Order by:

Sh.Amrinder Singh Sidhu,  President.

1.       The   complainant has filed the instant complaint under section 35 of  the Consumer Protection Act, 2019 on the allegations that she is a government teacher and is holder of Saving Bank account bearing No. 4750000400002927 with Opposite Party No.2 bank. The complainant has availed the facility of ATM cum Debit card from the Opposite Parties bank and said number is linked with the mobile number of the complainant for SMS alerts regarding any transaction done by using the ATM cum Debit card. The ATM card always remains in possession of the complainant and she never shared OTP or password or pin or CVV number with anyone. Further alleges that on Sunday i.e. 21.02.2021 the complainant received a message on her mobile phone that her account is debited with Rs.4000/- and after few minutes, the complainant again received a message that hr account debited with Rs.4000/-. The complainant immediately called the helpline number of the Opposite Parties and blocked her ATM cum Debit card services/ UPI services in all accounts liked with the mobile number of the complainant. Photo copy of screen shot of message received on 21.02.2021 and blocking of ATM cum debit card/ UPI services are attached as Ex.C4 and Ex.C5. On the very next day i.e. 22.02.2021 the complainant enquired the matter from Opposite Party No.2 bank and on getting the statement of account, it transpired that many fraudulent withdrawals/ transaction shave been done from the account of the complainant. The complainant was surprised to see that the complainant received the messages regarding transacting made by the complainant herself; however, it is pertinent to mention here that excepts from receiving above said two messages on 21.02.201 regarding fraudulent withdrawals, no other message has been received by the  complainant on her mobile phone regarding fraudulent withdrawals. There are about 133 fraudulent transactions/ withdrawals occurred in the account of the complainant between 01.02.2021 to 21.02.2021 and the complainant received only two messages regarding fradulent withdraws from the Opposite Parties. Had the complainant received the message on 02.01.2021, the complainant should have immediately blocked her ATM cum Debit card services and could surely save Rs.1,40,660/-, but this could not be happened because of the deficiency in service on the part of the Opposite Parties.  In this regard, the complainant lodged the complaint with the Opposite Parties, but no action has been taken by the Opposite Parties and rather delaying the matter without any rhyme or reason. Thereafter, the complainant visited the office of the Opposite Parties on so many times, but the Opposite Parties refused to admit the rightful claim of the complainant.  In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant left with no other alternative but to file the present complaint.  Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties may be directed to pay Rs.1,40,660/- alongwith interest @ 12% per annum fro the date of filing o the complaint till its realisation and also to pay Rs.1 lakh as compensation for mental tension ad harassment and  Rs.55,000/- as costs of litigation and any other  or any other relief to which this District Consumer Commission may deem fit be also granted.

Hence, the present complaint is filed by the Complainant  for the redressal of  their grievances.

2.       Opposite Parties appeared through counsel and contested the complaint by filing  the written version  on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Party and that the complaint is absolutely false and frivolous. It is submitted that the complainant has intentionally and wilfully concealed the material facts that the complainant has received SMS messages for each and every withdrawal that occurred from the account of the complainant and thereafter the complainant made up a plan to harass and blackmail the ops and to extort huge money from the Opposite Parties by leveling false and baseless allegations. In fact, the complainant has received SMS messages for the withdrawals including the period from 21.01.2021 to 21.02.2021 and as such, there is no deficiency in service on the part of the Opposite Parties. The Opposite Parties demanded the details of SMS messages i.e. transaction details through Paytm Cybercell team  and the said team has sent email of the detail to the Opposite Parties  and the details clearly shows that the SMS messages for each and every transaction have been sent to the complainant. Moreover, the complainant has pleaded in the complaint that there are about 133 fradulent transactions. However, generally the fradulent persons commit fraud regarding entire amount or major amount lying in bank account, but it is very strange that in the present case the alleged fraud has been committed through 133 transactions and all the transactions are very small, inspite of the fact that huge amount is always lying in the bank account of the complainant. All these facts clearly show that all the transactions have been made by the complainant or by some one else under authority of complainant and the complainant has full knowledge regarding all the transactions and person who has made the transactions and the complainant has made the transactions and the complainant has also full knowledge regarding what is destination of the amounts and what is the purpose of sending the amount through different transactions and she has also received SMS messages and all the transactions  in dispute are not fradulent transactions but said transaction shave been duly made by the complainant or by any other person having authority of complainant. Hence, there is no deficiency in service on the part of the Opposite Parties and hence, the complaint against Opposite Parties may please be dismissed.   

3.       In order to prove her case, the complainant has tendered into evidence  affidavit  of complainant Ex.C1 alongwith copies of documents Ex.C2 to Ex.C10 and closed the evidence.

4.       On the other hand, to rebut the evidence of the complainant,  Opposite Parties tendered into evidence  the affidavit of Sh.Ikwant Singh, Branch Manger Ex.OP1 alongwith copies of documents Ex.OP2 and Ex.OP3 and closed the evidence on behalf of Opposite Parties.

5.       We have heard the ld.counsel for the complainant as well as ld.counsel for the Opposite Party and also gone through the documents placed on record.

