ORDER DELIVERED BY SHRI. G.M. KUMBAR,

HON’BLE PRESIDENT

1. This complaint is filed by the complainant U/Sec.12 of Consumer Protection Act, 1986 seeking direction against opposite party (herein after referred to as OP) to repay withdrawal amount of Rs.48,483/- with interest and to pay compensation of Rs.25,000/- towards mental shock and also to pay Rs.10,000/- towards cost on the allegations of deficiency in service.

2. Brief facts of the case are as hereunder:-

The complainant is A/c holder of OP Bank under S.B.A/c No.10638186054 and that on 02/04/2018 there was balance amount of Rs.48,483.12ps in her S.B.A/c. On 14/04/2018 Rs.4,998/- & Rs.19,998/- total Rs.24,996/- was withdrawn from her S.B.A/c without knowledge and this fact came to know through SMS and immediately she approached the OP Bank and enquired the Manager and also gave written letter to Hold the account. At that time there was a balance of Rs.23,487.12 available in the account. Accordingly the account was hold by the bank. On 7/06/2018 the Branch Manager withdrawn the said amount without any intimation to complainant and made zero balance in her account. But the complainant never withdrawn any amount. This act of OP amounts to deficiency in service. Hence this complaint.    

3. The OP appeared through counsel and filed written version admitting that the complainant is the S.B. A/c holder of OP bank. It is contended that the complaint filed against the Shri. Ratnakar Hebbar in his personal capacity and he is not custodian of the account or maintained the account and he is not providing any facility connected to S.B.A/c and complaint is not maintainable against the OP in his personal capacity and he is only the employee of the SBI and if there is any deficiency in service on the part of the bank during e-transaction. The OP submitted that ATM of any bank is connected with ATM Switch Center (ASC) as mediator for the ATM transaction and when any customer inserts the ATM card of any bank to ATM Center of any bank or goes for online transaction, it will directly link to the ASC (ATM Switch Center) and it will read the credential of the customer and verify the account of the client of the particular bank regarding the balance money. After confirmation of the balance amount, the cash will be disbursed first by ASC not by the bank and in case of online transaction the same thing applies. After disbursement of the cash from the ATM, the ASC will recover the money from the concerned bank from the concern account of the account holder and these transactions take some time to get reflected in the account. The OP further submitted that the complainant being customer has availed the ATM and mobile SMS facilities and she has disclosed the Card number and CVV number written on the ATM card to some unanimous call of the unknown persons or hackers and however the ATM card being secured one, to complete the transaction, OTP received on the mobile needs to be used.  It is further submitted that Customer has disclosed this OTP received on her mobile to the fraudster in all the three transactions and accordingly the following amount has been withdrawn by using the ATM  Card and OTP of the complainant:

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4. The OP submitted that at the time of transaction at 16:49:57 hours her amount was not debited from the Account but it has been paid by ATM Switch Center (ASC) and meanwhile she has requested for a HOLD on the account in the bank and the bank has made the Hold of money in her account. But the ASC has already paid the amount to the party from the account of the complainant and amount was debited and bank is not responsible for the any act done or disclosure of the One Time Password (OTP) or CVV No. of the ATM Card to third party. Hence for the act of her negligence the complainant alone is responsible and not the bank and there is no deficiency in service on the part of OP and it is prayed to dismiss the complaint.

5. During the course of enquiry, the complainant filed his affidavit evidence as CW-1 and marked documents at Ex.C-1 to C-4. The OP filed affidavit evidence of its Chief Manager as RW-1 and marked documents at Ex.R-1 and R-2.

6. Heard the arguments of both and perused the entire evidence on record.

7. The following points arise for our consideration-

1. Whether the complainant has proved that there is deficiency of service on the part of the OP?
2. Whether the complainant is entitled for relief?
3. What order?

8. Our findings on the above points are as hereunder:-

1. Affirmative  
2. Affirmative
3. As per final order for the following:

R  E A S O N S

9. Point No.1&2: In order to prove deficiency of service on the part of OP, the complainant filed her affidavit evidence as CW-1 and reiterated facts of the case and claim of compensation as stated in complaint. It is admitted fact that the complainant is S.B.A/c holder in OP bank. It is also admitted by OP that total sum of Rs.48,483/- has been withdrawn from the account of complainant. But the OP has stated that the complainant has disclosed ATM card number and CVV number to some unknown call of hackers and due to disclosure of said particulars, somebody have withdrawn the amounts on 14/4/2018 and 7/06/2018.  Immediately after SMS message received by the complainant regarding withdrawals of Rs.4,998/- and Rs.19,998/- on 14/4/2018, the complainant informed the bank about such illegal withdrawal and immediately the OP bank hold the account as per instruction of complainant. Even after holding the account, again there was illegal withdrawal of Rs.23,487/- on 7/6/2018. This subsequent debit entry in the account of complainant is apparently illegal and due to negligence on the part of OP bank. Because said withdrawal is after holding of the account at the instance of complainant.

