JUDGEMENT

          Complainant by filing this complaint has submitted that he is an employee of The West Bengal State Co-operative Marketing Federation Ltd. (Benfed) and their Disbursement of monthly salary is under Salary Package Scheme of State Bank of India, Triangular Park Branch and his S.B. A/C No. is 20065032722 and ATM Card No. is 6220180179900025901.

          That on 21.11.2010 complainant’s credit balance was Rs.20,522/- and he tried to withdraw Rs.6,000/- through ATM No. S10BOOOO18019 of Santoshpur Kolkata but incidentally no money came out and not even printed statement and due to machinery failure he tried to get the money from Garfa ATM No. S10BOOOO18038 and S10AOOOO18019.  But that time also no money came out but he got a printed statement.

          For the above reasons on 22.11.2010 he attended concerned Bank Branch to withdrawn money of Rs.16,000/- from their cash counter but they refused to give money for the reason best known to them.  So, on 23.11.2010 while he raised a complaint and got docket No.1797743992PLZ and they also sent massage on 24.11.2010 advising him not to lodge diary with local P.S. until information received from their end.  So on 30.11.2010 as per their instruction, he paid a visit to their Control Room and putting his ATM No. and onward search, a printed cash transaction statement was received wherefrom it was observed that an amount of Rs.6,000/- was withdrawn from Ballygaunge ATM (5610) and after a gap of three minutes time Rs.20,000/- was withdrawn from Santoshpur ATM (2266) 011 on the same day i.e. 21.11.2010.

          That it is to be mentioned that distance of Ballyguange ATM and Santoshpur ATM could not be covered by three minutes by a human being and above all he got no money from the said ATM’s at all.  Thought complainant made so many complaint but no result was achieved.  But subsequently after continuous persuasion individually the banker sent a video footage to establish the cheating/fraudulent withdrawal which is illegible and seems to be the work of Detective Department to recognize and to bring the culprit into book, this video footage was shown not of the existence of the complainant but some other person.  Subsequently on 23.11.2010 they called the complainant and gave him a cheque of Rs.10,000/- and not Rs.20,000/-.  But fact remains somehow or otherwise by fraudulent method the amount was withdrawn and after considering the video footage bank tried to recover it but later at the end of August-2011 through internet said banker again sent a photograph which belongs to a different ATM No. i.e. SI0C, 18031 instead of SI0B, 18031 which complainant operated on 21.11.2010.

          Practically complainant lodged a complaint before the Banking Ombudsman on 19.11.2011 for redressal but the Banking Ombudsman rejected the complaint u/s13© of B.O.S.-2006 and further complainant waited much for getting result but Banking authority only by paying of Rs.10,000/- did not pay any heed and practically for the act of deficiency and negligent manner of Banking authority, the said amount was withdrawn fraudulently  and for which the complainant prayed for refund of the said amount of Rs. 20,000/- and for redressal.

          On the other hand op by filing written statement submitted that complainant used the ATM Card being No. 20180179900025901 having SBI A/C No. 20065632722 and fact remains complainant gets a monthly salary under Salary Package Scheme of State Bank of India, Triangular Park Branch is a matter of record which is not disputed.  On 21.11.2010 complainant intended to withdraw Rs.20,000/- so he went to Santoshpur ATM Counter  bearing No. S10B000018031 and encashed Rs.20,000/- from the said ATM by using his ATM Card and they he went to Ballyguange ATM Counter on the same day and encashed Rs.6,000/- from the said ATM Counter bearing No.5610.

          That the complainant’s transaction with the bank was successful and the pin no. of the ATM card was with him, so no other person can encash the money belong to him.  Moreover transaction was done by him.  Further it is submitted that complainant filed a complaint before the P.S. on 03.12.2010 vide No.258/2010 and FRT was submitted on 31.07.2011 and the delay in registering complaint by the complainant speaks that he is at fault and he was harassing the bank for which bank had nothing to do and the prolonged silence of the op is not a fact but complainant used this 4 digit identification number and as customers of the bank got access in to the ATM enclosure and no one can operate ATM machine without those 4 digits identification number and there is magnetic strip containing the card holders details and the card can be used to gain entry into ATM enclosure by swiping it in access lodge.

          So, the present complaint is completely false and it is specifically mentioned that the op no.2 is the custodian of the money kept by the customers and it is a largest nationalized bank which has millions of customers and everyday millions of transactions are done through the op bank and the amount is withdrawn by the complainant as the transaction showed by the op no.2 shows it was complete.  Then there is no callousness on the part of the op.