6.       During the course of arguments, ld.counsel for the Complainant as well as ld.counsel for Opposite Party   have mainly reiterated the facts as narrated in the complaint as well as in the written statement respectively. We have perused the rival contentions of  the parties and also gone through the record on file. The main contention of the complainant is that on 21.02.2021 the complainant received a message on her mobile phone that her account is debited with Rs.4000/- and after few minutes, the complainant again received a message that hr account debited with Rs.4000/-. The complainant immediately called the helpline number of the Opposite Parties and blocked her ATM cum Debit card services/ UPI services in all accounts liked with the mobile number of the complainant. Photo copy of screen shot of message received on 21.02.2021 and blocking of ATM cum debit card/ UPI services are attached as Ex.C4 and Ex.C5. On the very next day i.e. 22.02.2021 the complainant enquired the matter from Opposite Party No.2 bank and on getting the statement of account, it transpired that many fraudulent withdrawals/ transaction shave been done from the account of the complainant. The complainant was surprised to see that the complainant received th4e messages regarding transacting made by the complainant herself; however, it is pertinent to mention here that excepts from receiving above said two messages on 21.02.201 regarding fraudulent withdrawals, no other message has been received by the  complainant on her mobile phone regarding fraudulent withdrawals. There are about 133 fraudulent transactions/ withdrawals occurred in the account of the complainant between 01.02.2021 to 21.02.2021 and the complainant received only two messages regarding fradulent withdraws from the Opposite Parties. Had the complainant received the message on 02.01.2021, the complainant should have immediately blocked her ATM cum Debit card services and could surely save Rs.1,40,660/-, but this could not be happened because of the deficiency in service on the part of the Opposite Parties. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that in fact, the complainant has received SMS messages for the withdrawals including the period from 21.01.2021 to 21.02.2021 and as such, there is no deficiency in service on the part of the Opposite Parties. The Opposite Parties demanded the details of SMS messages i.e. transaction details through Paytm Cybercell team  and the said team has sent email of the detail to the Opposite Parties  and the details clearly shows that the SMS messages for each and every transaction have been sent to the complainant. Moreover, the complainant has pleaded in the complaint that there are about 133 fradulent transactions. However, generally the fradulent persons commit fraud regarding entire amount or major amount lying in bank account, but it is very strange that in the present case the alleged fraud has been committed through 133 transactions and all the transactions are very small, inspite of the fact that huge amount is always lying in the bank account of the complainant. All these facts clearly show that all the transactions have been made by the complainant or by some one else under authority of complainant and the complainant has full knowledge regarding all the transactions and person who has made the transactions and the complainant has made the transactions and the complainant has also full knowledge regarding what is destination of the amounts and what is the purpose of sending the amount through different transactions and she has also received SMS messages and all the transactions  in dispute are not fradulent transactions but said transaction shave been duly made by the complainant or by any other person having authority of complainant. But we are of the view that the Opposite Parties-Bank cannot rely on arbitrary terms and conditions to wriggle out of its liability towards customers and any such terms and conditions must be in conformity with the directions issued by the RBI which is responsible 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. The first unauthorized transaction took place between 01.02.2021 to 21.02.2021. Admittedly, the said transactions were observed by the Bank itself.  In this regard, the complainant made requests to the Opposite Parties and also blocked the ATM cum Debit Card on the very next day, but despite the information, the Opposite Parties did not pay any heed to the request of the complainant.    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 all the 133 unauthorized transactions which were effected between 01.02.2021 to 21.02.2021. The RBI circular as well decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Punjab National Bank and Anr. V Leader Valves II (2020) CPJ 92 (NC), are both squarely applicable in the present matter. In this case the Hon’ble National Consumer Disputes Redressal Commission, New Delhi  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."

 Reference is also 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."

Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case HDFC Bank Limited Vs. Jesna Jose in Revision Petition No. 3333 of 2013 decided on 21.12.2020 also held so.  In this regard, Hon’le Kerala High Court in case State Bank of India Vs.P.V.George in RSA No.1087 of 2018 , decided on 09.01.2019 also held that ‘unauthorised withdrawal from accounts of customers- if a customer suffers loss on account of the transactions not authorised by customers, bank is liable to customer for the said loss.”  

7.       We are also of the view that due to non taking action on the part of the concerned official (s),  the complainant has suffered great mental tension, harassment and financial loss and she was compelled to file the present complaint for the redressal of her grievances. In this regard,  Hon'ble Apex Court in case “Lucknow Development Authority versus M.K.Gupta” 1993 CTJ 929 (SC) (CP)  has strongly criticized such arbitrariness on the part of the officers of the public authorities. In the said case, the Hon'ble Apex court has observed that:

"the authority empowered to function under a statute while exercising power discharges public duty. It has to act to observe general welfare in common good. In ordinary matters a common man, who has neither the political backing nor the financial strength to match the inaction in public oriented departments, get frustrated and it erodes the credibility in the system where it is found that exercise of discretion was malafide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under any protective cover. The court further directed the department concerned to pay the amount to the complainant from the public fund immediately, but to recover the same from those who are found responsible for such unpardonable behavior by dividing it proportionately where there are more than one functionary.”

A similar matter arose before the National Consumer Disputes Redressal Commission in Dr.R.Jagan Vs. Director, Motor Vehicles Maintenance Department, 2007 CTJ 377 (CP) where a compensation of Rs.50,000/- has been awarded.  Lateron New Delhi District Consumer Forum (now Commission) has awarded compensation of Rs.30,000/- to a senior citizen as misbehaved by Postal Department counter clerk at GPO where he was made to wait for several hours for withdrawal of money from his account.

8.       Keeping in view the aforesaid facts and circumstances, we hold that the Opposite Parties are deficient in rendering services  on account of unauthorised withdrawal from the account of the complainant and hence,  we  partly allow the complaint of the complaint and direct Opposite Parties to make the payment of Rs.1,40,660/- (Rupees one lakh forty thousands six hundred sixty only) within 60 days from the date of receipt of copy of this order. The Opposite Parties-bank is also directed to fix the responsibility of the concerned erroring officials and deduct the awarded amount from the salary of the said erroring official (s) and thereafter report to this Commission within the above-mentioned stipulated period.  Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Commission.

Dated:11.07.2022.