Haryana

Ambala

CC/298/2019

Abhinav Sharma - Complainant(s)

Versus

State Bank of India - Opp.Party(s)

Neha

02 Aug 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint Case No.:  298 of 2019.

                                                          Date of Institution           :   18.09.2019.

                                                          Date of decision    :   02.08.2021.

 

Abhinav Sharma aged 23 years son of Sh. Davinder Kumar Sharma, resident of H.No. 9004-A/5, Naya Bans, Ambala City-134003.

 

                                                                             ……. Complainant.

                                                Versus

 

State Bank of India, S.A. Jain College Road, Ambala City through its Branch Manager.

           ..…..Opposite Party.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                                                

Present:       Shri Shubham Aggarwal, Advocate, counsel for the complainant.

Shri S.S.Garg, Advocate, counsel for the OP.

 

Order:        Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To refund total amount of Rs.33,000/- alongwith interest @18% per annum.
2. To pay Rs. 2 lac as compensation for the mental agony and physical harassment suffered by the complainant and Rs. 15000/- on account of financial losses  alongwith litigation expenses.
382.  

 

Any other relief which this Hon’ble Commission may deem fit.

 

Brief facts of the case are that the complainant is having a saving bank Account No.31491330299 with the Opposite party i.e. State Bank of India, SA Jain College Road, Ambala City.  Complainant is also having a State Bank Classic VISA bearing No. 459150018846. On 18.07.2018, complainant had gone to Mumbai for some personal work and stayed in a Hotel, there he received four messages between 08:39 p.m. to 08:40 p.m., with regard to three transactions of Rs. 10,000/- each and one transaction of Rs. 3000/-. No doubt, the ATM card was in the possession of the complainant but no transaction was made by the him at Mumbai. Complainant informed the Mumbai police immediately about the said transaction and also filed a complaint at Police Station, Versova on 19.07.2018. Complainant also informed the Opposite party about this unauthorized transactions made from his Account No. 31491330299. Upon asking, complainant submitted Card Holder Declaration-cum-complaint form and a form of Domestic and International Point of Sale/e-commerce transactions to OP. Complainant went to the Bank again and again and requested for to refund the amount which has unauthorizedly been debited from his account but no heed was paid to his request.  Hence, the present complaint.

2.                Upon notice, OP appeared and filed written version and raised preliminary objections regarding maintainability and jurisdiction. On merits, it is stated that the complainant has a saving bank account with the Bank. The alleged card is not in the name of the complainant and also does not bear the number as is alleged by the complainant. That the transactions by way of an ATM could not be carried out without the complainant authorizing anyone on his behalf and without disclosing the pin. For carrying out transaction, the ATM card number and PIN number is required, as such, third party cannot do transaction unless the Card holder has provided the ATM card and disclose the PIN number. Money could not be withdrawn from the ATM without the acquiescence or negligence of the complainant for which the answering OP has no liability.  It is stated that in terms of directions of Reserve Bank of India, to ensure that without the ATM/Debit/Credit Card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM/Debit/Credit Card. The OP is not liable to pay any of amount as is alleged by the complainant and it is unnecessarily being dragged into litigation. The OP has not committed any deficiency in service, thus the complaint filed against it, deserves dismissal with costs.

3.                The learned counsel for the complainant tendered affidavit of complainant as Annexure C-A alongwith documents as Annexure C-1 to C-16 and closed the evidence on behalf of complainant. On the other hand, Shri Rohit, Assistant Manager, State Bank of India for OP tendered his affidavit as Annexure OP-A and closed the evidence of OP.

