Delhi

North East

CC/16/2016

Ashok Kr. Rastogi - Complainant(s)

Versus

State Bank of India - Opp.Party(s)

20 Nov 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 16/16

 

In the matter of:

 

	Sh. Ashok Kumar Rastogi S/o Shri Late Daya Shankar Rastogi R/o House No. 201/58A Krishna Lane-4 Maujpur, Delhi-110053.	Complainant
	Versus
	State Bank of India Through its Manager Ghonda, Delhi-110053.   Also At:- The Asstt. General Manager State Bank of India Local Head Office, 11, Sansad Marg New Delhi-110001.	Opposite Party

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION :

14.01.2016 20.11.2019 20.11.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, the facts giving rise to the present complaint are that the complainant is a savings bank account holder of OP Bank vide account No. 30103364855 and also holder of debit card  No. 6220180681800098029 issued by OP against the said account which account had available cash balance of Rs. 1,35,963.36Paise as on 02.03.2015. While the complainant was out of station (in Bangalore) since 03.03.2015 to 10.07.2015, he received a call at 08:10AM on 16.03.2015 on his mobile from one Mr. Rahul Gupta, clamming himself  to be from OPs ATM Department Mumbai telling the complainant that his ATM card has been blocked for want of account verification and on complainant asking how to unblock the same, the said person asked the complainant for his account number and ATM card number and told him to share the six digit OTP with him as soon as he receives it so that his ATM card can be unblocked. As soon as the complainant gave the said OTP to the said person on receiving it, after few minutes he received four SMS alerts between 09:18AM and 09:21AM of debit of Rs. 2,500/- each from his account four times amounting to Rs. 10,000/- after which the complainant realized that the complainant had fallen prey to ATM fraud. The complainant immediately got his ATM card blocked and on going through the details received from OP the complainant was shocked to know that Rs. 20,800/- (excluding the aforementioned Rs.10,000/-) had already been deducted from his account a day earlier i.e. 15.03.2015 for which deduction/ transaction, no SMS alerts were sent to him by OP. There were subsequent unauthorized transaction of Rs. 5,000/- (Rs. 3,000/-+ Rs. 2,000/-) on 16.03.2015 between 8:42AM and 09:00AM post sharing of the OTP. The complainant lodged a written complaint with OP on 16.03.2015 itself through post and OP assured reversal of the wrongfully deducted of Rs. 35,856.99Paise in his account within 7 days but failed to do so. The complainant vide reminder letters dated 16.07.2015 and 11.01.2016 to OP requested for early action in the matter. However, the said letter went unheeded to just like personal requests made by complainant to OP and therefore as a last resort the complainant was compelled to initiate the present legal proceeding by way of complaint before this Forum alleging deficiency of service and prayed for issuance of directions against the OP to refund / give credit reversal of  Rs. 32,856.99Paise to the complainant’s account maintained with OP alongwith interest @ 18% or refund Rs. 30,846.99Paise as amount wrongly deducted on 15.03.2015 prior to complainant having shared OTP with unauthorized person on 16.03.2015. The complainant further prayed for compensation of Rs. 50,000/- for mental agony, harassment and damages and Rs. 11,000/- towards cost of litigation.

Complainant has attached copy of debit card, copy of passbook highlighting disputed transaction entries dated 16.03.2015 all from POS NCR region, copy of text message dated 16.03.2015 received by the complainant containing OTP for SBI payment gateway and copy of complaints letter dated 16.03.2015, 16.07.2015 and 11.01.2016 to OP.

