Delhi

North

CC/178/2018

AJIT KUMAR PATHAK - Complainant(s)

Versus

STATE BANK OF INDIA - Opp.Party(s)

ADITYA KUMAR CHOUDHARY

27 Jun 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No178/2018

In the matter of

Sh.Ajit Kumar Pathak     

S/o Shri Lal Bahadur Pathak

R/o flat No.101, U.G.F

Anand House, Khasra  No.1215

Street No.-16, Rangpuri (Mahipalpur)

New Delhi-110037                                                           …Complainant

Versus

State Bank of India (SBI)

Tis Hazari Court Branch

Through its Assistant General Manager

Tis Hazari Court Complex

New Delhi-110054                                                   ...Opposite Party

ORDER
27/06/2024

Ms.Harpreet Kaur Charya, Member

The present complaint has been filed by Sh.Ajit Kumar Pathak, the complainant against the State Bank of India as OP with the allegations of deficiency in services and unfair trade practice.

1. Facts as per the complainant are that, he is maintaining a OD bank account bearing the No.10925903414 and also availing overdraft facility (OD) bearing No.00000036119286138 with limit of Rs.4,50,000/- with OP.   
2. On the intervening night  of   26-27/03/2018, the phone of the complainant was hacked and a sum of Rs.45,000/- was withdrawn/transferred by way of 05 transactions as mentioned  below:-

1. Rs.10,000/- at 3:18 am   
2. Rs.10,000/- at 3:25 am
3. Rs.5,000/-   at 3:27 am
4. Rs.10,000/- at 4:12 am
5. Rs.10,000/- at 4:23 am

3. In the morning of 27/03/2018, the complainant noticed messages pertaining to banking transaction that had been received by him on his registered mobile number linked to his SBI account.  Immediately, he contacted SBI customer care informing the incident and requesting the OP to block his ATM, credit card and internet banking facilities. It has been alleged by the complainant that customer care executive of OP did not take any initiative and neither even block the internet banking service. 
4. The complainant was asked to send an email to “report.phishing@sbi.co.in and “support.sbi@sbi.co.in”.  Despite sending the emails at 8:01 am 8:02 am and 8:17 am on 27/01/2018, the internet banking facilities were not deactivated.  As a result, the account of the complainant was further debited by Rs.1,61,000/- by way of 03 transactions of Rs.30,000/- at 11:04 am, Rs.70,000/- at 11:08 am and Rs.61,000/- at 11:25 am.
5. Out of the above transactions, Rs.70,000/- was transferred to the newly opened account in Kotak Mahindra Bank in the name of the complainant during the night itself by the hackers.  Thus, a total amount of Rs.2,06,000/- was debited from the OD account.  
6. The complainant personally visited the OP and submitted a written complaint requesting the AGM to stop the unauthorised transaction and investigate the matter.   Two written complaints were even made to SHO, PS: Vasant Kunj, South on 27/03/2018 and 29/03/2018.  It has also been stated by the complainant that since he has already withdrawn Rs.2,00,000/- from the OD account and now he is also being charged interest for Rs.2,06,000/- which has been debited from his account due to illegal withdrawal. 
7. The complainant had to break his fixed deposit of Rs.5,00,000/- in order to close his OD account.  On 22/05/2018, the complainant received a reply from the Assistant General manger of OP informing that immediately mails had been sent to the respective Departments to provide the details of the beneficiaries to whose account the amount had been transferred.
8. Legal notice dated 23/05/2018 was served upon OP as the complainant was not satisfied with the response/action taken by them.  On 24/05/2018, the complainant was asked to visit net-banking specialist Mr.Rajiv Kumar, who inspected the complainant’s phone and acknowledged that the said transactions have not been made from the complainant’s phone. OP on 08/06/2018 replied to Legal notice issued by the complainant, denying the allegations. 
9. Feeling aggrieved by the non-reversal of the transactions, the complainant has prayed for directions to OP to pay Rs.2,06,000/- alongwith interest @18% p.a. from the date of illegal withdrawal i.e. 27/03/2018 till the date of payment;  Rs.10,00,000/- as damages and compensation towards immense mental agony, harassment, stress and miseries suffered by the complainant; Rs.1,00,000/- towards  cost of litigation.
10. The complainant has annexed emails dated 27/03/2018 as Annexure C-1(colly); statement of OD account as Annexure C-2; letter dated 27/03/2018 to the Branch manager as Annexure C-3; complaint to the SHO PS: Vasant Kunj vide DD No.54B dated 27/03/2018 and letter to IO dated 29/03/2018 as Annexure C-4 (colly); complaint to DCP, Cyber Cell dated 27/03/2018 vide Diary No. D-36 as Annexure C-5; complaint to SHO PS: Vasant Kunj dated 07/04/2018 and reply from OP dated 22/05/2018 as Annexure C-6 and Annexure C-7; Legal notice dated 23/05/2018, complaint to Banking Ombudsman dated 29/05/2018 and the order of banking Ombudsman are Annexure C-8 to Annexure C-10.
11. Reply to the legal notice issued by the complainant is Annexure C-11 and letter dated 05/05/2018 in reference to the letter petition/email filed by the complainant as Annexure C-13.
12. Notice of the present complaint was served upon OP.  Thereafter, written statement was filed.  Several preliminary objections have been raised in defence such as: complainant was negligent as he had mishandled his mobile phone leading to induction of some virus in his mobile phone; even after a lapse of 10 to 11 months, cyber Crime cell has been unable to verify the responsibility. 
13. There is no evidence whether hacking had ever taken place or the money was withdrawn by the complainant by his nominee or someone known to him.  It has been denied that no action was taken on priority despite receiving emails.  The complainant has only asked for blocking of his ATM Card through a message sent at 8.01 am and there was no specific request for stopping the internet banking facility. They have also denied any negligence or deficiency in service.  Rest of the contents of the complaint have also been denied.
14. Rejoinder to the written statement was filed by the complainant, where the contents of the written statement have been denied and those of the complaint have been reiterated.  
15. The complainant has submitted that despite informing the OP regarding the unauthorised transaction at about 10.00 to 10.30 am, the unauthorised transactions of Rs.1,61,000/- took place at 11.04; 11.08 and 11.25 am. Non registration of FIR does not absolve OP of their liability.  

