Date of Filing: 04.08.2021
Date of Judgment: 23.12.2022
Mrs. Ashoka Guha Roy (Bera), Hon’ble Member
The instant complain case has been filled under section 35 of the Consumer Protection Act 2019, by Smt. Pampiya Chowdhury, Daughter of Mr. Kishore Chowdhury of 52/B, Kalighat Road, Kolkata 700 026, being the complainant herein against the State Bank of India, Kalighat Branch, Kolkata 700 026, being the opposite Party herein on the allegation of fraudulent transaction/ withdrawal of the amount from the account of the complainant.
The factual matrix of the case is that the complainant was maintaining a Savings Bank A/c. No.11140492273, with the State Bank of India, Kalighat Branch, Kolkata. The complainant was provided ATM Card against the said Savings Bank Account in the last week of October, 2020. On 01/11/2020 the complainant got numerous SMS from SBI IIN, then found her own ATM was blocked, and even the YONO App stopped working. On 02/11/2020 the complainant found that balance amount of Rs. 878.00 only remained in her account. The complainant informed the matter to the bank authority and made a complaint regarding fraudulent withdrawal of amount from Savings Bank Account. The complainant subsequently found that her four fixed deposits being no. 32948915419, 36902406669, 38777067958 and 3449607990 totaling an amount of Rs. 2,68,300.00 has been fraudulently withdrawn from the Bank. At once the complainant brought the matter to the notice of the bank authority and asked for redressal. The bank authority in reply informed the complainant that an amount of Rs. 22,000.00 had been returned twice to the account of the complaint.
That the complainant states that as per banking rules after getting the information of fraudulent withdrawal of the money from the account the bank authority should investigate the matter properly and arrange for repayment of the same to the customer but the bank authority has not done anything till date.
The complainant apart from making complaint to the bank authority also made complaint to the Cyber Crime Department Kolkata Police for investigation but till date the grievances of the complainant has not been redressed.
That the complainant under such circumstances finding no other alternative has to come up with this application before the Commission praying for an order directing the opposite party bank to pay the amount i.e. Rs. 3,01,881.00/- along with interest thereon in respect of alleged fraudulent withdrawal of the amount from the account of the complainant and also for a compensation of Rs, 1,00,000/- and for the litigation cost of Rs.30,000/-.
In support of her complaint petition the complainant files the following documents:-
1. Affidavit –in-chief
2. Brief Notes Of Argument
3. State Bank Of India ‘s pass book of the complainant
4. Fixed Deposit Certificates bearing nos.34948915419, 36902406669, 38777067958, 3449607990
5. F.I.R. lodged before the Kalighat Police Station dated 03/11/2020.
Kalighat P.S. / DP Case No. 133, dated 03.11.2020 u/s. 12 OB/420/467/468/471 IPC
6. Letter to Branch Manager SBI, Kalighat Branch dated 02/11/2020.
7. Reminder Letter to the Branch Manager, dated 01/12/2020
8. Letter to Deputy Commissioner of Police dtd. 03/11/2020
9. Letter to Branch Manager of SBI dtd.01/12/2020
10. Letter to General Manager SBI dated.02.02.2021 duly acknowledged by the Branch Manager, Kalighat Branch.
- Complain to the RBI, dated 03.12.2020
12. Details of bank statements from 27.10.2020 to 02.11.2020 and 01.11.2020 to 28.01.2021.
13. Letter received through e-mail from Banking Ombudsman Office dated 30/06/2021.
On perusal of the record it appears that in spite of service of notice Opposite Parties did not turn up and thus vide order dated 10.08.2022 the case was directed to be proceeded ex parte.
So, the only two point requires determination is whether there was any deficiency on the part of Banking Authority in providing service to the customer? And whether the complainant is entitled to the relief as prayed for?
Decision with reasons
It is an admitted fact that on 1.11.2020 an amount of Rs.2,68,000/- from her F.D. Accounts and Rs.55,581/- from her Savings Bank account vide A/C NO. 11140492273 was withdrawn from the complainant’s account, which is alleged that those transactions were not executed by her. It is also admitted by the complainant that on 1.11.2020 at around 5 p.m. upon receiving a call from a mobile no, 8167392960 to her mobile no, 9903133408 when the caller introduced himself as a bank Officer from SBI , Kolkata Head Qtr Samriddhi Bhawan, Kolkata, by easily believing on good faith she shared everything regarding her new ATM Card for KYC up-gradation. After few minutes she received several SMS from SBI one after another, near about 60 SMS, and by that time her YONO app was also disabled and her ATM Card was automatically blocked. It is also a fact that the complainant without wasting any time made complaint to the bank on that day itself as well as lodged a complaint with the Banking Ombudsman and also brought the matter into the notice of Kalighat P.S. and lodged an F.I.R. dtd.3.11.2020.
