Delhi

North East

CC/267/2016

PRAMOD KUMAR - Complainant(s)

Versus

STATE BANK OF INDIA - Opp.Party(s)

12 Dec 2018

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. 267/16

 

In the matter of:

 

	Pramod Kumar S/o Sh. Suresh Chand R/o House No. B-22, MIG Flats East of Loni Road, Shahdara Delhi-110093.	Complainant
	Versus
1.         2.	State Bank of India Through the Manager G.T.Road, Shahdara, Delhi-110032.   Axis Bank Through its Manager Shastri Nagar, Delhi.	Opposite Parties

 

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

05.10.2016 11.12.2018 12.12.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane to the present complaint as culled out by the complainant therein are that he is working as a librarian in Delhi Institute of Rural Development and his salary is credited in his saving bank account bearing no. 20002021203 held with OP1 bank. The complainant has been given an ATM cum debit card no. 6220180118900095449 by OP1 which he always kept with himself and never parted with the same or shared his PIN with anyone. On 06.11.2015 when the complainant was at home with his family, vide SMS at 04:55 PM on the mobile number of the complainant from OP1 bank, his salary cheque no. 744536 dated 02.11.2015 amounting to Rs. 31,052/- deposited by him on 05.11.2015 was credited in his account. However, between 6:00 PM to 6:04 PM the complainant received four SMSs alerts from OP1 bank on his mobile for withdrawal of Rs. 10,000/- three times and Rs. 1500/- from his account held with OP1 through OP2’s ATM no. AXSTPAN1801 located at Shastri Nagar Delhi. The complainant being shocked at such withdrawals rushed to the nearest ATM of OP1 at Ashok Nagar Shahdara, Delhi to check the available balance in his account and found a sum of Rs. 385/- left therein. The complainant could not use his ATM card since his PIN number was also changed by somebody who had done the above mentioned transactions by using cloned ATM card of the complainant. The complainant called up the toll free number of OP1 and also police help line number 100 but no action was taken. The complainant rushed to the nearest police station Jyoti Nagar, Delhi and lodged a police complaint on the same day at 06:45 PM. The complainant visited the OP1 branch on 07.11.2015 and lodged a complaint with the Manager concerned but was directed to file the same before PS Sarai Rohilla since the matter pertained to the jurisdiction of the said police station.   The complainant got his passbook updated which further reveled that fraudulent transaction had taken place from OP2’s bank’s ATM and also that some unknown person (s) was regularly checking the bank account / balance therein of the complainant from different locations in Delhi and for each such transaction, Rs. 9/- was being deducted by OP1. However OP1 never sent any SMS alert on the mobile of complainant regarding such transaction on his account. Thereafter the complainant visited PS Sarai Rohilla and lodged written police complaint with the concerned SHO vide Diary number 50B and requested them to register an FIR and further investigate into the matter to book the culprits who had committed the fraud of cloning the ATM card of the complainant. The complainant has further submitted that with the assistance of police, OP2 provided CCTV footage of its ATM  in which the timing of disputed transaction is totally different from the time the Messages have been sent on complainant’s mobile by OP1 in as much as, as per the SMSs the transactions are between the period 6:02 to 6:04 PM on 06.11.2015 whereas in the video footage it is between 06:06 PM to 06.10 PM. The complainant further made a written complaint to OP1 bank on 09.11.2015 with respect to the alleged fraud committed by some unidentified persons and asked for video footage of OP1 ATM located at Ashok Nagar, Shahdara Delhi between 06:00 PM to 07:00 PM when the complainant had gone to check his balance to justify his presence therein but the said footage was never provided by OP1 for which the complainant has alleged negligence and deficiency on part of OP1. The complainant submitted his complaint with DCP EOW, Delhi Police on 10.11.2015 and 05.02.2016 but no action was taken by the agency. The complainant wrote several e-mails to OP1 through its chairman on 10.12.2015, 08.03.2016 and 09.05.2016  but no action was taken by OP1. The complainant wrote e-mails to OP2 and OP2 vide reply e-mail dated 25.01.2015 asked the complainant to coordinate with OP1 regarding the fraudulent transactions. Meanwhile the complainant approached the Banking Ombudsman on 19.12.2015 and lodged a complaint on its Form of complaint in Annexure-A whereby notices were issued to both OPs and the banking ombudsman was provided photograph of the unscrupulous person fraudulently withdrawing cash by using cloned ATM card of the complainant on the giving date. OP2 failed to provide clips of the last transaction of Rs. 1500/- and therefore vide order dated 21.12.2015 passed by the banking ombudsman,  Rs. 1500/- was credited back to the complainant’s account. The complainant has further stated that the OP1 has failed to upgrade its security to prevent fraud as mentioned in the present case as also failed to provide video footage of its ATM at Ashok Nagar, Shahdara and further its inability to sent message alert for Rs. 9/- debited from the account of complainant several times from 31.10.2015 to 16.11.2015 are exemplary of deficiency of service since such a fraud could have been averted but for the negligence of the OP1. The complainant lastly stated that the discrepancy between the video footage and the photographs as can be seen in the CD provided by OP2 before PS Sarai Rohilla and proceedings before banking ombudsman is also an example of deficiency of service on the part of OP2. In the video footage / digital photo there is marking of fourth transaction and change of PIN of ATM card in question and no investigation was done for the transactions and curiously transaction no. 1017 is missing from the JP Log since the entire series of transaction from 1016 to 1022 are done from the ATM card of the complainant for cash withdrawals (four times), statement print and lastly PIN changed despite the fact that the suspected person remained inside the ATM from 06:02 to 6:04 PM. The complainant issued a legal notice dated 27.08.2016 through his counsel to both the OPs for refunding back the sum of Rs. 30,000/- alongwith damages but was unheeded to by both the OPs despite receipts. Therefore the complainant was constrained to file the present complaint praying for issuance of directions to the OPs to credit back the amount of Rs. 30,000/- in his account alongwith the interest @ 18% from the date of claim till payment, pay  Rs. 50,000/- as compensation for mental agony and harassment and Rs. 20,000/- as cost of litigation.

