FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is an application u/s.12 of the C.P. Act, 1986.

The complainant is having a SBI Credit Card bearing no. 5241826429251040 with the OP. On 14.11.2017 the complainant received eight SMS for OTP Transaction from  the OP involving an amount of Rs.60,599  in which the  complainant had no role at all. Being astonished the complainant contacted the OP to explain the reason for such transaction. The OP was advised to block the card first and thereafter the OP blocked the card. On 14.11.2017 the OP put a notification in their web site that STATUS TRANSACTION UNDER SETTLEMENT . But the amount is not transferred . Again on 15.11.2017 another amount of Rs. 5,000/- is also debited. As such the total transaction stands Rs.65,599/-.  The matter was referred to the Banking Ombudsman and the Central Consumer Grievance Cell, Govt. of W.B. But no remedy was received. Hence the complainant being the senior citizen has approached the commission for justice with the prayers as mentioned in the complaint petition.

The OP has contested the case by filing W/V contending inter alia that the complaint is not maintainable either in facts or in law.  The above mentioned card was issued to the complainant in the month of July, 2008. The said card was debited with 08 transaction amounting to Rs.60,599/- on 14.11.2017. The complainant approached the OP with the complaint on 14.11.2017 and the matter was taken up by the OP for investigation. On investigation it was revealed that the said transaction was on line 3D secured transaction ( transactions are valid as they have been performed in a secure Electronic Commerce environment ). OTP and Transaction SMS were sent and delivered to complainant on his registered mobile no.

 No mobile number change observed. On the basis of the above facts the OP closed the complaint and informed the complainant vide e mail dated 17.11.2017. The OP further states that Card not present transaction in reference to secured transaction can only be performed on the basis of secure code which is known to the card holder only. The card holder is responsible for the security of the card, card number and the PIN and shall take all steps towards ensuring the safe keeping thereof. In the event SBICPSL determines that the aforementioned steps are questionable, financial liability on account of the lost, stolen or misused card/ card number / PIN shall be borne by the cardholder and could result in cancellation of the card account. The OP further states that as a card issuer they cannot hold / cancel any transaction from their end post receiving the authorization. The moment OP are getting authorization they have been debited for the said amount. In view of the above submission the consumer complaint is liable to be dismissed.

Points for Determination

In the light of the above pleadings, the following  points necessarily have come up for determination.

1)  Whether the OP is deficient in rendering proper service to the Complainant?
            2)  Whether the OP has  indulged in unfair trade practice?

           3)  Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point Nos. 1 to 3 :-

The above mentioned points are taken up together for the sake of convenience and brevity in discussion.

            We have travelled over the documents placed on record. The complainant & the OP  have filed their respective Evidence supported by affidavit. The complainant  has  filed replies  to the questionnaire set forth by the OP. The OP  has  submitted  their BNA.

The fact in brief of the case is that the complainant Sri Vaskar Basu was having a credit card with the OP bearing no. 5241826429251040. The card was issued to him way back in  July,2008 as understood from the record. On 14.11.2017 in between the time period from 13-02 hours to 13-11 hours he received 08 consecutive SMS for OTP Transaction from SBI Card Authority involving an amount of Rs.60,599/-. which was beyond his imagination and knowledge He immediately informed the OP on 14.11.2017 through e mail. The OP authority blocked the card on the same day itself  at 23- 01 hours and informed the complainant accordingly. Even after blocking the card on 14.11.2017 OTP was also generated to the complainant on 15.11.2017 at 10-50 hours for Rs.5000/- which is also a matter of astonishment though the OP has established that the said transaction got failure due to blocking of the card. On 15.11.2017 from the web site of the OP it is observed that  the said disputed transaction of Rs.60,599/- on 14.11.2017  is shown as “Transaction under settlement”. The complainant specifically mentioned that he has neither authorized nor participated in the above transaction . The card was in his possession at all times. Then how the said 08 (eight) transactions took place . The OP on reply vide mail dated 15.11.2017 informed that the matter is under their knowledge and investigation and will revert to him in 05 days. Maximum time for closure of the case is 120 days. They also advised the complainant to make the disputed payment to avoid levy of charges on the card account. It is as per the submission of the OP that on investigation it is revealed that the above transactions were on line 3D secured transaction ( transactions are valid as they have been performed in a secure Electronic Commerce environment.) OTP and Transaction SMS were sent and delivered to his registered mobile number. No mobile number change observed. Hence basis the aforesaid fact the dispute was closed in complainant liability. The same has been communicated to the complainant vide mail dated 17.11.2017.

Now let us examine the mail dated 17.11.2017 sent by the OP to the complainant :

“ This is in reference to your communication regarding above mentioned transaction with your SBI Card number xxxxxxxxxxxx0513.

“We would like to share that we have completed the investigation for the said transaction . It has been observed that the said transaction has been performed in a secure manner as the same has been validated by your card CVV and dynamic one time password over the Internet/IVR.

