DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Wednesday the 28^th day of February 2024

CC.148/2015

Complainant

Jomy Earnest,

Residing at Puthuvallikkal (HO),

Kuniyedath Paramba,

Merikunnu. P. O,

Kozhikode - 673012

(By Adv.Sri. Pavithran. K)

Opposite Party

The Manager,

Canara Bank,

Vellimadukunnu Branch,

                         Kozhikode.

(By Adv.Sri. K. K. Krishna Kumar)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

The complainant is maintaining a SB Account in the Canara Bank, Vellimadukunnu, Kozhikode with A/C No. 0839101036980. He is also in use of an ATM Card issued by the opposite party in the said account number.

3. The complainant noticed that an amount of Rs. 2,500/- was withdrawn by somebody on 19/07/2014 from his account as internet transaction. He immediately contacted the manager of the bank and complained about unauthorised withdrawal of the amount. As per the instruction of the manager, the PIN number of the ATM Card was changed confidentially on 19/07/2014.
4. As on 20/08/2014 the balance in the SB Account of the complainant was Rs. 23,901/- . But as on 21/08/2014 the balance in the account was only Rs. 1,948/-. The complainant noticed that somebody has withdrawn Rs. 5,000/- , Rs. 1,000/-, Rs. 4,000/- and Rs 2,020/- from his account on various dates without his knowledge. The ATM Card was in the custody of the complainant. The opposite party knows the details of the withdrawals. The complainant immediately contacted the manager who told that he would contact the head office and furnish the correct details of the withdrawals to him. But till date no such details were furnished to him and there was no response. As per the written request of the complainant, the opposite party blocked the usage of the ATM Card. But even after that somebody has withdrawn Rs. 1,000/-, Rs. 505/- and Rs. 303/- from the account of the complainant on 22/08/2014.
5. On 28/08/2014 the complainant had given a written complaint to the opposite party. Till date the opposite party has not responded to the complaint. There was deficiency of service on the part of the opposite party. Hence the complaint to direct the bank to pay the complainant Rs. 15,000/- involved in the transactions not authorised by him along with compensation of Rs. 25,000/- for the mental agony and hardship suffered due to the deficient service of the opposite party.
6. The opposite party has resisted the complaint by filing written version wherein all the allegations and claims made against the bank are denied and disputed. The holding of the SB account and the issuance of the ATM Card to the complainant is admitted. The averment that  money was withdrawn from his account without his knowledge or junction is false and hence denied. The statement that the complainant had lost Rs. 2,500/- from his account on 19/07/2014 through an internet transaction is quite evident from the account statement. It is true that the complainant had informed the same to the opposite party and he was advised to change his PIN number confidentially. But the opposite party cannot be attributed with the responsibility for the loss of money from his account. The opposite party has no active role to play in the internet transaction. All the internet transactions are usually protected through passwords which are only within the reach and knowledge of the user.  It is the duty of the complainant to keep the password confidential.
7. It is true that the complainant had forwarded his complaint pertaining to the loss of money and the opposite party had duly attended the complaint and forwarded the same to the concerned department in the head office. After due enquiry, it was revealed that the transactions complained of are all secured domestic internet transactions and can only be completed using the customer set password, which is known to the customer alone or the OTP sent to the registered mobile number and this has been duly intimated to the complainant. The complainant was also requested to submit the FIR and other insurance documents pertaining to the transactions for  further enquiry. But the complainant did not comply with that.
8. Some of the transactions pertain to transfer of money to e-wallets and some of them pertain to cash withdrawal ATM transactions. The above transactions cannot be conducted without the knowledge of the complainant. There was no negligence or deficiency of service on the part of the opposite party. The alleged loss caused to the complainant was because of his own negligence in handling the passwords and other information confidentially. None of the reliefs is allowable. With the above contentions, the opposite party prays for dismissal of the complaint.
9. The points that arise for determination in this complaint are;

           1) Whether there was any deficiency of service on the part of the opposite party, as alleged?

                  2) Reliefs and costs.

