| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO.CC/38/14 Date of Institution:- 20.01.2014 Order Reserved on:- 21.03.2024 Date of Decision:- 16.05.2024 IN THE MATTER OF: Shilpa Gupta S/o Sh. S. B. Gupta, Room No. C-6, F64/37 – KatwariaSarai, P.S. VasantVihar, New Delhi - 110016 .….. Complainant VERSUS - The Branch Manager
The Branch Manager N.C.E.R.T. New Delhi - The Manager
State Bank of India Branch Code: 005318 Branch at: Station Road, Road, Bhayander, Bassein.Tal. Thane Dl. Maharastha Suresh Kumar Gupta, President - The complainant has filed the complaint under section 12 of Consumer Protection Act, 1986 (hereinafter referred to as Act) with the allegations thatshe is having saving bank account no.30527579109 with OP-1 and ATM card no.6220180169000043417 has been issued. On 10 & 11.12.2013 some unknown person has withdrawn a sum of Rs.80,000/- by ATM card through six different transactions from Bhaynder Thane, Mumbai when she was at Delhi. She has received three SMS alerts at her registered mobile number on 10.12.2013 for deduction of Rs.40,000/- and 2nd alert on 11.12.2013 for deduction of Rs.40,000/-. She blocked her ATM card by calling toll free number of SBI. She has lodged a complaint with customer care center on 24.12.2013. A letter dated 11.12.2014 was written to OP-1 to look into the matter and returned back the money. She has also requested OP-1 to review CCTV footage to find out the person responsible for withdrawal of money and also to supply the copy of CCTV footage but in vain. She has lodged complaint as well as FIR No.578/13 atPS, VasantVihar. She has sent emails to Head Office of OP-1 but no action has been taken. Hence, this complaint.
- The OP-1 and 2 have filed separate reply to the effect that on 10.12.2013 and 11.12.2013 the complainant has herself withdrawn Rs.80,000/- through ATM card from Bhaynder Thane, Mumbai vide different transactions which is clear from the journal log generated by Switch Center, Mumbai. A print out is generated by ATM and identical print out is retained in ATM which is called e-journal log. The transaction is successful in e-journal log. There is no deficiency of service on their part. The ATM card was is possession of the complainant. She was exclusive knowledge of the PIN so no transaction can take place without the negligence of the complainant.
- The complainant has filed her rejoinder wherein she has denied the averments of written statement and reiterated the stand taken in the complaint.
- The parties were directed to lead the evidence.
- The complainant has filed her own affidavit in evidence and corroborated the version of complaint and placed reliance on the documents annexed with the complaint as well as employee punch card report for the month of December, 2013.
- The OP-1 has filed the affidavit of Sh. P.N. Jhingon, Branch Manager, in evidence and corroborated the version of written statement and placed reliance on the documents Ex.R1W1/1 i.e. certified copy of e-journal log issued by Switch Center, Belapur, Mumbai showing that transactions no.3106-18, 3041-43 are successful and Ex.R1W1/2 statement of account of the complainant showing debit of Rs.80,000/- from the account of complainant.
- The OP-2 has filed the affidavit of Sh. Suresh Chand Agarwal, in evidence and corroborated the version of written statement and placed reliance on the documents Ex.R1W1/1 i.e. certified copy of e-journal log issued by Switch Center, Belapur, Mumbai showing that transactions no.3106-18, 3041-43 are successful and Ex.R1W1/2 statement of account of the complainant showing debit of Rs.80,000/- from the account of complainant.
- No one has appeared on 21.03.2024 to address the arguments so the case was reserved for orders by keeping in view its age.
- We have perused the entire material on record.
- It is admitted fact that complainant is maintaining saving bank account with OP-1 which has issued ATM card to her.