2. Notice was issued to the OPs on 25.01.2016. OPs entered appearance and filed written statement in which it took the preliminary objection that the present complaint is misconceived, unwarranted and vexatious since accuracy of transactions in ATM system is based on electronic data and any discrepancy or malfunction of ATM is duly verified / rectified. The OP submitted that ATM card general instruction and terms and conditions booklet are provided to ATM card holder at the time of its issuance and they clearly stipulates that no transaction can be done without ATM debit card and secret PIN number and bank shall have no liability for unauthorized used of both or either. The OP while admitting the factum of complainant being its customer and availing ATM card facility, denied for want of proof his averment of being in Bangalore during the disputed transaction time as also any such call from Rahul Gupta, alleged OP ATM Department Mumbai Officer. OP resisted the complaint per contra that the complainant shared the OTP / PIN of ATM despite specific instruction on the message displayed that the same should not be shared with anyone and for therefore for his fault of disclosing the OTP to an imposter, the OP cannot be held liable for complainant’ act of negligence. The OP admitted the transaction having taking place by using ATM and PIN of complainant on 15.03.2015 and in so far as failure to have sent the SMS alerts in respect thereof, OP submitted that sometimes due to failure of transmission, SMS may be delayed or not generated. OP denied having assured the complainant of any credit reversal within 7 days as alleged and submitted that it had no role in the alleged transaction which are auto system based and submitted that OP after receiving complaint undertakes enquiry and communicates the outcome to its customers. Lastly OP submitted that it was the duty of the complainant to lodge FIR or complaint with police since fraud if any took place due to his own negligence and accordingly was advised too by OP but complainant failed to do so. Therefore, OP urged for dismissal of the complaint. OP filed copy of Transaction Log of 16 transactions with respect to the complainant’s debit card between 15.03.2015 to 16.03.2015 for a sum of Rs. 35,856.99Paise between the time period 21:38PM (15.03.2015) to 09:00AM (16.03.2015).
3. Subsequently, due to consistente non appearance of the complainant from 23.05.2016 to 11.11.2016, the complaint was dismissed in default vide order dated 11.11.2016. However the same was restored vide order dated 04.09.2017 passed by Hon'ble SCDRC in FA No.57 of 2017 preferred by the complainant. Thereafter, the complainant filed rejoinder and evidence by way of affidavit reiterating his grievance against the OP and submitted therein that the OP has not filed any cogent evidence by way of ATM Log / EJ Report, ATM Cash Balancing Report and ATM Switch Report as per Bankers book of Evidence Act pertaining to disputed transaction.
4. Evidence by way of affidavit was filed by OP reiterating the defence taken in written statement and exhibited the Log as ExOP-1/A.
5. Written arguments were filed by both the parties in reemphasis of their respective grievance / defence.
6. Complainant filed details of SMS transcripts of four messages received on 16.03.2015 for Rs. 10,000/- (Rs. 2,500/- each) alongwith certificate under Section 65B of Indian Evidence Act, OP also filed the certificate under Section 65B of Indian Evidence Act in support of the Log filed. OP filed additional affidavit of its Branch Manager pertaining to the non transmission of SMS alerts sent to the complainant with respect to the online e-commerce site transactions entered into between 15.03.2015 and 16.03.2015 on grounds that since the transactions took place late night when bank was closed, posting of all the transactions took place on 16.03.2015.
7. During the course of oral arguments the Forum put certain specific queries to the OP with respect to justification of unauthorized online transaction made from complainant’s debit card on 15.03.2015 prior to his sharing the OTP in line of OPs own defence of complainant having acted negligently in sharing the same with an imposter and compromising his card and secondly what resolution / redressal of the complainant’s grievance was undertaken by the OP in terms of any enquiry or action taken in the respect of the alleged fraudulent unauthorized wrongful transaction. The OP could not produce any cogent defence or put forward any conclusive arguments in regard to either of the queries.
8. We have heard the rival contentions of both the parties and examined the entire material evidence on record and have bestowed our anxious consideration to the same.

It is not in dispute that the complainant is an account holder and debit card holder of OP bank. The dispute arose when the complainant’s debit card was charged with Rs. 35,856.99Paise between 15.03.2015 to 16.03.2015 for e-commerce transactions not having been done by him as per his averment alleging therefore the same to be unauthorized / unlawful use of his debit card which OP has defended itself on grounds of complainant having parted with the secret OTP with an imposter despite warning on the SMS alert and therefore compromised the confidentiality of the said card.

RBI circular dated 06.07.2017 regarding Consumer Protection and limited liability of customer in unauthorized electronic banking transaction mandates that the banks must put in place robust and dynamic fraud detection and prevention mechanism. Further zero liability of customer in case of third party breach in case customer notifies the bank within three working days of suchunauthorized transactions and that the reversal time for such unauthorized transaction is ten working days from such notification by customer. The burden of proof for customer liability in case of such unauthorized electronic transaction shall lie on the bank.The Hon’ble NCDRC in State Bank of India Vs Dr. J.C.S. Kataky III 2018 CPJ 193 (NC) passed on 03.05.2017 which case pertains to similar facts of fraudulent transactions entered into by using complainant’s ATM were before the Hon’ble National Commission for adjudication and the Hon’ble National Commission had framed the key issue for consideration ‘whether it was the duty of the bank to play any meaningful role in the matter when their own customer / complainant had reported to them about the alleged fraudulent transaction from his account on three different occasion on the same day’. The Hon’ble National Commission had held after appreciating extensive arguments led by both sides that it was a duty of bank to have carried out necessary verification in the matter rather than washing their hands off from the whole episode holding the bank guilty of deficiency of service vis-à-vis the consumer/complainant.

