Haryana

Kurukshetra

CC/253/2020

Randhir Singh S/o Sukhdev Singh - Complainant(s)

Versus

SBI - Opp.Party(s)

G.S. Chahal

15 Jul 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA

 

                                                                    Complaint No.:    253 of 2020.

                                                                   Date of institution:         04.08.2020.

                                                                   Date of decision: 15.07.2022

 

Randhir Singh s/o Shri Sukhdev Singh, aged about 40 years, r/o village Shanti Nagar Kurri, Tehsil Pehowa, District Kurukshetra.

                                                                                                …Complainant.

                                                      Versus

 

1. State Bank of India, Branch at Village Thol, Tehsil Pehowa, District Kurukshetra, through its Branch Manager.
2. State Bank of India, Local Head Office for UT Chandigarh & State of HP, J&K, Punjab and District of Haryana other than those mentioned under Delhi, General Manager State Bank of India, Sector-17B, Chandigarh.

 

                                                                                      ...Respondents.

 

CORAM:   NEELAM KASHYAP, PRESIDENT.    

                   NEELAM, MEMBER.

                   ISSAM SINGH SAGWAL, MEMBER.           

 

Present:       Shri G.S. Chahal, Adv. for the complainant.

                   Shri R.K. Harit, Advocate for Opposite Parties.

 

ORDER:

 

1.                This is a complaint under Section 35 of the Consumer Protection Act, 2019.

2.                It is alleged in the complaint that the complainant is old customer of OP No.1 having Saving Bank Account No.32757516255 and was having Passbook and ATM card of said account number. On 27.11.2019, he deposited Rs.2,00,000/- in that account and after deposited the same, the balance amount becomes Rs.2,00,202.15. He issued a cheque dated 27.11.2019 of Rs.1,65,000/- in favour of owner of land for paying the lease amount of land, but the same was dishonoured by OP No.1 and from Statement of Account, he came to know that on 02.12.2019 amount of Rs.40,000/- and then Rs.20,000/- were withdrawn. As such, on 03.12.2019 Rs.20,000/- and Rs.40,000/- were withdrawn. On 04.12.2019, amount of Rs.20,000/- and Rs.40,000/- were withdrawn. On 05.12.2019, Rs.10,000/- and Rs.9500/- were withdrawn. As such, total Rs.1,99,500/- were withdrawn from his said account in his absence without any passbook, ATM or cheque or without any consent. Even the OPs bank had not informed the complainant in this regard. He came to know about this fraud on 06.12.2019. After that, the complainant filed an application dated 06.12.2019 to OP No.1 and FIR No.219 dated 06.12.2019 u/ss 406 and 420 of IPC was lodged in PS Ismailabad by him and in that FIR, Dilbar Khan got anticipatory bail on 27.1.2020 from the Court of learned ASJ, Kurukshetra. He filed application dated 03.01.2020 to banking Lokpal Reserve Bank of India, Sector-17, Chandigarh in this regard. He also filed an application dated 01.02.2020 against ASI Ram Nivas to Home Minister, Haryana, Chandigarh regarding fraud and cheating. He again filed application to OP No.1 for demanding his money, which told that compensation amount of Rs.40,000/- has been allowed by competent authority, which were entered in his account on 12.05.2020, but remaining amount of Rs.1,59,500/- were not paid to him by OPs as per RBI guidelines. Having left with no other option, he served a legal notice dated 09.07.2020 to OPs demanding Rs.3,59,500/-, but OPs failed to redress his grievance despite receipt of the same, which amounts to deficiency in service on the part of OPs.

