SMT.MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019 for an order directing the opposite party to pay an amount of Rs.23,142.59/- to the complainant , which is the amount lost from the account of the complainant to a pay an amount of Rs.2,00,000/- as compensation and Rs.20,000/- as litigation cost to the complainant for the deficiency of service on his part.
The case of the complainant in brief:
On 18/4/2019 night at 10.15 p.m the complainant received a message in his phone that an amount of Rs.23,142.59 /- has been withdrawn from his account. The complainant has not made any such transaction at that time and he blocked the card through on line process and got a reply ,message that the debit card is blocked. On the next working day the complainant went to OP’s bank and submitted a complaint stating that the loss of money and stated that he has not made any transaction and he did not receive any OTP in his phone. Thereafter 3 weeks the complainant received a reply from the OP that for foreign transaction OTP will not be received and the bank has nothing to do with. Then the complainant filed a complaint to the banking Ombudsman through online. Thereafter the complainant received a call from the OP asking him to go with a police complaint. Then the complainant submitted a complaint before the SHO Taliparamba. On 30/11/2019 the reply from the OP submitted before the banking ombudsman. In that letter the OP stated that the payment of the said amount was infavour of a merchant in china and for payment towards an overseas company. Moreover they also stated that they cannot assess the customer himself or a third party had initiated the transaction and no OTP will be generated if it is done by a 3rd party. So the OP is not responsible for the refund of the amount to the complainant. Thereafter the complainant waiting for some months the reply from the banking ombudsman also. But no action taken against the OP. The OP has no steps taken to trace out the false transaction and loss of complainant’s amount. The act of OP the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OP. Hence the complaint.
After receiving the notice OP entered before the commission and filed his written version and denied all the allegations of the complainant. The OP contended that on 20/4/2019 the complainant visited the OP bank and submitted a complaint about the loss of money is false. On 18/4/2019 he was in Poona and not disclosed in the complaint. Moreover the Banking Ombudsman asked to the complainant to send his feed back to the Hon’ble Banking Ombudsman. But the complainant failed to send his feed back and the banking ombudsman closed the complaint on 9/1/2020. The ATM card issued to the complainant on condition that the OP bears no responsibility for unauthorised use of the card. It is the responsibility of the complainant to keep the ATM card in his exclusive possession without divulging the confidential PIN or any other credentials to any one. In this case the credentials of the card to 3rd party and OP is not liable to refund the amount. The OP on investigation it is revealed that the payment was made infavour of a merchant in China. The payment towards an overseas company, the card number and CVV only are required to authorise such a transaction. The transaction in issue has been done using the ATM card details of the complainant and hence the bank cannot be held to be liable. Moreover the complainant has been travelling to various places and has also used the ATM card for online fund transfer and POS purchase. So the complainant is not entitled for any relief from the OP. The OP has not committed any deficiency of service and the complaint may be dismissed.
On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled for any relief?
- Relief and cost.
The evidence consists of the oral testimony of PW 1 and Exts. A1 to A6 marked. He was cross examined for the opposite party and marked Ext.B1. From OP’s side Branch manager SBI Taliparamba has filed his chief affidavit with document. He was examined as DW1 and Exts.B2&B3 marked.
After the learned counsels of complainant and OP submitted written argument notes.
We have perused the documents available before us and considered the submission of both learned counsels.
Issue No.1:
The Complainant adduced evidence before the commission by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. According to the complainant on 18/4/2019 at 10.15 p.m the complainant received a message in his phone that an amount of Rs.23,142.59 /- has been debited from his account but he has not received any OTP in his phone on that particular withdrawal. As per Ext.A1 which clearly shows that the SMS print out received from OP’s bank. In Ext.A2 is the complaint submitted to OP bank by the complainant. As per the complaint he stated that he has not entrusted the card to any third party. He never had any occasion to conduct any transaction with any Chinese company as told by the OP. As per Ext.A3 is the acknowledgment receipt issued by Taliparamba police to complainant dtd.17/6/2019. In Ext.A4 is the receipt received from Banking Ombudsman Thiruvananthapuram. In Ext.A5 is the letter send by OP to the complainant dtd.30/11/2019. In that letter OP stated that the payment was towards a merchant in China and in foreign transaction no OTP will be sent to phone. In Ext.A6 is the account statement of complainant from 1st April 2019 to 1st June 2019.
