DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.23/2016
Sh. Jarnail Singh Senior Citizen
R/o G 8/6, 2nd Floor, (86 years old)
Malviya Nagar,
New Delhi-110017 ….Complainant
Versus
1. The Manager/Concerned Office
Punjab National Bank
D-80, Guru Gobind Singh Marg,
DDA Flats, Malviya Nagar,
New Delhi-110017
2. The Manager/ Concerned Officer
State Bank of India
Bawana Road, Narela,
New Delhi-110040
3. The Manager/Concerned Officer
Vodafone Mobile Services Limited (VMSL)
B-1/H-5, Mohan Co-operative Industrial Estate,
Mathura Road, New Delhi-110044 ….Opposite Parties
Date of Institution : 25.01.2016 Date of Order : 13.12.2017
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Briefly stated, according to the complainant due to his old age and poor health he resides with his married daughter at the aforesaid address. He was getting the monthly pension of an amount of about Rs.32,324/- through OP No.2 bank since 1993 when he was retired. He was also having ATM card No.6220180681200046040 issued by OP No.2 to withdraw the amount. The complainant used his SBI card lastly on 22.09.15 to withdraw the amount of Rs.10,000/- at about 12.30 p.m. from the ATM of OP No.1 and thereafter the complainant did not use it for more than one month and the ATM card was kept safely by the complainant in SBI ATM cover. It is stated that on 05.11.15 the complainant came to know that a cheque No.909873 issued by him in favour of BSES had been bounced due to lack of funds in his saving bank account. Consequently, the complainant asked his daughter to take out mini-statement using ATM card available with him. The complainant contacted SBI helpline to know his account status and he came to know that the entire amount in his saving bank account had been withdrawn/transferred to some other account without his knowledge/consent. His daughter, Dr. Simmi K Rattan on his behalf made a complaint with police first at 100 number through channel No.142 on 06.11.15 and on the same day a written complaint No.57B was registered with P.S. Malviya Nagar against the fraudulent withdrawal of money from the saving bank account of the complainant. It is submitted that the OP No.2 had provided the facility/services for SMS alert regarding the transaction of the amount/account status and this chargeable service of receiving ATM alert was ‘on’/activated throughout against his customer I.D. in SBI branch. The complainant’s mobile number 9013568280 is registered under KYC documents with OP No. 2 bank. The complainant has been regularly updating the OP No. 2 bank about his KYC details each year. It is stated that the complainant neither received any SMS from the OP No.2 bank as well as from OP No.3 nor any letter/account statement/telephonic communication from banks towards such frequent repeated unusual withdrawals of heavy amounts from his account by use of ATM card of the complainant, from variable ATMs those located outside Delhi so as to leave it almost vacant. No messages were received even while the amount in the account fell below the minimum balance to maintain the account. When the grievance of the complainant was not redressed by the OPs, the complainant sent a legal notice dated 28.12.2015 to the OPs but the OPs did not respond. Hence, pleading deficiency in service on the part of the OPs, the complainant has filed the present complaint for issuing the following directions to the OPs:
- to pay claim amount of Rs.6,88,456/- to the complainant alongwith interest @ 24% p.a. within minimum time period,
- to pay Rs.1,00,000/- to the complainant for causing mental agony and harassment,
- to award cost of complaint.
OP No.1 in the written statement has inter-alia stated that the complainant used his SBI ATM Card on 22.09.15 to withdraw Rs.10,000/- at about 12.30 p.m. from Punjab National Bank ATM situated at D-80, Malviya Nagar, New Delhi. It is denied that “the complainant did not use for transactions with the card thereafter for more than a month for want of information.” It is further denied that at the end of transaction, the ATM card was kept safely by the complainant in SBI ATM cover. OP No.1 has prayed for dismissal of the complaint.