          Further it is submitted that op no.2 has been maintaining enough vigilance and safety of the money kept with them by the consumers like the complainant and the onus of such loss suffered by the complainant lies with him only and there is no cheating and fraud by the op and the money kept in the ATM accounts are not vulnerable and there is no deficiency of service u/s 2(g) of C.P. Act 1986 on the part of op no.2.

          So, in the above circumstances the present complaint should be dismissed because complainant has failed to prove any fault by any means the deficiency and negligence on the part of the op.

                                                        Decision with reasons

          On proper evaluation of the entire argument as advanced by the complainant and the op and also considering the complainant’s written version including the ATM transaction, it is found that on 21.11.2010 at 10:31:27 hours Rs.20,000/- was withdrawn from their ATM No. S10B000018031 and on the same date at about 10:28:19 hours a sum of Rs.6,000/- was withdrawn from ATM No. S10A000018002 and op has alleged as because the ATM card is within the custody of the complainant and PIN Code is in the memory of the complainant then invariably he used the ATM card and PIN Code number for which the said amount was withdrawn as successful transaction and then it is the duty of the complainant to prove that there was deficiency or negligence on the part of the op.

          Practically in this case as usual manner op has tried to convince by submitting some plea as taken in other cases by citing a ruling reported in 2011 CPR 22 (NC) and argued that it is not possible for any unauthorized person to withdraw money from the ATM without using ATM card and ATM PIN Code.  So in the present case complainant’s plea to that effect that some unknown persons withdrew it, is completely false and fabricated.

          But in this case the complainant submitted that for the sake of the argument if it is accepted that both the transactions were successfully transacted then for what reasons in respect of transaction from ATM being No.S10A000018002 Branch Code 1799 Rs.6,000/- was withdrawn, but that was subsequently reversed to the complainant’s account.  But in respect of that matter in the written statement, there is no whisper.  But then complainant took the copy of the bank account when it was found that Rs. 6,000/- is shown as withdrawn on 21.11.2010 and subsequently it was re-deposited on the same day.  Then complainant’s allegation is that he did not withdraw the amount of Rs. 6,000/-from any ATM, though he tried to withdraw it that has been proved. 

          Then it is clear that some unknown persons attempted to withdraw Rs. 6,000/- and when he failed to transact properly, it was shown as withdrawn and subsequently when bank authority realized that some illegality in respect of withdrawing was detected, then and there the transacted amount was reversed to the account of the complainant.  Then it is clear that complainant’s version in respect of that he did not withdraw though it was shown as withdrawn is correct and bank in their written statement did not say anything, only said that it was successful transaction.

          Ultimately it is found from the bank statement that Rs.6,000/- has been reversed to complainant’s account then it can be said that in respect of that there was hand of some unknown persons who attempted it and that was fraudulent transaction but bank authority is silent.  But at the time of advancement of the argument and by filing another written statement, they tried to say that due to some technical problem transaction became unsuccessful and accordingly the said Rs.6,000/- was reversed to the complainant’s account.  But anyhow the op at the time of advancement of argument submitted that ATM No.S10A000018002 and ATM No. S10B000018031 are situated in same kiosk (Santoshpur) as on 21.11.2010.

          But in this regard it is proved that the alleged defence of the op that complainant withdrew both the amount by using ATM card is proved false because in respect of transaction of Rs.6,000/- through ATM No.S10A000018002 is found unsuccessful and it was initially shown as deducted from the account of the complainant.  Thereafter it was reversed stating that there was some technical problem and it was unsuccessful operation.  But truth is that complainant first used ATM No.S10B000018031 and he failed to withdraw the same and incidentally no money came out and not even any printed statement.  But peculiarities is that from another ATM which was situated side by side of the present machine a sum of Rs.6,000/- was shown as withdrawn that is at about 10:28:19 hours.  But complainant has alleged that he never used ATM No.S10A000018002.  In this context we have gathered that bank authority that is op no.2 has taken only one plea and that is common and there is no other plea that money cannot be withdrawn by the unauthorized persons without using ATM card and ATM Pin Code and moreover the transaction slip supports that transaction was successfully made.

