chief of the complainant was sent by Registered Post with A/D to the authority of op no.2 and that was also received by the PNB on 06.02.2015, but even after that they did not contest.

If actually PNB Authority had their any materials in their hand to defend the case, in that case PNB must have to appear before this Forum and submit their document to prove that actually that transaction was made successful.They have their scope to produce the document and to prove all the documents which were generally available after any transaction as kept in the server.But all those documents are not produced.

Another factor is that this fellow is not an illiterate person, he used the debit card many times, but he was not found unsuccessful in getting the delivery of the amount for which he swapped the said debit card and in the present case he did not get it.Fact remains that there are several type of complications which are generally found in the Internet connected machine for certain period.When it does not properly operate, even after placing the ATM card or even after swapping of debit card and in the present case, the allegation of the complainant is that even after swapping he found that the machine did not work.

In fact there is no ground to disbelieve the testimony of the complainant in view of the fact that PNB Authority did not submit that there was no defect in the machine or at the relevant time the ATM Kiosk of PNB worked properly.But truth is that any ATM can be controlled by such devices which are generally used by the hackers and there are certain methods by which one transaction can be controlled even by standing outside the ATM Kiosk or by placing such devices within that room.But nowhere the YES Bank Authority has submitted any such evidence that the ATM which had been used by the complainant had its anti-devices to check and control any sort of act made by the hacker by adopting malware system or FIS system or by placing any device to control the transaction.

At the same time there is no such report on the part of the op Bank that in respect of that said machine, anti-devices FIS was fixed in the said ATM.All over the world the computer specialists have come to a conclusion that there are thousands of system to hack the ATM and ATM related transaction by controlling the running process of the machine at the time of operating that machine by any customer and it is common practice and in fact Kolkata area Detective Department of Kolkata Police also searched out that certain devices are used by the hacker for controlling the operation by placing them outside the ATM Kiosk, probably in this case malware system was applied for which even after swapping the debit card, the machine did not operate.

Truth is that scientifically if one ATM or debit card is placed initially the said machine stats for recollecting their memory from the server to indentify the customers’ identity that is the first approach of the ATM.When it is found that it is correct, then it goes for another step that means ATM signals to the customer to operate for further process and to follow what he shall have to do.In fact that in this case only debit card was swapped, but ATM did not make any signal.But the bank (PNB) authority has also not denied that fact.On the contrary from the unchallenged testimony of the complainant, it is proved that he only swapped the debit card, but he did not get any amount for which he was sure that ATM internet system was not working.So, in such a case how the transaction shall be successful.That is vital question.

For the sake of the argument if it is accepted that the transaction was successful due to such act of unknown hacker who has following the fellow, may be outside the ATM Kiosk of PNB, otherwise there was no ground on the part of the complainant to get Rs. 10,000/-.Last but not the least we are confirmed that PNB Authority must have to challenge because their machine was used by the complainant.But they are silent that means they have not challenged the allegation as made by the complainant about ATM of PNB, invariably at the relevant point of time there was some defect or hacker controlled the ATM by using malware system.

Practically malware system is nothing but one remote which controls the entire Kiosk and at present in West Bengal or in India, this procedure is very much used prior to that the procedure for hacking was/is to place a device, but that system has been now changed.The malware procedure is very much dangerous procedure and in fact all over world daily crores of rupees are withdrawn by the hacker by adopting malware process as and when customers are trying to withdraw the money from any ATM.But in India most of the ATMs anti-devices (FIS) has not been fixed and for which ops have not produced such certificate that FIS is fixed with that ATM.

Not a single bank as yet has been able to submit any certificate of availing of FIS fixing with the ATM.Though this Forum asked many banks to submit, but they are found silent and in the present case we have gathered that PNB Authority ought to have appeared before this Forum to defend the same by challenging the allegations of complainant.But they are silent, it indicates that there was some fault on the part of the op bank and in their ATM for which they are silent and they have not appeared not only after receipt of the notice of complaint, but even after receipt of the copy of the E/Chief sent by Speed Post which was received by them and their negative attitude in this regard has given this Forum to come to a conclusion that allegation as made by the complainant is believable for which PNB did not appear.