4.                We have heard the learned counsel for parties and carefully gone through the case file.

5.                The learned counsel for the complainant has argued that the complainant is having a saving account with the OP and it has issued a Classic VISA card to him. On 18.07.2018, complainant had stayed in a hotel at Mumbai and there, he received four messages between 8:39 PM to 8:40 PM, with regard to three transactions of Rs.10,000/- each and one transaction of Rs. 3,000/-. Inspite of the fact that the no transaction was made by the complainant on the said day at Mumbai. The ATM card was in his possession at Mumbai and the unauthorized transactions were done at Ghaziabad,U.P., which is several miles away from Mumbai. On 19.07.2018, he lodged the complaint with the Police at Versoava, Mumbai and also informed the OP regarding the unauthorized transactions. Since on 18.07.2018, complainant was at Mumbai but unauthorized transactions was done at Ghaziabad, U.P., therefore, Complainant requested the OP to provide the footage of the CC camera but it did not do so.  As per the guidelines, reference No.RBI/2017-18/15 DBR No.Leg. BC 78/09.07.005/2017 dated 06.07.2017, the bank is under obligation to pay the unauthorized transactions amount to the customer soon, after getting the complaint from the customer. Complainant immediately informed the OP regarding the unauthorized transactions but the OP did not refund the amount which was withdrawn from his account unauthorizedly.  Since the unauthorized transactions were done due to the negligence of the OP, therefore, the complainant is entitled to get back the amount of Rs. 33,000/- and he is also entitled to get the compensation on account of mental agony and physical harassment suffered by him alongwith litigation expenses. In support of his version, he has placed reliance on the order dated 21.12.2020, passed by National Consumer Disputes Redressal Commission, New Delhi in Revision petition No. 3333 of 2013 titled as  HDFC Bank Ltd. Versus Jesna Jose.

6.                On the contrary the learned counsel for the OP has argued that the ATM card is in the possession of the complainant and the PIN number is only in the knowledge of the complainant. The transactions by way of an ATM could not be carried out without the complainant authorizing someone on his behalf and without disclosing the PIN number. The money through ATM could not be withdrawn without the acquiescence of the complainant as such, the OP has no liability to pay any amount to the complainant for the said transactions. The case of the complainant does not fall under the guidelines of RBI because the said transactions have been carried out due to negligence on the part of the Complainant. The allegation of the complainant that he had not made any withdrawal and transactions have been made by unauthorized means, a lot of voluminous evidence is required to prove this fact as such, this issue cannot be determined in summary proceedings under the Consumer Protection Act, 1986. In support of his version, he has placed reliance on the orders dated 07.11.2014 and 07.04.2011, passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the cases of Harjit Singh Vs. The Punjab National Bank and State bank of India Vs. K.K.Bhalla and on the order dated 19.03.2012, passed by Hon’ble State Consumer Dispute Redressal Commission,Punjab, Chandigarh in the case of Satnam Singh Vs. Punjab National Bank & Ors.

7.                The plea of complainant is that he was in Mumbai when the disputed transaction had taken place. The transaction was done at Gaziabad, U.P., which is several miles away from the actual location. On the contrary, the stand of the OP is that the unauthorized transaction took place due to negligence of the Complainant. However, no evidence has been produced by the OP to substantiate this fact. In this digital era, the possibility of hacking/forging/cloning of ATM card cannot be ruled out. As per RBI circular, which reads as under:

1.       A customer’s entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events.

 

 

2.       Contributory fraud/negligence/deficiency on the part of the       Bank(irrespective of whether or not the transaction is reported by the        customer.

3.       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 unauthorized transaction.

          The Bank is responsible for an unauthorized transaction occasioned by an Act of malfeasance on the part of functionaries by an act of malfeasance by any other person(except the Complainant/Account Holder). Since, the OP has failed to prove that the unauthorized transaction had taken place, due to negligence or acquiescence of the complainant, therefore, it is not only liable to refund the amount of Rs. 33,000/- to the complainant alongwith interest but is also liable to compensate the complainant for the mental agony and physical harassment caused to him alongwith litigation expenses. In the case of HDFC Bank Ltd Versus Jesna Josh, decided on 21.12.2020, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has upheld the concurrent finding of the Hon’ble State Commission and the learned District Commission and had dismissed the Revision Petition filed by the Bank with the observation that  possibility that Credit Card was hacked or forged cannot be ruled out and in the absence of any evidence that the Credit card was stolen, the Bank is liable for unauthorized transaction.

8.                In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP, in the following manner:-

(i)                To pay Rs.33,000/- to the complainant along with interest @ 5% p.a. w.e.f. 18.07.2018 that is the date of withdrawal of the said amount from the account of complainant  till its realization.

(ii)               To pay Rs.8,000/- as compensation for mental agony and physical     harassment suffered by the complainant along with litigation expenses.

          The OP is further directed to comply with the aforesaid direction within the period of 45 days from the date of receipt of the certified copy of this order. Certified copies 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.

 

Announced on :02.08.2021.

 

 

 

(Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

 Member                                     Member                       President