Complainant has annexed copy of passbook entry highlighting the disputed withdrawals and Rs. 9/- deducted several times from his account held with OP1 for cash enquiry, copy of transaction details of disputed withdrawals provided by OP2, copy of JP Log, copy of police complaint dated 06.11.2015 to PS Jyoti Nagar, Delhi, copy of police complaint dated 07.11.2015 to PS Sarai Rohilla, Delhi, copy of complaint dated 09.11.2015 by the complainant to branch manager of OP1, copy of complaint dated 10.11.2015 to DCP EOW Delhi Police, copy of complaint dated 10.12.2015 to CMD of OP1 by the complainant, copy of e-mail dated 25.01.2016 by OP2 to complainant for coordinating with OP1, copy of e-mail dated 05.02.2016 by complainant to DCP EOW for investigation in his fraud transaction case, copy of e-mail dated 08.03.2016 by complainant to chairman of OP1 for action to be taken regarding his complaint, copy of e-mail letter dated 09.05.2016 by complainant to chairman of OP1 for investigation and action in his complaint, copy of complaint lodged by the complainant with banking ombudsman on 19.12.2015, copy of order dated 21.12.2015 passed by banking ombudsman for release of 1500/- in favour of complainant, copy of legal notice dated 27.08.2015 with postal receipts and copy of CD of CCTV Footage procured by the complainant from OP2 alongwith certificate under Section 65B of Indian Evidence Act, 1872.