3.                Upon notice of complaint, OPs appeared and filed their written statements stating therein that the disputed amount has been withdrawn from the account of complainant through ATM card which was and is still in the custody of complainant and no one can know the ATM Pin of the card except the account holder or his near relative. SMS alerts of all these transactions had been delivered to the account holder/complainant in time on his registered mobile number. However, the complainant reported the unauthorized transactions to the OP bank on 08.12.2019 i.e. on 06^th day, whereas, the transactions took place between 2^nd December to 5^th December. The complainant had enough time after 02.12.2019 to avert the disputes transactions happened on 02.12.2019, 03.12.2019, 04.12.2019. The Liability Clause between 4^th to 7^th working day will apply on the transactions done on 02.12.2019. The complainant had blocked his ATM card on 06.12.2019. He was enough time to get his card blocked or informed to the bank after 02.12.2019. The transactions between 03.12.2019 to 05.12.2019 could have been avoided and for the negligence of complainant, he himself is liable for these transactions done between 03.12.2019 to 05.12.2019. The OPs bank could not be liable for any negligence, which was on the part of the customer. There is no deficiency on the part of OPs bank and prayed for dismissal the present complaint with exemplary costs.  

4.                The complainant, in support of his complaint tendered affidavit Ex.CW1/A along with documents Ex.C-1 to Ex.C-17 and closed his evidence.

5.                On the other hand, the OPs, in order to support their case, tendered affidavit Ex.RW1/A along with documents Ex.R-1 to Ex.R-4 and closed their evidence.

6.                We have heard the learned counsel for the parties and gone through the case file as well carefully.

7.                Learned Counsel for the complainant has argued that the complainant is old customer of OP No.1 having Saving Bank Account, Passbook and ATM card of said account number. On 27.11.2019, the complainant deposited Rs.2,00,000/- in that account and after deposited the same, the balance amount becomes Rs.2,00,202.15 and issued a cheque dated 27.11.2019 of Rs.1,65,000/- in favour of owner of land for paying the lease amount of land, but the same was dishonoured by OP No.1. From Statement of Account, the complainant came to know that total sum of Rs.1,99,500/- was withdrawn from 02.12.2019 to 05.12.2019 through various transactions from his said account in his absence without any passbook, ATM or cheque or without any consent. Even the OPs bank had not informed the complainant in this regard. After that, the complainant filed an application dated 06.12.2019 to OP No.1 and FIR No.219 dated 06.12.2019 u/ss 406,420 of IPC was lodged in PS Ismailabad by him. The complainant filed application dated 03.01.2020 to banking Lokpal Reserve Bank of India, Sector-17, Chandigarh in this regard. He further argued that the complainant again filed application to OP No.1 for demanding his money, which told that compensation amount of Rs.40,000/- has been allowed by competent authority, which were entered in his account on 12.05.2020, but remaining amount of Rs.1,59,500/- were not paid to him by OPs as per RBI guidelines, which amounts to deficiency in service on the part of OPs. To support his contentions, he placed reliance upon case laws titled HDFC Bank Limited Vs. Jesna Jose, DOD 21.12.2020 (NC); Virendra Kumar Pandey Vs. The Punjab National Bank Ltd., Consumer Complaint Nok.02/2011, DOD 31.05.2017 (State Commission, Uttrakhand, Dehradun; Shiv Kumar Vs. State Bank of India, Case No.101/2018, DOD 06.12.2021 (Lok Adalat, Publicutility Services, Kurukshetra). 

8.                Learned counsel for OPs has argued that the disputed amount has been withdrawn from the account of complainant through ATM card which was and is still in the custody of complainant and no one can know the ATM Pin of the card except the account holder or his near relative. SMS alerts of all these transactions had been delivered to the account holder/complainant in time on his registered mobile number. However, the complainant reported the unauthorized transactions to the OP bank on 08.12.2019 i.e. on 06^th day, whereas, the transactions took place between 2^nd December to 5^th December. The complainant had enough time after 02.12.2019 to avert the disputes transactions happened on 02.12.2019, 03.12.2019, 04.12.2019. The Liability Clause between 4^th to 7^th working days will apply on the transactions done on 02.12.2019. He further argued that the complainant had blocked his ATM card on 06.12.2019. The complainant was enough time to get his card blocked or informed to the bank after 02.12.2019. The transactions between 03.12.2019 to 05.12.2019 could have been avoided and for the negligence of complainant, he himself is liable for these transactions done between 03.12.2019 to 05.12.2019. The OPs bank could not be liable for any negligence, which was on the part of the customer. There is no deficiency on the part of OPs bank and prayed for dismissal the present complaint with exemplary costs. 