As per the complainant’s case is that an amount of Rs.23,142.59/- was withdrawn from his account and the OP is an undisputed matter also. Thereafter the complainant immediately informed the matter to OP’s bank and blocked the ATM card. Then the complainant filed a complaint before Banking Ombudsman and complaint before Taliparamba police also. But no action taken from the authority. The complainant alleged that it is the duty of the OP’s bank to arrange sufficient security measure to protect the money on their customers, but the OP failed to provide sufficient security measure to avoid duplicating cards and to prevent ATM fraud transactions. The OP contended that the alleged transactions took place solely due to the carelessness and negligence of the complainant in keeping the ATM card and the confidential PIN in the custody of the complainant. Complainant had failed to use ATM card with due care and caution.
In DW1 before the commission categorically deposed that “ പരാതിക്കാരന്ർറെ പരാതിയിൽ പറഞ്ഞ തുക account ൽ നിന്ന് പിൻവലിക്കപ്പെട്ടു എന്നതിൽ എനിക്ക് തർക്കമില്ല. Moreover he deposed that എല്ലാ card ഉം ഒരു mobile number ഉം ആയി link ചെയ്തിട്ടുണ്ട്. OTP message ആ mobile number ലേയ്ക്ക് അയയ്ക്കുകയാണ് സാധാരണ രീതി എന്നു പറഞ്ഞാൽ ? ശരിയാണ്. പരാതിക്കാരന്ർറെ mobile ലേയ്ക്ക് OTP message അയച്ചിട്ടില്ല എന്നു പറഞ്ഞാൽ ? അയച്ചിട്ടില്ല . So it is clear that in this case the complainant did not receive any such OTP. DW1 also admits that no OTP was sent. പലരുടേയും ഇടപാടുകളിൽ ഹാക്കർമാർ നുഴഞ്ഞുകയറി പണം തട്ടുന്നതായിട്ടുണ്ട് എന്ന് പറഞ്ഞാൽ? ഉണ്ട് പണം തിരിച്ചുകൊടുക്കണമെന്ന് Reserve bank ന്ർറെ circular ഉണ്ട്? ഉണ്ട് The OP who is the custodian of the customers money is bound to protect it and if there is any loss which is not under the control of the customer, the OP is liable to compensate.
Complainant’s learned counsel submitted a citation of the Hon’ble High Court of Kerala 2019(1)KLT 848”State Bank of India vs P.V.George. The Hon’ble High Court held that “ a bank owes a duty to its customers to take necessary steps to prevent unauthorised withdrawals from their accounts. If a customer suffers loss on account of the transactions not authorised by him, the bank is liable for the customer for the said loss. But the OP’s counsel stated that this decision may not be applicable here and the complainant’s ATM card and its credentials. In the above facts and circumstances we are also in the opinion that the incident was happened not due to the mistake of the complainant and hence the OP is liable for the loss happened to the complainant. So we hold that there is deficiency of service and unfair trade practice on the part of OP. Hence the issue No.1 found in favour of the complainant.
Issue Nos.2&3:
As discussed above the complainant received a message in his phone on 18/4/2019 night at 10.15 P.M an amount of Rs.23,142.59/- has been withdrawn from his account without his permission. He has not received any OTP in his phone on that particular withdrawal. So the complainant is entitled to get the amount of Rs.23,142.59/- along with Rs.8000/- as compensation for mental agony of the complainant and Rs.4000/- as litigation cost. Thus issue Nos2&3 are also accordingly answered.
In the result the complaint is allowed in part directing the opposite party to pay an amount of Rs.23,142.59/- to the complainant along with Rs.8000/- as compensation for mental agony of the complainant and Rs.4000/- as litigation cost within 30 days of receipt of this order. In default the amount of Rs.23,142.59/- carry with 9% interest per annum from the date of order till realization. Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exts:
A1- SMS print out received from OP’s bank
A2-copy of complaint submitted t OP’s bank
A3-Receipt received from Taliparamba police
A4- Receipt received from Banking Ombudsman
A5- letter send by OP to complainant
A6-Copy of account statement
B1- Card holders declaration cum complaint form
B2-E-mail dtd.12/7/19
B3-Response dtd.4/5/19
PW1-Adarsh.T.N- complainant
DW1-Rajesh.R.Chandran-DW1
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