2.  Notices were issued to OPs on 07.10.2016. OP2 entered appearance on 10.11.2016 and received copy of complaint but never appeared thereafter and was therefore proceeded against ex-parte vide order date 20.03.2017. OP1 filed its written statement on 19.01.2017 in which while admitting the complainant being its saving account holder and also holder of ATM card in question took the preliminary defence that the four transactions in question vide transaction no. 1016, 1018, 1019 and 1020 were for the withdrawal of Rs. 31,500/- and accordingly the complainant’s account was debited to that effect and further urged the matter in question required investigation by police agency since there were alleged elements of card cloning, fraud and change of PIN number. OP1 further submitted that without insertion of secret PIN number, no transaction is possible and the system is controlled from centralized switch centre and not by the OP1 branch. The OP1 denied any deficiency of service with regard to non provision of CCTV footage or message generation / flashing after transaction in its defence and prayed for dismissal of the complaint. OP1 has filed statement of account and transaction memo highlighting the cash withdrawals through ATM and balance enquiry of Rs. 9/- seven times from 04.11.2015 to 06.11.2015.
3. Rejoinder was filed by the complainant in rebuttal to the defence taken by OP1 in which the complainant reiterated his grievance in the complaint and negated the defence taken by OP1 by submitting that the transaction were made by using cloned ATM card of the complainant as well as the ATM PIN for which the OP1 bank never intimated the complainant about the transaction made or his account being repeatedly checked by unscrupulous person even before the date of alleged transaction. The complainant further submitted that the police investigation is a separate process and OP1 is deficient in not providing the CCTV footage of its Ashok Nagar ATM for 06.11.2015 when the complainant had gone to make the balance enquiry.
4. Evidence by way of affidavit was filed by the complainant exhibiting CW1/1 to CW1/11 being documents filed along with the complaint. The complainant filed an application for issuance of direction to OP1 to provide CCTV footage of 06.11.2015 between 06:00 PM to 7:00 PM at its ATM located at Ashok Nagar, Shahdara and OP1 replied thereto raising objection that the same was not relevant and otherwise also not available at that stage. The said application was heard on 21.12.2017 in which this Forum was of the view that since the disputed transaction with respect to the ATM were made at the ATM of OP2 which was Ex-parte in the present case the CCTV footage of it being available on record, the application was without merits and having no bearing on the case and was therefore disposed of as not pressed.
5. Evidence by way of affidavit was filed by OP1 reiterating its defence taken in written statement of no deficiency of service and valid cash withdrawals using authorized ATM card and PIN without which it is not possible to enter such transaction and exhibited the statement of account and transaction memo.
6. Written arguments were filed by both the parties in reinforcement / reemphasis of their respective grievance / defence. Complainant has filed RBI circular dated 06.07.2017 regarding consumer protection and limited liability of customer in unauthorized electronic banking transaction in which the banks must put in place robust and dynamic fraud detection and prevention mechanism. Further zero liability of customer in case of 3^rd party breach in case customer notifies the bank within three working days of such               unauthorized 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.  Complainant placed reliance on the judgment of Hon’ble NCDRC passed in State Bank of India Vs Dr. J.C.S. Kataky III 2018 CPJ 193 (NC) passed on 03.05.2017 in which on 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 laid 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.
7. We have examined the entire material on record, viewed the CD of the CCTV footage and given a thoughtful consideration to the arguments advanced before us.

It is not in dispute that the complainant was an account holder of OP1 bank and also its ATM card. 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 and as can be seen from the CCTV footage provided by OP2, he is not present at the ATM at the time of transaction on 06.11.2015 at 6:00 PM. The OP1 bank has in our opinion simply taken a standard stereo typical defence of ATM card and secret PIN being in knowledge of the complainant and likelihood of it being shared with / misused but it is clear from the records before us that OP1 did not make any effort to investigate into the matter or to assist the complainant to bring the culprits to book. It was the duty of OP1 being the service provider of the complainant to have looked into the matter to arrive at a logical conclusion but failed in its duty. OP1 was further utterly deficient in not sending mobile alerts to the complainant for repeated account checking from various locations in the month of October – November 2015 which if sent, would have alerted the complainant and averted the possibility of such a misshape. 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.

8. 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 OP1 bank guilty of deficiency of service and dereliction of duty, in different shown 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. As regards OP2, there is no privity of contract with complainant as per the law laid down in the judgment of Hon’ble National Commission in Chenaram Vs Oriental Bank of Commerce & Anr. II (2016) CPJ 613 (NC) in which the Hon’ble National Commission had held that since the complainant had no account with SBBJ, he was not a consumer of that bank and had no privity of contract with it and therefore was not entitled to approach the District Forum against the SBBJ by way of consumer complaint. Therefore in view of the settled law, no relief to the complainant can be granted against OP2 in the present case. 

We therefore direct OP1 to remit back the sum of Rs. 30,000/- back to the account of the complainant held with itself alongwith interest @9% thereon from the date of filing of the present complaint till realization. We further direct OP1 to pay a sum of Rs. 10,000/- as compensation for mental agony and harassment and Rs. 10,000/- towards the cost of litigation to the complainant. Let the order be complied within 30 days from the date of receipt of copy of this order.

9. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.  File be consigned to record room.
11.  Announced on 12.12.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member