9.                There is no dispute that the complainant was having a Saving Bank account bearing No.32757516255 with OP No.1 branch. There is also no dispute that on 27.11.2019 an amount of Rs.2,00,000/- was deposited in that account and the balance becomes Rs.2,00,202.15 and thereafter, on 02.12.2019, 03.12.2019 and 04.12.2019, three times Rs.40,000/- each (total Rs.1,20,000/-) were transferred in the account No.38180941733 and three times Rs.20,000/- each on 02.12.2019, 03.12.2019 and 04.12.2019; Rs.10,000/- & Rs.9500/- (total Rs.79500/-) were withdrawn through ATM Card withdrawal from the said account. In this regard, the complainant intimated to the OP No.1 branch vide letter dated 06.12.2019 Ex.C-2 and got blocked his ATM Card. A FIR bearing No.0219 dated 06.12.2019 u/ss 406 & 420 of IPC was lodged against some unknown persons in Police Station Ismailabad Ex.C-3 and as such, accused/culprit was arrested, who was granted anticipatory bail by the Court of learned ASJ, Kurukshetra vide its order dated 27.01.2020 Ex.C-7. The complainant also written letter dated 06.12.2019 in this regard to Banking Lokpal, Reserve Bank of India, Sector-17, Chandigarh vide letter Ex.C-6. In this regard, the OPs credited Rs.40,000/- to the complainant, which was also not disputed by the complainant himself.
10.              The main grievance of the complainant is that on 06.12.2019, when he came to know about this unauthorized transactions of Rs.1,99,500/- from his account by some unknown person, he immediately intimated to the OPs, but they paid only Rs.40,000/- instead of full amount of Rs.1,99,500/-. He further alleged that his mobile No.9992820247 was registered with the OPs bank, which is also mentioned in his Passbook Ex.C-13, but the OPs entered the other mobile No.9467143288 in his bank record and due to that, he could not receive the SMS on his registered mobile No.9992820247 about the unauthorized transactions of the amount by some unknown from 02.12.2019 to 05.12.2019 and only came to know about that on 06.12.2019 after receiving his statement of account. He further alleged that the OPs might have noted the above wrong mobile number of him from his letters written to OPs bank Ex.C-9 & Ex.C10. As such, as per RBI Guidelines, the OPs bank are liable to refund the full amount of Rs.1,99,500/- to him.

11.              On the other hand, the OPs mainly contended that SMS alerts of transaction of 02.12.2019 had been delivered to the account holder/complainant in time on his registered mobile number 9467143288, but he reported the unauthorized transactions to the OPs bank on 08.12.2019 i.e. on 06^th day, whereas, the transactions took place between 02.12.2019 to 05.12.2019 and as such, due to delay in intimating the bank, the complainant is only eligible for the disputed transactions made on 02.12.2019 i.e. for Rs.40,000/- and Rs.20,000/-, total Rs.60,000/- and after deducting Rs.10,000/- per transaction, complainant is eligible for Rs.40,000/-, which were already credited in his account on 12.05.2020. The transactions between 03.12.2019 to 05.12.2019 could have been avoided and for the negligence of complainant, he himself is liable for these transactions done between 03.12.2019 to 05.12.2019.

