Shri Swapan Kumar Mahanty, President.              

This is an application u/s.12 of the C.P. Act, 1986.

Brief facts of the case are that the complainant is the holder of Savings Bank Account Nos.20047532828 and 10930942280 with ATM facilities in the O.P.-2, S.B.I., Northern Avenue Branch, Kolkata. As stated in the consumer complaint, that  on 29/06/2017 one Manoj Kumar Sharma claiming to be the Manager of O.P.-2 telephoned the complainant stating that verification of KYC of ATM Card are conducted for confirmation, otherwise, the card will be blocked. The said Manoj Kumar Sharma asked the complainant to furnish 16 digit number and OTP number. Under such impression, complainant disclosed details of Debit card, four digit PIN number and OTP number to Manoj Kumar Sharma. That on 30/06/2017 complainant noticed that several transaction were made from his S.B. Accounts through Debit Card Nos.4726 4276 2405 4045, 6220 1803 8610 0158 628 and 62201811 3840 0050 974. Total Rs.1,32,000/- was debited from his S.B. Accounts.

Further case of the complainant is that the matter was reported to the concerned Bank as well as local P.S.  in order to recover money which was illegally debited from his S.B. Accounts. In spite of several reminders the O.Ps. did not credit the illegal transaction amount to his S.B. Accounts. Finding no other alternative, complainant filed the instant consumer complaint claiming refund of the unauthorized transaction amount along with compensation and litigation cost.

The O.Ps. have contested the by filing W.V. contending inter alia that the consumer complaint  is not maintainable in fact or in law. The specific case of the O.Ps. is that complainant have two S.B. Accounts with O.P.-2 and obtained three ATM Cards against those S.B. Accounts. That on 29/06/2017 complainant shared 16 digit number of his Debit Card, secret PIN number and OTP. That the alleged transactions took place owing to the complainant’s own laps. Accordingly, the O.Ps. have denied to accept any liability for the same and prayed for dismissal of the case with costs.

Decision with Reasons

            Both parties have tendered E-Chief through Affidavit. They have also filed BNAs.

The Ld. Advocate appearing for the complainant has contended that complainant lodged written complaint to P.S. as well as O.Ps. about  the alleged transactions. The Bank was clearly deficient in service  as they made no efforts to check  the fraud inflicted upon the complainant. He has further submitted that it is the duty of the Bank to take up the matter with the local police and then ensure follow-up with the complainant.

            Per contra, the Ld. Advocate appearing for the O.Ps.  has submitted that the transactions in question could be done only, if the person making the transaction is aware of the Debit Card Number, the expiry date, the PIN as well as the CVV number. Complainant himself admitted that that whole information was given by him to one Manoj Kumar Sharma, claiming to be the Branch Manager of O.P.-2.

            Ld. Advocate for the O.Ps. has further urged that a customer has to come physically to the Bank to take the secret PIN. The cards etc. are sent  by registered post, but the PIN is delivered in person. There is no question on the part of the Bank to ask its customers to furnish 16 digit number of the Debit Card, PIN number and OTP sent to the mobile of the customer. As such, the Bank has no liability for any unauthorized transaction and responsibility  is fully upon the card holder.

            We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

            Undisputedly, the complainant have two S.B. Accounts being Nos. 20047532828 and 10930942280 with O.P.-2. It is also true that the O.Ps. issued SBI Visa Card, SBI Mastro ATM-cum-Debit Card and SBI Mastro Shopping-cum-ATM Card being Nos.4726-42762405-4045, 6220180386100158628 and 6220 181130400050974 in favour of the complainant against those S.B. Accounts.

            The main issue that requires consideration in the matter is whether it is the duty of the Bank to play any meaningful role in the matter when their own customer / complainant has reported them about the alleged fraudulent  transactions from his S.B. Accounts. The Bank has simply taken the plea that once the ATM Card was issued to the complainant and a PIN was provided, it was the duty of the card holder to change the PIN immediately and the Bank is not liable in any manner, if any fraudulent transaction had taken place from that account. The another plea of the Bank is that allegation of cheat, forgery and fraud could not be adjudicated in a summary procedure before the Consumer Forum.

            The Ld. Advocate for the O.Ps. / Bank has drawn our attention to the order passed by the Hon’ble NCDRC in support of his arguments. In the case of Ranjay Trehan Vs. Jagat Motors & Another, passed in First Appeal No.2078 of 2018, the issue involved that  fraud was committed with the complainant regarding sale of a car and the complainant was duped of Rs.17,25,000/-. The facts of the above decision are not applicable  in the present complaint relates to use of ATM Card.

            Further, in Bharti Singh Rathor Vs. Oriental Insurance Co. Ltd. & Others passed in First Appeal No. 591 of 2015, it was observed that if the bills are forged, no relief can be granted to the complainant by the Consumer Forum on the basis of the bills as the Consumer Forum do not have jurisdiction to decide the matter of fraud or deceit. Thus, the facts of the above decision are not applicable in the instant case as forged bills are not involved in the present case.

            On the contrary, the Ld. Advocate for the complainant has drawn our attention to the order passed by the Hon’ble NCDRC and SCDRC in support of his arguments. In the case State Bank of India Vs. Dr. J.C.S. Kataky, III (2018) CPJ 193 (NC) it was observed that once specific POS number had been given in message received from Bank itself to complainant, Bank could have very well verified genuineness of these transactions, after establishing contact with person or merchant establishment in possession of said POS, but nothing of that sort was done by the Bank. As such, bank is liable to make good to the loss.

            In another case, cited by the complainant passed in First Appeal No. A/1238 of 2017 (The Regional Manager, Indian Overseas Bank & Anr. Vs. Abhishek Chowdhury) decided on 25/02/2019, it was observed by the Hon’ble SCDRC that defect of Indian Banking System, hapless customers are robbed of their hard-earned money every now and then. In such circumstances, without providing sufficient proof Banks cannot be allowed to pass the buck upon the customers.

            It is true that  in terms of the RBI guidelines the O.Ps. / Bank are responsible to deal with aforesaid unauthorized transactions and to bear loss when the complainant reported such unauthorized transaction to the O.Ps. / Bank within seven days from such transaction.

            Given the overall set of facts and circumstances  of the case, it becomes abundantly clear that the citations given by the complainant relate to the withdrawal of money from the ATM machine by use of the PIN. The complainant reported such unauthorized transaction to the O.Ps. / Bank on the following day i.e. 01/07/2017. Therefore, it was the duty of the Bank to have looked into the matter to arrive at the truth of the same. Once the complaint is made citing specific incidents of unauthorized withdrawal, it is the duty of the Bank to have carried out the necessary verification in the matter, rather than washing their hands off from the whole episode. Evidently, there is deficiency in service on the part of the Bank in not trying to trace out the transactions in respect of S.B. Account Nos.20047532828 and 10930942280. Thus, the complainant is entitled to get refund the transactions amount along with compensation in the form of interest and litigation cost.

In the result, the case merit succeeds.

Hence,

Ordered

That the complaint case be and the same is allowed on contest against the O.Ps. with litigation cost of Rs.5,000/- (Rupees Five Thousand) only.

            O.Ps. are directed to credit the unauthorized transaction amount of Rs.1,08,000/- (Rupees One Lac Eight Thousand) only  and Rs.24,000/- (Rupees Twenty Four Thousand) only respectively to the S.B. Account Nos.10930942280 and 200475322828 of the complainant along with compensation of Rs.15,000/- (Rupees Fifteen Thousand) only in the form of interest along with litigation cost within 30 days from the date of this order.

Liberty be given to the complainant to put the order into execution, if the OPs transgress to comply the order.