Haryana

Ambala

CC/321/2021

Parveen Kumar Goel - Complainant(s)

Versus

Punjab and Sind Bank - Opp.Party(s)

R.K. Singh

27 Jul 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                                      Complaint case no.         :     321 of 2021

                                                          Date of Institution           :      18.10.2021

                                                          Date of decision     :      27.07.2022.

         

1. Sh. Parveen Kumar Goel Advocate s/o late Sh. Prem Chand Goel R/o H. No. 544, B. C. Bazar, Ambala Cantt aged about 66 years.
2. Smt. Chaya Goel w/o Sh. Parveen Kumar Goel r/o H. No. 544, B. C. Bazar, Ambala Cantt aged about 60 years.

                                                                             ……. Complainant.

                                                Versus

1. Punjab and Sind Bank, Near Quality Sub Station, UHBVN, Ambala Cantt through its Branch Manager.
2. Field General Manager, Punjab and Sind Bank, Sec-17-B, Chandigarh.
3. General Manager, H.O. ATM Cell, Punjab and Sind Bank, 21-Rajindera Place, New Delhi

                                                                        ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:       Shri R.K.Singh, Advocate alongwith complainant No.1 in person.

Shri Harshit Kapoor, Advocate, counsel for OPs.

 

Order:        Smt. Neena Sandhu, President.

Complainants have filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) prayed that OPs may be directed to refund Rs.28,700/- along with interest @ 12% per annum from 30-05-2020 till its realization along with cost of this complaint, to pay Rs.50,000/- as compensation for the mental agony and physical harassment suffered by the complainants. Any other relief either in equity or in law which this Honorable commission deem fit may also be granted to the complainants.

2.           Brief facts of the case are that the complainants were having a joint current account bearing No.03841300002481 (Now Closed) with OP No.1 and were also having ATM facility provided by the OPs. On 30-5-2020 at 14:28:02 p.m, the complainant no.1 suddenly received a text message on his mobile number 9896069922 from OP No.1 stating that an amount of Rs.18000/- has been deducted from the account of the complainants vide transaction number POS/00218060/020766 at 14:28:0. On the same day, at 14:32:21 p.m. complainants got another text message from OP No.1 that another amount of Rs.10700/- has been deducted from the account of the complainants vide transaction number POS/00218060/211066 at 14:32:21, whereas neither complainant no.1 nor complainant no.2  used their ATM to withdraw the above mentioned amounts. After getting the said messages from OP No.1, the complainants immediately report the matter to OP No.1 to look into the matter.  On the advice of OP No.1, the complainants, made a complaint to Haryana Police on their official website on the same day i.e. on 30-05-2020 regarding the said fraudulent transaction, vide complaint No.13221005072000072 but to no avail.  The complainants also filed an online complaint to Banking Ombudsman. Care Reserve Bank of India, Sector 7-Chandigarh vide Compliant No.202122308001410 dated 19.08.2021 but to no avail. By not refunding the amount aforesaid, which has been fraudulently withdrawn from the account of the complainants, the OPs have committed deficiency in service. Hence, the present complaint.
3.           Upon notice, OPs appeared and filed written version, raised preliminary objections with regard to maintainability, cause of action, mis-joinder and non-joinder of necessary parties and not come with clean hands etc.  On merits, it is stated that the complaint filed by the complainants was forwarded by the OP-1 to HO Complaint Cell, Rajender Palace, New Delhi and in their reply it was specifically mentioned that the Debit Card details/credentials of the Bank viz, Card No, CVV, OTP etc. were compromised by someone, by calling the complainants and this fact has been stated by the complainants in the FIR lodged with the Police concerned. Thus, the complaint filed by the complainants is not maintainable as there is no illegal/unauthorized deduction on the part of the OPs. The complainants have been informed about the status of their complaint, number of times verbally, as Sh. Parveen Kumar Goel is an ex staff-member of the bank and makes frequent visits to the branch at Ambala Cantt and also vide Letter dated 21.12.2021 posted vide Regd. A.D. on 23.12.2021. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainants tendered affidavit of complainant No.1 as Annexure C-A alongwith documents Annexure C-1 to C-7 and closed the evidence on behalf of complainants. On the other hand, learned counsel for the OPs tendered affidavit of Shri Preeti Puri, Manager, Punjab and Sind Bank, Ambala Cantt., as Annexure OP1/A alongwith documents as Annexure OP-1 to OP-11 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the parties and carefully gone through the case file.
6.           Learned counsel for the complainants submitted that despite the fact that an amount of Rs.18,000/- and Rs.10,700/- has been fraudulently debited from the account of the complainants, without their knowledge, yet, when the same was reported to the OPs immediately, they failed to take any action and also did not credit the said amounts in their account, which act amounts to deficiency in providing service, negligence and adoption of unfair trade practice on their part. 
7.           On the contrary, the learned counsel for the OPs has submitted that since it was reported by the HO Complaint Cell, Rajender Palace, New Delhi that the ATM/Debit Card details/credentials of the Bank viz, Card No, CVV, OTP etc. were shared by the complainants to someone who used to call him on their mobile number, as such, there is no illegal/unauthorized deduction on the part of the OPs and therefore, the request of the complainants claiming refund of the amount in dispute was rightly rejected by OPs.
8.            It is evident from the record that the claim of the complainants with regard to refund of their amount fraudulently withdrawn from their account, was rejected by the OPs on the basis of the report dated 26.11.2021, Annexure OP-1, having been issued by the HO Complaint Cell, Rajender Palace, New Delhi that the ATM/Debit Card details/credentials of the Bank viz, Card No, CVV, OTP etc.  wherein it has been opined that “…Since both the transaction amounting to Rs 18,000/- & Rs 10,700/- has been done through E-commerce mode, and the customer in his FIR dated 30 05 2020 admitted that he has received a call from the culprit having mobile no 8345071896, it is evident that the Debit card details/credentials of our Bank viz, Card No.CVV OTP etc might have been compromised using which the fraudster could have performed the alleged unauthorized transactions...”.