10. The evidence consists of the oral evidence of PW1 and Exts A1 to A3 on the side of the complainant. No oral evidence was let in by the opposite party. Exts B1 to B4 were marked.
11. Heard both sides. Brief argument note was filed by the complainant.
12. Point No 1:    The complainant has approached this Commission with a prayer to direct the opposite party to pay an amount of Rs. 15,000/- involved in the transaction not authorised by him, along with compensation of Rs. 25,000/- for the mental agony and hardship suffered by him on account of the alleged deficiency of service on the part of the opposite party. The specific grievance of the complainant is that he has lost a total amount of Rs. 15,000/- from his SB account maintained in the opposite party bank in the unauthorised transactions, due to the negligence and deficiency of service on the part of the bank.
13. In order to substantiate his case, the complainant has got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. PW1 has asserted that he has lost a total sum of Rs. 15,000/- in unauthorised transactions on various dates and has maintained that the ATM card was in his safe custody all the time.        Ext A1 is the relevant page of the copy of the passbook, Ext A2 is the copy of the complaint dated 28/08/2014 and Ext A3 is the copy of the statement of   account.  Ext B1 is the copy of the letter dated 02/02/2015, Ext B2 is the         e-mail communication dated 15/10/2018, Ext B3 is the copy of the account statement and Ext B4 is the details of ATM card. There is no reason to disbelieve PW1. Even though PW1 was cross examined at length, nothing has been brought out to discredit his version.
14. It is not disputed that the complainant is holding Ext A1 SB account in the Canara Bank, Vellimadukunnu Branch. It has come out in evidence that the complainant had lost a total amount Rs. 15,000/- from his account on various dates in unauthorised transactions. Whenever it came to the notice of the complainant, he promptly intimated the bank. There is nothing in evidence to indicate that there was any warning or OTP before the said transactions, as contended by the opposite party in the version.
15. As per Circular No. RBI/2017-2018/15 (DBR No. Leg. BC. 78/09.07.005/ 2017-18) dated 06/07/2017 of the Reserve Bank of India, the burden of proving customer liability in case of unauthorised electronic banking transaction shall lie on the bank. The case tried to be set up by the bank is that the said transactions were within the knowledge of the complainant as those transactions could only be performed by a person who has access to   the password and other personal information of the complainant. In other words, the contention of the bank is that the complainant might have divulged the confidential secret password and credentials with respect to his account to others. But the opposite party could not substantiate the contention. There is absolutely nothing in evidence to show that the complainant had divulged the secret password and credential of his account to anyone.  It is the duty of the bank to exercise reasonable care to prevent unauthorised withdrawals from the account of the customers. It is the duty of the bank to ensure full security and set up internal control system to combat frauds. Any latches in this regard amounts to deficiency in service. In this case, the complainant has suffered loss on account of the transactions not authorised by him. He immediately informed the bank about the unauthorised transactions. The bank is liable to the complainant for the loss. It has also come out in the evidence that there was neglect on the part of the bank to address the concerns of the complainant over the unauthorised withdrawals.
16. In  State Bank of India V  George (2019(1) KLT (505), it has been held by the Honourable High Court of Kerala that “the relationship between the bank and its customer, in so far as it relates to the money deposited in the account of the customer, is that of debtor and creditor”. Further it was held that “a bank owes a duty to its customers to take necessary steps to prevent unauthorised withdrawal from their accounts. If the customer suffers loss on account of the transaction not authorised by him, the bank is liable to the customer for the said loss”.
17. From the above discussion, it has to be held that there was negligence and deficiency of service on the part of the bank and hence the bank is liable to the complainant for the loss of Rs. 15,000/- on account of the transactions not authorised by him.
18. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;

                  a)  CC.148/2015 is allowed in part.

b) The opposite party bank is directed to pay the complainant or credit to his account Rs. 15,000/- (Rupees fifteen thousand           only) involved in the transactions not authorised by him, within 30 days of the receipt of copy of this order.

c)  No order as to costs. 

Pronounced in open Commission on this, the 28^th day of February, 2024.

Date of Filing: 13/03/2015

                                              Sd/-                                                                  Sd/-                                                     Sd/-

                                     PRESIDENT                                                      MEMBER                                          MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Relevant page of the copy of the passbook.

Ext.A2 – Copy of the complaint dated 28/08/2014.

Ext.A3 – Copy of the statement of   account.

Exhibits for the Opposite Party

Ext.B1 – Copy of the letter dated 02/02/2015.

Ext.B2 – Copy of the complaint dated 28/08/2014.

Ext.B3 – Copy of the account statement.

Ext.B4 – Details of ATM card.

Witnesses for the Complainant

PW1 - Jomy Earnest (Complainant)

Witnesses for the opposite parties 

Nil.

                                       Sd/-                                                                         Sd/-                                                          Sd/-

                              PRESIDENT                                                             MEMBER                                               MEMBER

True Copy,      

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                                                            Assistant Registrar.