For the Complainants                     -  Avijit Bhuina,   

For the OPs                                       -Surajit Auddy & Swapnalekha Auddy

FINAL ORDER/JUDGEMENT

SMT. SAHANA AHMED BASU, MEMBER. 

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

Crux of the instant consumer complaint is that the complainants have a joint savings bank account with O.P.-2 being No.11294576677 and two ATM-cum-Debit Card being Nos.5196190108317993 and 5196190108318009 respectively. On 11/10/2017, complainants received a phone call from one Goutam Biswas, who claimed himself  to be the Manager of O.P. Bank for confirmation of KYC of debit cards to update the account, otherwise the Card would be blocked. Under such impression complainants shared their S.B. A/C number and thereafter they received a SMS that Rs.83,966/- was debited from their S.B. account. Complainants lodged a GD Entry being No.883 dated 12/10/2017 to local P.S. and informed the matter to the Bank with a request to take coercive action against said Goutam Biswas. No action has been taken by the bank, the complainants filed an application dated 27/03/2018 under RTI Act to the Commissioner of Police, Barrackpore Commissionerate. Several complaints were lodged with the local police authorities, Branch Manager of the O.P.-2 Bank, Commissioner of Police but all were in vein. Finding no other alternative, the complainants have approached this Forum for getting redressal of their grievance. Hence, this case.

O.Ps.-1 and 2 have contested the case by filing W.V. assailing the maintainability of the instant complaint and also stated that the petition of complaint is vexatious, fabricated and liable to be dismissed for non-joinder or mis-joinder of parties. O.Ps.-1 and 2 has stated that complainants have already admitted that they have shared the secret PIN of the ATM Cards to one Goutam Biswas and received a SMS Rs.83,966/- was debited from their account. The answering O.Ps. are not responsible for any fraudulent transaction. Fraud was practiced upon the complainants. There is no unfair trade practice or deficiency on the part of the O.Ps. Complaint is without merit and liable to be dismissed. 

DECISION  WITH  REASONS

We have heard the Ld. Advocates for the parties  and have carefully gone through the averments in the complaint, written version filed by the O.Ps., evidenced and document son the record.

Before going the merit of the complaint, some preliminary objections have taken by the O.Ps. in course of argument, which are required to be addressed.

They have taken the objection that this Forum does not have the territorial jurisdiction  to entertain this complaint as the complainants maintain joint S.B. A/C No.11294576677 with O.P.-2, S.B.I. Khardah Branch. Therefore, no cause of action has arisen at Kolkata to file this complaint. It is admitted fact  that S. B. Account No.112945766677 is with O.P.-2, SBI, Khardah Branch within the District of North 24 Parganas and Khardah falls within the territorial jurisdiction of DCDRF, North 24 parganas at Barasat. We do not agree with the plea raised by the Ld. Advocate for the O.Ps. on  the ground that they did not raise such plea in their written version. Even the O.Ps. did not file their examination in chief in spite of opportunity given to them. Complainants implicated O.P.-1, SBI, Regional Manager, Region-II who is carrying on business within the territorial jurisdiction of this Forum. Therefore, this Forum has the territorial jurisdiction to entertain this complaint.

It has been further stated that complainants  shared their accounts & ATM Card details including secret PIN top one Goutam Biswas. Complaints lodged, G.D. Entry to P.S. as well as complaint to O.P.-1 about the fraudulent transaction. Duty Officer of Khardah P.S. recorded the version of the complainants vide G.D. Entry No.883 dated 12/10/2017. On perusal of  the copy of G.D. Entry we find that complainants disclosed their ATM Card details to an unknown person. O.P. Bank did not enquire about the complaint of the complainants and liabilities shifted to the complainants. The O.P.-1 Bank cannot escape their liability. The O.Ps. / Bank should enquire about the complaint dated 12/07/2017 how fraudulent  transaction has been made when complaint was lodged immediately. Complainants are the consumers and O.Ps. are service providers Thus, it is a consumer dispute and we do not agree with the plea raised by the O.Ps. that the dispute between the parties is not a ‘Consumer Dispute”.

In course of final hearing Ld. Advocate for the complainants produced Notification of the R.B.I. In Clause-6 of the said Notification RBI clarified Zero Liability of a Customer Stating that :

A customer’s entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events :

i . Contributory fraud / negligence / deficiency on the part of the bank (irrespective of whether or not by the customer) .

 ii. Third party breach where the deficiency lies neither with the bank or nor with the customer but lies elsewhere with the system and the customer notifies the bank within three working days of receiving communication from the bank regarding the unauthorized transaction .

In the Clause 7 of the said notification RBI clarified the Limited Liability of a Customer stating that :

I .In case where the loss is due to negligence by a customer , such as where he has shared the payment credentials , the customer will bear the entire loss until he reports unauthorized transaction to the bank . Any loss occurring after the reporting of the unauthorized transaction shall be borne by the bank .

 ii. Incases where the responsibility for the unauthorized electronic banking transaction lies neither with the bank nor with the customer , but lies elsewhere in the system and where is a delay (of four to seven days after receiving the communication from the bank ) on the part of the customer in notifying the bank of such a transaction , the per transaction liability of the customer shall be limited to the transaction value or the amount mentioned .

In the light of the above notification of RBI, and also on perusal of the evidence and documents on record it appears that the unauthorized transaction took place on 11.07.2017 and the complainant reported the incident  to O.P. Bank on the following on 12/07/2017. We do not find any documentary and testimonial evidence that the O.Ps. take any initiative about the grievance of the complainants. Therefore, we are of the opinion that there is a negligence and deficiency in service on the part of the OPs This gesture of the OPs tantamount to unfair trade practice on their part. We are not inclined to pay any interest on compensation to the complainants as they cannot escape their liabilities by giving Bank Account and ATM Card details to unknown person.

Hence,

Ordered

That the consumer case be and the same is allowed on contest against the OPs with the cost of Rs.5,000/-.

OPs are directed to credit Rs.83,966/- to the S.B. Account No. 112945766677  standing in the names of the complainants within 45 days from today along with litigation cost. 

Complainants shall be at liberty execute the order by filing application u/s-25 & 27 of the C. P. Act,1986 against the O.Ps. if they failed to comply the order within the stipulated period.