OP No.2 in the written statement has inter-alia stated that the complainant by his own conduct has passed on the PIN to some other person who misused the account of the complainant by using the PIN and the card and did successful transactions from the ATM at various stations mentioned in the documents filed by the complainant, namely, Kent Khan Pur, Dehradun Main, Khan Pur Main, Rail Bajar, Kanpur, Patna Main, Meerut Kent, Patiala, Nuh (Haryana) etc. at different stations/locations which clearly indicate that not only the PIN but also ATM card was seized and possessed by the operator of the said account which he/she did during the period 01.08.15 to 21.11.15 as per statement of account/transaction inquiry. It is stated that possibility of committing the crime himself by the complainant or his nearer dearer cannot be ruled out because the ATM Card & PIN are to be stored in a safe custody and for any lapse/negligence of the cardholder, the bank cannot be held liable and responsible. It is submitted that as per agreed terms and conditions, the complainant was required to keep ATM Card and PIN in his safe custody and possession. He was not required to part with or leak-out the same even to his own family members. But it clearly appears that the complainant had not kept the ATM card in his safe custody and had allowed misuser thereof deliberately and malafidely with intention to extort money and encroach upon the goodwill of the bank. It is stated that dishonouring of cheque issued to BSES due to lack of fund in the saving bank account of the complainant does not have any fault on the part of OP No.2. The account statement showed the true statement what is transacted either by the complainant or through whom by somebody else. There is reasonable apprehension of collusion with some other person to extort money from the OP No.2 bank. It is stated that the KYC maintained with the OP No. 2 for making alert to its customer and that the SBI has done successfully, there is no deficiency in service on its part. However, because of technical problem, difficulty in net banking cannot be ruled out but the same cannot constitute a deliberation or negligence amounting to deficient service. It is prayed that the complaint be dismissed.
In the written statement OP No.3 has inter-alia stated that the OP No.3 is only a mobile service provider. It is admittedly not the complainant’s banker nor it is responsible or capable of performing any banking services for the complainant qua the complainant’s bank account with the OP No.2. It is submitted that the action of sending of SMS with regard to any transaction lies solely with the OP No.2 who acts at the instruction of the customer i.e. the complainant. The OP No. 3 being the mobile service provider plays no part in the entire process and as such even assuming for the sake of arguments, without admitting, that the complainant had activated SMS alert qua his mobile number with the OP No.2 and had specified/directed the OP No.2 to issue alerts to him for the impugned and alleged illegal transactions, the OP No.3 had absolutely no role to play in the entire process since it was not responsible for issuance of any SMS in this regard to the complainant. There is no deficiency in service attributable to OP No.3 which can be said to have caused any loss or agony to the complainant. OP No.3 has prayed for dismissal of the complaint.
Complainant has filed separate rejoinders to the written statement of OP No.2 & 3.
In the rejoinder to the written statement of OP No.2 complainant has inter-alia stated as hereunder:-
“ SBI, OP-2 cannot take excuse of technical problem/difficulty in net-banking for not informing the complainant about unfamiliar transactions from his account. The money was running out of the bank each day and this amount was significant being the only source of income of a senior citizen. Moreover, the “SMS alert” which was facing “so called technical problem immediately resumed back to “normal” once the saving bank account of complainant was totally evacuated (Page 47 of case). This implies that whole act was planned and deliberate and not only there is negligence but also deliberate commission on part of SBI, such that sms alerts were deliberately blocked during period of irregular transaction denying all opportunities to the complainant to intervene at appropriate time.”
Complainant has filed his own affidavit in evidence. Affidavit of Ms. Nidhi Soni, Manager has been filed in evidence on behalf of the OP No.3.
OP No.1 & 2 have failed to file their respective affidavit in evidence.
Parties have also not filed written arguments.
We have heard the arguments on behalf of the complainant and OP No.2 & 3 and have also gone through the file very carefully.