          When that is the fact then complainant must get benefit.  But anyhow in this case bank supplied video footage and tried to show that some unknown persons withdrew it.  But anyhow the op denied that fact.  But whatever it may be, considering the entire materials, it is undisputed fact that complainant did not withdraw any amount of Rs.6,000/- from ATM No.S10A000018002 and if that is the fact then how ATM transaction slip reflects that Rs.6,000/- was withdrawn at about 10:28:19 hours.

          Then it is clear that amount was withdrawn by some unauthorized persons and invariably complainant at the relevant time was using the ATM No.S10B000018031 for withdrawing Rs.6,000/-.  But ultimately he failed to withdraw it.  When he left the said Kiosk then question is if any unauthorized persons managed to withdraw of Rs.6,000/- as per ATM transaction slip from ATM No.S10A000018002 on 21.11.2010 at about 10:28:19 hours.  Then invariably it can safely be presumed that fellow subsequently after departure of complainant from ATM No. S10A000018031 further amount of Rs.20,000/- withdrew and practically when the complaint was lodged by the complainant to the op about such ATM then op forthwith returned Rs.10,000/-.  But the reasons for returning of Rs.10,000/- is explained otherwise in the written statement.  But anyhow the op has failed to give any satisfactory explanation in respect of withdrawal of Rs.6,000/- from the said ATM.

          After considering the entire fact and particularly fraudulent withdrawal of Rs.6,000/- and subsequently reversed of the said amount to the account of the complainant by the op we are convinced that in the present case at the time of operating the ATM No.S10B000018031 by the complainant the perpetrator captured the complainant’s data from the magnetic card during transaction when another ATM was side by side and that is common form of hacking and also by trapping that perpetrators managed to withdraw Rs.6,000/-.

          But anyhow that was subsequently returned to the account of the complainant by the op.  Then invariably it is clear that the story of the op that Rs.6,000/- was not successful and transaction is completely false because ATM transaction slip submitted by the op shows that Rs.6,000/- was withdrawn and it was successful transaction then it is clear that some hackers somehow or otherwise withdrew Rs.6,000/- from the account of the complainant by using another machine which was situated at Kiosk of Santoshpur Branch.

          The very perpetrators of bank stole the card and used it fraudulently to withdraw from the same premises and in this case such type of hacking was adopted by the perpetrators which is proved from the fact that the perpetrators also withdrew Rs.6,000/- at about 10:28:19 hours on 21.11.2010 from ATM No.S10A000018002 and in respect of that bank is silent and they already reversed that amount to the account of the complainant stating that it was unsuccessful transaction.  But that is not correct and false statement in view of the ATM transaction slip submitted by the op.

          So, it is clear that subsequent transaction was also followed by same persons and video footage as given by the op also supports that some other person was there in the ATM but not the complainant.  So, considering all the above fact we are convinced to hold that the perpetrators collected by data and PIN Code during transaction of the complainant there at 10:28:19 hours on 21.11.2010 and in fact during that time another ATM was used by the perpetrators and they successfully withdrew Rs.6,000/-.  But bank has tried to show that it is unsuccessful transaction but bank’s own document supports that Rs.6,000/- was withdrawn but bank refunded to the account of the complainant.  It simply proves that fraudulent transactions were made by the said hackers from the ATM No.S10A000018002 and S10B000018031.

          Now after considering the entire materials we are confirmed that the perpetrators however managed to withdraw it by adopting modern technology as hacker.  But it is not within the knowledge of bank administration and fact remains that the hacker withdrew it by adopting skimming and scanning process and by placing scientific devices and in this case it is proved apparently that perpetrators withdrew it and they were successful after departure of the complainant by using the ATM that had been used by the complainant initially.  After consulting the ATM transaction slip, it is found that hackers were in the another ATM when other ATM was used by the complainant and they managed to collect somehow the entire data by applying all devices.  Anyhow fact remains that op bank has not submitted any such document to the effect that anti-devices are fixed with all the ATM in the particular case which was placed for checking any fraudulent transaction and no in build chip cards and FLS are used by the banking authority for checking fraudulent transaction.