12.              From the perusal of copy of Passbook of complainant Ex.C-13, we found that registered mobile number of complainant in it is mentioned “9992820247”, whereas on the other hand, the OPs had mentioned in letter Ex.R-3 that the SMS transactions alerts of all these disputed transactions had been delivered to customer’s registered mobile Number “9467143288” in time. So, from perusal of above documents, we found that the OPs entered wrong mobile number of complainant in his bank record instead of his registered mobile number and due to that, the complainant could not receive the SMS regarding unauthorized transactions of dated 02.12.2019 to 05.12.2019 on his registered mobile No.9992820247 and came to know about these transactions only on 06.12.2019 after receiving his Statement of Account. As such, on the same day, he intimated to the OPs in this regard vide letter dated 06.12.2019 Ex.C-2. No doubt, the complainant had mentioned his other mobile number i.e. 9467143288 (which was wrongly mentioned by OPs bank in the record of complainant) below his applications written to OPs Ex.C9 and Ex.C10, but mere mentioning the other mobile numbers on that applications, the OPs bank cannot change the registered mobile number of any of his customer/complainant, even otherwise, the concerned customer/complainant had made request in written to OPs bank to change his registered mobile number. No such application/written request has been made by the complainant to the OPs nor was the same produced by the OPs on the case file. As such, the OPs are deficient in services by not refunding/paying the amount to the complainant of unauthorized transactions made from 03.12.2019 to 05.12.2019, merely on the ground that after receiving the SMS of these unauthorized transactions on his registered mobile number by the complainant, he had not timely intimated to OPs bank, because the complainant had never received any SMS about these unauthorized transactions on his registered mobile number. For the sake of discussion, if the OPs bank had entered correct/registered mobile number of complainant in his bank record, then it can be assumed that the complainant might have received the SMS about the first unauthorized transactions made on 02.12.2019 and could take the necessary steps to avoid/stop the above transactions made on 03.12.2019, 04.12.2019 and 05.12.2019 respectively.   

13.              Now the question which arises for consideration is what should be the quantum of indemnification? In this regard, learned counsel for the complainant argued that due to sole deficiency in service, as per RBI Guidelines dated 06.07.2017, the OPs bank are liable to refund to him the balance amount of Rs.1,59,500/- (after deducting Rs.40,000/- already paid by them) along with the compensation amount and litigation expenses for their act of gross deficiency in service. In this regard, Clause “Limited Liability of a Customer (a) Zero Liability of a Customer” of letter dated 06.07.2017 issued by RBI Mark-A, is relevant, which reads as under:-

Limited Liability of a Customer

(a) Zero Liability of a Customer

6.       A customer’s entitlement to zero liability shall be arise where the unauthorized 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).

 

14.              From the perusal of above guidelines, we found that if there is any deficiency/negligence on the part of bank, then the liability of customer/complainant in the present case, is Zero and OPs bank is liable to refund the said amount to the complainant. In this regard, our view is also supported by the case law titled cited (supra) HDFC Bank Limited Vs. Jesna Jose, wherein, the Hon’ble National Commission, New Delhi has held that “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, straightway, 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”.

15.              So, keeping in view the ratio of the law laid down above as well as above guidelines of RBI and the facts & circumstances of the present case, we are of the considered opinion that the OPs bank not only liable to refund the full amount of Rs.1,99,500/- (after deducting Rs.40,000/- already paid) to the complainant, which was withdrawn by some unknown persons by unauthorized transactions from the account of complainant, but also liable to pay the compensation amount along with litigations expenses for their act of deficiency in service.

16.              In view of our above discussion, we accept the present complaint against the OPs and direct them jointly and severally to make the payment of Rs.1,59,500/- (1,99,500 – 40,000 already paid by the OPs to the complainant) to the complainant. The OPs are also directed to pay Rs.5,000/-, to the complainant, as compensation for mental agony and physical harassment, caused to the complainant, due to deficiency in services on their part along with Rs.5,000/- as litigation expenses. The OPs is further directed to make the compliance of this order within a period of 45 days from the date of preparation of certified copy of this order, failing which, the award amount of Rs.1,59,500/- shall carry interest @6% simple per annum from the date of this order till its actual realization and the complainant will be at liberty to initiate proceedings under Section 71/72 of the Act against the OPs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

Announced in open Commission:

Dated:15.07.2022.

    

 

                                                                                       (Neelam Kashyap)               

(Neelam)                    (Issam Singh Sagwal)                   President,

Member.                    Member.                                                 DCDRC, Kurukshetra.           
 

 

 

 

Typed by: Sham Kalra, Stenographer.