- The statement of account Ex.R1W1/2 from 01.07.2013-11.12.2013 filed by the OP shows that a sum of Rs.80,000/- has been withdrawn through ATM card from the account of complainant on 10.12.2013 and 11.12.2013 through 6 different transactions. The complainant has reported the matter to the OP-1 on 11.12.2013. The complainant has sent complaint via email dated 20.12.2013 to Sbi.com which shows that she has reported the matter to the OP-1 on 11.12.2013.The email dated 24.12.2013 was again send at Sbi.com to review CCTV footage of the ATM for further inquiry.The reminder was sent via email dated 26.12.2013.The Police complaint was lodged on 11.12.2013 and FIR no.578/13 was lodged on 13.12.2013 at PS, Vasant Vihar.
- The employee punch card report for the month of December, 2013 shows that she has left the office on 10.12.2013 at 5.31 PM and joined on 12.12.2013 at 9.06 AM. The plea of the complainant is that she was at Delhi at the time of transactions. The plea funds support from the fact that she has given a handwritten complaint on 11.12.2013 to PS, VasantVihar on the basis of which DD No.36B was lodged. The handwritten complaint can be given only if person is at Delhi. These facts show that she was not at Mumbai at the time of transaction.
- The six transactions on two days seems unusual. The complainant has even sent an email to Sbi.com with the request to see the CCTV footage to conduct an inquiry qua the transactions. The OPs have not produce CCTV footage of the ATM from which withdrawal has taken place. The OPs could have supplied CCTV footage to the complainant which was not done. The CCTV footage could have been produced by the OP before this Commission. The best possible evidence was in the possession of the OPs but same has not been produced. The timely action on the part of OPs would have resulted into preservation of the CCTV footage. The inaction is writ large on the part of OPs. The operating system of ATM though secured with minimum possibility of manipulation but irregularity in the system cannot be ruled out. The OP will be responsible even if third party has withdrawn the amount through ATM Card.
- The Circular No.DBR No.LEG.BC.78/09.07.G05/2017-18 dated 06.07.2017 issued by RBI regarding Consumer Protection Limiting liability of customers in unauthorised electronic banking transaction is relevant in this matter because burden of proving customer liability in case of unauthorised electronic banking transaction lies on the bank. The OPs/Banks are supposed to conduct an inquiry about the unauthorised transactions and send suitable reply to the complainant.
- RBI have also issued guidelines from time to time to deal with such situations and listed the respective liabilities of the customer and banks in case of internet/online frauds etc. The liability of the customer is zero when unauthorised transaction has been brought to the notice of the bank. The customer is liable when loss has taken place due to his negligence.
- There is nothing on the record from the side of the OPs that there is negligence on the part of complainant or that she has shared some banking details with someone. The complainant has informed the OP-1 about the transaction on the same day. She has even reported the matter to the Police on the same day. She has also sent emails to Sbi.com about the said transactions and to take necessary action including scrutiny of CCTV footage. The complainant has taken all reasonable precautions as of a prudent person. There is no negligence on her part. Someone has fraudulently done the transaction through ATM card and withdrawn the money from her account. Such transactions amount to a criminal offence which is anindependent remedy. The complainant has remedy under this Act with regard to the deficiency in service against the OPs. There is inaction on the part of OPs on the receipt of complaint from the complainant.
- The aforesaid discussion shows that there is deficiency of service on the part of OPs. Support is drawn from R.P. No.2082/2017 titled as Praveen Kumar Jain vs HDFC Bank decided on 28.12.2023 by Hon’ble National Consumer Dispute Redressal Commission.
- In view of our aforesaid discussion, the complaint of the complainant is allowed to the effect that OPs shall pay jointly or severally a sum of Rs.80,000/- along with an interest @7% from the date of filing the complaint i.e. 20.01.2014 till its realization. The complainant is entitled for compensation of Rs.30,000/- for mental harassment and agony and Rs.15,000/- for litigation expenses. The OP is directed to comply with the order within 45 days from the receipt of the order failing which complainant will be entitled for interest @7% p.a. on the amount of mental harassment, agony and litigation charges i.e. from the date of order till its realization.
- A copy of this order is to be sent to all the parties as per rule.
- File be consigned to record room.
- Announced in the open court on 16.05.2024.
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