          Moreover bank has not supplied any such document before this Forum to the effect that during operation of ATM anti devices were fixed.  Then we are convinced after considering the present fact and circumstances that ops’ entire plea is based on the ruling of National Commission and State Commission but they have their no technical knowledge and fact remains that that there is no such certificate issued by the Bank Authority that against the present two ATM Machines to check the fraud and card skimming they have expanded their network by migrating towards embedded chip and FLS.  Fact remains all these matters are not in the mind of administration of bank though more and more technologies are being invented by the hackers who are not simple thief but most intelligent thief but they are operating the ATM without any pin code.  In this case the perpetrators adopted such scientific procedure by hacking even after not getting the original ATM Card and Pin Code but the hackers withdrew it by adopting the skimming process and other process by placing scientific devices, bank against the present two orders to check the fraud and card skimming they have migratory transaction and FLS in India practically all those matters are committed as hackers.  So, the present technology must be regularly taught by the bank authority but bank is quite silent about that but they are only relying upon the order of National Commission and State Commission but fact remains that technologies are very sharp, than that of the rulings and hackers are more intelligent than that of such sort of plea as taken by the bank in all the cases.  It is mandatory for the bank to submit such certificate that anti-devices are used in the ATM and fact remains that bank does not know those process about safety and security of the ATM but smooth security and the devices must be fixed and for absence of anti devices hackers are operating the ATM in absence of ATM card and Pin code.

          On thorough study of different books of ATM fraud and securities and also different types of anti devices which are used by the different countries we are astonished that Banks are not thinking over such matter for proper safety of the customer and no doubt in this regard the Indian Bank is very poor and truth is that in this case the perpetrators (hackers) attempted at large to withdraw money during transactions hours when complainant was present on another machines in same room.

          No doubt in this case the bank authority has shown their poor performance and truth is that the perpetrators attempt was successful and they withdrew money of Rs.6,000/- and Rs.20,000/- from same Kiosk but from different machine after unsuccessful transaction of the complainant and another machine after departure of the complainant from the said Kiosk.  Moreover considering the fact of reverse of Rs.6,000/- in respect of one successful transaction in the name of complainant and refund of Rs.10,000/- out of Rs.20,000/- have also given.  Then the Forum believes that there was hand of hacker by whom fraudulent transaction was made.  So, bank also returned Rs.10,000/- in its bank account in respect of one fraudulent transaction in respect of Rs.20,000/-, thereafter it has been deducted.  But truth is that deficiency was on the part of the op which is proved from the first transaction also.

          Another factor is that the entire materials on record and the above findings are sufficient to hold that bank administration has failed to prove that ATM system had anti fraud technologies and same are applied for skimming resistance that is safeguards and FLS regarding ATM card holder there is no protection for which it has been submitted by the bank authority and regarding safety of the ATM in the particular case is found that highly questionable and practically there is no safety of the ATM.

          Nowadays another problem has been cropped up practically the ATM mechanics used by the bank for repairing the ATM are engaging perpetrators by supplying their technological knowledge in withdrawing money from ATM and nowadays they are most dangerous regarding safety of the ATM.  But bank is quite silent in their hand there are some rulings and bank has thought that safety of ATM may be saved by those rulings but it is unfortunate.  Truth is that in this case safety has been frustrated by the skimmer or perpetrators within the knowledge of the bank.

          In the light of the above observation we are convinced to hold that bank authority are negligent to give protection in respect of ATM and also to the card holders for which practically on two occasions Rs.6,000/- and Rs.20,000/- were fraudulently withdrawn by the perpetrators by adopting scientific technologies and so the complainant is entitled to get back the entire amount of Rs.20,000/- including interest @ 8% p.a. from the ops for negligent and deficient manner of service on the part of the op which is well proved when negligence on the part of the ops are well proved and at the same time there is no safety and security in the ATM particularly in respect of the machine we are well confirmed.  In the situation bank authority is directed to be more careful in future and to train their staff, administration who are controlling the ATMs, so they may apply safety technology for the ATM otherwise bank shall be committed in their defence by procuring two or three judgements of National Commission or State Commission.  But fact remains technology adopted by common field hackers cannot be controlled if anti-fraud technology is not applied in each and every ATM.

          In the result, the case succeeds.

          Hence, it is

                                                              ORDERED

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

          Ops are jointly and severally directed to pay the entire amount of Rs.20,000/- with 8% p.a. interest from the date of fraudulent withdrawal of the money by hacker from the ATM and same shall be refunded to the complainant against his present bank account by the of ops within 15 days from the date of this order failing which ops jointly and severally shall have to pay punitive damages of Rs.10,000/- for adopting unfair trade practice and not to decide the complainant’s claim by applying scientific methods even then if it is found that ops is reluctant to comply the order in that case penal proceeding shall be started against the op for which they may be penalized u/s 27 of CP Act 1986