Upon the aforesaid complaint made to the Bank, in response to the said complaint the Bank has sent a message from JD-CBSSBI regarding three shadow accounts all amounting to Rs. 9996/- against ticket no. OUI9992266433751, OUI9992266433742 and OUI9992266433755 respectively and it is informed that Rs.9996 had been returned twice to the account of the complainant and the bank never gave any clear explanation regarding the alleged transaction neither did any thorough investigation.
The Statement of Account issued by the Bank reveals that the complainant had a clear balance of Rs.55581.72 as on 1.11.2020 in her Savings Bank Account No. 11140492273.
For the sake of argument if we consider that due to sharing of confidential information of the ATM Card to the alleged fraudster, the amount of .Rs. 55581.72 may have been fraudulently withdrawn. But it is astonishing how could the miscreants got access over the FD Certificates which were to be matured on 15.12.2020. 23.5.2021, 24.11.2020 and 18.9.2021 respectively, without the standing instruction of the depositor the amount of Rs.2,68,000/- be credited/ transferred to her savings bank account and duly got encashed/liquidated before the maturity date particularly on the date of fraudulent transaction i.e. on 1.11.2020 itself? Even though the complainant never shared any detail of the said F.D. Accounts. Thus there remains no doubt that the account must have been manipulated, and it is the deficiency on the part of the bank authority for not maintaining the security & safety of the customer’s account.
Merely by sharing the ATM details how can a person get access over the card, as it is known to all that unless a person in possession of the relevant ATM Card and knows the four digit PIN, the ATM Card cannot be used and operated. In this case the ATM Card was in her possession, neither anyone had access to it nor was it ever missing except that she shared the card number to the fraudster, after which the alleged fraudulent transaction took place. Under these circumstances it is obvious that the miscreants somehow managed to get access over the complainant’s account number due to lack of security and latches on the part of the Bank for not maintaining the proper security of the customer’s special account i.e. F.D. Account. One thing it is certain that where bank is providing service to its customer, it owes duty to exercise reasonable care to protect the interests of the customer. Needless to say that a bank owes a duty to its customers to take necessary steps to prevent unauthorised withdrawals from their accounts. It is the obligations of the bank to provide safe electronic banking environment to combat all forms of malicious conducts resulting in loss to their customers. The basis of the said obligation is the implied term in the contract entered into by the Banks with their customers to exercise care to protect their money from transactions not authorised by them. Thus there is no difficulty in holding that if a customer suffer loss in connection with the transactions made without her junction by fraudsters, it has to be presumed that it is on account of the failure on the part of the bank the loss was caused to the complainant.
Hence we are of the view that the opposite party Bank is responsible for the fraudulent use of the ATM Card, since it breached the security and safety in ATMs and is thus clearly a case of deficiency in service. As per banking rules after getting the information of fraudulent withdrawal of the money from the account the bank authority should investigate the matter properly and arrange to repayment of the same to the customer but the bank authority has not done anything as yet. As the O. P. bank is refrained from challenging the complaint so there is no contrary material to counter or rebut the claim of the complainant.
Thus we find that there is deficiency of service on the part bank which has been established.
Thus bank is liable to the refund the complainant to the extent of amount that has been fraudulently withdrawn from the F.D. Account of the complainant to the tune of Rs. 2,68300.00. However there shall be no order as to compensation as the interest amount is awarded to the complainant in the form of compensation.
Hence,
It is
ORDERED
That the complaint case bearing number CC/335/2021 is allowed ex parte.
The O. P. is directed to pay Rs. 2,68,300/- along with interest @ 9% on the said amount within three months with effect from 01.11.2020 in default the entire sum shall carry interest @10% p.a .till realization.
The O. P is further directed to pay a sum of Rs. 10,000/- as litigation cost to the complainant within the aforementioned date.