                   However, on the other hand, when we go through the contents of the said FIR, Annexure C-4 it is found that the complainants have stated in the said FIR that they have been receiving calls from mobile no 8345071896 and it appears that their account has been hacked. Nothing is reflected from this FIR that the ATM card details/credentials of the Bank viz, Card No.CVV OTP etc were compromised, using which the fraudster has performed the said unauthorized transactions. Even this much has not been proved by the OPs that after the said transactions were carried out from the account of the complainants, they have conducted any inquiry into the incidence after reporting of the same  by the complainants. The OPs have come to the aforesaid conclusion by merely twisting the contents of the FIR. In our considered opinion, the account of the complainants was hacked by someone, which resulted into fraudulent withdrawal of their amount.

9.           The OPs therefore cannot wriggle out of their liability towards customers casted upon them by RBI for safekeeping of the Banking Systems and maintaining checks and balances in the same. As per the RBI circular, zero liability will rest with the customer, where the deficiency lies in the banking system. Reference here can also be drawn to circular bearing No. DBR.No.Leg.BC.78/09.07.005/2017-18 dated 6th July 2017, issued by the Reserve Bank of India to all commercial banks, wherein it is stated as under: -

"6. A customer's entitlement to zero liability shall arise where the unauthorised transaction occurs in the following events:

Contributory fraud/ negligence/ deficiency on the part of the bank (irrespective of whether or not the transaction is reported by the customer).

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 unauthorised transaction."

10.           In the present case, the unauthorized transactions were reported on the very same day to the OPs by the complainants. In such circumstances, therefore, even if the deficiency was not with the Bank, but elsewhere in the system, the Bank will be held liable for the said unauthorized transactions. The aforesaid RBI circular as well decision of the Hon’ble National Commission in Punjab National Bank and Anr. Vs. Leader Valves Limited II (2020) CPJ 92 (NC), are both squarely applicable in the present matter. In this case, the Hon’ble National Commission while addressing the question of liability of a Bank in case of unauthorized and fraudulent electronic banking transactions, has observed as under:

"11. The first fundamental question that arises is whether the Bank is responsible for an unauthorized transfer occasioned by an act of malfeasance on the part of functionaries of the Bank or by an act of malfeasance by any other person (except the Complainant/account-holder). The answer, straightaway, is in the affirmative. If an account is maintained by the Bank, the Bank itself is responsible for its safety and security. Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the consumer/account-holder), is its responsibility, and not of the consumer."

11.           Similar observations were made by the Hon’ble National Commission in the case titled as HDFC Bank Limited vs Jesna Jose, III (2020) CPJ 38 (NC). A similar controversy has also recently been dealt with by the Hon’ble National Commission in State Bank Of India Vs Jarnail Singh & 2 Ors., Revision Petition No. 275 of 2021, Decided On 22 Jun 2022, wherein while deciding the case in favour of the complainant, it was held as under:-

“…..16.     From the Written Statement, I find that the Petitioner Bank except for making bald allegation against the Complainant that he himself had committed a fraud and had a hand in glove with wrongdoers, did not mention whether SMS alerts were sent and delivered to the Complainant or not and that position did not change before the State Commission. Further, the Petitioner Bank has failed to prove its contention that the Complainant was himself involved in the fraud, by adducing any evidence.  Learned Counsel appearing for the Petitioner Bank argued that the SMS alerts were duly sent to the Complainant’s registered mobile number. It is significant to mention that no such averment and pleading was made in the Written Version filed before the District Forum and on the contrary the Complainant in his Evidence Affidavit has categorically stated that he has not received any SMS alert or communication for the Petitioner Bank. It is relevant to mention here that Petitioner Bank did not even care to conduct any inquiry into the incidence  after reporting of the same  by the Complainant on 05.11.2016, when it first  came to his knowledge and furthermore, when the amount from the Complainant’s Account was transferred to another Customer of the Petitioner Bank.  From the evidence and material on record, I find that the District Forum as also the State Commission have  rightly come to a conclusion that the Bank was deficient in providing service in not sending SMS alerts or information to the Complainant about the transactions….”

12.           Thus, from the facts narrated above, it is coming out that the OPs were deficient in providing service as they failed to provide online banking security to the account of the complainants and on account of the said security lapse, the said fraudulent transactions took place.
13.             In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:
    1. To pay Rs.28,700/- to the complainants along with interest @ 4% per annum w.e.f 30.05.2020, i.e the date on which the amount of the complainants was deducted from his account, till its realisation.
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainants.
    3. To pay Rs.2,000/- as litigation costs.

        The OPs are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order. Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 

Announced on: 27.07.2022.

 

 

 

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                      President