Further we wish to confirm that as per our records the dynamic one time password was successfully delivered at your registered mobile number. Transaction alert SMS regarding the aforesaid transaction was also delivered at your registered mobile number. Considering all of the above , the liability of transaction in such cases lies with the Card Holder.”

While perusing the card number of the complainant we do not find any match with the card number mentioned in the letter of the OP dated 17.11.2017. As such cognizance to this letter cannot be given. Even on the further letter dated 28.12.2017 to the complainant the OP reiterated the said letter dated 17.11.2017 which itself carries no relevance  in the subject matter and is also non cognizable. Moreover in the said letter dated 28.12.2017 there is no mention of the Credit Card number wherein the fraudulent transaction took place. It instantly give rise to the conclusion that some how or other  the OP wants to come out from the dispute by citing the so called standard reply applicable to similar type of cases to convince the complainant that he is solely responsible for the fraudulent transaction what has happened with him  wherein the OP SBI CARD had no role to play with.  If we concentrate on the bare fact that within 9 (nine ) seconds the complainant being a senior citizen performed 08 ( Eight ) transactions to those beneficiaries at  Gurgaon  and Mumbai with whom there is no reason to be connected with. It is quite impossible for a normal person to execute 08 transactions in 09 seconds. Then how could it be possible for a senior citizen being the complainant herein to execute those 08 transactions in 09 seconds. Instead of going deep into the matter and without referring the matter directly to SBICPSL or any statutory authority for the  actual findings in order to help their customer as a part of their essential duties  they are writing to the complainant that the complainant should contact SBICPSL as soon as possible for the remedy sought for. Then why the website copy of the OP dated 15.11.2017 showed the disputed 08 transactions dated 14.11.2017 under settlement. Is it an eye wash to reduce the grievance of  a distressed accountholder who has become a victim of the fraudulent transactions and in the situation he is absolutely helpless and is also at a loss.  More over the complainant had knocked the doors of  chargeback and customer care of SBI Card with transaction dispute form and list of Transaction under settlement on 15.11.2017 through mail.. But they had not bothered to stop the payment of the disputed transactions when they were already informed about this fraudulent transaction on 14.11.2017 itself. They could have stopped the payment for the time being smelling the unfairness, unusual  and irregular transactions. But they did not do anything to stop the payment. Then question comes. Why they did not do that.? Who is close to the OP ? . Whose interest is to be taken care of by the OP ? Whether  it is the beneficiary of the fraudulent transactions or it is  the regular card holder who is associated in the relationship of a benevolent customer with the OP for more than 10 years.  It is very much difficult and practically impossible for a common man to penetrate into the updated technology to know how he has become the victim of this fraudulent transaction. From the series of letters given as explanation, the OP has reiterated the same wordings to wash out their hands knowing fully well that it was not because of the faults of the complainant. Instead of helping the complainant they have forcefully shifted the liability to the complainant which is definitely an example of unfair trade practice. From the above discussion and from several correspondences it appears to us the complainant put his appeal several times  to the OP helplessly to get rid of the problem. But the OP tried to avoid the problem deliberately. The seriousness required in the matter was absolutely missing on the part of the OP which tantamount to  deficiency in service.

It is also noteworthy to mention that the Ld. Advocate of the OP has annexed one letter of the OP addressed to the complainant dated 29.03.2018  with the BNA certifying that there is no dues payable to them which means that the complainant has made the disputed payment also in order to avoid extra charges.

In this context,  the Judgement of the Hon’ble NCDRC reported in Volume III (2018)CPJ 193 ( NC) in the matter of SBI vs Dr. J.C.S. Kataky is found relevant where in para 10,11 it is clearly mentioned that “ Bank could have very well verified genuineness of these transactions, after establishing contact with person or merchant establishment in possession of said POS, but nothing of that sort was done – Bank is liable to make good the loss.”

More over the guidelines issued by the RBI vide Circular No. RBI/2017- 18/15 dated 06.07.2017 in the matter of Customer Protection – Limited Liability of Customers in Unauthorised Electronic Banking Transactions.

In point no. 6. A customer’s entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events :

(ii) Third party breach where the deficiency lies neither with the Bank nor with the customer but lies elsewhere in the system, and the customer notifies the Bank within three working days of receiving the communication from the Bank regarding the unauthorized transaction.

In the light  of the above observation, we are of the considered view that the complainants have established the case against the OP. All the points under determination are answered accordingly.

In the result, the Consumer Complaint  succeeds .

Hence,

Ordered

That the complaint case be and the same is allowed on contest against the OP  with the following directions:-

1. The OP is directed to refund Rs.60,599/- to the complainants .

2. The OP is also directed to pay Rs. 50,000/- to the complainant as compensation towards harassment and mental agony suffered by the complainant.

3. The OP is further directed to pay Rs.10,000/- to the complainant as litigation costs.

The above order is to be complied with within a period of 30 days from the date of the order in default the complainant will be at liberty to put the order into execution.