A circular bearing No.RBI/2017-18/15 DBR.No.Leg.BC.78/ 09.07.005/2017-18 dated 06.07.2017 on the subject “Customer Protection- Limiting Liability of Customers in Unauthorised Electronic Banking Transactions” has been filed on behalf of the Complainant. This circular has been issued with referent to RBI’s Circular DBOD.leg.BC. 86/09.07/2001-02 dated 080.04.2002. The relevant portions of the same are reproduced hereunder:-
“5. Banks must ask their customers to mandatorily register for SMS alerts and wherever available register for e-mails alerts, for electronic banking transactions. The SMS alerts shall mandatorily be sent to the customers, while email alerts may be sent, wherever registered. The customers must be advised to notify their bank of any unauthorized electronic banking transaction at the earliest after the occurrence of such transaction, and informed that the longer the time taken to notify the bank, the higher will be the risk of loss to the bank/customer. To facilitate this, banks must provide customers with 24 x 7 access through multiple channels (at a minimum, via website, phone banking, SMS, e-mail, IVR, a dedicated toll-free helpline, reporting to home branch, etc.) for reporting unauthorized transactions that have been taken place and/or loss or theft of payment instrument such as card, etc. Banks shall also enable customers to instantly respond by “Reply” to the SMS and e-mail alerts and the customers should not be required to search for a web page or an e-mail address to notify the objection, if any. Further, a direct link for lodging the complaints, with specific option to report unauthorized electronic transactions shall be provided by the banks on home page of their website. The loss/ fraud reporting system shall also ensure that immediate response (including auto response) is sent to the customers acknowledging the complaint along with the registered complaint number. The communication systems used by banks to send alerts and receive their responses thereto must record the time and date of delivery of the message and receipt of customer’s response, if any, to them. This shall be important in determining the extent of a customer’s liability. The banks may not offer facility of electronic transactions, other than ATM cash withdrawals, to customers who do not provide mobile numbers to the bank. On receipt of report of an unauthorized transaction from the customer, banks must take immediate steps to prevent further unauthorised transactions in the account.
Limited Liability of a Customer
(a) Zero Liability of a Customer
6. A customer’s entitlement to zero liability shall arise where the unauthorised transaction occurs in the following events:
i. Contributory fraud/negligence/deficiency on the part of the bank (irrespective of whether or not the transaction is reported by the customer).” (emphasis given by us).
Burden of Proof.
12. The burden of proving customer liability in case of unauthorised banking transaction shall lie on the bank.” (Emphasis given by us).
.
It is, no doubt, true that the date of the circular is 06.07.2017. But this has been issued with reference to Circular dated 08.04.2002. Moreover, it is a matter of common knowledge that SMS alert services are being provided by the nationalized banks as well as private sector banks since long. Therefore, where a customer has availed this facility from his/ her bank, it is the mandatory duty of the bank to send SMS alert message to the customer as and when some transaction is made from his/ her bank account or ATM or debit card or credit card. In case of failure on the part of bank to send an SMS alert to the customer in such a case the bank cannot escape from its liability on the analogy of clause 6(i) of the Circular reproduced hereinabove.
Case of the complainant is that after withdrawing Rs.10,000/-from the ATM of OP-1 on 22.09.2015 through his SBI ATM card No. 6220180681200046040, he did not use the said card till 05.11.2015. On the other hand, the case of OP-2 inter-alia is that the complainant had by his own conduct passed on the PIN to some other person who had misued his account by using the PIN and also the card and did successful transactions from the ATM from various stations as mentioned in the reply/ written statement and hence no deficiency in service is made out against OP-2.
Let us proceed to examine and decide this issue. In its written statement, OP-1 has stated that the complainant had withdraw Rs.10,000/- by using the SBI ATM Card on 22.09.2015 at about 12.30 PM.
It is not the case of OP-1 that thereafter the complainant had ever come to its ATM for withdrawal of any money.
The complainant has filed the copies of the statements of account as annexure-C (pages 23 to 35) and annexure-4 (pages 36 to 42). The same are the copies of the transactions taken place with effect from 22.09.2015 by using the SBI ATM card in question.
From a perusal of these statements, there is every reason to believe that as many as four transactions of Rs.10,000/- each had been done from OP-2’s branch in Kanpur and as many as four transactions of Rs.10,000/- each on 22.09.2015 and one transaction of Rs.10,000/- through “Core transaction” from one ATM ID No. D3064700, branch code 06812, Account No. 00000010679599109; four transactions of Rs.10,000/- each on 23.09.2015; seven “Core transaction” of Rs.10,000/- each on 23.09.20105 from Kanpur branch of OP-2 (totalling to Rs.1,10,000/-).
We are told that the meaning of the “Core transaction” is net banking.