10. The complainant has produced copy of complaint filed before the OP and same is marked as Ex.C-1.  The Ex.C-2 is copy of passbook. The Ex.C-3 is acknowledgement issued by police regarding complaint of illegal transaction. The said complaint is filed by the complainant before police. The Ex.C-4 is copy of SMS regarding removal of hold and debit entry in the account of complainant. The OP has produced copy of letter written by Karwar Police to the OP and same is marked as Ex.R-1. The copy of statement of withdrawal is marked as Ex.R-2.

11. It can be seen from above documents that in spite of complaint filed by the complainant to bank as per Ex.C-1 and also police instruction to the bank as per Ex.R-1, the bank has not taken any action till today so as to search the fault and to find out  the  culprit. The bank cannot escape from its liability to enquire regarding illegal transaction, by stating that the complainant has disclosed the important particulars of account etc., The burden of proving the customer liability in case of unauthorized electronic transaction is on the bank. The bank has to safeguard the interest of customers and try to avoid fraudulent transactions in the accounts of customers. When the ATM card is in custody of complainant, any withdrawals without use of such ATM are fraudulent acts. In spite of complaint and police notice, the OP has kept silent without making any effort to trace out the fault and fraud. The OP bank should have filed a complaint with the cyber crime police and pursued the matter. Merely keeping quite will not absolve the bank from its responsibility. The bank has not made any effort to verify CC camera footage nor requested Cyber Police for investigation. Therefore we hold that such act of OP amounts to deficiency in service and ignorance of RBI Guidelines and Notifications.

12. The complainant filed above complaint against the Manager in personal capacity. The Manager works on behalf of the bank in official capacity. He is not custodian of the accounts in personal capacity. The accounts are maintained by the State Bank of India in official capacity. Therefore the deficiency if any   should be treated as deficiency of bank but not the Manager in individual capacity. Hence the Manager K. Ratnakar Hebbar cannot be held liable in his personal capacity. On the other hand the Manager, whoever may be is liable to refund the amount withdrawn from the account of complainant and also to pay the compensation. For the reasons stated above we hold that the OP bank is liable to pay amount of Rs.48,483/- which is missing from account of complainant. Further OP is also liable to pay sum of Rs.3,000/- towards compensation and cost. Accordingly we answer point no.1 and point no.2 in affirmative.

13) Point No.3:- In view of the findings on point no.1 and 2, we proceed to pass the following:–

-: O R D E R :-

The complaint filed U/Sec.12 of C.P.Act is allowed against the Manager State Bank of India, Karwar.

The OP bank is hereby directed to pay Rs.48,483/- to the complainant with interest @8% p.a. from 7/6/2018 till realization.

The OP bank is also directed to pay Rs.3,000/- towards compensation and cost.

Payment shall be made within one month from the date of receipt of copy of this order.

The copies of this order shall be supplied to both the parties on free of cost.

 (Dictated to the stenographer and got it transcribed and corrected and pronounced in the open Forum on this 28/09/2018)

   Sd/-                                           Sd/-

(Shri. Raju N. Metri)                      (Shri. G.M. Kumbar)                                                               

          Member                               Hon’ble  President

     DCF Karwar                                    DCF Karwar

ANNEXURE in CC.No.33/2018

Witnesses examined on behalf of the complainant.

1. CW-1 ── Complainant Mangala Krishna Gaonkar,

Documents marked on behalf of the complainant.

1. Ex.C-1    ──   Letter, dated: 27/06/2018,
2. Ex.C-2    ──   Xerox copy of  Bank Pass book,
3. Ex.C-3    ──   Xerox copy of Acknowledgement (K.S.P.) reg
4. Ex.C-4    ──   Xerox copy of money transaction SMS reg.

Witnesses examined on behalf of the OP

1. RW-1 ── Ratnakar Hebbar, Chief Manager, SBI.

Documents marked on behalf of the OP

1. Ex.R-1 ── Copy of letter, dated: 6/7/2018.
2. Ex.R-2 ── Copy of ATM details.

    Sd/-                                             Sd/-

    (Shri. Raju N. Metri)                   (Shri. G.M. Kumbar)                                                               

             Member                               Hon’ble  President

          DCF Karwar                                DCF Karwar