Sri S.K.Sahoo,President.
This is a case U/s.12 of C.P.Act,1986 filed by the complainant.
2. The case of the complainant is that he is a consumer of the opp.party, being an account holder bearing S.B A/C. No. 31455956321. There is net banking system in the said account. The complainant came to know that fraud has been committed on his account on 27.01.2018, 28.01.2018 and 29.01.2018.She came to k now the same on 30.01.2018. On inquiry it is ascertained that there were two number of withdrawal of Rs.400.00 each on 27.01.2018 and on 28.01.2018/Again there was five withdrawals amounting Rs.800.00, Rs.2300.0, Rs.7900.00, Rs.4000.00 and Rs.4000.00 and two withdrawals each amounting Rs.7900.00 on 29.01.2018. All the withdrawals were made without the knowledge of the complainant. Soon after the incident complainant submitted a report to the opp.party and requested him to block the account. She also lodged written report at Nalco Township P.S on 01.02.2018. Annexure- A is the photo copy of the said F.I.R. The complainant approached the Ombudsman , who without any inquiry and application of judicial mind rejected the claim of the complainant. Annexure- B is the photo copy of the said order. The complainant has neither received any O.T.P in her registered mobile number nor disclose anything about the net banking to the 3rd party. The complainant sustained loss of Rs.31,200.00 . The opp.party refunded Rs.4,400.00 on 31.01.2018 and on 01.02.2018 by reverse credit i.e the transaction made on 27.01.2018 and 28.01.2018. The opp.party No.1 has closed the complaint of the complainant on 21.02.2018. Hence this case.
3. Inspite of notice, the opp.party did not file his written statement in time, only on 18.07.2021 the opp.party has filed written statement which was not accepted as it was filed after two and half years. On 22.06.2023 i.e on the date of judgement the opp.party has filed the affidavit evidence of the Chief Manager of opp.party , which is also not taken into consideration.
4. Admittedly the initial onus is on the complainant to prove her case. The complainant has got his savings bank account No. 31455956321 with the opp.party’s Bank. It is also admitted that she has availed the online banking system from the opp.party’s bank . She alleged fraud on her account on 27.01.2018 ,28.01.2018 and 29.01.2018. It is also the case of the complainant that due to such fraud in the alleged dates she sustained a loss of Rs.31,200.00 but the total amount was Rs.35,600.00. According to her the opp.party has refunded Rs.400.00 on 31.01.2018 and Rs.4,000.00 on 01.02.2018 by reverse credit to her account but inspite of several approach the opp.party did not return the rest of the amount i.e Rs.31,200.00. The complainant had approached the Ombudsman of the opp.party’s bank who illegally rejected the claim of the complainant. Annexure-B is the photo copy of the The Banking Ombudsman Scheme 2006. Admittedly the complainant has reported about the alleged fraud to the opp.party’s bank soon after the fraud came to her knowledge on 30.01.2018. It is also clear that the complainant has lodged an written report before Nalco Township police station which was registered as F.I.R No. 0010 dtd. 01.02.2018. Annexure-A is the photo copy of the said F.I.R. In the said F.I.R she has alleged that an amount of Rs.35,600.00 from her account was taken away by fraud . Without any OTP or a debit message in online transaction. The IIC Nalco P.S registered the case U/s. 420 I.P.C as accused unknown the learned counsel of the complainant during argument submitted that the I.O has filed F.R.T in the said case as no clue. He failed to file any documents to support the aforesaid submission. The complainant has not filed the order passed by the Ombudsman, although he has mentioned in his complaint petition that without applying his judicial mind, the Ombudsman rejected her claim. Annexure- C is the photo copy of the statement of account which shows the transactions in the account of the complainant from 27.01.2018 to 01.02.2018 . On perusal of the aforesaid statement of account it appears that one Times of Money LTRF has withdrawn the money from the account of the complainant and transferred to some other accounts. Prima facie it appears that the complainant has not withdrawn the alleged amounts by internet banking and transferred the same to other accounts. The Learned Counsel for the complainant relied on paragraph- 12 of the guideline of Reverse Bank of India bearing No. RBI/2017-18/15 DBR No. Leg. BC 78/09.07.005/2017-18 . He argued that all the material documents and informations are with the opp.party’s bank , who has not produced the same before this Commission during hearing. He further submitted that only after two and half years of the institution of the case the opp.party filed the case when the case was posted for hearing, for which the Forum/ Commission has rightly rejected the same. It is also argued by the Learned Counsel for the complainant that the opp.party has not led evidence at all ,although his complaint petition is supported with affidavit. He has also relied on a decision reported in Punjab National Bank and another Vrs. Leader Valves II(2020) CPJ 92(NC) in which the Hon’ble National Commission, New Delhi while addressing the question of liability of a bank in case of unauthorised and fraudulent electronic banking transactions, has observed as under :-
"11. The first fundamental question that arises is whether the Bank is responsible for an unauthorized transfer occasioned by an act of malfeasance on the part of functionaries of the Bank or by an act of malfeasance by any other person (except the Complainant/account-holder). The answer, straightaway, is in the affirmative. If an account is maintained by the Bank, the Bank itself is responsible for its safety and security. Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the consumer/account-holder), is its responsibility, and not of the consumer."
On perusal of paragraph-12 of the aforesaid guideline of the R.B.I , it is clear that when the transaction is made by 3rd party the burden of prove is on the bank to prove the customers liability in case of unauthorised electronic banking transaction. The complainant has reported about the alleged fraud to the opp.party soon after the incident. As per the R.B.I guideline the complainant should report about the fraud within three working days from the alleged unauthorised transaction . So the complainant has reported about the fraud to the opp.party in time. The complainant has proved her case. From the materials in the record it is clear that the opp.party has not produced the material documents which are normally in possession of it . The non-production of such material documents in possession of the opp.party during the hearing or at the time of argument creates adverse inference towards its case. The opp.party failed to discharge the onus on it . So after analysing the materials on record it is clear that there was fraud in the account of the complainant by 3rd party through internet banking, for which the opp.party is held liable. Hence the opp.party also liable to compensate the loss caused to the complainant along with damaged.
5. Hence order :-
: O R D E R :
The case be and the same is allowed on contest against the opp.party. The opp.party is directed to pay an amount of Rs.31,200.00 (Rupees Thirty One thousand Two Hundred ) only along with interest @7% per annum from 29.01.2018 till payment is made . The opp.party is further directed to pay a compensation of Rs.15,000.00 (Rupees Fifteen Thousand ) only to the complainant along with Rs.10,000.00 towards litigation cost. All the aforesaid amount should be paid by the opp.party within one month from receipt of this order, failing which he is liable to pay the aforesaid amounts along with penal interest @ 9% per annum till payment is made.