We have reason to believe that at least ATM transactions/ Core transactions to the tune of Rs.1,10,000/- cannot be allowed to be done by the bank to a particular customer through the ATM Card in one day as has been done by using the SBI ATM Card in question of the complainant on 23.09.2015. The statement for the further period also provides that further transactions in respect of the ATM card in question had been done from the same ATM ID stated to be from Kanpur branch of OP-2 or from other different branches located at different locations by using the ATM Card in question for withdrawing up to Rs.80,000/- (29.9.2015) and Rs. 1,75,000/- on 30.09.2015. The further entries also provide that on different dates the ATM card in question had been used many times to withdraw the amounts from different ATM at different locations.
Now, the case of the gullible complainant is that he was never sent any SMS alert on his mobile phone though he had got the SMS alert facility activated on his mobile phone through OP-3. The case of OP-2 in this regard is that there is reasonable apprehension of the complainant being in collusion with some other person to extract money from OP-2 bank; the KYC maintained with OP-2 for making alert to his customer is there and SBI has done successfully; however, because of technical problem, difficulty in net banking cannot be ruled out but the same cannot constitute a deliberation or negligence amounting to deficient in service. Thus, admittedly the case of OP-2 is that the complainant had maintained the KYC with OP-2 and had activated the facility of getting SMS alert messages from OP-2 after each transaction taken place by using the ATM card in question.
OP-2 may be correct in saying that because of technical problem SMS alert could not be sent. This may happen once or twice but atleast not continuously for the period of 22.09.2015 to 05.11.2015 and that too when transactions worth over Rs.l,00,000/- was being done from the ATM Card in question in one single day.
Therefore, in our considered opinion, OP-2 bank has taken very self collapsible and fallacious plea that non-sending of SMS alert to the customer cannot constitute a deliberation or negligence amounting to deficiency in service. After all activation of SMS alert is not a game to be played by a person for his/ her fun and pastime. This is a very very important, legal and valuable facility being provided by the banks to their customers and as soon as some transaction is done through their bank account or through their ATM cards, they may get an alert and in case there is a wrong transaction customer may report the matter to the concerned bank and/ or local police. This is not an empty formality which can be taken in such a lighter manner with no amount of responsibility. Therefore, we do not think that OP-2 is justified in taking such a lame excuse for not sending SMS alerts to the complainant in respect of the heavy transactions done by using the ATM card in question continuously for about 45 days.
We are not oblivious of the fact that in her statement recorded on 17.02.2016, the daughter of the complainant stated that due to his old age, the complainant who is her father used his ATM card himself very rarely; that either she or her husband used his ATM card; that sometimes he (the complainant) also takes the help and assistance of some persons not related to him present in the ATM booth; however, according to her the main grievance of her father is that on 29.09.2015 onwards whenever his ATM card was used by anyone, her father did not get SMS alert from the bank. It may be correct that some other persons had used the ATM card in question on behalf of the complainant but, however, since the transactions during the intervening period from 22.09.2015 to 05.11.2015 were being made from different locations in the county by using the ATM card more than once or even upto the amount of Rs. 1,75,000/- in one single day, the collusion of the OP-2 bank officials also cannot be ruled out. There is also great possibility that keeping in view the old age of the complainant and that he had been getting help of others sometimes while using his ATM card, the officials of OP-2 bank had got collusion with some unscrupulous person/s and had given his ATM card number, PIN number to use it from different locations in the country.
Therefore, in the facts and circumstances of the case discussed hereinabove, we are of the considered opinion that non-sending of SMS alerts on the mobile phone of the complainant by OP-2 bank continuously w.e.f. 22.09.2015 to 05.11.2015 was a gross act of deficiency in service which led to withdrawal of Rs.6,88,456/- from the bank account of the complainant through his ATM card in question.
In view of the above discussion, we hold OP-2 State Bank of India guilty of deficiency in service and direct OP-2 to pay Rs.6,88,456/- alongwith interest @ 6% per annum from the date of filing of the complaint till its realization to the complainant within 60 days from the date of receipt of copy of this order failing which OP-2 shall be liable to pay the said amount of Rs.6,88,456/- alongwith interest @ 9% per annum from the date of filing of complaint till its realization. In the facts and circumstances of the case, we do not award any compensation towards mental agony etc. or cost of litigation to the complainant. Complaint stands disposed off accordingly.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 13.12.17