No doubt there was a MoU or any Agreement in between ops for which complainant being the customer of YES bank Ltd. used the debit card at the ATM Kiosk of PNB and after using that machine when complainant failed to get the document, in that case banker of the complainant and op no.2 are equally responsible to repay the same.So, under any circumstances op no.1 bank cannot deny their responsibility for using the ATM of PNB by complainant.

But peculiar factor is that op YES Bank discharged their liability by shifting the liability to the PNB Authority.Then this Forum can ask one question to the op no.1 bank under what circumstances complainant was able to use the said card to withdraw the money from ATM of other bank, invariably there is some relation in respect of using the ATM of any other Bank and invariably there is some banking agreement and relations so that complainant as customer of the op bank used that ATM and found that money was withdrawn by hacker in that case the money was not debited from PNB Account because complainant has no account at PNB and particularly it was debited from complainant’s account of op no.1 bank, then invariably op no.1 is liable to pay the said amount and to refund the same.When about the successful transaction no document is produced by the PNB and op no.2 has not challenged the allegations of complainant, we are convinced to hold that complainant is entitled to get that amount and invariably ops jointly and severally shall have to pay back the same to the complainant.

Fact remains that as per RBI guidelines if any complaint regarding before ATM transaction made on the ground even after use of the ATM card by the customer he failed to get the money, the said dispute shall be completed within 7 working days back by giving proper supportive documents and even it is not done, in that case, after lapse of 7 days Rs. 100/- shall be paid by the bank till crediting the disputed amount in the account of the customer and that is RBI guideline, direction, order and it must be followed by all the banks even PNB.But even after existence of such RBI Regulations now all the banks are found kept silent in this regard and report that the transaction is successful but it must be proved by producing document, but nothing is filed by the op no.1 bank also.It indicates that they have taken the matter casually as if only by their written statement by stating only word that successful transaction is there for dismissing the case is sufficient.

Whatever it may be this particular case is very simple in nature in view of the fact that this present transaction is related to no transaction of money even if he used the debit card and missed to get the money and he faced such trouble and for which he forthwith reported the matter to Bank Authority, but the bank authority did nothing, only said that the transaction was successful but no paper was submitted what is the common.Words used by all banks and that is the natural behavior of all the bank authority in respect of any such complaint of ATM failure in respect of the transaction that is the attitude and this attitude must be changed by the bank when such sort of incidents happen.Truth is that unless and until the entire ATM System is properly controlled by the respective bank by fixing anti devices it cannot be checked rather such sort of incident shall be increased day to day.Very recently after studying some books we have gathered that for technical fault of internet system it causes unsuccessful transaction.So, entire internet system should be made stable and flawless otherwise many negative result shall be enjoyed by the customer during operating ATM.

No doubt we are very much neglected by the bank for their poor performance of internet system and huge number of customers are suffering for that at the time of withdrawing money and at the time of depositing the money or for any other purpose because the bank system is now under the net of internet system and if internet system is found faulty in respect of ATM transaction then invariably due to present system customer shall suffer. Many times customer are found waiting for some period losing their time to bank premises for failure of internet system, but bank authority have their no mood for safety and security of the customers and in the present case op no.1 the banker of the complainant practically did not think for the safety and security of the money of the complainant.It is no doubt negligent and deficient manner of service.So, in the light of the above observation we are of the view that complainant’s allegation as made against op nos.1 & 2 is proved beyond any manner of doubt.

In the result, the complaint succeeds.

Hence, it is

                                                     ORDERED

That the complaint be and the same is allowed on contest with cost of Rs. 5,000/- against op no.1 and same is allowed exparte against op no.2 with cost of Rs. 5,000/-.

Ops are jointly and severally directed to pay Rs. 10,000/- in the account of the complainant wihin one month from the date of this order along with compensation of Rs. 2,500/- for causing mental pain, harassment and also for not rendering the service to the complainant.

Ops are hereby is directed to comply the order within one month failing which for noncompliance of the Forum’s order, ops shall have to pay penal damages at the rate Rs. 100/- per day till full satisfaction of the decree, if it is collected, it shall be deposited to this Forum even if it is found that ops are reluctant to comply the order, in that case, penal action u/s. 27 /25 of C.P. Act shall be started against ops for which further penalty and fine shall be imposed.