DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.252/2021
Navin Kumar Thakur
S/o Shri Bhagirath Thakur
Office: Chamber No.423 New Lawyers’ Chamber Block
Patiala House Court, New Delhi. .…Complainant
VERSUS
M/s Yes Bank Pvt. Ltd.
Through its Authorised Representaive
Having Corporate office at
48, Nyaya Marg, Diplomatic Enclave
Chankyapuri, New Delhi-110021.
Having Branch Office At
Gobind Mansion, Ground and Mazzanine Floor
18-19, Connaught Place
Near H Block, Outer Cirle, Petrol Pump
New Delhi-110001. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Sandeep Kumar (physically) & complainant on VC.
Present: Adv. Nika Tiwari for OP on VC.
ORDER
Date of Institution:03.09.2021
Date of Order :07.10.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking refund of Rs.20,000/- with 24% per annum from 05.03.2020; Rs. 1,00,000/- towards mental agony and cost of litigation.
- Complainant states that on 05.03.2020 while he was still in his office around 5.21 P.M to 5.35 PM, he received five messages and emails from OP intimating of withdrawals made from the complainant’s account from different locations of Mukherjee Nagar and nearby places, Delhi. Complainant noticed that a sum of Rs.30,000/- was debited from his account in three transactions and another two unsuccessful attempts were made to withdraw the money from his savings bank account.
- Complainant immediately called up his family and enquired about the debit card which was lying at his house. The family members confirmed that the debit card was lying at home in his home. Complainant lodged a complaint with the customer care of the OP for the unauthorised transaction made on 05.03.2020. Complainant also requested the OP to block the debit card and provide CCTV footage of the ATM kiosk from where unauthorised withdrawal took place. Copy of the emails dated 05.03.2020 enquiring about the unauthorised transaction is annexed as annexure-A (colly).
- Complainant also reported the issue to his home branch on 06.03.2020 and lodged a complaint with the Police on 05.03.2020. Copies of complaint lodged with home branch as well as Delhi Police are annexed as annexure B & C.
- Complainant states that total sum of Rs.30,000/- was withdrawn in three transactions of Rs.10,000/- and a sum of Rs.937/- remained in his account but two further attempts were made to withdraw Rs.500/- and Rs.900/- which were declined.
- Complainant received an email dated 13.03.2020 wherein the OP had stated that “transactions were found to be authorised as the transactions were validated by providing customer’s payment credentials”. It is stated that the OP has failed to provide CCTV footage of the kiosk and has jumped to the conclusion that the transactions were authorised for the reasons best known to OP. Copy of the email dated 13.03.2020 is annexed as annexure-D.
- Complainant received another email dated 17.06.2020 crediting a sum of Rs.10,000/- for one of the disputed transactions on 16.06.2020. Copy of the said email is annexed as annexure-E. This came as a shock to the complainant as the OP was earlier claiming that transactions to be authorised and had now reversed one of the unauthorised transactions of Rs.10,000/-.
- Complainant has also placed reliance on the Circular No.DBR.No.FSD.BC.18/24.01.009/2015-16 dated 06.07.2015 wherein directions have been given to the bank to reverse the amount involved in unauthorised transactions within 10 working days from the date of information. The said circular is annexed as annexure-F.
- In its reply, OP has not disputed the messages and emails received by the complainant on 05.03.2020 or the transactions however, it is stated that the complainant has failed to disclose his base branch location where his account is maintained, the current status of the police complaint and the reasons as to why other banks in whose ATM the alleged transactions took place, are not a party to these proceedings.
- It is stated that this Commission does not have the territorial jurisdiction to try the complaint. It is stated that no deficiency of service or unfair trade practice has been alleged by the complainant against the OP.
- It is stated that despite there being a gap of 13 minutes between the time of first transaction and second transaction complainant did not raise any alert/dispute or block the card to prevent further alleged fraudulent transactions. It is stated that the complainant is a lawyer and being a member of legal profession has a duty of higher degree in exercising due diligence to prevent alleged fraudulent transactions.
- It is further stated that for a person to withdraw money from the ATM both the card and the ATM PIN is required and in this case alleged fraudulent withdrawals were made from the ATMs through chip based card after entering the ATM PIN which is confidential information only known to the customer and hence the liability rests with the complainant himself.
- It is further stated that complainant has approached banking Ombudsman with the same grievance and after conducting a detailed investigation banking Ombudsman has not given any adverse finding against the OP. It is stated by the OP that the present complaint warrants dismissal being barred by res-judicata. It is further stated that the refund of Rs10,000/- made to the complainant was made by ICICI Bank and that the complainant has not made those banks a party to the case whose ATMs were used in the alleged fraudulent withdrawal.
- It is further stated that the CCTV footage cannot be shared by the OP as the ATM is that of different bank. Copy of the OP email exchanged with the other banks seeking footage is annexed as annexure R-4.
- It is later clarified by the OP that the branch where the complainant is maintaining his account is situated at Connaught Place. It is also stated that the concerned debit card was not in the possession of the complainant at the time of alleged fraudulent transactions thereby meaning that it may be possible that there was divulgence of personal data at the end of the complainant.
- It is stated that the alleged transactions were duly authorised by the complainant or done by someone with whom the complainant had shared his ATM card and PIN. It is further stated that the complainant was provided a chip based card making it immune to fraudulent techniques of skimming/copy of ATM card details leading to duplicate card. It is stated that complainant has failed to produce any document that he made a timely demand of CCTV footage.
- Complainant did not file a rejoinder. Both the parties have filed their respective evidence affidavits and written arguments. This Commission has gone through the entire material on record and also the judgment in State Bank of India Vs. K.K. Bhalla decided by Hon’ble NCDRC 2011 SCC Online NCDRC 157 which is relied at by the OP. Complainant has placed on record copy of the emails sent to the OP and complainant has also submitted the complaint with the Delhi police however, the status of the complaint filed by the Delhi Police has not been placed on record. It is seen from the reply of the OP that the OP has called the said transactions as authorised being validated by a PIN but at the same time a reversal of Rs.10,000/- was made in the account of the complainant thereby raising a doubt as to the authenticity of the claim of the OP.
It is further seen OP has not placed on record any document on record and neither have they claimed that the CCTV footage was provided to them by the other banks. CCTV footage was not provided to the complainant nor is it the claim of the OP that they had seen the CCTV footage so as to conclude that the transactions were actually unauthorised. Therefore this Commission is of the view that OP was negligent in not following the directive given by the RBI in their circular dated 06.07.2017 in not providing shadow reversal of the amount to the complainant and also in not keeping the money of the complainant safe.
OP is directed to refund Rs.20,000/- to the complainant along with the interest @6% per annum from 05.03.2020 till realisation within three months from the date of pronouncement of the order failing which OP would be liable to pay interest @ 8% per annum. OP is also liable to pay a sum of Rs.10,000/- as compensation for the harassment caused to the complainant.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.