16. Evidence by way of affidavit was filed by the complainant reiterating the contents of the complaint.  He has got exhibited  copies of the three emails written to OP regarding blocking of internet banking facility as Ex.CW-1/1(colly), copy of statement of bank account dated 27.03.2018 reflecting the deductions as Ex.CW-1/2, copy of written complaint to the OP regarding hacking of his bank account and deductions from the bank account as Ex.CW-1/3, copy of written complaint dated 27.03.2018  and 29.03.2018 to the SHO, Vasant Kunj, South as Ex.CW-1/4, copy of complaint dated 27.03.2018 to the DCP, Cyber Cell, Delhi Police as Ex.CW-1/5, copy of complaint dated 07.04.2018 to the SHO, Vasant Kunj, South Police Station as Ex.CW-1/6,  copy of letter written by the Assistant General Manager of OP to complainant as Ex.CW-1/7, copy of legal notice dated  23.05.2018 as Ex.CW-1/8, copy of acknowledgment of receipt of complaint given by the Banking Ombudsman dated 29.05.2018 as Ex.CW-1/9, copy of reply of office of the Banking Ombudsman dated 27.06.2018 Ex.CW-1/10(colly), copy of reply of legal notice by OP as Ex.CW-1/11, copy of letter written to the Hon’ble  Chief Justice of India dated 10.05.2018 as Ex.CW-1/12 and copy of reply of the branch office, PIL Branch dated 05.07.2018 as Ex.CW-1/13.
17. OP has got examined Sh.Ravindra Kumar, Assistant General Manager on their behalf.  He has also repeated the contents of the written statement on affidavit. 
18. We have heard the arguments of the of the complainant and Ld. Counsel for the OP. We have also perused the material placed on record.
19. The complainant has alleged that by way of 8 unauthorised transactions from 26/03/2018 to 27/03/2018, his savings account with OP has been debited by total of Rs.2,06,000/-.  Despite intimation OP did not block the account, due to which hackers were successful in withdrawing money by way of further 3 transactions out of above mentioned 8 transactions.
20. In support of his allegation, the complainant has placed on record email dated 27/03/2018 at 8:01 sent at Ex.CW1/1 (colly). Similarly, an email on the same day was sent at 8:02 addressed to
21. On the other hand, the Ld. Counsel for OP has stated that email dated 27/03/2018 at8:01 was sent to incorrect address, thus it cannot be considered that complainant has informed the OP and even otherwise in the said email the complainant has requested to block the ATM card.  it cannot be ignored that the complainant has also intimated the OP through email on the same day at 8:02 am and 8:17 am. The subsequent email written by the complainant is proper intimation to the OP. 
22. It is pertinent to note that the 03 transactions of Rs.30,000/- at 11:04 am, Rs.70,000/- at 11:08 am and Rs.61,000/- at 11:25 am are subsequent to the mails sent by complainant. Once, the complainant has raised dispute/complained of the fraudulent transactions by mail and contacting at the customer care, OP was duty bound to stop the subsequent transactions, which is not so in present case.
23. Further, in para 4 of the complaint, the complainant has stated that he immediately contacted the customer care of OP ,requesting  them to block ATM card, credit card and internet banking; the same has not been specifically denied by OP in their para-wise reply in written statement.  It is thus, clear that complainant without any delay reported the unauthorised transaction to OP through emails, telephonically and  through letter dated 27/03/2018 with due receiving by OP.
24. As per Notification No. RBI/2017-18/15 DBR. No.Leg.BC.78/09.07.005/ 2017- 18 dated 06/07/2017, issued by Reserve Bank of India with respect to “Customer Protection-limiting Liability of Customers in Unauthorized Electronic Banking Transactions”, Clause5 under  Reporting of unauthorised transaction by customer to banks  requires  the loss/fraud reporting system to insure that immediate response (including auto response) is sent to the customer acknowledging the complaint alongwith the registered complaint number and on receipt of report an unauthorised transaction from the customer, bank must take immediate steps to prevent further unauthorised transactions in the account.   In the instant case the complainant has reported the unauthorised transaction to OP, however, no complaint number or an email acknowledging the complaint has been issued by OP.
25. Further, under Limited Liability of the Customer and reversal time line for zero liability directs the bank :-