The subject matter of dispute is the veracity / authenticity of the disputed transactions in question which the complainant has vehemently denied to have been entered into/done by him between 15.03.2015 and 16.03.2015 during time duration of 21:38PM (15.03.2015) to 09:00AM (16.03.2015) as per OP. The OP bank has in our opinion simply taken a standard stereo typical defence of debit card and secret PIN being in knowledge of the complainant and OTP having been shared with / misused but it is clear from the records before us that OP did not make any effort to investigate into the matter or to assist the complainant to bring the culprits to book despite its own admission in the written statement that the OP “after receiving complaint undertakes enquiry and outcome communicated to customers”. It was the duty of OP being the service provider of the complainant to have looked into the matter to arrive at a logical conclusion but failed in its duty. OP was further utterly deficient in not sending prompt mobile alerts to the complainant for repeated transactions from his debit card which if otherwise had been sent promptly and timely, would have alerted the complainant and averted the possibility of such a mishap.

The RBI Circular No.RBI/2017-18/15 DBR No.Leg BC.78/09.07.005/2017-18 dated 06.07.2017, clause 5 clearly provides that the bank must ask their customers to mandatorily register for SMS alerts and wherever available register for e-mail alerts, for electronic banking transactions. The SMS alerts shall mandatorily be sent to the customers, while e-mail alerts may be sent, wherever registered. (emphasis supplied). No explanation in regard to the said requirement has been offered by OP except a lame bank closure timing defence.It is also not the case of OP that the complainant’s mobile number was not registered for SMS alerts. It is evident that the OP has shown utter disregard and non compliance of the said circular which it was confronted with at the time of oral arguments by this Forum. Thus in our considered view, this lapse on the part of OP in not sending SMS alerts to the complainant for the 7 transactions amounting to Rs. 20,800/- before Rs. 10,000/- transaction provedfatal error and is deficiency of service causing huge financial loss to the complainant. The quantum and magnitude of the loss could have been avoided by OP had OP sent SMS alerts about the wrongful 7 transactions made on 15.03.2015 which would have alerted / cautioned the complainant who then would have immediately got his card blocked and the eventual transaction of Rs. 15,000/- would not have occurred on 16.03.2015.

The Hon’ble National Commission in HDFC Bank Ltd Vs Hemant Narayan Devande III (2017) CPJ 370 (NC) in a case of deceitful transaction made from credit card had observed that an enquiry from the bank only could have revealed that the transaction had be incurred on secured mode using secure login and password but the bank did not check with the merchant about veracity of such transactions which would have giving the lead to make further enquiry into question of deceitful payment and therefore held the bank deficient in service qua the consumer. The Hon’ble National Commission in R Udayasanker Vs Central Bank of India II (2018) CPJ 293 (NC) had held that it has been provided in the Preamble of Consumer Protection Act 1986as well as that the objective of enacting the said legislation is to ensure better protection of the interest of the consumer. Once it is proven from the report of expert that the complainant did not withdraw the money himself, he deserves to be given compensation, keeping in view the facts and circumstances of the case.

9. In view of the settled propositions of law and due appreciation of the evidence placed on record, we are of the considered opinion that there is merit in the present complaint and we hold the OP bank guilty of deficiency of service and dereliction of duty, indifference and utter disregard shown to a serious offence of this nature and grievance of the complainant in failure to initiate any enquiry at any level.
10.  We therefore direct OP to remit back the sum of  Rs. 30,846.99Paise/- (amount being prior to complainant sharing the OTP with imposter resulting in subsequent transaction of Rs. 5,000/-) back to the account of the complainant held with itself alongwith interest @6% thereon from the date of filing of the present complaint till realization. We further direct OP to pay a sum of Rs. 5,000/- as compensation for mental agony and harassment inclusive of litigation to the complainant. Let the order be complied with by OP within 30 days from the date of receipt of copy of this order.  
11.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.  Announced on 20.11.2019. 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member