“6. A customer’s entitlement to zero liability shall arise where the unauthorised transaction occurs in the following event:-

1. Contributory fraud/negligence/deficiency on the part of the bank (irrespective of whether or not the transaction is reported by the customer).
2. Third party breach where the deficiency lies neither with the bank nor with the customer but elsewhere in the system, and the customer notifying the bank within three working days of receiving the communication from the bank regarding the unauthorised transaction.

7. XXX

8.XXX

9.On being notified by the customer, the bank shall credit (shadow reversal) the amount involved in the unauthorised electronic transaction to the customer’s account within 10 working days from the date of such notification by the customer (without waiting for settlement of insurance claim, if any). Banks may also at their discretion decide to waive off any customer liability in case of unauthorised electronic banking transactions even in cases of customer negligence. The credit shall be value dated to be as of the date of the unauthorised transaction.

10. Further, banks shall ensure that:

 (i) a complaint is resolved and liability of the customer, if any, established within such time, as may be specified in the bank’s Board approved policy, but not exceeding 90 days from the date of receipt of the complaint, and the customer is compensated as per provisions of paragraphs 6 to 9 above;

(ii) where it is unable to resolve the complaint or determine the customer liability, if any, within 90 days, the compensation as prescribed in paragraphs 6 to 9 is paid to the customer; and

(iii) in case of debit card/ bank account, the customer does not suffer loss of interest, and in case of credit card, the customer does not bear any additional burden of interest.

11.XXX

Burden of Proof

12. The burden of proving customer liability in case of unauthorised electronic banking transaction shall lie on the bank.

26.  The complainant has intimated the OP immediately on 27//03/2018 as evident from Ex.CW1/1(colly) and Ex.CW1/3. We have gone through the statement of account filed by the Complainant. OP has neither created any shadow reversal of the amount involved in the unauthorised electronic transaction to the complainant’s account as per Clause 9(supra) nor resolved the complaint and liability of the customer within 90 days from the date of receipt of the complaint.
27. OP has also placed on record the “ Note for the General Manager( NW-1) dated 23/01/2020,  where it has been stated in brief history:

.......However, IMEI number of the complainant’s mobile set which he was carrying at that time was different from IMEI number of mobile set used for performing the alleged transactions and there might be a chance of hacking...........

........Further, mobile phone of the complainant might be hacked on account of his own negligence by leaking out the confidential password/information to the alleged fraudsters.......

28. OP has not placed on record any document/ investigation to show that there was negligence on the part of the complainant, which resulted in the fraudulent withdrawal from his account. In absence of any inquiry/investigation report, mere assumption that complainant might have been negligent cannot be taken as valid defence. As per clause 12 of the abovementioned Notification, the burden of proof is on the Bank to prove customer liability in case of unauthorised electronic banking transaction.
29. Therefore, it is seen that OP has failed to follow the Master Circular issued by RBI and has held complainant liable  without any valid grounds, this amounts to deficiency in services. 
30. Hence, in the facts and circumstances of the present case we direct OP as follows:

1. To pay Rs.2,06,000/- (amount withdrawn from the complainant’s account by way of 08 unauthorised transactions) alongwith interest @7% p.a.from the date of unauthorised transactions i.e. 27/03/2018 till realization. 
2. We further award compensation of Rs.1,00,000/- on account of mental agony and harassment, inclusive of litigation expenses.
3. OP is directed to comply with the order within 30 days from the date of receipt of order.
4. In case of non-compliance as directed in directions (i),(ii) and (iii), the OP shall pay interest @9% per annum on the entire amount payable at the expiry of 30 days from the date of receipt of this order till realisation.

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.